Person v. State

• Decision Date: 12 March 2002
• Docket Number: No. 49A02-0106-CR-410.,49A02-0106-CR-410.
• Citation: 764 N.E.2d 743
• Parties: Steve C. PERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

764 N.E.2d 743

Steve C. PERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0106-CR-410.

Court of Appeals of Indiana.

March 12, 2002.

Ann Sutton, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Scott A. Kreider, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Steven Person ("Person") appeals his conviction for unlawful possession of a fire-arm by a serious violent felon as a class B felony.

We affirm.

ISSUES

1. Whether the trial court erroneously denied Person's motion to suppress.

2. Whether the trial court erroneously denied Person's motion for a bifurcated trial.

3. Whether there was sufficient evidence to sustain Person's conviction.

4. Whether Person's sentence is unconstitutional.

FACTS

The facts most favorable to the judgment reveal that on March 31, 2000, Officer Chris Lawrence ("Officer Lawrence") of the Indianapolis Police Department was patrolling near 1121 North Rural, a home where a narcotics search warrant had been served a few days earlier. Officer Lawrence observed two men, Tona Jones ("Jones") and Tommy Jackson ("Jackson"), standing on the sidewalk in front of 1121 North Rural engaged in a conversation with the driver of a parked car; Jackson had been arrested during the execution of the search warrant. Officer Lawrence observed Jackson bend over to talk to the driver, appearing to hand him something. Jones then appeared to inform Jackson of Officer Lawrence's approach and the driver of the car left "in an abrupt manner." (Tr. 46).

As Officer Lawrence parked his car in front of 1121 North Rural, Jones and Jackson began to walk away. Officer Lawrence told them to stop, but they continued walking away. At that point, Person, who was sitting on the front porch wearing a distinctive "orange and yellow shirt," looked at Officer Lawrence and "ran across the porch." (Tr. 47). Officer Lawrence "told all three of them to stop." (Tr. 47). Jones and Jackson "stopped, and [Person] continued to run into the house." (Tr. 47).

Officer Lawrence requested assistance and Officers Robert Hipple ("Officer Hipple") and Craig McCarett ("Officer McCarett") quickly arrived at the scene. With a description of Person, Officer Hipple began to search for Person. A young man behind the house informed him where Person had gone. Officer Hipple then went to a house located at 1135 North Rural where the owner, Andrew Smith Sr. ("Smith"), was sitting on the porch. After receiving permission to enter, Officer Lawrence "walked into the living room area" and found Person wearing a white T-shirt and blue jeans, sweating and panting "as if [he had] been running." (Tr. 91). Person was standing still with his hands behind his back. Officer Lawrence told him to show his hands, but he backed down a hallway towards a bedroom, went inside, and closed the door.

Officers Lawrence and McCarett soon arrived and Person subsequently came out of the bedroom. Officer Lawrence identified Person as the man who fled, and a check of his identification revealed an outstanding warrant for driving while suspended. The officers went into the bedroom and saw an orange and yellow shirt laying on top of a pile of clothes next to a.25 caliber Titan handgun. Officer McCarett took photographs and recovered the handgun as evidence. On April 3, 2000, Person was charged with unlawful possession of a firearm by a serious violent felon.

On October 31, 2000, Person filed a motion to suppress the handgun. At the hearing held on January 4, 2001, Person contended that Officer Lawrence did not have reasonable suspicion of criminal activity to justify detaining him. Therefore, he argued, the handgun should be suppressed as fruit of an illegal search. Officer Lawrence testified that when he observed Jones and Jackson interacting with the driver of the car, he believed that narcotics were being exchanged. Further, Jackson had been arrested a few days earlier when a narcotics search warrant was executed at 1121 North Rural, a home that was the subject of numerous complaints about drug activity. Concerning Person's flight from the porch, Officer Lawrence testified that he believed Person was possibly involved in the suspected narcotics activity. He stated that "it's been my training and experience that during street level narcotics dealings you'll have usually a lookout, someone who runs the narcotics, and then somebody who is holding the money and a gun." (Tr. 71). In addition, Officer Hipple stated that he entered 1135 North Rural only after receiving permission to enter from Smith. Person testified that he walked away because he knew there was an outstanding warrant for his arrest.

After hearing evidence, the trial court took the matter under advisement. On January 5, 2001, the trial court denied Person's motion to suppress. The trial court found that Officer Lawrence "presented specific articulate [sic] facts and inferences therefrom that raise a reasonable suspicion that [Person] might have been involved in criminal" activity. (Tr. 118). Further, the trial court found that Person did not have a reasonable expectation of privacy in the house at 1135 North Rural since he did not own or reside therein.

A jury trial was held on February 28, 2001. Prior to the jury being empaneled, Person orally moved for a bifurcated trial. Person argued that the jury would be less likely to consider whether he was in possession of a firearm if they were aware of his prior conviction for burglary. However, the trial court noted that bifurcation would be unworkable because it is not unlawful to possess a firearm per se, therefore, no crime would be before the jury. Person's motion was denied; he subsequently stipulated that he had a prior conviction for burglary as a class B felony.

After hearing the evidence, the jury convicted Person of unlawful possession of a firearm by a serious violent felon. On May 4, 2001, Person's sentencing hearing was held. The trial court found as aggravators (1) Person's five prior felony convictions; (2) the fact that he committed another crime while on bond; and (3) that he is in need of rehabilitative treatment best provided in a penal facility. The trial court also found as a mitigator that his imprisonment would create a hardship on his family, but that it was outweighed by the aggravating circumstances. Person was sentenced to a fifteen-year term of imprisonment to be executed in its entirety.

DECISION

1. Motion to Suppress

Person argues that the trial court erroneously denied his motion to suppress the handgun. Specifically, he argues that Officer Lawrence did not have reasonable suspicion under the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Indiana Constitution to detain him.

When we review the denial of a motion to suppress evidence,

[w]e review the record for substantial evidence of probative value to support the trial court's ruling. We do not reweigh the evidence. We resolve conflicting evidence in favor of the trial court and consider any substantial uncontroverted evidence. If the basis for the ruling on a motion to suppress is unclear, we will uphold the trial court if a reasonable view of the evidence supports the trial court's decision. The credibility of witnesses is for the trial court to determine.

Moore v. State, 723 N.E.2d 442, 448 (Ind. Ct.App.2000) (quoting Willsey v. State, 698 N.E.2d 784, 789 (Ind.1998) (citations omitted)).

The Fourth Amendment prohibits unreasonable searches and seizures. A search or seizure without prior judicial authorization is per se unreasonable unless it falls within one of the narrowly drawn exceptions. Love v. State, 741 N.E.2d 789 (Ind.Ct.App.2001). One exception is the investigatory stop as outlined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigatory stop of a citizen by a police officer does not violate that citizen's constitutional rights where the police officer has a reasonable articulable suspicion of criminal activity. Bogetti v. State, 723 N.E.2d 876 (Ind.Ct.App.2000). Considering the totality of the circumstances, we determine what constitutes reasonable suspicion on a case-by-case basis. Id. However, reasonable suspicion must be an objective determination that is more than an inchoate and unparticularized suspicion or hunch, but it is less than proof of wrongdoing by a preponderance of the evidence. Id.

The United States Supreme Court has held that "an individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). However, an officer may consider it as a factor in determining whether the situation is sufficiently suspicious to warrant further investigation. Id. The Court also held that unprovoked flight upon noticing the police could be considered as suspicious behavior. Id. "Headlong flight wherever it occurs is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id. at 125, 120 S.Ct. 673. Concerning an individual's reasonable expectation of privacy, the Court has also held that an overnight guest in a home has an expectation of privacy, but an individual merely present with the permission of the owner does not. Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

In this case, the record reveals that Person was sitting on the porch of 1121 North Rural, a house where police had served a narcotics search warrant a few days earlier and about which police had received numerous complaints about narcotics activity. Jackson and Jones were engaged in a conversation with the driver of a car parked in front of the residence. Officer Lawrence recognized Jackson from his previous...