MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Mar 26 2019, 10:42 am

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
Amy D. Griner                                           Curtis T. Hill, Jr.
Mishawaka, Indiana                                      Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Micah G. Hayes,                                         March 26, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1833
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Michael A.
Appellee-Plaintiff.                                     Christofeno, Judge
                                                        Trial Court Cause No.
                                                        20C01-1609-F2-21



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019                    Page 1 of 13
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Micah Hayes (Hayes), appeals his conviction for dealing

      in methamphetamine, a Level 2 felony, Ind. Code § 35-48-4-1.1(2)(C), (e)(1).


[2]   We affirm.


                                                  ISSUES
[3]   Hayes presents three issues on appeal, which we restate as follows:


      (1) Whether the trial court abused its discretion by admitting certain evidence;


      (2) Whether the State presented sufficient evidence beyond a reasonable doubt

      to support Hayes’ conviction; and


      (3) Whether Hayes’ sentence is inappropriate in light of the nature of the

      offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 12, 2016, the Elkhart Police Department was monitoring a

      suspected drug house in Elkhart County, Indiana. A man, later identified as

      Hayes, was seen leaving the suspected drug house driving a silver Chevy

      Avalanche. Indiana State Trooper Camryn Hottell (Trooper Hottell) was

      thereafter radioed to follow the silver Chevy Avalanche and pull it over for any

      traffic infraction. Soon thereafter, Trooper Hottell observed Hayes’ silver

      Chevy Avalanche and she followed it east on Beardsley Avenue, then north on

      Cassopolis. At the intersection of Cassopolis and Baldwin, Hayes properly


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 2 of 13
      signaled his turn, but made an immediate right turn into the parking lot of BJ

      Stars, a restaurant, causing Trooper Hottell to slam on her brakes to avoid a

      collision. Also, because Hayes had failed to signal while entering the BJ Stars’

      parking lot, Trooper Hottell activated her emergency lights and initiated a

      traffic stop.


[5]   As Trooper Hottell exited her vehicle, Hayes also exited his vehicle and began

      moving toward Trooper Hottell. Hayes was yelling at Trooper Hottell, asking

      her why she pulled him over. Because Hayes was being confrontational,

      Trooper Hottell displayed her Taser and repeatedly ordered Hayes to stop

      moving toward her and to stop yelling. Moments later, other officers arrived at

      the scene to aid Trooper Hottell, including a K-9 officer. After another officer

      drew his firearm, Hayes complied with Trooper Hottell’s commands. Trooper

      Hottell handcuffed Hayes and directed him to her vehicle. While standing

      outside the vehicle, Hayes again questioned Trooper Hottell as to why she had

      stopped him. Trooper Hottell explained to Hayes that she had stopped him for

      failing to properly use his turn signal. Hayes thereafter admitted his mistake.


[6]   While Trooper Hottell was dealing with Hayes, Officer Jason Ray (Officer Ray)

      of the Elkhart Police Department and his narcotics-trained K-9 officer

      conducted a dog sniff around Hayes’ vehicle by walking around the perimeter

      of the vehicle. The K-9 alerted to the presence of narcotics on the back door

      behind the driver’s seat. Due to the K-9’s alert, Officer Ray opened the back

      door to Hayes’ vehicle. The K-9 jumped in and he further alerted to a lunchbox

      inside the vehicle. Inside the lunchbox, Officer Ray found a clear plastic bag

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 3 of 13
      containing a crystalized rock substance, which was later determined to be 27.84

      grams of methamphetamine. Also, there was a can with a false bottom that

      contained six individually wrapped baggies containing crystalized rocky

      substances. Subsequent laboratory testing revealed that each of the six baggies

      contained one gram of methamphetamine.


[7]   On September 16, 2016, the State filed an Information, charging Hayes with

      Level 2 felony dealing in methamphetamine. Prior to trial, Hayes filed a

      motion to suppress any evidence obtained from the search of his vehicle. On

      June 4 through June 6, 2018, a jury trial was held. At the start of his trial,

      Hayes resurrected his suppression motion, but was denied. At the close of the

      evidence, the jury found Hayes guilty as charged. On July 12, 2018, the trial

      court sentenced Hayes to thirty years in the Department of Correction, with five

      years suspended to probation.


[8]   Hayes now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                        I. Admission of the Evidence

[9]   The admission or exclusion of evidence falls within the sound discretion of the

      trial court, and its determination regarding the admissibility of evidence is

      reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d

      1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 4 of 13
[10]   Hayes claims that the stop and search of his silver Chevy Avalanche violated

       Article 1, Section 11 of the Indiana Constitution. 1


[11]   Prior to the commencement of the jury trial, Hayes filed a motion to suppress,

       but that motion was denied. At the start of his trial, Hayes revived his motion,

       but was again denied. When the State offered evidence derived from the search

       of his vehicle, Hayes failed to make a contemporaneous objection or a

       continuing objection at trial that the stop and search of his silver Chevy

       Avalanche violated Article 1, Section 11 of the Indiana Constitution. See Brown

       v. State, 929 N.E.2d 204, 207 (Ind. 2010) (holding that a contemporaneous

       objection at the time the evidence is introduced at trial is required to preserve

       the issue for appeal, whether or not the appellant has filed a pretrial motion to

       suppress), reh’g denied.


[12]   Waiver notwithstanding, we may review an unpreserved claim on appeal if

       fundamental error occurs. Id. The State argues, and we agree, that Hayes does

       not make an independent claim that the trial court’s admission of the

       methamphetamine evidence was fundamental error; therefore any fundamental

       error claim is also waived. See Cobbs v. State, 987 N.E.2d 186, 191 n. 1 (Ind. Ct.

       App. 2013) (noting that where a defendant fails to raise a claim in his brief,




       1
         Hayes also invokes the Fourth Amendment of the United States Constitution; however, Hayes fails to
       provide us with an analysis of his federal constitutional claim separate from his Article 1, Section 11 analysis,
       as such, we confine our analysis to his Article I, Section 11 claim only. See Francis v. State, 764 N.E.2d 641,
       646-67 (Ind. Ct. App. 2002) (Indiana courts interpret and apply Article 1, section 11 independently from
       federal Fourth Amendment jurisprudence, and failure by a defendant to provide separate analysis waives any
       claim of error.).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019                       Page 5 of 13
       such claim is waived for review). Waiver aside, we will address his claim on

       the merits.


[13]   Hayes contends that the traffic stop violated the protections afforded by Article

       I, Section 11 of the Indiana Constitution. “When police conduct is challenged

       as violating this section, the burden is on the State to show that the search [or

       seizure] was reasonable under the totality of the circumstances.” State v.

       Washington, 898 N.E.2d 1200, 1205 (Ind. 2008). Relevant considerations in

       determining the reasonableness of a search or seizure “turns on a balancing of:

       ‘1) the degree of concern, suspicion, or knowledge that a violation has occurred,

       2) the degree of intrusion the method of the search or seizure imposes on the

       citizen’s ordinary activities, and 3) the extent of law enforcement needs.’”

       Johnson v. State, 992 N.E.2d 955, 959 (Ind. Ct. App. 2013), trans. denied.

       (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).


[14]   As to the first Litchfield factor, the degree of concern, suspicion, or knowledge

       that a violation had occurred was high. Hayes maintains that the traffic stop

       was illegal because Trooper Hottell had a mistaken belief that he had

       committed a traffic violation when he failed to use his turn signal when entering

       the BJ Stars’ parking lot. Indiana Code section 9-21-8-25 requires that the

       signal of intention to turn right or left be given continuously during not less

       than 200 feet. Hayes argues that it was physically impossible for him to commit

       a traffic infraction because the turn into BJ Stars’ parking lot was 188 feet from

       the intersection of Cassopolis and Baldwin. This argument is unavailing. At

       trial, Trooper Hottell testified she stopped Hayes for failing to use his turn

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 6 of 13
       signal before turning into the BJ Stars’ parking lot. Trooper Hottell further

       testified that after Hayes repeatedly demanded to know why she had stopped

       him, she explained the traffic infraction to Hayes, and Hayes admitted the

       mistake. Further, Indiana Code section 9-21-8-25 requires that a person may

       not slow down or stop a vehicle “unless the movement can be made with

       reasonable safety.” Trooper Hottell also testified that Hayes turned so quickly

       that she had to slam on her brakes to avoid a collision. Not only did Hayes fail

       to signal his turn as required by Indiana Code section 9-21-8-25, he also turned

       so suddenly and unsafely in front of Trooper Hottell that she had to brake

       suddenly to avoid hitting him. As such, Trooper Hottell’s traffic stop of Hayes

       was appropriate because she observed Hayes committing two traffic infractions.


[15]   In addition, we find that the degree of suspicion was high after the traffic stop

       was initiated. While Trooper Hottell was securing Hayes for the traffic stop,

       Officer Ray and his narcotics-trained K-9 walked around Hayes’ vehicle. The

       K-9 gave a positive alert on the vehicle in which Hayes was driving. Thus there

       was a high degree of suspicion that Hayes actually or constructively possessed

       illegal drugs inside his vehicle.


[16]   As for the second Litchfield factor, the degree of intrusion, if any, was modest:

       Trooper Hottell turned her emergency lights on and pulled Hayes over. Hayes,

       however, escalated the situation quickly by exiting the vehicle and confronting

       Trooper Hottell. In order to protect herself, Trooper Hottell displayed her

       Taser, and another officer was required to display his firearm before Hayes

       complied with any orders. As Trooper Hottell secured Hayes, Officer Ray and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 7 of 13
       his K-9 walked around Hayes’ vehicle and conducted a dog sniff. Inasmuch as

       the dog sniff may be considered to intrude in a person’s ordinary activities, the

       level of intrusion was minimal since Hayes was already detained by Trooper

       Hottell.


[17]   Finally, as to the extent of law enforcement needs, we find that the K-9’s

       positive alert for narcotics turned the traffic stop into a narcotics investigation

       and gave rise to a reasonable belief that Hayes had illegal drugs inside his

       vehicle. Similarly, we find that this factor also weighs in favor of the State.


[18]   For all of these reasons, we conclude that the warrantless search of Hayes’

       vehicle was not unreasonable under the totality of these circumstances and did

       not violate Article 1, Section 11 of the Indiana Constitution. Accordingly, we

       conclude that the trial court did not abuse its discretion when it admitted the

       challenged evidence.


                                        II. Sufficiency of the Evidence

[19]   Hayes claims that there was insufficient evidence to convict him of the Level 2

       felony dealing in methamphetamine. When reviewing a claim of insufficient

       evidence, it is well established that our court does not reweigh evidence or

       assess the credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind.

       2013). Instead, we consider all of the evidence, and any reasonable inferences

       that may be drawn therefrom, in a light most favorable to the verdict. Id. We

       will uphold the conviction “‘if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 8 of 13
       could have found the defendant guilty beyond a reasonable doubt.’” Id.

       (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[20]   To convict Hayes of Level 2 felony dealing in methamphetamine, the State was

       required to prove beyond a reasonable doubt that Hayes did knowingly possess,

       with intent to deliver, methamphetamine, pure or adulterated, and the amount

       of the drug involved weighed at least ten (10) grams. See I.C. § 35-48-4-

       1.1(a)(2)(C), (e)(1).


[21]   As stated, 27.84 grams of methamphetamine, and an additional six individually

       wrapped baggies containing 1 gram of methamphetamine, were recovered in

       Hayes’ vehicle. Hayes’ sole contention is that the State failed to prove beyond a

       reasonable doubt that he possessed the methamphetamine with the intent to

       deliver. In making this argument, Hayes asserts that the “State’s only evidence

       to support the inference that [he] intended to deliver the methamphetamine was

       the quantity being greater than a typical user amount.” (Appellant’s Br. p. 11)


[22]   Because intent is a mental state, the trier of fact must generally resort to the

       reasonable inferences arising from the surrounding circumstances in order to

       determine whether the requisite intent exists. Love v. State, 741 N.E.2d 789, 792

       (Ind. Ct. App. 2001), trans. denied. “Circumstantial evidence showing

       possession with intent to deliver may support a conviction. Possessing a large

       amount of a narcotic substance is circumstantial evidence of intent to deliver.

       The more narcotics a person possesses, the stronger the inference that he

       intended to deliver it and not consume it personally.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 9 of 13
[23]   Sergeant Andrew Whitmyer (Sergeant Whitmyer), of the Elkhart City Police

       Department, testified that based on his training and experience with drug

       dealing and the typical practices of users, 27.58 grams of methamphetamine did

       not suggest a user amount. He further averred that “[a]n ounce of meth is quite

       a bit of meth. It’s more consistent with a dealer.” (Tr. Vol. III, p. 14). He

       further noted that the 27.58 grams of methamphetamine that Hayes possessed

       would typically be repackaged and distributed for sale.


[24]   Regarding the six baggies of methamphetamine, Sergeant Whitmyer

       additionally testified that “one of the things that we see a lot in drug

       distribution is the small Ziploc baggies, which is [] individually packaged for []

       distribution.” (Tr. Vol. III, p. 15). See Hape v. State, 903 N.E.2d 977, 998 (Ind.

       Ct. App. 2009) (holding that the amount of methamphetamine, the packaging

       of the drugs in multiple bags, coupled with an officer’s testimony, was sufficient

       to prove Hape’s intent to deliver the methamphetamine.), trans. denied.


[25]   Based on the 27.58 grams of methamphetamine, the six baggies each containing

       one-gram of methamphetamine, and Sergeant Whitmyer’s testimony, the jury

       could reasonably infer that the methamphetamine was not solely for personal

       use but instead was intended to be sold to other users. In sum, we conclude

       that the State proved beyond a reasonable doubt that Hayes intended to deal the

       methamphetamine he possessed.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 10 of 13
                                          III. Inappropriate Sentence

[26]   Hayes finally contends that his sentence is inappropriate in light of the nature of

       the offense and his character. Indiana Appellate Rule 7(B) empowers us to

       independently review and revise sentences authorized by statute if, after due

       consideration, we find the trial court’s decision inappropriate in light of the

       nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

       1114, 1116 (Ind. 2007). The “nature of the offense” compares the defendant’s

       actions with the required showing to sustain a conviction under the charged

       offense, while the “character of the offender” permits a broader consideration of

       the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

       Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

       the burden of showing that both prongs of the inquiry favor a revision of his

       sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we

       regard a sentence as appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and a myriad of other considerations that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

       sentence and how it is to be served.” Id.


       The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). Indiana Code section 35-50-2-4.5 provides that “A person

       who commits a Level 2 felony shall be imprisoned for a fixed term of between

       ten (10) and thirty (30) years, with the advisory sentence being seventeen and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 11 of 13
       one-half (17½) years.” The trial court sentenced Hayes to the maximum

       sentence of thirty years.


[27]   Turning to the nature of his offense, Hayes asserts that he “possessed a

       relatively small quantity” of methamphetamine, which does not warrant a

       maximum sentence. (Appellant’s Br. p. 12). Contrary to his assertion, we note

       that for the Level 2 felony dealing in methamphetamine, Hayes was required to

       possess at least 10 grams of methamphetamine to be convicted of that offense.

       See I.C. § 35-48-4-1.1(a)(2)(C),(e)(1). The facts show that Hayes possessed

       nearly three times the amount of methamphetamine required for his offense—

       i.e., 27.58 grams methamphetamine, and six baggies each containing one-gram

       of methamphetamine.


[28]   Concerning the character of the offender, according to the pre-sentencing

       investigation report, Hayes, born in 1974, was first convicted of two Counts of

       aggravated robbery when he was seventeen years old in Wilmington, Ohio.

       Hayes then served approximately 18 months through the Ohio Department of

       Youth Services. As an adult, Hayes’ criminal history of misdemeanor and

       felony convictions from Florida and Ohio consist of the following: Obstruction

       by disguised person, driving while suspended (7), possession of marijuana (3),

       retail theft, obstructing justice without violence (2), disorderly conduct,

       possession of an open container of alcohol, check deception, obstructing or

       resisting ofﬁcer without violence (2), theft, possession of methamphetamine,

       and battery on a law enforcement ofﬁcer without violence. At the time Hayes

       committed the instant offense, he had a pending charge in Elkhart County for a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 12 of 13
       Class A misdemeanor battery causing bodily injury. In addition, we note that

       on multiple occasions, Hayes had been placed on probation in Indiana and

       Florida, which he violated various times. After due consideration of the trial

       court’s decision and in light of Hayes’ criminal history, we cannot say that the

       thirty-year sentence imposed by the trial court is inappropriate in light of the

       nature of the offense and Hayes’ character.


                                            CONCLUSION
[29]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in admitting the evidence of the methamphetamine recovered

       through the search of Hayes’ vehicle. Also, we conclude that there was

       sufficient evidence beyond a reasonable doubt to sustain Hayes’ conviction, and

       his sentence is not inappropriate in light of the nature of the offense and his

       character.


[30]   Affirmed


[31]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1833| March 26, 2019   Page 13 of 13
