Yancey v. State, 82A05–1112–CR–695.

• Decision Date: 08 August 2012
• Docket Number: No. 82A05–1112–CR–695.,82A05–1112–CR–695.
• Citation: 972 N.E.2d 419
• Parties: Jaron YANCEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

972 N.E.2d 419

Jaron YANCEY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 82A05–1112–CR–695.

Court of Appeals of Indiana.

Aug. 8, 2012.

Appeal from the Vanderburgh Circuit Court; The Honorable Kelli E. Fink, Magistrate; Cause No. 82C01–1108–FA–953.

Jesse R. Poag, Newburgh, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

Appellant-defendant Jaron L. Yancey appeals his conviction for Dealing in Cocaine,¹ a class A felony. Specifically, Yancey maintains that his conviction should be set aside because the trial court improperly admitted cocaine that was seized during the search of a vehicle, following an “improperly prolonged investigatory stop .” Yancey also claims that the trial court abused its discretion in admitting testimony of prior uncharged conduct that involved previous transactions with cocaine only hours before the instant offense occurred. Concluding that the cocaine was properly admitted into evidence and that Yancey's prior dealings in cocaine were also properly admitted in these circumstances, we affirm the judgment of the trial court.

FACTS

On August 6, 2011, at approximately 4:00 p.m., Yancey called an acquaintance, Casey Snyder, and asked her for a ride to the mall in Evansville. In exchange for the ride, Yancey gave Snyder .2 grams of cocaine. Snyder called Yancey on two other occasions that same evening to purchase additional cocaine, and each time Yancey brought her .2 grams of cocaine in exchange for twenty dollars.

At approximately 10:30 p.m., Yancey called Snyder and asked her to drive him to his house and then to another residence. In exchange for this task, Yancey gave Snyder .4 grams of cocaine. They were on their way to Yancey's house at around 11:30 p.m., and around that time, Evansville Police Officer Stacey Dutschke was dispatched to 1306 Ravenswood in response to a hit and run incident.

The victim reported that a dark colored PT Cruiser had been parked at the house across the street. When the PT Cruiser, which was being driven by a white female, backed out of the driveway, it hit the victim's vehicle that was parked in the street, and then drove off in a westbound direction. The victim's car, which was silver, had scratches and scrapes on it. As a result, Officer Dutschke radioed a description of the PT Cruiser and reported that silver paint transfer might be on it.

Evansville Police Officer Brian Watson was patrolling in the vicinity when he heard the radio reports about the hit and run and the description of the vehicle involved. Thus, Officer Watson started to drive around the area looking for a vehicle that matched that description. It was around 11:30 p.m. and traffic in the area was very light. Within moments, Officer Watson saw a white female driving a dark colored PT Cruiser on Washington Street that was missing a rear hubcap. Officer Watson knew from experience that hubcaps will often come off during an accident. When Officer Watson pulled behind the PT Cruiser, he noticed that it had damage and a scrape on the back. Suspecting that this was the vehicle involved in the hit and run incident, Officer Watson initiated a traffic stop.

It was determined that Snyder was driving the PT Cruiser and Yancey was the passenger. When Officer Watson had begun to initiate the stop, Yancey handed Snyder a small bag of suspected cocaine and told her to hide it in her vagina. Snyder refused and put the bag under her leg.

Snyder appeared nervous and upset when Officer Watson approached the car. Her hands were shaking so much that she had trouble handing Officer Watson her paperwork. Officer Watson then ordered both Yancey and Snyder from the vehicle. When Snyder got out of the car, she stuck the bag into her purse that had been sitting between the driver and passenger seats. Both Snyder and Yancey denied any involvement in the hit and run incident.

Based on Snyder's nervousness, Officer Watson asked her if there were any weapons or narcotics in the car, to which Snyder replied, “no.” Tr. p. 89, 98. Officer Watson then obtained Snyder's consent to search the vehicle. During the course of the search, Officer Watson found the bag containing what appeared to be cocaine inside Snyder's purse. The substance in the bag field-tested positive for cocaine. Snyder told the officer that Yancey had handed her the bag before the stop and told her to put it in her pants. Subsequent laboratory testing confirmed that the substance was 27.5 grams of cocaine with a street value of $2800.

As a result of the incident, Yancey was charged with class A felony possession of cocaine with intent to deliver. The State also alleged that Yancey was a habitual substance offender. Prior to trial, Yancey filed a motion to suppress, claiming only that the initial stop of the vehicle was invalid. Following a hearing, the trial court denied the motion.

Prior to trial, the State had provided notice of its intent to present Indiana Evidence Rule 404(b) evidence at trial, and Yancey had apparently filed a motion in limine to prohibit that evidence from being admitted at trial.² The trial court subsequently granted the motion in limine and prohibited any mention of Yancey's prior conviction for possession of marijuana, his prior conviction for possession of cocaine, the fact that Snyder had made previous purchases of cocaine from him over the course of several years, and the fact that Officer Watson knew that Yancey: 1) was on parole for battery with a weapon; 2) had prior handgun charges; and 3) was a drug dealer.

However, the trial court determined that the State could present evidence of the prior cocaine transactions between Snyder and Yancey on August 6, 2011, the date of the charged crime, because those matters were intrinsic to the charged offense. During the trial, Yancey did not object to Snyder's testimony regarding her dealings with Yancey on August 6. Yancey also did not object to any of the testimony regarding the cocaine that was found, nor did he object to two of the State's exhibits that consisted of the cocaine and the certificate of analysis.³

Yancey was found guilty as charged on the dealing count and admitted to being a habitual substance offender. The trial court subsequently sentenced Yancey to an aggregate thirty-eight year term of imprisonment. Yancey now appeals.

DISCUSSION AND DECISION

I. Admission of Cocaine

Yancey argues that the trial court erred in admitting the cocaine into evidence. As noted above, Yancey contends that the police officer conducted a prolonged stop of the vehicle and was improperly “fishing” for evidence of criminal activity. Appellant's Br. p. 9.

In addressing this contention, we initially observe that Yancey argued in his motion to suppress and at the pretrial hearing on the motion that the cocaine should not be admitted at trial because the initial stop of Snyder's vehicle was improper because the police officer lacked any reasonable suspicion to justify the stop. Appellant's App. p. 29–30; Supp. Tr. p. 25. However, as noted above, Yancey argues for the first time on appeal that the stop was too long and continued improperly even after the purpose of the stop had been satisfied. As a result, Yancey has waived the issue. See Small v. State, 736 N.E.2d 742, 747 (Ind.2000) (holding that a defendant cannot object on one ground at trial and then raise a different claim of error on appeal). Moreover, Yancey did not make a contemporaneous objection at trial to the admission of the evidence. The issue is waived for this additional reason. See Brown v. State, 783 N.E.2d 1121, 1125–26 (Ind.2003) (holding that the failure to make a contemporaneous objection waives any claim on appeal that the evidence was improperly admitted).

Waiver notwithstanding, we note that a police officer has the authority to briefly stop a person for investigative purposes if the officer has reasonable suspicion of criminal activity. Williams v.. State, 754 N.E.2d 584, 587 (Ind.Ct.App.2001) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion exists where the facts known to the officer and the reasonable inferences therefrom would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. Williams, 754 N.E.2d at 587. Although reasonable suspicion requires more than inchoate and unparticularized hunches, it is a less demanding standard than probable cause and requires a showing “considerably less” than proof of wrongdoing by a preponderance of the evidence. Cardwell v. State, 666 N.E.2d 420, 422 (Ind.Ct.App.1996). Reasonable suspicion is a fluid concept and is determined on a case-by-case basis by looking at the totality of the circumstances. Person v. State, 764 N.E.2d 743, 748 (Ind.Ct.App.2002).

Yancey concedes on appeal—and we agree—that Officer Watson had sufficient reasonable suspicion to initiate the traffic stop. It was reasonable to suspect that Snyder's vehicle was the same one that had been reported in the hit and run incident.

In accordance with Indiana Code section 9–26–1–3 and –8(b), the failure to stop after damaging a parked car is a crime. The vehicle matched the description of the vehicle, it had rear end damage consistent with the reported incident, and it was the only dark-colored PT Cruiser that Officer Watson saw. And Officer Watson spotted the vehicle just several blocks away from the hit and run location only a few minutes after that incident was reported. Supp. Tr. p. 6–8, 11–12, 14–16, 24; Tr. p. 86–87, 94–96.

There is also no indication that the stop was unreasonably prolonged as Yancey contends. Indeed, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop, and the investigative methods employed should be the least intrusive means readily available to verify or dispel the officer's...