      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be
                                                                              Sep 19 2018, 9:27 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                CLERK
                                                                              Indiana Supreme Court
      the defense of res judicata, collateral                                    Court of Appeals
                                                                                   and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                       Curtis T. Hill, Jr.
      Kokomo, Indiana                                          Attorney General of Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lance Pruitt,                                            September 19, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-224
              v.                                               Appeal from the Howard Circuit
                                                               Court
      State of Indiana,                                        The Honorable Lynn Murray,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               34C01-1604-F3-76



      Mathias, Judge.

[1]   Lance Pruitt (“Pruitt”) was convicted in the Howard Circuit Court of two

      counts of Level 3 felony robbery and two counts of Level 3 felony criminal


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018               Page 1 of 16
      confinement for robbing the same bank twice, first in 2014 and again in 2016.

      On appeal, Pruitt argues that the trial court lacked probable cause to issue the

      search warrant police used to obtain a sample of his DNA and that the evidence

      obtained through the warrant should have been suppressed. He also argues that

      his aggregate sentence of thirty-two years of incarceration was inappropriate.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the morning of October 24, 2014, the North Washington Street branch of

      the BMO Harris Bank in Kokomo was robbed. At trial, Derrell Muhammad

      (“Muhammad”) testified that he had driven Pruitt to and from the bank and

      that Pruitt had entered it and performed the robbery, which the two had

      planned together. Tr. Vol. II, p. 250; Tr. Vol. III, pp. 3–5.


[4]   The bank employees described the robber as a black male, around six feet tall,

      with a thin build, who brandished a silver semiautomatic handgun. They

      related that the robber told them to lie on the floor, handed a red cloth bag to

      one teller, and told her to fill the bag with money from her cash drawer. When

      the teller had some difficulty opening her drawer, the robber accused her of

      only pretending not to be able to open it, and chambered a round of his pistol in

      a threatening manner. The robber also told the teller that if she put any dye

      packs in with the money, he would return. The robber left the bank with around

      $9,100.00




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 2 of 16
[5]   Reviewing the bank’s surveillance video, Kokomo Police noted that the robber

      wore dark pants, a black hooded sweatshirt with white dots and trim, some

      kind of cloth over his face, sunglasses, and black gloves with Nike logos. Police

      also noted that the robber held the gun in his left hand. While searching the

      area near the bank for the suspect, police found several articles of clothing lying

      on the side of road near the intersection of Fischer Street and Webster Street in

      Kokomo, around two blocks from the bank. Muhammad would later testify

      that Pruitt threw these items from Muhammad’s girlfriend’s car as he drove

      Pruitt away from the bank. Tr. Vol. III, pp. 5–6. Included in these articles of

      clothing were a sock cap and black Nike gloves, which investigators sent to the

      state police lab for DNA testing.


[6]   Based upon anonymous phone calls, police suspected Muhammad and Pruitt

      were involved in the 2014 robbery. When police interviewed Pruitt on January

      30, 2015, he denied any involvement in the robbery and did not consent to

      provide a sample of his DNA. Although technicians at the state police lab

      found enough genetic material on the sock cap found near the bank after the

      robbery to create a DNA profile, without a sample they had nothing to compare

      it to. Having no other leads, the robbery investigation stalled.


[7]   On the morning of January 11, 2016, the same branch of the BMO Harris bank

      was robbed again. The suspect was again described as a black male, around six

      feet in height, with a thin build, this time wearing a gray hooded sweatshirt and

      wielding a black handgun. Reviewing the bank surveillance video, investigators

      noted that this robber also held the gun in his left hand, and they observed that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 3 of 16
      this robber resembled the suspect from the 2014 robbery. During this robbery,

      the suspect handed the tellers a gray pillow case, and, unlike the 2014 robbery,

      had the employees open the vault. The robber left the bank with around

      $140,000.00. At trial, Muhammad testified that Pruitt committed this robbery

      as well and that he again drove Pruitt to and from the bank. Tr. Vol. III, pp. 8–

      11.


[8]   Four days after the second robbery, on January 15, 2016, Tamara Harrison

      (“Harrison”) came to the Kokomo Police Department and reported that her co-

      worker, Kirshana Tyler (“Tyler”), was bragging about knowing the bank

      robbers. Harrison related that Tyler said that the robbers were named Lance

      (Pruitt’s first name) and “Gucci” (which police knew to be Muhammad’s

      nickname), and that they stole $200,000.00. Police interviewed Tyler, who

      denied making the statements about the robbery. Police also identified Tyler as

      the sister of Pruitt’s girlfriend.


[9]   At this point, police applied for and the trial court issued a search warrant to

      obtain a sample of Pruitt’s DNA, analysis of which revealed a match with the

      profile found on the sock hat recovered near the scene of the 2014 robbery.

      Incident to his arrest, police searched Pruitt’s residence and found over

      $1,200.00 in single, one-dollar bills, together with a black handgun and gray

      pillow case consistent with the descriptions of the items used in the 2016

      robbery.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 4 of 16
[10]   After his arrest, Pruitt filed a motion to suppress any evidence obtained as a

       result of the DNA sample taken from him, arguing that the search warrant to

       obtain this sample was not supported by probable cause. The trial court denied

       Pruitt’s motion to suppress, and, after a three-day jury trial, Pruitt was

       convicted of two counts of Level 3 felony robbery and two counts of Level 3

       felony criminal confinement (one robbery conviction and one criminal

       confinement conviction for each of the 2014 and 2016 robberies).

[11]   On December 27, 2017, the trial court conducted a sentencing hearing.

       Consulting Pruitt’s pre-sentence investigation report (“PSI”), the trial court

       found as aggravating circumstances Pruitt’s prior convictions, which included a

       misdemeanor conviction for an assault committed in Ohio in 2008, and two

       felony convictions for criminal recklessness for shooting a firearm into a

       dwelling or gathering. The trial court also noted that Pruitt’s first adult arrest

       was at the age of eighteen, that he had a history of arrests in Indiana, Ohio, and

       Illinois, and that he committed the robberies despite having previously spent

       three years in the Department of Correction (“DOC”) for the criminal

       recklessness charges. The trial court also found it significant that Pruitt obtained

       nearly $150,000.00 from the two robberies, most of which was never recovered,

       and recounted that, based on their testimony, the bank employees seemed to

       have feared for their lives.


[12]   Finding no mitigating circumstances, the trial court imposed the sentence

       recommended in the PSI of sixteen years for each of Pruitt’s four convictions. It

       ordered the two sentences resulting from the 2014 robbery to be served

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 5 of 16
       concurrently, as it likewise did for the two sentences resulting from the 2016

       robbery. The two blocks of sentences were to be served consecutively, resulting

       in an aggregate sentence of thirty-two years in the DOC. Pruitt now appeals.


                                               I. Probable Cause

[13]   On appeal, Pruitt argues the trial court erred in granting the search warrant to

       obtain his DNA sample and in denying his motion to suppress the evidence

       obtained as a result of this warrant. Specifically, Pruitt contends that the

       warrant was not supported by probable cause because the only information in

       the officer’s probable cause affidavit implicating him of the robberies was a

       general description of a tall, thin, black man, and Harrison’s recounting of

       Tyler’s statement, which Pruitt argues was uncorroborated hearsay because

       Tyler denied making the statement when interviewed by police.


[14]   A warrant and its underlying affidavit must comply with the Fourth

       Amendment prohibition on unreasonable searches and seizures, as well as

       Indiana constitutional and statutory law. Fuqua v. State, 984 N.E.2d 709, 716

       (Ind. Ct. App. 2013) (citing Gray v. State, 758 N.E.2d 519, 521 (Ind. 2001)),

       trans. denied. Both the Fourth Amendment to the United States Constitution and

       Article 1, Section 11 of the Indiana Constitution require probable cause for the

       issuance of a search warrant. Rader v. State, 932 N.E.2d 755, 758 (Ind. Ct. App.

       2010) (citing Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct. App. 2008), trans.

       denied). The constitutional principles of Article I, Section 11 and the Fourth

       Amendment are codified in Indiana Code section 35-33-5-2, which details the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 6 of 16
       information to be contained in an affidavit for a search warrant. Fuqua, 984

       N.E.2d at 716.


[15]   “Probable cause is a ‘fluid concept incapable of precise definition . . . [and] is

       to be decided based on the facts of each case.’” Id. “In deciding whether to issue

       a search warrant, the issuing magistrate’s task is simply to make a practical,

       common-sense decision whether, given all the circumstances set forth in the

       affidavit, there is a fair probability that evidence of a crime will be found in a

       particular place.” Id. (quoting Casady v. State, 934 N.E.2d 1181, 1188–89 (Ind.

       Ct. App. 2010), trans. denied).


[16]   The duty of a reviewing court is to determine whether the issuing magistrate

       had a substantial basis for concluding that probable cause existed. Id. (citing

       Casady, 934 N.E.2d at 1189). We review the question de novo, but give

       significant deference to the issuing magistrate’s determination and focus on

       whether reasonable inferences drawn from the totality of the evidence support

       the finding of probable cause. Id. “In determining whether an affidavit provided

       probable cause for the issuance of a search warrant, doubtful cases are to be

       resolved in favor of upholding the warrant.” Casady, 934 N.E.2d at 1189.

       Probable cause to search a location is established when a sufficient basis of fact

       exists to permit a reasonably prudent person to believe that a search of that

       location will uncover evidence of a crime. Helsley v. State, 809 N.E.2d 292, 295

       (Ind. 2004) (citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 7 of 16
[17]   Where a warrant is sought based on hearsay information, the affidavit must

       either: (1) contain reliable information establishing the credibility of the source

       and of each of the declarants of the hearsay and establishing that there is a

       factual basis for the information furnished; or (2) contain information that

       establishes that the totality of the circumstances corroborates the hearsay. State

       v. Spillers, 847 N.E.2d 949, 953–54 (Ind. 2006) (citing Ind. Code § 35-33-5-

       2(b)(1) and (2)). The trustworthiness of hearsay for the purpose of establishing

       probable cause can be shown in a number of ways, including where: (1) the

       informant has given correct information in the past, (2) independent police

       investigation corroborates the informant’s statements, (3) some basis for the

       informant’s knowledge is demonstrated, or (4) the informant predicts conduct

       or activity by the suspect that is not ordinarily easily predicted. Id. at 954 (citing

       Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997)). These examples however are

       not exclusive. Id.


[18]   Pruitt seems to argue that the bank employees’ descriptions of the suspect, as

       relayed in the probable cause affidavit, were too generic to permit a reasonably

       prudent person to conclude that a sample of Pruitt’s DNA would implicate him

       in the robberies. In his affidavit, the lead investigator in the case, Detective

       Banush, stated that Pruitt “matches the physical description[s] of the robbery

       suspect” provided by bank employees after both the 2014 and 2016 robberies,

       who described the suspect as “a black male . . . approximately 6-0 in height,

       [with a] thin build.” Appellant’s App. Vol. II, pp. 73–74.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 8 of 16
[19]   Pruitt also argues that Harrison’s statement, in which she told police that her

       co-worker, Tyler, had implicated Pruitt for the 2016 robbery, was unreliable

       and uncorroborated hearsay. Citing the trustworthiness factors from Jaggers,

       Pruitt argues that Harrison’s statement was unreliable because the affidavit “did

       not allege that [] Harrison had ‘given correct information in the past.’ Nor did it

       allege a ‘basis for the informant’s knowledge’ or that the informant had

       predicted any particular activity.” Appellant’s Br. at 14. Pruitt also contends

       that the police investigation did not corroborate this statement, because, when

       interviewed, Tyler denied making the statement to Harrison.


[20]   The State argues that the affidavit did assert a basis for Harrison’s knowledge

       when it specified that Harrison claimed to have heard that Pruitt had

       committed the robbery from her co-worker, Tyler. The State further argues that

       Tyler’s denial of making this statement to Harrison was not credible because the

       affidavit specifies that “Tyler was also identified as the sister of Lance Pruitt’s

       girlfriend.” Appellee’s Br. at 16. The State asserts that Harrison’s statement was

       more credible because Harrison came to the police voluntarily, and within four

       days of the 2016 robbery provided information implicating Pruitt, which “could

       have been detrimental to give to law enforcement.” Id. While acknowledging

       that the general descriptions and the hearsay statement may have been

       insufficient to create probable cause separately, the State argues that

       considering the totality of the circumstances, they together did create probable

       cause supporting the search.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 9 of 16
[21]   The State also argues that even if the affidavit did not establish probable cause,

       suppression of the evidence obtained through the search warrant was still not

       required because of the good faith exception. We need not consider the

       application of the good faith exception, as we find that the affidavit at issue

       established probable cause for the search.


[22]   First, while the investigators’ interview of Tyler did not corroborate Harrison’s

       statement, Tyler’s denial did not clearly undermine Harrison’s account either.

       As the affidavit notes that Tyler was Pruitt’s girlfriend’s sister, it supplies both a

       basis for Tyler’s (and hence Harrison’s) knowledge of Pruitt’s guilt, and also a

       reason why the trial court could reasonably conclude that Tyler was biased and

       had an interest in denying that she inadvertently implicated her sister’s

       boyfriend of robbing a bank. By contrast, the affidavit contains nothing

       indicating that Harrison had anything to gain personally by reporting what

       Tyler had told her to the police. We have previously held that a trial judge was

       justified in crediting the word of a concerned citizen who did not have any

       known criminal connections or ulterior reason for coming forward to police. See

       Scott v. State, 883 N.E.2d 147, 155 (Ind. Ct. App. 2008).


[23]   Additionally, while the bank employees’ descriptions of the suspect were rather

       general and could arguably apply to a sizeable number of people, Pruitt did

       match these descriptions, and the descriptions provided some evidence

       implicating him of both the 2014 and 2016 robberies. Further, the affidavit

       contained several facts supporting the conclusion that both robberies were

       committed by the same suspect, including Detective Banush’s observation

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 10 of 16
       (based on the surveillance video) that the two suspects resembled each other,

       that both suspects held their guns in their left hands, that both robberies were of

       the same bank, both took place during the morning, that both suspects wore

       hooded sweatshirts, and that both suspects entered with a cloth bag or sack to

       carry the stolen money out in.


[24]   Taken together with all of these facts, Harrison’s hearsay statement implicating

       Pruitt of the 2016 robbery could also reasonably support the conclusion that

       Pruitt committed the 2014 robbery, and therefore that his DNA would match

       the DNA on the clothing found near the scene of the 2014 robbery. Pruitt does

       not suggest that any of the statements contained in the affidavit were in any

       way false or misleading, and while Pruitt argues that the facts supplied in the

       affidavit were insufficient to establish probable cause, he does not address the

       good faith exception, or argue that the affidavit was so lacking in evidence of

       probable cause so as to render reliance on it entirely unreasonable.1 If he had

       made such an argument, we would reject it.


[25]   While the hearsay statement, the descriptions, and the various facts suggesting

       that one suspect committed both robberies would likely be insufficient to




       1
         Pruitt appears to insinuate that the trial court’s reliance on the employee’s generic description of the robber
       could amount to racial profiling and call into question its impartiality: “Can a neutral, detached magistrate
       conclude that Pruitt is the only black male in the population frequenting Howard County that ‘matches the
       physical description of the robbery suspect?’ No. To do so would lend credence to people now protesting
       profiling of races.” Appellant’s Br. at 13. In truth, the trial court need only have concluded, and did conclude,
       that Pruitt was one person matching the descriptions, and that he was also implicated by the statement of a
       citizen informant with no apparent motive in coming to police other than to report a robbery.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018                  Page 11 of 16
       establish probable cause individually, taken together, they provide enough

       evidence of probable cause that we cannot say the issuance of the search

       warrant or the officers’ reliance upon it unreasonable. Thus, we conclude that

       even if the warrant to obtain Pruitt’s DNA sample did lack probable cause, the

       officers’ reliance upon it was in objective good faith and the suppression of the

       resulting evidence was therefore not required.


                                    II. Appropriateness of Sentence

[26]   Pruitt also argues that his aggregate thirty-two-year sentence was inappropriate

       in light of the nature of the offense and his character. The Indiana Constitution

       authorizes independent appellate review and revision of a trial court’s

       sentencing decision. Wampler v. State, 67 N.E.3d 633, 635 (Ind. 2017). Appellate

       courts implement this authority through Indiana Appellate Rule 7(B),

       which provides that “[t]he Court may revise a sentence authorized by statute if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.”


[27]   In conducting our review, “[w]e do not look to determine if the sentence was

       appropriate; instead we look to make sure the sentence was not inappropriate.”

       Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct. App. 2017) (quoting Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012)), trans. denied. “[S]entencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       “Such deference should prevail unless overcome by compelling evidence
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 12 of 16
       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, our principal role is to

       leaven the outliers rather than necessarily achieve what is perceived as the

       correct result. Cardwell, 895 N.E.2d at 1225. The defendant bears the burden to

       establish that his sentence is inappropriate in light of his character and the

       nature of his offense. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[28]   With regard to the nature of his offense, Pruitt first contends that:


                In both of the bank robberies at issue here, no one was hurt and
                the time any BMO Harris employee was in fear was very, very
                short in duration. To maximize sentences under this “nature of
                the crime” would require equaling these circumstances with, for
                example, a situation where a robber was confronted by police
                during a robbery and escalated to a hostage situation
                encompassing, say, twelve hours of terror, with threats to kill the
                hostages.


       Appellant’s Br. at 17. Pruitt appears to be arguing that the maximum sentence

       was inappropriate here because a more violent, more psychologically traumatic,

       version of a bank robbery can be imagined.2 This, in effect, is an argument that

       the worst maximum sentence should be reserved for the very worst offenders.




       2
         Though Pruitt does not expressly state this, we note that the sixteen-year sentences he received for each of
       his Level 3 felony convictions were the statutory maximum sentence he could have received for Level 3
       felonies. Ind. Code § 35-50-2-5.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018                 Page 13 of 16
       While we can certainly envision more heinous robberies, Pruitt cannot produce

       “compelling evidence” of restraint or other factors which cast his crime in a

       positive light. Cardwell, 895 N.E.2d 1219. One of the bank employees testified

       that when she had trouble opening her cash drawer, the robber threatened her

       by chambering a round into his gun. Tr. Vol. II, pp. 44, 51. The trial court was

       also free to disagree with Pruitt’s characterization of the robberies as having a

       limited impact on the bank employees. At sentencing, the trial court refused to

       consider it a mitigating factor that there was no evidence that Pruitt intended to

       harm anyone and that no one was physically hurt, remarking that “[w]hat Mr.

       Pruitt did is to walk into BMO Harris . . . and basically put [the employees] in

       fear for their lives. . . . I could sense and we could all hear it during the trial

       when they testified as to what a horrific experience that was for them.” Tr. Vol.

       III, p. 94.


[29]   It was also proper for the trial court to weigh this aspect of the nature of the

       offense in relation to the various other aggravating factors, including the fact

       that most of the $150,000.00 was never recovered, Pruitt’s criminal history,

       which included prior felony convictions involving the reckless handling of a

       firearm, and the apparent failure of his prior incarceration to rehabilitate him,

       as evidenced by the subsequent robberies. Thus, we conclude that Pruitt has

       failed to demonstrate that the nature of his offense entitles him to a revision of

       his sentence.


[30]   In relation to his character, Pruitt argues, as he did at his sentencing hearing,

       that he is “healthy” and “has a history of marijuana use, but not (apparently)

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 14 of 16
       other drugs,” and that since he “is not a slave to addiction, the issue becomes

       the appropriate time in prison necessary to rehabilitate an otherwise healthy,

       mentally and physically, individual.” Appellant’s Br. at 17. While a lack of

       substance abuse problems could simplify his rehabilitation, he develops no

       argument explaining how this would entitle him to a lesser sentence.


[31]   Finally, Pruitt points out that “he has three (3) children” and was employed at

       the time of the offenses. Id. But he develops no argument explaining how these

       facts should entitle him to a revised sentence either. Indeed, it is unclear why

       Pruitt mentions his children, as he does not appear to argue undue hardship,

       and we can find little evidence in the record supporting such an argument. 3


[32]   For all of these reasons, Pruitt has failed to carry his burden of demonstrating

       that his sentence was inappropriate in light of the nature of his offenses or his

       character.


                                                    Conclusion
[33]   Based on the facts and circumstances before us, we conclude that the

       challenged affidavit supplied adequate evidence of probable cause for the trial

       court to authorize the search warrant at issue. Further, in light of the nature of

       Pruitt’s offenses and his character, we cannot conclude that his sentence was



       3
        Pruitt’s PSI lists his three children as living with their mothers, one of whom lives in Wisconsin, another in
       an unlisted location, and a third in Kokomo. Appellant’s App. Vol. III, p. 11. The PSI also stated that Pruitt
       had been court-ordered to pay child support in the amount of $25 per week for each of his children. Id. It is
       unclear from the record whether Pruitt had been making such payments, as is whether he had custody of any
       of his children prior to his arrest following the 2016 robbery.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018                 Page 15 of 16
inappropriate. We therefore affirm Pruitt’s conviction and the trial court’s

sentence.


Bailey, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-224 | September 19, 2018   Page 16 of 16
