MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Apr 29 2016, 9:22 am
this Memorandum Decision shall not be
                                                                       CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                     Gregory F. Zoeller
Kokomo, Indiana                                        Attorney General of Indiana

                                                       Chandra K. Hein
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Theodore Hannibal,                                     April 29, 2016
Appellant-Defendant,                                   Court of Appeals Cause No.
                                                       34A02-1510-CR-1625
        v.                                             Appeal from the Howard Superior
                                                       Court
State of Indiana,                                      The Honorable George A.
Appellee-Plaintiff.                                    Hopkins, Judge
                                                       Trial Court Cause No.
                                                       34D04-1404-FC-50



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 1 of 8
                                            Case Summary
[1]   Theodore Hannibal appeals his convictions for Class C felony battery resulting

      in serious bodily injury, Class D felony battery resulting in bodily injury, and

      Class D felony resisting law enforcement. We affirm.


                                                    Issue
[2]   The sole restated issue is whether the trial court properly admitted evidence

      obtained as a result of the traffic stop.


                                                    Facts
[3]   On April 8, 2014, Kokomo Police Officer Roy Smith, who is a detective for the

      drug task force, observed Hannibal in a vehicle parked at a gas station in

      Howard County. Because Officer Smith and the other police officers who were

      with him at the time believed Hannibal had a suspended driver’s license, they

      “called a patrol officer that was in the area and let them know that he was

      potentially driving.” Tr. p. 67. Kokomo Police Officer Austin McClain, who

      was in a marked police vehicle and wearing a police uniform on that same date,

      “saw the vehicle Mr. Hannibal was known to drive pass in front of me . . . At

      this time, he had longer deadlocks [sic]. I could see all of that through the back

      window of the SUV that I knew him to drive.” Id. at 25. Officer McClain had

      stopped Hannibal a week earlier and learned he had a suspended license.


[4]   Officer McClain activated his lights, and Hannibal pulled over immediately.

      Officer McClain, who was alone, then approached the driver’s side of

      Hannibal’s vehicle, and Hannibal opened the door because his window did not
      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 2 of 8
      operate properly. Officer McClain observed Hannibal holding a lit cigarette in

      one hand and a cell phone in the other. Officer McClain instructed Hannibal to

      extinguish his cigarette, put away the phone, and exit the vehicle; Hannibal

      refused. Officer McClain repeated the instructions, and Hannibal refused

      again. “[Hannibal] said that he was going to call somebody and tell them that

      he was going to jail.” Id. at 28.


[5]   Officer McClain “could tell that the tensions were definitely rising,” and he

      believed that, if the situation escalated, the cigarette could be a weapon and he

      did not want either himself or Hannibal to get burned. Id. Officer McClain

      “knocked [the cigarette] out of his hand . . . and then [] went for the cell

      phone.” Id. Officer McClain does not like people to have cell phones during

      traffic stops because he does not want an “ambush situation” if the person calls

      other people and because he has learned cell phones can be a cover for stun

      guns. Id. at 29.


[6]   By this time, Officer Alex Harper had arrived and was watching through the

      passenger-side window of Hannibal’s vehicle. According to Officer Harper,

      Hannibal “appeared aggravated [and] agitated.” Id. at 47. As Officer McClain

      reached for the cell phone, Hannibal lunged out of the vehicle at him. Officer

      McClain testified, “[Hannibal’s] arms are moving forcefully and quickly

      enough that I, I cannot get ahold of both of them to place them, handcuffs

      around his hands . . . .” Id. at 31. As Officer McClain and Hannibal struggled,

      Officer Harper climbed through the passenger side of Hannibal’s vehicle.

      Officer Harper attempted to detain Hannibal, but Hannibal was “flailing [and]

      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 3 of 8
      pushing away.” Id. at 50. Neither officer was able to get Hannibal under

      control. As the officers struggled with Hannibal, the three fell to the ground.

      Officer Harper landed on his elbow, dislocating his shoulder. Officer McClain

      continued to struggle with Hannibal until several detectives observed the

      struggle and stopped to assist him.


[7]   Officer Harper testified his dislocated shoulder caused him “the worst pain [he

      has] ever, ever felt. Almost unbearable.” Id. at 53. He was unable to work for

      five or six weeks while he participated in physical therapy. Officer McClain

      suffered an abrasion on his knee.


[8]   The State charged Hannibal with: (1) Class C felony battery resulting in serious

      bodily injury; (2) Class D felony battery resulting in bodily injury; (3) Class D

      felony resisting law enforcement; and (4) Class A misdemeanor driving while

      suspended. The State later amended the probable cause affidavit to include a

      count of Class A misdemeanor possession of a synthetic drug or synthetic drug

      lookalike substance as Count V. Hannibal pled guilty to resisting law

      enforcement and driving while suspended, but the trial court granted his motion

      to withdraw the plea. On August 18 and 19, 2015, Hannibal was tried by a

      jury. The jury found him guilty of counts I, II, and III; the State dismissed

      counts IV and V. The trial court sentenced Hannibal to an aggregate sentence

      of seven years in the Department of Correction. Hannibal appeals his

      convictions.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 4 of 8
                                                  Analysis
[9]    Hannibal contends the traffic stop was an unreasonable seizure that violated his

       rights as guaranteed by the Fourth and Fourteenth Amendments to the United

       States Constitution and Article I, Section 11 of the Indiana Constitution. At the

       outset, we note that Hannibal merely cites to the general proposition that claims

       made under the Indiana Constitution are reviewed independently from claims

       made under the United States Constitution. He then “asks this Court to look at

       the totality of the circumstances surrounding his traffic stop on April 8, 2014.”

       Appellant’s Br. p. 9. He does not make an independent argument for his claim

       under our state constitution. Because Indiana Courts interpret and apply

       Article 1, Section 11 of the Indiana Constitution separately from its federal

       counterpart, Hannibal has waived that argument. Francis v. State, 764 N.E.2d

       641, 646-47 (Ind. 2002).


[10]   We next note that Hannibal failed to object at trial to the evidence he now

       argues was inadmissible. “A contemporaneous objection at the time the

       evidence is introduced at trial is required to preserve the issue for appeal . . . .”

       Brown v. State, 929 N.E.2d 204, 206 (Ind. 2010). “[A] failure to timely object to

       the erroneous admission of evidence at trial will procedurally foreclose the

       raising of such error on appeal unless the admission constitutes fundamental

       error.” Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Hannibal seems to

       acknowledge this by quoting the above-referenced general principle and refers

       to the right to be free from unreasonable search and seizure as a “fundamental”

       one. Tr. p. 7. However, he does not specifically argue the admission of the

       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 5 of 8
       evidence was fundamental error. Because Hannibal does not clearly contend

       the admission of evidence constituted fundamental error and does not make an

       argument supported by cogent reasoning or citations to any authority, we

       conclude he has waived the fundamental error argument, if indeed he ever

       intended to make that argument. Pittman v. State, 45 N.E.3d 805, 820-21 (Ind.

       Ct. App. 2015); Ind. Appellate Rule 46(A)(8).


[11]   Waiver notwithstanding, we conclude the traffic stop does not run afoul of the

       Fourth Amendment to the United States Constitution. We review a trial

       court’s ruling regarding the admissibility of evidence for an abuse of discretion.

       Darringer v. State, 46 N.E.3d 464, 469 (Ind. Ct. App. 2015). An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances. Rutledge v. State, 28 N.E.3d 281, 287 (Ind. Ct. App.

       2015).


[12]   The Fourth Amendment generally prohibits a warrantless search or seizure

       absent a valid exception to the warrant requirement. Peak v. State, 26 N.E.3d

       1010, 1014 (Ind. Ct. App. 2015). A traffic stop is a seizure. Id. However, an

       officer may “stop and briefly detain a person for investigative purposes if the

       officer has a reasonable suspicion supported by articulable facts that criminal

       activity may be afoot.” Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014)

       (quotations omitted) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct.

       1581, 1585 (2014)). “The existence of reasonable suspicion is determined by

       looking at the totality of the circumstances to see whether the detaining officer



       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 6 of 8
       has a particularized and objective basis for suspecting wrongdoing.” Peak, 26

       N.E.3d at 1015.


               Terry stops are limited in scope and purpose. Their purpose is
               not to discover evidence of a crime, but to allow the officer to
               pursue his investigation without fear of violence . . . . Since
               reasonable suspicion is all that is necessary to support a Terry
               stop and it is a less demanding standard than probable cause . . .
               [t]he Fourth Amendment requires [only] some minimal level of
               objective justification for making the stop.


       Kellems v. State, 842 N.E.2d 352, 355 (Ind. 2006) (alterations in original)

       (citations omitted) (quotations omitted), re’hg granted on other grounds. “Police

       officers may stop a vehicle when they observe minor traffic violations.” Santana

       v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014).


[13]   Officer McClain stopped Hannibal approximately a week before the stop at

       issue in this case and learned Hannibal’s driver’s license was suspended.

       Officer McClain was familiar with Hannibal’s vehicle, Hannibal’s appearance,

       and the status of Hannibal’s driver’s license. He initiated the traffic stop in this

       case based on that information, and we conclude that information was far more

       than the “minimal objective justification” required by the Fourth Amendment.

       Id. Even if, as Hannibal contends, he held a valid learner’s permit,1 the traffic

       stop was a reasonable course of action for Officer McClain to take in order to




       1
        Hannibal concedes he was not accompanied by a related, licensed driver with valid driving privileges who
       was at least twenty-five years old. See Ind. Code § 9-24-7-4.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625        Page 7 of 8
       pursue his investigation of what he reasonably believed may have been criminal

       activity. Waiver notwithstanding, the trial court did not abuse its discretion by

       admitting the officers’ testimonies regarding the events that transpired during

       the traffic stop.


                                                Conclusion
[14]   Officer McClain had reasonable suspicion to support the traffic stop. The trial

       court did not abuse its discretion by admitting the evidence related to that stop.

       We affirm.


[15]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1510-CR-1625 |34A02-1510-CR-1625   Page 8 of 8
