MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded                                       FILED
as precedent or cited before any court except                              Oct 19 2018, 9:56 am

for the purpose of establishing the defense of                                  CLERK
res judicata, collateral estoppel, or the law of                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
the case.


ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                          Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, P.C.                    Attorney General
Nappanee, Indiana
                                                             Lyubov Gore
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ashley N. Sexton,                                            October 19, 2018
Appellant-Defendant,                                         Court of Appeals Case No.
                                                             18A-CR-1020
        v.                                                   Appeal from the Elkhart
                                                             Circuit Court
State of Indiana,                                            The Honorable Michael A.
Appellee-Plaintiff                                           Christofeno, Judge
                                                             Trial Court Cause No.
                                                             20C01-1610-F3-50



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018                    Page 1 of 16
                                             Case Summary
[1]   Ashley N. Sexton appeals her convictions and sentence for level 3 felony

      possession of methamphetamine and class A misdemeanor possession of a

      controlled substance. She argues that the trial court erred in admitting evidence

      allegedly obtained in violation of her right against unreasonable searches and

      seizures guaranteed by the Fourth Amendment to the United States

      Constitution. She also argues that her twelve-year aggregate sentence is

      inappropriate based on the nature of the offenses and her character. We

      conclude that the evidence was not seized in violation of her federal

      constitutional rights and that she fails to carry her burden to show that her

      sentence is inappropriate. Therefore, we affirm.


                                 Facts and Procedural History
[2]   On October 22, 2016, at approximately 12:30 a.m., Goshen Police Officers

      Mark Clere and Randy Valderrama were on patrol in an unmarked gray

      minivan. They drove to a Goshen church, which had twice previously reported

      the presence of unwanted homeless persons. As the officers entered the church

      parking lot, they observed a woman, later identified as Sexton, sitting in the

      front entryway. The officers parked in front of the sidewalk leading to the

      church entrance. Officer Kyle Kalb, who was driving a marked police car,

      parked next to the gray minivan. None of the officers activated their emergency

      lights or sirens.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 2 of 16
[3]   The three officers, who were all in full police uniform, exited their vehicles and

      approached the entryway. Sexton stood up with a surprised expression and

      said something to another person, later identified as Eddy Moreno, who was

      standing in the corner of the entryway. Sexton appeared unsteady on her feet.

      Officer Clere asked Sexton for identification, while Officer Valderrama stepped

      away to talk separately with Moreno. Officer Kalb apparently went back and

      forth between the other two officers, but most of the time Officer Clere was

      alone with Sexton. Sexton knelt down to look for her ID. While she was

      looking through her black drawstring bag, she abruptly sat down. She was

      unable to locate her ID. However, she found her friend’s ID and gave that to

      Officer Clere. She told Officer Clere her name was Ashley Baker, which was

      her maiden name, and provided her date of birth and the last four digits of her

      social security number.


[4]   Officer Clere observed that Sexton’s eyes were red and glassy. She had trouble

      staying awake and told Officer Clere that she was getting sick and was ready to

      go home. Officer Clere detected the odor of synthetic marijuana and asked

      Sexton whether she had any narcotics. She replied that she did not and said

      that he probably smelled her drink. Officer Clere stated that he did not think

      the odor was from her drink because it was capped. Sexton stood up. Officer

      Clere asked Sexton whether she had anything illegal on her. Sexton told him

      that she had a taser and took it out of her jacket pocket and turned it on.

      Officer Clere told her to put it away. She apologized and put it in her bag. She

      sat down again. Officer Clere asked Sexton for her address and what her plans


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 3 of 16
      for the rest of the evening were. Sexton told Officer Clere she was hungry

      because she had not eaten dinner that night and joked that she was on “fat girl

      status.” State’s Ex. 1. Officer Clere replied that he had not eaten dinner that

      night either because he had reported early for work.


[5]   Officer Clere stood next to Sexton for several minutes as he observed Moreno

      interact with Officer Valderrama. Officer Clere then observed what appeared to

      be a hand-rolled cigarette on the sidewalk near where Moreno had been

      standing. Officer Clere picked it up and concluded that it was probably a

      synthetic marijuana cigarette. This prompted Officer Clere to again ask Sexton

      if she had any drugs on her. She said that she did not but volunteered that she

      did have some food. Officer Clere asked her if she would mind if he looked

      inside her bag. She said that she “didn’t care.” Id.


[6]   Officer Clere opened the bag. Sexton asked him if her lighter was in there.

      Officer Clere told her he did not see her lighter. Among the items that officer

      Clere found in her bag was a digital scale with a white powdery substance on it.

      Based on his training and experience, Officer Clere believed that the white

      substance appeared to be methamphetamine. In his previous drug

      investigations, Officer Clere had found digital scales in conjunction with illegal

      narcotics and knew that they were used for weighing drugs to be sold. When he

      took it out of the bag, Sexton told Officer Clere that she was “carrying [the

      scale] for somebody else.” Id. Officer Clere put the scale and the synthetic

      marijuana cigarette aside and requested that Sexton stand up and not put her

      hands in her pockets. As Sexton started to stand up, she immediately put her

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 4 of 16
      hands in her pockets. Officer Clere asked her to remove them, and she did. He

      asked her if she had anything that would harm him. She said that she had a

      knife in her back pocket, which Officer Clere removed. Sexton put her hands in

      her jacket pockets again, so Officer Clere took hold of her arm to remove her

      hand from her pocket. He proceeded to pat down Sexton and felt an object in

      her right front jacket pocket. Officer Clere removed the object and found that it

      was a clear plastic bag containing a crystal-like substance, which Officer Clere

      believed to be methamphetamine. In the same jacket pocket, Officer Clere also

      found a small clear green bag that contained a crystal-like substance.


[7]   Officer Clere handcuffed Sexton and informed her of her Miranda rights. Sexton

      acknowledged her rights and indicated that she was willing to answer questions.

      Officer Clere asked her about her drug use, and Sexton replied that she had

      smoked the night before. Officer Clere then did a thorough search of Sexton

      and found a wallet that contained a small clear plastic bag with white pills

      inside. Sexton informed Officer Clere that she had just gotten divorced and that

      her married name was Sexton. The police arrested Sexton and took her to jail.


[8]   Testing revealed that the crystal-like substance in the clear bag was 28.18 grams

      of methamphetamine, and the crystal-like substance in the green bag was 1.79

      grams of methamphetamine. One of the white pills from the plastic bag in

      Sexton’s wallet was found to be Oxycodone, a schedule II controlled substance.

      The State charged Sexton with level 3 felony possession of methamphetamine,

      class A misdemeanor possession of a controlled substance, and class C

      misdemeanor possession of paraphernalia. Sexton filed a motion to suppress all

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 5 of 16
       the evidence, arguing that it was obtained as a result of an unconstitutional

       search and seizure.


[9]    After several continuances, Sexton’s jury trial was scheduled for November 6,

       2017. On November 6, the trial court empaneled the jury, provided preliminary

       instructions, and permitted the parties to present opening argument. The trial

       court then held a hearing on Sexton’s motion to suppress and took the matter

       under advisement. The trial court dismissed the class C misdemeanor

       possession of paraphernalia charge on motion of the State. The following

       morning, the trial court issued an order denying her motion to suppress and

       proceeded with the jury trial. Sexton failed to appear in person either day. She

       was tried in absentia, and the jury found her guilty as charged.


[10]   In March 2018, the trial court held a sentencing hearing. The trial court found

       that Sexton’s and her counsel’s statements regarding her drug addiction were

       mitigating factors. The trial court found the following aggravating factors: (1)

       Sexton’s prior criminal history and pending case for resisting law enforcement

       and false informing; (2) she was on probation when she committed the instant

       offenses; (3) she previously violated probation four times; (4) she failed to

       appear two times in her case and at her trial; (5) she had used

       methamphetamine since 2005, had progressed to daily use, and was using

       methamphetamine when she failed to appear for trial; (6) she uses marijuana

       daily and also uses Adderall; (7) her illegal drug use comprises separate and

       distinct crimes each time she uses, showing a complete disregard for the law; (8)

       she is a high risk to reoffend; and (9) other forms of sanctions had proven

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 6 of 16
       unsuccessful. Tr. Vol. 3 at 92-94; Appellant’s App. Vol. 2 at 96-98. The trial

       court sentenced Sexton to twelve years with three years suspended for the level

       3 felony conviction and to a concurrent term of one year for the class A

       misdemeanor conviction. This appeal ensued.


                                        Discussion and Decision

           Section 1 – The trial court did not err in admitting evidence.
[11]   Sexton argues that the trial court erred in admitting evidence seized from the

       searches of her black drawstring bag and her person because it was seized in

       violation of her right against unreasonable searches and seizures guaranteed in

       the Fourth Amendment to the United States Constitution.1 “When reviewing a

       trial court’s ruling on the admissibility of evidence resulting from an allegedly

       illegal search, we do not reweigh the evidence, and we consider conflicting

       evidence most favorable to the trial court’s ruling.” Conn v. State, 89 N.E.3d

       1093, 1097 (Ind. Ct. App. 2017), trans. denied (2018). However, the

       constitutionality of a search or seizure is a pure question of law that we review

       de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[12]   The Fourth Amendment states,




       1
         Although Sexton refers to Article 1, Section 11 of the Indiana Constitution in her brief, she does not make a
       separate state constitutional argument. Therefore, she has waived any state constitutional claim. See Abel v.
       State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (concluding that when appellant presents no authority or
       independent analysis supporting the separate standard of the state constitution, the state constitutional claim
       is waived).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018                  Page 7 of 16
               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)).

       This protection has been extended to the states through the Fourteenth

       Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,

       961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and

       seizures conducted without a warrant 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. “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).


[13]   Encounters between law enforcement officers and citizens take a variety of

       forms, not all of which implicate the protections of the Fourth Amendment.

       Clark, 994 N.E.2d at 261. Consensual encounters in which a citizen voluntarily


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 8 of 16
       interacts with an officer do not implicate the Fourth Amendment. Id.

       However, nonconsensual encounters do, and such encounters typically involve

       one of two levels of detention: a full arrest lasting longer than a short period of

       time, or a brief investigative stop. Id. The former requires probable cause to be

       permissible; the latter requires a lower standard of reasonable suspicion. Id.


[14]   Sexton argues that the officers conducted an investigative detention without

       reasonable suspicion of criminal activity and that her consent to search her bag

       was invalid. Accordingly, she asserts that any evidence discovered as a result of

       her unlawful detention must be excluded as “fruit of the poisonous tree.” See

       Segura v. United States, 468 U.S. 796, 804 (1984) (noting that exclusionary rule

       encompasses both “primary evidence obtained as a direct result of an illegal

       search or seizure” and any “evidence later discovered and found to be

       derivative of an illegality.”) This includes the digital scale found in her bag as

       well as the methamphetamine discovered during the pat down and the

       Oxycodone discovered by the search after she was handcuffed and informed of

       her Miranda rights.


[15]   The State counters that the trial court properly admitted evidence that the

       officers obtained as a result of a consensual encounter with Sexton and a

       consensual search of her bag. We note that Sexton does not challenge the pat

       down search that revealed the methamphetamine. Further, the State asserts,

       and Sexton does not dispute, that once Officer Clere discovered the digital scale

       with suspected methamphetamine residue on it, he had probable cause to arrest

       Sexton for a felony, and therefore could search her and her belongings incident

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 9 of 16
       to that arrest. See Thomas v. State, 81 N.E.3d 621, 625 (Ind. 2017) (“An officer

       may, however, arrest a suspect without a warrant if he observes the suspect

       committing a crime, or if the officer has probable cause to believe that the

       suspect has committed a felony.”). Thus, we focus on the nature of the

       encounter until Officer Clere discovered the digital scale.


[16]   Determining whether an encounter is consensual or involves 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.” Clark, 994 N.E.2d at 261 (quoting Finger v. State, 799 N.E.2d 528,

       532 (Ind. 2003)). The test is an objective one; the question is not whether the

       particular person actually felt free to leave, but whether the officer’s words and

       actions would have conveyed to a reasonable person that he or she was free to

       leave. Id. “Only when the officer, by means of physical force or show of

       authority, has in some way restrained the liberty of a citizen may we conclude a

       ‘seizure’ has occurred.” Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007)

       (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). Circumstances that might

       lead a reasonable person to believe that he or she was not free to leave 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 (quoting Overstreet v. State,

       724 N.E.2d 661, 664 (Ind. Ct. App. 2000), trans. denied). “[M]ere police




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 10 of 16
       questioning does not constitute a seizure.” Clarke, 868 N.E.2d at 1118 (quoting

       Bostick, 501 U.S. at 434).


[17]   Here, although there were three officers involved, none of them activated their

       sirens or lights when they parked at the church. There is no evidence that they

       approached Sexton in a threatening manner or displayed their weapons.

       Officer Clere spoke to Sexton while Officer Valderrama stepped away with

       Moreno and did not interact with Sexton. Our review of Officer Clere’s body

       camera video reveals that he calmly requested Sexton’s identification and

       engaged her in conversation in a pleasant manner. Officer Clere did not order

       her to do anything or use language or a tone of voice that would indicate that

       Sexton’s compliance would be compelled. Sexton moved freely about during

       their conversation. Officer Clere did not physically touch or restrain Sexton.

       When she revealed her taser, he merely asked her to put it away. When Officer

       Kalb was present, his speech and behavior was similar to Officer Clere’s.

       Officer Clere asked Sexton if she would mind if he looked in her bag, and she

       stated that she “didn’t care.” State’s Ex. 1. Based on an evaluation of all the

       circumstances, we cannot say that the officers’ words or actions would convey

       to a reasonable person that she was not free to disregard the officers and go

       about her business. Accordingly, we conclude that her encounter with the

       officers was consensual. See Rutledge v. State, 28 N.E.3d 281, 290 (Ind. Ct. App.

       2015) (concluding that initial encounter was consensual where police did not

       activate lights or siren, approached the parked car, did not display weapons,

       and did not touch Rutledge); Cochran v. State, 843 N.E.2d 980, 984 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 11 of 16
       App. 2006) (“Asking questions is an essential part of police investigations. In

       the ordinary course a police officer is free to ask a person for identification

       without implicating the Fourth Amendment.”) (quoting Hiibel v. Sixth Judicial

       Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 185 (2004)), trans. denied;

       Overstreet, 724 N.E.2d at 663 (concluding that no stop or seizure occurred where

       officer stopped at a gas station without activating lights or siren, approached

       Overstreet while he was putting air in his tires, asked him for identification, and

       questioned him about what he had been doing).


[18]   We note that Sexton does not dispute that she consented to a search of her bag,

       but rather argues that her consent was invalid because she was not informed of

       her right to counsel prior to the search pursuant to Pirtle v. State, 263 Ind. 16,

       323 N.E.2d 634 (1975). However, Pirtle applies only when a person is in

       custody, which is defined as a “formal arrest’ or a ‘restraint on freedom of

       movement of the degree associated with a formal arrest.’” Meredith v. State, 906

       N.E.2d 867, 873 (Ind. 2009) (quoting Luna v. State, 788 N.E.2d 832, 833 (Ind.

       2003)). Given that we have concluded that her encounter with the police was

       consensual, it follows that she cannot have been in custody for Pirtle purposes.

       We conclude that the evidence found in Sexton’s bag and on her person was

       not obtained in violation of her federal constitutional rights, and thus the trial

       court did not err in admitting the evidence. Accordingly, we affirm Sexton’s

       convictions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 12 of 16
        Section 2 – Sexton has failed to carry her burden to show that
                        her sentence is inappropriate.
[19]   Sexton asks us to reduce her twelve-year sentence 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 in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       “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). “[S]entencing is principally a discretionary function in

       which the trial court’s judgment should receive considerable deference.”

       Cardwell, 895 N.E.2d at 1222. “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). In

       conducting our review, we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing, i.e., whether it consists of executed

       time, probation, suspension, home detention, or placement in community

       corrections, and whether the sentences run concurrently or consecutively.

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess

       the nature of the offense and character of the offender, “we may look to any
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 13 of 16
       factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

       Ct. App. 2013). Sexton has the burden to show that her sentence is

       inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g 875 N.E.2d 218.


[20]   Turning first to the nature of the offenses, 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). Sexton was

       convicted of possession of methamphetamine as a level 3 felony because she

       possessed at least twenty-eight grams of methamphetamine. Ind. Code § 35-48-

       4-6.1(d). The advisory sentence for a level 3 felony is nine years, with a range of

       three to sixteen years. Ind. Code § 35-50-2-5. Sexton was given three years

       above the advisory. However, the trial court demonstrated leniency by

       suspending three years and imposing a concurrent sentence for Sexton’s

       conviction for class A misdemeanor possession of a schedule II controlled

       substance. We observe that Sexton had two bags of methamphetamine, one

       with 28.18 grams and the other with 1.79 grams. In addition, she had a digital

       scale, which suggests that she did not merely possess methamphetamine but

       was dealing it. She illegally possessed more than one kind of drug, and there

       was evidence of synthetic marijuana for which she was not charged. She misled

       Officer Clere about her last name and denied knowledge of the

       methamphetamine in the pockets of her jacket even though she had put her

       hands in her pockets. These facts as to the nature of her crimes support a

       sentence above the advisory.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 14 of 16
[21]   As to Sexton’s character, she has two previous arrests as a juvenile for the status

       offense of incorrigibility and one for being a runaway. As a twenty-five-year-

       old adult, she has previous convictions for class B misdemeanor leaving the

       scene of an accident and class A misdemeanor domestic battery in two separate

       causes. She was on probation for these two offenses when she committed the

       instant crimes. She violated her probation several times and failed to appear at

       least five times. She also failed to appear in this case and admitted that she

       failed to appear at trial because she was using methamphetamine instead. After

       committing the instant offenses, she was arrested for two counts of resisting law

       enforcement and false informing. Her past and current criminal conduct

       indicate a disrespect for the law. Prior leniency has clearly not influenced her

       behavior. She is classified in the high risk category to reoffend.


[22]   Sexton argues that she is a drug addict, whose drug use has coincided with her

       criminal activity, not a hardened criminal. We observe that her drug use has

       gotten progressively worse to the point where she is using methamphetamine

       every day and marijuana every other day. Tr. Vol. 3 at 70. Previous

       opportunities for substance abuse treatment have proven unsuccessful. Sexton

       does not suggest that incarceration will prevent her from receiving treatment for

       her addiction issues, and in fact, it may present the best options for inpatient

       treatment.


[23]   Sexton also misled the trial court at sentencing by stating that she had “never

       been in trouble before.” Id. at 78. She has four children, none of whom she has

       custody of and none of whom she supports financially. Although she stated

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 15 of 16
       that she had been previously employed at two different businesses and claimed

       that she could get either job back, she had been unemployed for two months

       prior to her arrest in this case. Id. at 70. We conclude that Sexton has failed to

       carry her burden to show that her sentence is inappropriate in light of the nature

       of the offenses and her character. Therefore, we affirm her sentence.


[24]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1020 | October 19, 2018   Page 16 of 16
