MEMORANDUM DECISION
                                                                         Jun 15 2015, 5:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing 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
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tianyve D. Stitts,                                       June 15, 2015

Appellant-Defendant,                                     Court of Appeals Case No. 34A02-
                                                         1410-CR-747
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C. Menges,
                                                         Jr., Judge
Appellee-Plaintiff.
                                                         Cause No. 34D01-1402-FA-93




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015             Page 1 of 14
[1]   Tianyve D. Stitts appeals his convictions for three counts of possession of a

      controlled substance as class D felonies, escape as a class C felony, and

      possession of marijuana as a class A misdemeanor. Stitts raises two issues,

      which we revise and restate as:


          I.    Whether the trial court abused its discretion by admitting certain
                evidence; and

         II.    Whether the evidence is sufficient to support Stitts’s conviction of
                escape as a class C felony.

      We affirm.


                                      Facts and Procedural History

[2]   In January of 2014, Police Officer Adam Martin arrested Lavonski Elliot. A

      few days before February 15, 2014, Officer Martin informed Kokomo Police

      Officer Aaron Tarrh that an arrest warrant had been issued for Elliot. Officer

      Martin further informed Officer Tarrh that Elliot would be driving a rental

      vehicle with a Montana license plate and informed Officer Tarrh to “be on . . .

      the look out” for Elliot driving that vehicle. Transcript at 133.


[3]   At approximately 3:32 a.m. on February 15, 2014, Officer Tarrh observed a

      vehicle with Montana plates pass him. Officer Tarrh could not see the driver of

      the vehicle. Officer Tarrh followed the vehicle because it was “the only

      Montana-plated car that [he’d] ever seen in Kokomo.” Id. at 134. Officer

      Tarrh continued to follow the vehicle until the vehicle pulled into a gas station

      and parked at the front of the store. Officer Tarrh also pulled into the gas

      station parking lot and parked his marked police vehicle at an angle several feet

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 2 of 14
      behind the Montana-plated vehicle. Officer Tarrh did not activate his

      emergency lights or siren, and there was enough distance between the two

      vehicles to allow the Montana-plated vehicle to back out and leave. While

      Officer Tarrh was pulling in behind the Montana-plated vehicle, its passenger

      exited that vehicle and entered the store.


[4]   Officer Tarrh then approached the driver’s side of the vehicle on foot and Stitts,

      the driver, rolled down the window. Upon approaching, Officer Tarrh, who is

      trained in drug interdiction, detected the odor of marijuana. When asked to

      produce his driver’s license, Stitts claimed Officer Tarrh was harassing him.

      Officer Jeff Packard, a “certified drug recognition expert,” arrived at the gas

      station while Officer Tarrh continued to talk with Stitts, who remained in the

      vehicle. Id. at 83. Officer Packard approached the passenger side of the vehicle

      where he observed a bag of what he believed to be marijuana in plain view on

      the center console.


[5]   Officer Tarrh asked Officer Packard to come around to the driver’s side and

      when Officer Packard approached it, he also recognized the odor of marijuana

      emanating from the vehicle. Officer Tarrh asked Stitts several times to exit the

      vehicle. Stitts refused, but did exit the vehicle after Officer Tarrh threatened to

      arrest him for resisting law enforcement if he did not do so.


[6]   Once Stitts exited the vehicle, Officer Tarrh commenced a search of his outer

      clothing, during which Stitts “was becoming more nervous” and “more fidgety”

      while “looking around . . . [in] a manner that was consistent with attempting to


      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 3 of 14
      locate a direction to flee.” Id. at 37, 85. Due to Stitts’s nervous behavior, the

      officers believed he was a flight risk, and Officer Tarrh placed him in

      handcuffs.1 Continuing his search of Stitts, Officer Tarrh found and removed

      $2,186.00 from Stitts’s coveralls and a cellophane wrapper that contained a

      variety of prescription pills, including four oxycodone, fourteen hydrocodone,

      and two carisoprodol. Stitts did not have a prescription for any of these

      medications. Upon removing the pills, Officer Tarrh placed them on the top of

      the vehicle. At this point, Stitts turned and ran from Officer Tarrh, who

      pursued him while Officer Packard remained at the scene.


[7]   Officer Tarrh caught up to Stitts after Stitts had slipped and fallen to the

      ground. Officer Tarrh then “was able to get on top of [Stitts] and keep him

      from getting back up again.” Id. at 121. While Officer Tarrh was attempting to

      subdue him, Stitts “kept grabbing the inside of [Officer Tarrh’s] leg” and

      “continued to thrash about and tried to roll underneath [Officer Tarrh] and tried

      to t[h]rust [Officer Tarrh] off of him.” Id. Officer Tarrh told him to stop, but

      Stitts “continued to roll and thrash underneath [Officer Tarrh].” Id. Stitts

      stopped struggling after Officer James Nielson arrived and placed his knees on

      Stitts’s legs. Officer Nielson transported Stitts to the jail, where he was

      searched.




      1
        At trial, Officer Tarrh testified that “[Stitts] wasn’t under arrest when I first placed him in handcuffs, not
      until I found the pills.” Transcript at 135. When asked if he formally placed Stitts under arrest after finding
      the pills, Officer Tarrh answered, “No.” Id. at 136.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015                  Page 4 of 14
[8]   On February 18, 2014, the State charged Stitts with: Count I, dealing in cocaine

      as a class A felony; Count II, possession of cocaine as a class C felony; 2 Count

      III, possession of a controlled substance as a class D felony (Hydrocodone);

      Count IV, possession of a controlled substance as a class D felony

      (Oxycodone); Count V, possession of a controlled substance as a class D felony

      (Carisoprodol); Count VI, escape as a class C felony; Count VII, possession of

      marijuana as a class A misdemeanor; and Count VIII, resisting law

      enforcement as a class A misdemeanor.


[9]   Stitts moved to suppress all of the evidence supporting the State’s charges

      against him on the basis that it was obtained pursuant to an unlawful stop

      without reasonable suspicion in violation of the Fourth Amendment of the

      United States Constitution, and Article 1, Section 11 of the Indiana

      Constitution. The trial court held a suppression hearing and denied the motion

      based on specific findings that: (1) Officer Tarrh did not stop Stitts, but Stitts

      stopped himself at the gas station; (2) Officer Tarrh parked behind Stitts, but not

      so closely as to make it impossible for Stitts to leave; (3) Officer Tarrh did not

      turn on his emergency lights or siren; (4) Officer Tarrh gave no indication that

      Stitts was not free to leave; (5) Officer Tarrh approached the vehicle and

      detected an odor of marijuana; and, (6) once he had detected the odor of

      marijuana, Officer Tarrh had probable cause to lawfully detain Stitts. Stitts




      2
       Officer Tarrh testified that twenty five plastic bags containing what appeared to be cocaine were handed to
      him by Officer Ramberger, who had escorted Stitts into the jail’s changeover room.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015              Page 5 of 14
       requested that the court certify his motion to suppress for interlocutory appeal,

       but the court declined to do so.


[10]   At Stitts’s jury trial, defense counsel did not object to the admission of the

       testimony regarding the discovery of the money and prescription drugs in

       Stitts’s possession, the observation of marijuana on the center console, and the

       cocaine found in Stitts’s possession at the jail. By individual and continuing

       objections, defense counsel did object to additional evidence offered about the

       money and prescription drugs found in Stitts’s possession; his flight from the

       officers; the State chemist’s testimony identifying the marijuana, the

       prescription medication, and the cocaine; and to the drug evidence itself.

       Defense counsel objected on the basis that the evidence was acquired after an

       illegal seizure in violation of Stitts’s constitutional rights, which should render

       the evidence inadmissible. The court overruled defense counsel’s objections.

       The jury returned verdicts finding Stitts guilty of all three counts of possession

       of a controlled substance as class D felonies (Counts III, IV, and V), escape as a

       class C felony (Count VI), possession of marijuana as a class A misdemeanor

       (Count VII), and resisting law enforcement as a class A misdemeanor (Count

       VIII). The jury was unable to reach a verdict on the cocaine related charges

       (Counts I and II), and the trial court declared a mistrial on those two charges.

       On October 15, 2014, the court sentenced Stitts to an aggregate executed

       sentence of twelve years.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 6 of 14
                                                   Discussion

                                                          I.


[11]   The first issue is whether the trial court erred by admitting evidence obtained

       after Officer Tarrh parked behind Stitts’s vehicle. In his brief, Stitts frames this

       issue as “[d]id the Trial Court improperly deny motions to suppress and

       objections to evidence.” Appellant’s Brief at 1. However, “[w]here a defendant

       does not perfect an interlocutory appeal from a trial court’s ruling on a motion

       to suppress, but objects to the admission of the evidence at trial, the issue on

       appeal is more appropriately framed as whether the trial court abused its

       discretion by admitting the evidence at trial.” Danner v. State, 931 N.E.2d 421,

       426 (Ind. Ct. App. 2010), trans. denied; see also Clark v. State, 994 N.E.2d 252,

       259 (Ind. 2013). However, whether made through a pretrial motion to suppress

       or at trial by objection, “[o]ur review of rulings for the admissibility of evidence

       is essentially the same.” Rutledge v. State, 28 N.E.3d 281, 287 (Ind. Ct. App.

       2015). The admission or exclusion of evidence is within the sound discretion of

       the trial court, and review of those decisions is only for abuse of discretion. Id.

       In determining whether an abuse of discretion has occurred, a finding of such

       abuse will be made only “where the decision is clearly against the logic and

       effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.

       2001). We will consider substantial and uncontested evidence favorable to the

       defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). However, we will

       not reweigh the evidence and we defer to findings of fact made by the trial court

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 7 of 14
       unless they are clearly erroneous. Id. When a defendant’s appeal raises a

       question regarding the constitutionality of a search and seizure, the question

       presented is a question of law, which we review de novo. Id.


[12]   Stitts argues that the encounter between Officer Tarrh and himself was a stop

       under the Fourth Amendment of the United States Constitution made without

       reasonable suspicion rendering the stop illegal and all evidence obtained as a

       result of the stop inadmissible. The State argues that Stitts has waived that

       claim by failing to object to most of the evidence and by failing to argue that the

       admission of the evidence was fundamental error. The State also contends that

       the encounter between Officer Tarrh and Stitts was initially consensual, which

       would not implicate the Fourth Amendment.


[13]   To preserve the issue for appeal, an appellant must make a contemporaneous

       objection at the time the evidence is introduced at trial, regardless of whether a

       pretrial motion to suppress was made by the appellant. Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010), reh’g denied. Additionally, we have found the issue

       waived where a defendant objected to only a portion of the challenged

       evidence. See Dickey v. State, 999 N.E.2d 919, 921 (Ind. Ct. App. 2013);

       Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans. denied.

       Here, Stitts did specifically object to evidence about his flight from the officers;

       the State chemist’s testimony identifying the marijuana, the prescription

       medication, and the cocaine; and the drug evidence itself. As well, Stitts lodged

       a continuing objection to the offering of evidence “related to the case,” which

       was granted by the trial court. Transcript at 103. However, prior to lodging his

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 8 of 14
       continuing objection, Stitts did not object to the admission of certain testimony

       by Officer Packard regarding the discovery of the money and prescription drugs

       in his possession and the marijuana observed on the center console of the

       vehicle. Having not objected to this evidence at the time it was offered and

       having lodged a continuing objection only after the jury had heard significant

       evidence relating to the possession counts, we find that Stitts has waived the

       issue relating to the admissibility of the evidence to the extent he failed to object

       to Officer Packard’s earlier testimony. See Brown, 929 N.E.2d at 207.


[14]   Waiver notwithstanding, Stitts’s argument that he was stopped in violation of

       the Fourth Amendment of the United States Constitution is unpersuasive. 3 The

       Fourth Amendment grants protection from unreasonable search and seizure by

       generally prohibiting searches conducted without a warrant supported by

       probable cause. Clark, 994 N.E.2d at 260. Not all encounters between law

       enforcement officers and citizens implicate the protections of the Fourth

       Amendment. Id. at 261. Consensual encounters in which a citizen voluntarily

       interacts with an officer do not compel Fourth Amendment analysis. Id.

       Nonconsensual encounters do compel a Fourth Amendment analysis and are

       typically divided into two levels of detention: full arrests lasting longer than a




       3
         At trial, Stitts objected to pieces of evidence based upon his motion to suppress, which was based upon the
       Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
       In his brief, Stitts does not mention Article 1, Section 11 or provide an independent analysis of the Indiana
       Constitution. Failure to make a cogent argument under the Indiana Constitution constitutes waiver of the
       issue on appeal. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that because the defendant
       presented no authority or independent analysis supporting a separate standard under the state constitution,
       any state constitutional claim is waived).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015               Page 9 of 14
       short time, which require probable cause, and brief investigative stops, which

       require a lower standard of reasonable suspicion. Id.


[15]   “Determining whether this was a consensual encounter or some level of

       detention ‘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.’” Id. (quoting Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). “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.’” Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111

       S. Ct. 1547, 1551 (1991)). Furthermore, United States v. Mendenhall “establishes

       that the test for existence of a ‘show of authority’ is an objective one: not

       whether the citizen perceived that he was being ordered to restrict his

       movement, but whether the officer’s words and actions would have conveyed

       that to a reasonable person.” Hodari D., 499 U.S. at 628, 111 S. Ct. at 1551

       (citing 446 U.S. 544, 100 S. Ct. 1870 (1980)). Factors that might lead a

       reasonable person to conclude that he or she was not free to leave include the

       threatening presence of several officers, the display of a weapon by an officer,

       the physical touching of the person by an officer, or the use of language or tone

       of voice indicating that compliance with the officer’s requests might be

       compelled. Clark, 994 N.E.2d at 261-262. However, the factors that go into

       determining whether a person would conclude that she is not free to leave “will

       vary, not only with the particular police conduct at issue, but also with the

       setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. 567, 573,


       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 10 of 14
       108 S. Ct. 1975, 1979 (1988). In Powell v. State, 912 N.E.2d 853, 860-862 (Ind.

       Ct. App. 2009), we held that a police officer approaching a parked vehicle does

       not constitute an investigatory stop or seizure for the purposes of the Fourth

       Amendment. However, we have found it to be a seizure under the Fourth

       Amendment when a police officer blocks a vehicle in such a way that it is

       impossible for that vehicle to leave. Stickle v. State, 792 N.E.2d 51, 53 (Ind. Ct.

       App. 2003), trans. denied.


[16]   Officer Packard testified that there was “room for [Stitts’s vehicle] to back out .

       . . .” Transcript at 82. The court found that there was enough distance between

       Officer Tarrh’s vehicle and Stitts’s vehicle for Stitts to back out of his parking

       space and leave the gas station. The record also reveals that Officer Tarrh was

       alone, did not display a weapon, and did not physically touch Stitts. See Clark,

       994 N.E.2d at 261-262. Additionally, Officer Tarrh did not turn on his

       emergency lights or siren when he pulled in behind Stitts. The trial court’s

       specific factual findings indicate that Stitts was both free to leave and able to do

       so. The trial court’s determination that a reasonable person in Stitts’s position

       would have concluded that he was free to leave was not clearly erroneous. We

       conclude that the initial encounter between Officer Tarrh and Stitts was

       consensual.


[17]   At the point that Officer Tarrh detected the odor of marijuana coming from the

       vehicle, he had probable cause to detain Stitts and conduct a search. Clark, 994

       N.E.2d at 260 (“[T]he smell of burnt marijuana emanating from [a person’s] car

       windows, to a trained officer, would provide such an officer with probable

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 11 of 14
       cause sufficient to justify searching at least the open interior of the car.”); Bell v.

       State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (“[T]he smell of raw marijuana

       on a person is sufficient to provide probable cause that the person possesses

       marijuana.”), trans. denied. One of the exceptions to the Fourth Amendment’s

       warrant requirement for searches is a search incident to a lawful arrest. Arizona

       v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009). Accordingly, when

       Officer Tarrh smelled the odor of marijuana coming from Stitts’s vehicle and

       when Officer Packard observed marijuana in plain view, the officers not only

       had probable cause to arrest Stitts, but also had authority to conduct a search

       incident to that arrest without a warrant. See Bell, 13 N.E.3d at 545-546; see also

       Powell, 912 N.E2d at 863 (discussing the “plain view” doctrine). Therefore, as

       the initial encounter between Stitts and Officer Tarrh was consensual and Stitts

       was further detained and searched after the officers had probable cause, we find

       that the trial court did not abuse its discretion in admitting the evidence

       obtained during the encounter between Stitts and the officers.


                                                              II.


[18]   The next issue is whether the evidence presented by the State was sufficient to

       support Stitts’s conviction of escape as a class C felony.4 Stitts argues that a


       4
         In his brief, Stitts frames this issue as “[w]as the Defendant improperly convicted of Escape and Resisting?”
       Appellant’s Brief at 1. However, in his summary of the argument regarding this issue, he states only that
       “[t]here is no factual basis for Stitts having been convicted of escape.” Appellant’s Brief at 6. In the
       argument section of his brief, Stitts addresses the resisting conviction only on the basis that the encounter
       between himself and Officer Tarrh was an unconstitutional stop and the evidence of his resisting should have
       been suppressed. As we discussed in Part I, the encounter was not an unconstitutional stop and the evidence
       of Stitts’s flight and subsequent resistance was properly admitted at trial. For these reasons, we address only
       the sufficiency of the evidence supporting Stitts’s conviction for escape as a class C felony.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015               Page 12 of 14
       necessary element of the crime was not proven because he was not under arrest

       at the time that he fled from the gas station. When reviewing claims of

       insufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of witnesses. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Rather,

       we look to the evidence and the reasonable inferences therefrom that support

       the verdict. Id. We will affirm the conviction if there exists evidence of

       probative value and reasonable inferences drawn from that evidence upon

       which a reasonable trier of fact could find the defendant guilty beyond a

       reasonable doubt. Id.


[19]   The offense of escape as a class C felony is governed by Ind. Code § 35-44.1-3-

       4, which at the time of the offense provided that “[a] person . . . who

       intentionally flees from lawful detention commits escape, a Class C

       felony.”5 At the time of the offense, Ind. Code § 35-31.5-2-186 defined “lawful

       detention” to mean “arrest . . . or . . . any other detention for law enforcement

       purposes.”6 Thus, to convict Stitts of escape as a class C felony, the State

       needed to prove that Stitts intentionally fled from lawful detention.


[20]   The Indiana Supreme Court has held that an arrest occurs not only when a

       person is formally placed under arrest, but also when a police officer interrupts

       the freedom of the accused person and restricts his liberty of movement. Roberts

       v. State, 599 N.E.2d 595, 598 (Ind. 1992). In addition, an intent to arrest may



       5
           Subsequently amended by Pub. L. No. 158-2013, § 511 (eff. July, 1 2014).
       6
           Subsequently amended by Pub. L. No. 170-2014, § 9 (eff. July 1, 2014).


       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 13 of 14
       be drawn from attendant circumstances and need not be expressly announced if

       it would be idle ceremony to do so. Gilman v. State, 180 Ind. App. 483, 488, 389

       N.E.2d 327, 331 (1979). Determining whether a person is under detention

       requires 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.

       Finger, 799 N.E.2d at 532 (citing Hodari D., 499 U.S. at 628, 111 S. Ct. at 1547).

       In this case, Stitts had been ordered to exit his vehicle under threat of being

       arrested for resisting a law enforcement official, had been placed into handcuffs,

       was being searched, and large quantities of currency and a cellophane wrapper

       containing prescription medications for which he had no prescription had been

       found on his person before he ran from the gas station. For these reasons, we

       conclude that a reasonable inference from the evidence and attendant

       circumstances is that Stitts was lawfully detained for purposes of Ind. Code §

       35-44.1-3-4. Because Stitts was lawfully detained when he ran from the officers,

       we conclude that the jury could have found Stitts guilty beyond a reasonable

       doubt of escape as a class C felony.


                                                   Conclusion

[21]   For the foregoing reasons, we affirm Stitts’s convictions.


[22]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1410-CR-747 | June 15, 2015   Page 14 of 14
