Lothery v. State

• Decision Date: 24 April 2023
• Docket Number: 22A-CR-2156
• Parties: Brandon Lee Lothery, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

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Brandon Lee Lothery, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-2156

Court of Appeals of Indiana

April 24, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Clark Circuit Court The Honorable Bradley B. Jacobs Judge Trial Court Cause Nos 10C02-2005-F5-13110C02-1907-F2-17

ATTORNEY FOR APPELLANT Matthew J. McGovern

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler G. Banks Supervising Deputy Attorney General

Judges Brown and Weissmann concur.

MEMORANDUM DECISION

Bailey, Judge.

Case Summary

[¶1] Following a jury trial, Brandon Lothery appeals his convictions and sentence for possession of a narcotic drug, as a Level 6 felony;^[1] possession or use of a legend drug, as a Level 6 felony;^[2] and possession of a hypodermic syringe, a Level 6 felony.^[3] Following his guilty plea to possession of methamphetamine, as a Level 4 felony,^[4] he appeals his sentence for the same.

[¶2] We affirm.

Issues

[¶3] Lothery raises the following four restated issues on appeal:

I. Whether the trial court erred in admitting evidence against him because it was obtained in violation of the Fourth Amendment.

II. Whether the evidence against him was obtained in violation of Article 1, Section 11 of the Indiana Constitution because the vehicle and/or his person were searched without first advising him of his right to an attorney as recognized in Pirtle v. State, 323 N.E.2d 634 (Ind. 1975).

III. Whether the trial court's error, if any, in admitting evidence of past crimes, wrongs, or other bad acts was harmless.

IV. Whether Lothery's sentence is inappropriate in light of the nature of the offenses and his character.

Facts and Procedural History

[¶4] On July 15, 2019, the police were dispatched to a gas station to investigate a report of an unconscious, unresponsive man sitting in a silver van. When an officer arrived, he found Lothery asleep in the silver van. Lothery consented to a search of the vehicle, and the officer found drug paraphernalia and a large plastic bag containing five smaller baggies that contained methamphetamine. Under cause number 10C02-1907-F2-17 ("F2-17"), Lothery was charged with dealing and possession of methamphetamine and was alleged to be a habitual offender. Lothery subsequently entered into a plea agreement in F2-17, under which he pled guilty to Level 4 felony possession of methamphetamine, the other charges would be dropped, and his sentence would be capped at six years.

[¶5] On the evening of May 16, 2020, Officer Eric Kruse of the Charlestown Police Department received a call from dispatch that a person located at the Creekside Apartments had reported that drug activity was occurring in the apartment parking lot. When Officer Kruse arrived at the scene, he turned off his headlights, did not activate emergency lights or spotlights, and did not block anyone in with his vehicle. Officer Kruse exited his vehicle and approached the informant who was still in the parking lot. Officer Kruse spoke with the informant, who stated that he had smelled marijuana coming from a silver car that was parked in the lot. The informant pointed out the silver vehicle to Officer Kruse.

[¶6] Officer Kruse then approached the silver vehicle. As he did so, the driver of the vehicle-later identified as Brian Crum-opened his driver's side door and placed one foot on the ground outside the door. Crum asked Officer Kruse, "What's happening?," and Officer Kruse asked, "What's up, dude?" State's Ex. 1 at 21:29:10. Crum replied, "Nothing, smoking a cigarette." Id. Officer Kruse then asked Crum, "Ain't smokin' no weed?" Id. Crum replied, "No, ain't got no weed" and stated that he and the passenger were "just sitting here, talking." Id. Officer Kruse asked, "Y'all got your id on ya'?" Id. at 21:29:30. Lothery, who was seated in the front passenger seat, stated that he did not have identification with him.

[¶7] Crum, who had by now fully exited the vehicle, asked Officer Kruse whether someone had said that he and Lothery were "smoking weed," and Officer Kruse replied, "Yeah, I guess another car." Id. at 21:29:50. Officer Kruse then asked Crum to stand at the back of the car next to Officer Dickerson, who had recently arrived at the scene. Crum did so, and Officer Kruse walked to the passenger-side front door and opened it. Officer Kruse said to Lothery, "You ain't got no id on ya'?," and Lothery replied, "No." Id. at 21:30:02. Officer Kruse "asked Mr. Lothery to step out of the vehicle,"^[5] and Lothery moved a case from his lap to the center of the vehicle and exited. Tr. v. II at 173. Lothery then walked toward the back of the vehicle.

[¶8] Officer Kruse asked Lothery and Crum, "There ain't nothing illegal in the car or anything like that?," and both men replied, "No." State's Ex. 1 at 21:31:16. Officer Kruse then asked if he could search the vehicle, and Crum said, "Go ahead." Id. While Crum and Lothery stood at the back of the vehicle with Officer Dickerson, Officer Kruse opened the front passenger side door and began his search of the vehicle. Immediately upon putting his head into the vehicle, Officer Kruse "could smell ... the marijuana inside the vehicle." Tr. v. II at 174. In his search Officer Kruse found, on the driver's side, a marijuana grinder and, in the center console, a soft case containing a plastic bag with an off-brown powder he believed to be heroin.

[¶9] After his search, Officer Kruse stated to Lothery and Crum, "You got a grinder in there," and Crum stated that the grinder belonged to him. State's Ex. 1 at 21:38:19. Officer Kruse stated, "Just 'cuz I found that stuff in the car, I gotta read you your rights, alright?," and proceeded to give Lothery and Crum the Miranda warning. Id. at 21:38:32. Lothery and Crum both stated that they understood their Miranda rights.

[¶10] Officer Kruse then stated again that there was a grinder in the car, along with "papers." Id. at 21:39:03. Lothery asked, "What? Are you trying to say we're arrested or something?," to which Officer Kruse replied, "No, I gotta ask you these questions." Id. at 21:39:36. Officer Kruse then stated to Lothery, "let me talk to you separately over here," and walked with Lothery to the front driver's side of the vehicle while Crum remained at the back of the vehicle with Officer Dickerson.

[¶11] Officer Kruse then stated to Lothery, "Whose baggie was that in the center console area? It was a little soft case, looked like heroin to me. Was that yours?" Id. at 21:40:04. Lothery replied that it was not his, that he did not know whose it was, and that he and Crum had just been talking in the car. Officer Kruse asked Lothery if he had known what was in the console, and Lothery said no. Officer Kruse then asked Lothery, "Do you have anything on you?," and Lothery said, "No, check me, man," as he raised up his arms. Id. at 21:40:29. Officer Kruse searched Lothery and felt a "bulge of plastic bags" inside the "bottom of [Lothery's] drawers." Tr. v. II at 174. Based on the "contour and shape" of the bulge of plastic bags, Officer Kruse believed they contained narcotics. Id. Officer Kruse placed Lothery in handcuffs. He then walked Lothery toward the back driver's side of the vehicle, faced Lothery toward the vehicle, and leaned Lothery against it. Officer Kruse then retrieved from Lothery's person a syringe, two cellophane plastic wrappers that had white residue in them, and one Ziplock plastic bag containing "orange powder substances" that Lothery admitted was suboxone. Id. at 175. Subsequent testing showed the substance to be Buprenorphine, a legend drug.

[¶12] Officer Kruse retrieved from the car the soft case containing what he believed to be heroin. He took the case to Lothery and asked if it was his. Lothery replied in the negative, and Officer Kruse then asked Lothery if it belonged to Crum. Lothery said he did not know. Crum then stated several times that he had not seen Lothery use heroin "since he's been out." E.g., State's Ex. 1 at 21:47:49.

[¶13] On May 22, 2020, under cause number 10C02-2005-F4-131 ("F4-131"), the State charged Lothery with Count I, possession of methamphetamine, as a Level 5 felony;^[6] Count II, possession of heroin, a narcotic drug, as a Level 6 felony; Count III, unlawful possession of Buprenorphine and Naloxone, legend drugs, as a Level 6 felony; and Count IV, unlawful possession of a hypodermic syringe, as a Level 6 felony. Lothery filed a motion to suppress all evidence from the search of the vehicle and his person, and the court held a hearing on the same on April 19, 2022. The court denied the motion to suppress. At the jury trial, over Lothery's continuing objections, the court admitted State's Exhibit 1, the video from Officer Kruse's body camera, and State's Exhibit 2, a still photograph taken from the video on Officer Kruse's body camera. Officer Kruse testified that Exhibit 2 was a picture of Lothery with "the soft black case where [Officer Kruse] located the brown powdery substance that [he] recognized as heroin" laying in Lothery's lap. The picture was taken from the point in the video where Officer Kruse first opened the passenger side front door in order to allow Lothery to exit the vehicle.

[¶14] Following trial, a jury found Lothery not guilty of Count I and guilty of all other charges. Following a consolidated sentencing hearing, the trial court sentenced Lothery to six years in the Department of Correction for the Level 4 felony conviction in F2-17 and two and a half years each for the Level 6 felonies in Counts II, III, and IV in...