MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Apr 28 2016, 8:37 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Obed Bailey,                                             April 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1509-CR-1497
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff                                       Flowers, Judge
                                                         The Honorable Peggy R. Hart,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1405-FB-23110



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016          Page 1 of 17
                                             Case Summary
[1]   Obed Bailey appeals his conviction and sentence for class B felony unlawful

      possession of a firearm by a serious violent felon (“SVF”). He contends that the

      handgun recovered by police was seized in violation of the federal

      constitutional guarantees against unreasonable search and seizure. Specifically,

      he asserts that even though he abandoned the handgun when he fled police, he

      abandoned it after he was unconstitutionally detained, and therefore the

      handgun is inadmissible. He also appeals his fourteen-year sentence, arguing

      that it is inappropriate in light of the nature of his offense and his character.


[2]   We conclude that the police officers’ initial approach of the vehicle in which

      Bailey was an occupant was a consensual encounter. By the time the police

      removed Bailey from the vehicle for a patdown search for weapons, the totality

      of the circumstances show that there existed reasonable suspicion that he had

      engaged in criminal activity and could be armed. Accordingly, Bailey was not

      unconstitutionally detained and his abandoned handgun was admissible. We

      also conclude that Bailey fails to carry his burden to show that his sentence is

      inappropriate. Therefore, we affirm.


                                  Facts and Procedural History
[3]   The Speedway Police Department had an agreement with the management of

      Coppertree Apartment Complex (“Coppertree”) providing that its police

      officers could act as agents of Coppertree and remove individuals who lacked a

      contractual interest in the property. Tr. at 49-50, 93. In May 2014, around 8:30


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 2 of 17
      p.m., an anonymous caller advised police dispatch that three suspicious-looking

      black males were around one of Coppertree’s laundry areas. Id. at 46, 93. The

      caller stated that two of the males may have been breaking into the laundry

      room coin machines and one of the males wore a knit hat with a “ball” on top

      and appeared to be acting as a “lookout.” Id. at 24, 47, 93. As police were

      responding, the caller provided an update that the black males were sitting in a

      green vehicle and gave police the vehicle’s license plate number.


[4]   Three Speedway police officers responded to the scene, all in marked cars and

      in uniform. None of them activated their lights or sirens. Officer Christopher

      Helmer arrived first. Officer Helmer worked parttime for Coppertree as a

      security officer, and therefore he knew that Coppertree had previous issues with

      thefts from the laundry room machines. Officer Helmer saw a green vehicle

      with a license number matching the reported license number in the vicinity of

      the laundry room. He saw four black men in the vehicle, and noticed that the

      person in the front passenger seat, later identified as Bailey, had on a stocking

      cap with a ball on top. He parked his car and approached the vehicle to

      “[i]dentify all the subjects … [and] determine if they lived there, if they had the

      right to be there at all and then [deal] with the situation accordingly.” Id. at 15.

      Officer Helmer went to the back of the driver’s side of the vehicle and spoke

      with the backseat passenger. That passenger, Jeremy Armstrong, “answered

      [Officer Helmer’s] questions but he was staring straight ahead” and “was

      avoiding eye contact, he was compliant but was visibly nervous.” Id. at 15, 16.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 3 of 17
[5]   Officer John Hammel arrived a few seconds after Officer Helmer. Officer

      Hammel parked his car and approached the passenger side of the vehicle, and

      spoke to the backseat passenger identified as Demetrius Stokes:

               [Officer Hammel] asked his name and […] was going to ask his
               birthdate[, but] in the course of that he appeared to be very
               nervous and would not make eye contact with [the officer]. He
               continually moved his left hand down around the seat under his
               body. [Officer Hammel] gave him verbal directions to keep his
               hands visible and in his lap. When [Stokes] disregarded [the]
               directions and continued to reach down and under his leg area …
               [Officer Hammel] thought that he [might] be trying to access a
               weapon or … trying to hide something so [the officer] asked him
               to step from the vehicle at that time.


      Id. at 96.


[6]   Officer Nathan Shipley arrived and parked his vehicle behind the green vehicle.

      Id. at 47. Officer Shipley saw Officer Helmer near the left rear door and Officer

      Hammel near the rear right door. He also saw that the rear passengers had

      already been removed to be patted down. One of the officers informed Officer

      Shipley that the right rear passenger had been moving his left hand, acting

      nervous, and refusing to comply with orders to show his hands. Officer Shipley

      believed that given the nature of the call, there could be weapons involved. To

      “ensure the officer safety,” Officer Shipley approached the front passenger side

      to remove Bailey from the vehicle so he could pat him down for weapons. Id.

      at 48.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 4 of 17
[7]   Officer Shipley told Bailey that “[he] needed to pat him down,” and asked him

      to exit the vehicle. Id. at 50. Bailey complied but would not make eye contact

      with Officer Shipley. Officer Shipley asked Bailey to put his hands on the hood

      of the car. Bailey refused to face the car, so Officer Shipley “grabbed his right

      hand … in order to escort it to the car where [he] needed it to be.” Id. at 51.

      Bailey ripped his hand away and ran east. Officer Shipley pursued and yelled,

      “Police, stop.” Id. at 52. Officer Shipley was about twenty feet behind Bailey

      when he saw Bailey pull a handgun from his waist and raise it to about

      shoulder level. Id. Officer Shipley yelled “gun” loud enough to be heard by

      the other officers. Id. at 20, 97. As Bailey turned to go around a building,

      Officer Shipley saw him throw the gun into a bush. Officer Helmer eventually

      caught up to Bailey, deployed his taser, and took Bailey into custody. 1 Officer

      Shipley returned to the bush and located the handgun. It had one bullet in the

      chamber and seven rounds in the magazine.


[8]   The State charged Bailey with class B felony unlawful possession of a firearm

      by a SVF, class D felony obstruction of justice, and class A misdemeanor

      resisting law enforcement. 2 Bailey waived his right to trial by jury. He also

      filed a motion to suppress the handgun, arguing that it was inadmissible

      because it was seized in violation of the Fourth Amendment to the United




      1
          The other occupants of the green vehicle were given trespass warnings and asked to leave the area.
      2
        The resisting law informant charge was based on Bailey knowingly fleeing Officer Shipley after Officer
      Shipley had identified himself by visible or audible means and ordered Bailey to stop. Appellant’s App. at
      23; Ind. Code § 35-44.1-3-1(a)(3).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016             Page 5 of 17
       States Constitution. The trial court conducted a combined suppression hearing

       and bench trial. Bailey testified and claimed that he did not throw a firearm.

       Id. at 119-20. After taking the matter under advisement, the trial court issued

       an order denying Bailey’s motion to suppress. The trial court found Bailey

       guilty of unlawful possession of a firearm by a SVF and resisting law

       enforcement and not guilty of obstruction of justice.


[9]    At sentencing, the trial court found that Bailey’s criminal history and the fact

       that he was on parole when he committed the current offenses were aggravating

       circumstances and that there were no mitigating circumstances. The trial court

       sentenced Bailey to an executed term of fourteen years for unlawful possession

       of a firearm by a SVF and a concurrent term of one year for resisting law

       enforcement. This appeal ensued.


                                         Discussion and Decision

           Section 1 – The police seizure of Bailey’s handgun did not
                     violate his Fourth Amendment rights.
[10]   Bailey argues that the police seized the handgun in violation of the protections

       against unreasonable search and seizure guaranteed by the Fourth Amendment

       to the United States Constitution, and therefore the gun was inadmissible. 3 The




       3
         Bailey also raises a claim under Article 1, Section 11 of the Indiana Constitution, but he did not present
       that argument to the trial court. “A party generally waives appellate review of an issue or argument unless
       that party presented that issue or argument before the trial court.” Griffin v. State, 16 N.E.3d 997, 1006 (Ind.
       Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans.
       denied)). Therefore, Bailey’s state constitutional claim is waived.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016                Page 6 of 17
       constitutionality of a search or seizure is a question of law that we review de

       novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011). “However, we give

       deference to a trial court’s determination of the facts, which will not be

       overturned unless clearly erroneous.” Campos v. State, 885 N.E.2d 590, 596

       (Ind. 2008). Further, we do not reweigh the evidence, and we view conflicting

       evidence in the light most favorable to the trial court’s ruling. Id. “As an

       appellate court, we may affirm a trial court’s judgment on any theory supported

       by the evidence.” Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002).


[11]   The Fourth Amendment states,

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       “The fundamental purpose of the Fourth Amendment ‘is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.

       App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).

       In general, the Fourth Amendment prohibits searches and seizures conducted

       without a warrant that is supported by probable cause. Clark v. State, 994

       N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism, evidence obtained

       without a warrant is not admissible in a prosecution unless the search or seizure

       falls into one of the well-delineated exceptions to the warrant requirement. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 7 of 17
       “Where a search or seizure is conducted without a warrant, the State bears the

       burden to prove that an exception to the warrant requirement existed at the

       time of the search or seizure.” Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct.

       App. 2010), trans. denied (2011).


[12]   One exception to the warrant requirement is abandoned property. Abandoned

       property is usually not subject to Fourth Amendment protection and may be

       seized without a warrant. Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App.

       2005). Bailey concedes that he abandoned the handgun when he threw it into

       the bush as he was fleeing from Officer Shipley. However, he asserts that he

       abandoned the handgun as a result of an unconstitutional detention, and

       therefore it is not admissible. See J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App.

       2015) (“Abandoned property is inadmissible if the abandonment occurs after

       the owner is improperly detained.”); Gooch v. State, 834 N.E.2d 1052, 1054 (Ind.

       Ct. App. 2005) (“[I]f property is abandoned after a citizen is improperly

       detained, the evidence is not admissible.”), trans. denied; Wilson v. State, 825

       N.E.2d 49, 51 (Ind. Ct. App. 2005) (same); State v. Pease, 531 N.E.2d 1207,

       1211-12 (Ind. Ct. App. 1988) (where officer felt a hard object in Pease’s shirt

       during patdown search and asked him what it was and then Pease fled and

       threw container of amphetamines away, amphetamines were inadmissible

       because patdown search violated Fourth Amendment).


[13]   We observe that the conditions imposed on police to satisfy the Fourth

       Amendment differ depending on the type of interaction occurring between a

       police officer and a citizen. Thus, to decide whether Bailey was detained in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 8 of 17
       violation of the Fourth Amendment, we first consider what type of interaction

       occurred between the police and the occupants of the green vehicle:

               There are three levels of police investigation, two of which
               implicate the Fourth Amendment and one of which does not.
               First, the Fourth Amendment requires that an arrest or detention
               that lasts for more than a short period of time must be justified by
               probable cause. Second, pursuant to Fourth Amendment
               jurisprudence, the police may, without a warrant or probable
               cause, briefly detain an individual for investigatory purposes if,
               based upon specific and articulable facts, the officer has a
               reasonable suspicion that criminal activity has [occurred] or is
               about to occur. The third level of investigation occurs when a
               police officer makes a casual and brief inquiry of a citizen, which
               involves neither an arrest nor a stop. This is a consensual
               encounter in which the Fourth Amendment is not implicated.


       Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citations omitted).


[14]   Bailey asserts that when the officers initially approached the green vehicle to

       speak to the occupants, they were performing an investigatory stop requiring

       reasonable suspicion. The State contends that the initial encounter between the

       police and the occupants of the green vehicle was consensual. According to the

       State, the encounter did not become an investigatory stop until the passengers

       were removed from the vehicle to be patted down for weapons, at which time

       the police had reasonable suspicion that the occupants could be armed. We

       agree with the State that the initial encounter was consensual.


[15]   Determining whether an encounter is consensual or involves some level of

       detention

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 9 of 17
               turns on an evaluation, under all the circumstances, of whether a
               reasonable person would feel free to disregard the police and go
               about his or her business. The test is objective–not whether the
               particular citizen actually felt free to leave, but whether the
               officer’s words and actions would have conveyed that to a
               reasonable person. Examples of facts and circumstances that
               might lead a reasonable person to believe that he or she was no
               longer free to leave could include the threatening presence of
               several officers, the display of a weapon by an officer, some
               physical touching of the person of the citizen, or the use of
               language or tone of voice indicating that compliance with the
               officer’s request might be compelled.


       Clark, 994 N.E.2d at 261-62 (citations and quotation marks omitted).


[16]   Officers Helmer’s and Hammel’s initial approaches to the green vehicle are

       similar to that in Powell, in which another panel of this Court concluded that the

       officer’s initial approach to a parked vehicle in which Powell was an occupant

       was a consensual encounter. 912 N.E.2d at 862. In that case,


               the vehicle in which Powell was seated was parked on the side of
               a street. The vehicle was “not running.” Officer Deshaies
               parked his squad vehicle behind the vehicle in which Powell and
               another individual were seated. The record reveals that Officer
               Deshaies was in police uniform and driving a fully marked squad
               vehicle, but that he did not activate the emergency lights of his
               squad vehicle. There is no evidence that Officer Deshaies
               activated his squad vehicle’s siren or approached the vehicle
               occupied by Powell in a manner that would be considered
               aggressive or intimidating. Upon exiting his squad vehicle,
               Officer Deshaies approached the driver’s side of the vehicle on
               foot. The record does not reflect that Officer Deshaies displayed
               a weapon as he approached Powell’s vehicle or that Officer


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 10 of 17
                Deshaies used any language or spoke in a tone of voice which
                mandated compliance.


       Id. (citations and quotation marks omitted). 4 The Powell court concluded that

       “under the circumstances, Officer Deshaies did not have to possess reasonable

       suspicion of wrongdoing in order to park behind or approach Powell’s vehicle

       in order to ask Powell his purpose for being in the area.” Id. (emphasis added).


[17]   Here, the officers did not activate their emergency lights or sirens. They

       approached the vehicle on foot. They did not display their weapons or

       approach the vehicle in an aggressive or intimidating manner. Officers Helmer

       and Hammel asked the rear passengers their names. There is no evidence that

       they used any language or spoke in a tone that would lead a reasonable person

       to conclude that they were not free to leave. Therefore, the initial encounter

       between the officers and the vehicle occupants was consensual, and the officers

       did not need reasonable suspicion to approach the vehicle. 5


[18]   Bailey asserts that when the officers removed the passengers from the vehicle

       for a patdown search, the officers lacked reasonable suspicion of criminal

       wrongdoing. The State concedes, and we conclude, that when Officers Helmer




       4
         Powell has an extensive list of federal and state cases that have concluded that a police officer’s approach to
       a parked vehicle does not implicate the Fourth Amendment. 912 N.E.2d at 861-62.
       5
         Although Officer Shipley parked his car somewhere behind the green vehicle, there is no evidence that he
       parked in a manner that blocked the green vehicle, and he arrived after the officers had already removed the
       backseat passengers from the vehicle. Furthermore, Officer Deshaies also “pulled up behind” Powell’s
       vehicle, but that fact standing alone did not lead the Powell court to conclude that Powell was subject to an
       investigatory stop. 912 N.E.2d at 862.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016              Page 11 of 17
       and Hammel removed the backseat passengers for a patdown search, the

       consensual encounter became an investigatory stop requiring reasonable

       suspicion. The State also concedes that when Officer Shipley removed Bailey

       from the passenger seat for a patdown search, he needed reasonable suspicion

       to do so.


               As another exception to the Fourth Amendment’s warrant
               requirement, an officer may conduct a brief investigatory stop of
               an individual when, based on a totality of the circumstances, the
               officer has a reasonable, articulable suspicion that criminal
               activity is afoot. The investigatory stop, also known as a Terry
               stop, is a lesser intrusion on the person than an arrest and may
               include a request to see identification and inquiry necessary to
               confirm or dispel the officer’s suspicions. Reasonable suspicion
               is determined on a case by case basis. The reasonable suspicion
               requirement is met where the facts known to the officer at the
               moment of the stop, together with the reasonable inferences from
               such facts, would cause an ordinarily prudent person to believe
               criminal activity has occurred or is about to occur.


       J.B., 30 N.E.3d at 55 (citations and quotation marks omitted).


[19]   The facts known to the officers at the time that they removed the backseat

       passengers from the vehicle, as well as shortly thereafter when Officer Shipley

       removed Bailey, are that Officer Helmer knew that Coppertree had a history of

       theft from its laundry room coin machines. All three officers had responded to

       a report of three suspicious black males present at one of the laundry rooms,

       who could be breaking into one of the coin machines. The report included the

       observation that one of the men, who appeared to be acting as a lookout, was

       wearing a knit hat with a ball on it. Before the officers arrived at the scene, the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 12 of 17
       caller had updated her report, informing dispatch that the men were sitting in a

       green vehicle and providing the vehicle’s license plate number. The officers saw

       that one of the passengers in the green vehicle had a stocking cap with a ball on

       it and that the vehicle’s license number matched the reported license number.


[20]   Bailey argues that these facts are insufficient to establish reasonable suspicion

       because “[w]hen the suspicion arises solely from the information of an

       anonymous tip, ‘… the tip must be corroborated by police and it must exhibit

       sufficient indicia of reliability.’” Appellant’s Br. at 11 (quoting Berry v. State, 766

       N.E.2d 805, 807 (Ind. Ct. App. 2002)). But this is not all the information that

       the officers had when they removed the men from the vehicle. Additional

       information became available to the officers, and we must consider the totality

       of the circumstances to determine whether the police had reasonable, articulate

       suspicion of criminal activity. See J.B., 30 N.E.3d at 55.


[21]   When Officers Helmer and Hammel asked the backseat passengers for their

       names, the passengers appeared nervous and avoided eye contact. We

       acknowledge that “[a] vague and general characterization of demeanor, such as

       ‘nervousness,’ does not rise to the level of reasonable suspicion.” Tumblin v.

       State, 736 N.E.2d 317, 322-23 (Ind. Ct. App. 2000), trans. denied. But in this

       case there is more. Officer Helmer saw one of the passengers keep moving his

       left hand down around the seat under his body, and he refused to comply when




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 13 of 17
       instructed to keep his hands visible and in his lap. 6 Summarizing the totality of

       the circumstances, we observe that Officer Helmer knew that Coppertree had a

       history of theft involving the laundry room machines, there had been a report of

       suspicious behavior and a possible theft from those machines, the vehicle and

       its license number fit the reported description, and one of the men was wearing

       a hat as described by the caller. In addition, the occupants were nervous and

       failed to make eye contact and one occupant refused to obey the officer’s

       request to keep his hands visible. All together, these circumstances support a

       reasonable suspicion that the men in the vehicle had been involved in criminal

       activity, either theft or trespass.


[22]   There was also reasonable suspicion that the men could be armed. “In addition

       to detainment, Terry permits a reasonable search for weapons for the protection

       of the police officer, where the officer has reason to believe that he is dealing

       with an armed and dangerous individual, regardless of whether he has probable

       cause to arrest the individual for a crime.” Malone v. State, 882 N.E.2d 784,

       786-87 (Ind. Ct. App. 2008) (citing Terry v. Ohio, 392 U.S. 1, 27, (1968)).

       “Officer safety is of paramount importance. Police officers are daily placed in

       difficult and dangerous situations, some of which are life threatening. The law




       6
         The State contends that “[w]hen the officers approached the green car, there is a reasonable inference that
       the two backseat passengers, whom Officer Helmer and Officer Hammel spoke with, failed to answer
       whether they lived at Coppertree.” Appellee’s Br. at 20. To the contrary, the record supports the conclusion
       that the passengers answered the officer’s questions. Officer Helmer testified that the occupant of the rear
       passenger seat “answered his questions” and “was complaint.” Tr. at 15, 16. Officer Hammel’s testimony
       supports a strong inference that he did not ask the driver’s-side rear passenger anything other than his name
       before he was compelled to begin directing the passenger to keep his hands visible and in his lap. Id. at 96.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016           Page 14 of 17
       has to provide protections for such officers.” Id. at 787. Here, the occupants

       were nervous, failed to make eye contact, and one occupant refused to obey the

       officer’s request to keep his hands visible. Thus, to ensure their own safety, the

       officers were permitted under the Fourth Amendment to remove the men,

       including Bailey, from the vehicle and pat them down for weapons.


[23]   Because we have determined that Bailey was constitutionally detained, his

       argument that the handgun is inadmissible because he abandoned it as a result

       of an unconstitutional seizure must fail. As such, we conclude that the trial

       court properly admitted the abandoned handgun.


          Section 2 – Bailey has failed to carry his burden to establish
                       that his sentence is inappropriate.
[24]   Bailey argues that his fourteen-year executed sentence is inappropriate

       pursuant to Indiana Appellate Rule 7(B), which states, “The 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.” When reviewing a sentence,

       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. “We do not look

       to determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “In assessing the nature of the offense and character of the offender, we

       may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d

       1055, 1060 (Ind. Ct. App. 2013). “[S]entencing is principally a discretionary

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 15 of 17
       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 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). Bailey has the burden to show that his sentence is

       inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218.


[25]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

       range for a class B felony is six to twenty years with an advisory sentence of ten

       years. Ind. Code § 35-50-2-5. Bailey’s fourteen-year sentence is above the

       advisory and above the State’s recommended sentence of twelve years but

       below the statutory maximum.


[26]   Bailey asserts that there was nothing about the nature of his offense that makes

       it more serious than the garden-variety unlawful possession of a firearm by a

       SVF. We disagree. As the State notes, “A garden-variety possession offense

       might involve, for example, having a handgun stored in one’s car that is found

       during a search of the car.” Appellee’s Br. at 32 (citing Hansbrough v. State, 2016

       WL 365182, No. 29A04-1508-CR-1121 (Ind. Ct. App. Jan. 29, 2016), trans.

       denied). Here, Bailey had actual possession of a fully loaded gun. He had a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 16 of 17
       round in the gun’s chamber, so it was ready to fire. Bailey fled from law

       enforcement and raised the gun to shoulder level. Thus, he generated a

       situation that could have resulted in the shooting of a police officer or innocent

       bystander. The nature of his offense created a significant threat to public safety.


[27]   As for Bailey’s character, although he was twenty-five years old when he

       committed the instant offenses and twenty-seven years old at sentencing, he had

       three prior felonies and two prior misdemeanors. His felonies consist of class C

       felony burglary, class C felony battery committed by means of a deadly weapon

       or resulting in serious bodily injury, and class D felony theft. His crimes show a

       propensity for violence. He also has prior class A misdemeanor convictions for

       conversion, resisting law enforcement, and possession of marijuana. Further,

       Bailey committed the instant offenses while on parole for the battery

       conviction, just four months after being released from the Department of

       Correction. Bailey argues that even though his mother died when he was

       thirteen, he managed to graduate from high school and complete some college.

       Though laudable, as an adult, Bailey has persistently violated the law. We

       conclude that Bailey has failed to carry his burden to show that his sentence

       was inappropriate. Therefore, we affirm.


[28]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1497 | April 28, 2016   Page 17 of 17
