Pyle, Judge.
ATTORNEY FOR APPELLANT Talisha Griffin
Marion County Public Defender Agency
Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr.
Attorney General of Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana Appeal from the Marion Superior Court The Honorable David J. Certo, Judge Trial Court Cause No. 49G09-1705-CM-18997 Pyle, Judge.
Statement of the Case
[1] Aaron Negash ("Negash") appeals his convictions, following a bench trial, for Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred by ordering Negash to pay probation fees. [2] We conclude that: (1) the trial court properly admitted the evidence; (2) there was sufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court did not err in imposing probation fees. However, we remand to the trial court to hold an indigency hearing upon the completion of Negash's sentence. [3] We affirm and remand with instructions.
IND. CODE § 35-47-2-1.
I.C. § 35-48-4-11.5.
Issues
1. Whether the trial court abused its discretion when it admitted the synthetic marijuana into evidence.
2. Whether there was sufficient evidence to support Negash's carrying a handgun without a license conviction.
3. Whether the trial court abused its discretion by ordering Negash to pay probation fees.
Facts
[4] On the night of May 22, 2017, police from the Indianapolis Metropolitan Police Department were dispatched to the Living Room Lounge in Indianapolis on a report of shots fired. When Officer Matthew Plummer ("Officer Plummer") and Sergeant Mark Gregory ("Sgt. Gregory") arrived on scene, a suspect was already in custody. They learned that another vehicle was involved in the incident and that a vehicle with three occupants was parked behind the building. Officer Plummer and Sgt. Gregory "walked up and started conversing with the occupants in the vehicle." (Tr. 12). [5] Negash, who identified himself as "Moses," was seated in the driver's seat of the vehicle. (Tr. 23). There was one front-seat passenger and one back-seat passenger. Officer Plummer spoke with Negash and the back-seat passenger and informed them that he and Sgt. Gregory were investigating a report of shots fired. Officer Plummer asked the occupants whether they "had [] heard anything, [and] [whether] there [were] any weapons in the vehicle[.]" (Tr. 12). The three occupants responded "no." (Tr. 12). While Officer Plummer focused [7] Negash stood at the hood of the police vehicle while Officer Plummer was in the same vehicle trying to verify Negash's identity in the computer system. Sgt. Gregory leaned into Officer Plummer's window and asked, "is someone going to be arrested for the gun?" (Tr. 27). Negash interjected and stated, "I have a permit for that gun. It's in the trunk." (Tr. 27). Officer Plummer went to the trunk but did not find a gun permit. [8] The State charged Negash with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. A bench trial was held on February 13, 2018. At trial, Officer Plummer and Moses Negash testified to the facts above. When the State introduced the synthetic marijuana into evidence, defense counsel objected and stated the following:
I do object to State's exhibit 1, Your Honor, and I would call for the baggie and its contents and the testimony around it to be excluded under the application of the exclusionary rule. It's fruit of the poisonous tree from an unlawful search.
* * *
When he asked Mr. Negash to step out of the car, it became a detention, and at that time Mr. Negash was not advised of his [P]irtle rights.
* * *
It wasn't a gun, and he used further intrusive means of looking into my client's pocket and violated his right to having a warrant for any search or consenting to a search by being read his [P]irtle rights and waiving those rights.
(Tr. 18). The trial court overruled the objection and admitted the synthetic marijuana into evidence. The trial court found Negash guilty of both counts. [9] Thereafter, the trial court held a sentencing hearing. During this hearing, the trial court ordered Negash to "do [] [three hundred and five] (305) days on probation with the standard conditions and fees." (Tr. 62). Additionally, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[,]" provided, in relevant part, that: Negash would be subject to all "standard conditions and fees" of probation. (App. Vol. II at 13). Further, the sentencing order, under the "Court Costs and Fees" section of "Part V Monetary Obligations[,]" provided, in relevant part, that Negash was obligated to pay: a $50.00 adult probation administrative fees; a $281.30 adult probation month and initial user fee; and a $8.70 probation user fee. (App. Vol. II at 14). The probation order for Negash lists fourteen standard conditions, including "pay all Court-ordered fines, costs, fees and restitution as directed." (App. Vol. II at 15). The special conditions section of the probation order includes that same conditions as in the sentencing order. The trial court imposed a sentence of thirty (30) days in the Marion County Jail, with the remaining three hundred and five (305) days to be served on probation with all the standard conditions and fees for each of the Class A misdemeanor convictions. The trial court ordered both convictions to run concurrently. Negash now appeals.
Moses Negash ("Moses") is Negash's brother. During the bench trial, Moses testified that he owned the handgun and vehicle. He further testified that he allowed Negash to use the vehicle that night and left the handgun in his car that day, something he does not normally do.
In explaining how he was able to identify that the baggie contained synthetic marijuana, Officer Plummer testified as follows:
Since I've been downtown, synthetic marijuana has plagued the downtown district. I've only been downtown for approximately, a little over two years. I've come into contact with it approximately 100 plus times. I'm familiar with it. I'm familiar with how individuals act while smoking the spice. And then just, it's something I've come across a lot in my investigations downtown.
(Tr. 15-16).
Decision
[10] On appeal, Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred in imposing probation fees. We will review each argument in turn.
1. Admission of Evidence
[11] First, Negash argues that the trial court abused its discretion when it admitted into evidence the synthetic marijuana Officer Plummer had seized. Specifically, he argues that the search that produced the synthetic marijuana was illegal because it violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. [12] The admission of evidence is generally left to the discretion of the trial court. Hammond v. State, 82 N.E.3d 880, 884 (Ind. Ct. App. 2017). We review admissibility challenges for an abuse of that discretion and will reverse only when the admission of evidence is clearly against the logic and effect of the facts and circumstances before the court and the error affects the party's substantial rights. Id. "'[W]hen an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of evidence, it raises a question of law, and we consider that question de novo.'" Id. (quoting Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)). Generally speaking, evidence obtained pursuant to an unlawful search must be excluded at trial. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).
A. United States Constitution
[13] The Fourth Amendment to the United States Constitution provides that citizens have the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. We begin by noting that there are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh'g denied, trans denied. First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. Id. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This third level is a consensual encounter in which the Fourth Amendment is not implicated. Id. The Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen loses its consensual nature. Id. [14] A law enforcement officer's approach to a vehicle parked in a public place does not itself implicate the Fourth Amendment. Powell v. State, 912 N.E.2d 853, officer was not required to possess reasonable suspicion of wrongdoing to approach the defendant). [16] Negash argues that Officer Plummer's request for Negash to exit the vehicle and subsequent pat-down of Negash's pocket violated the Fourth Amendment. It is well-settled that an officer may conduct a
reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). After Officer Plummer explained that he was there investigating a report of shots fired and asked Negash and the back-seat passenger if they had heard anything, the back-seat passenger pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13). Additionally, the front seat passenger acted suspiciously by "moving around, reaching for the glovebox, going for his waistband, [and] pulling his shirt up." (Tr. 13). See Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999) (noting that "a car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing"). [22] In light of the above factors, we conclude that Officer Plummer's search was reasonable and did not violate the Indiana Constitution. Because we have also found that the search did not violate the Fourth Amendment, we, thus, also conclude that the trial court did not abuse its discretion in admitting into evidence the synthetic marijuana discovered in Negash's pocket.
In Terry v. Ohio, the Supreme Court defined a "Terry" frisk as a pat down search that involves a "carefully limited search of the outer clothing of the suspect in an attempt to discover weapons which might be used to assault [an officer]." Shinault v. State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).
2. Sufficiency of Evidence
[23] Next, Negash challenges the sufficiency of the evidence for his carrying a handgun without a license conviction. He specifically contends that there is insufficient evidence that he possessed the handgun. Our standard of review for sufficiency of evidence claims is well-settled. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and reasonable inferences supporting the verdict. Id. Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. at 147. [24] In order to convict Negash of carrying a handgun without a license, the State was required to prove beyond a reasonable doubt that Negash "carr[ied] a handgun in any vehicle or on or about [his] body without being licensed under this chapter to carry a handgun." I.C. § 35-47-2-1. To prove that a defendant Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh'g on other grounds, 685 N.E.2d 698 (Ind. 1997). Because the handgun was in the glove compartment and easily within reach of the driver's seat, Negash was able to reduce the handgun to his personal possession. See id. at 1275. [26] Although Negash did not have exclusive possession of the vehicle where the firearm was found, there were additional circumstances proving Negash's knowledge of the presence of the handgun and ability to control it. First, Negash made an incriminating statement. When Sgt. Gregory asked Officer Plummer if "someone [was] going to be arrested for the gun," Negash interjected, "I have a permit for that gun. It's in the trunk." (Tr. 27). This claim of possessing a permit for the gun suggests Negash owned the handgun. In addition, the glovebox containing the handgun was in close proximity to Negash. Together, the incriminating statement and the Negash's close proximity to the handgun demonstrate the additional circumstances required to show his knowledge of the handgun and ability to maintain dominion and control over it. [27] Based on this evidence, we find there was sufficient evidence that Negash constructively possessed the handgun to support his conviction for carrying a handgun without a license. Negash's arguments are simply a request that we reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.
3. Probation Fees
a monthly probation user's fee, that the trial "court may order each person convicted of a misdemeanor to pay[.]" I.C. § 35-38-2-1(e) (emphasis added). [31] In Marion County, a local rule also provides that,
whenever an individual is placed on probation . . . the following fees and costs shall be imposed under the Probation Court or Probation Order unless the sentencing Judge specifically modifies the Order. The fees and costs collected under the Court or Probation Order shall be applied in this following descending order of priority:
Administrative fee
Probation User fee
. . .
Marion LR49-CR00-115(b). [32] First, Negash argues that the trial court "did not intend to impose" any probation fees. (Negash's Br. 28). Negash acknowledges that the trial court listed probation fees on the sentencing order, but he argues that because the ordered amount lines for the Probation Administrative Fee, Initial Probation User Fee, and Monthly Probation Fee on the order of probation form are blank,
"such action shows [that] the trial court did not intend to impose the fees listed in the Sentencing Order." (Negash's Br. 28). The State responds that the trial court did order specific statutory probation fees on page two of the sentencing order: a $50.00 adult probation administrative fee; a $281.30 adult probation monthly and initial user fee; and a $8.70 probation user fee. The State contends that the "trial court did not abuse its discretion by ordering probation fees on page two of the [Marion County Sentencing] order instead of on page three." (State's Br. 2). [33] The "Marion County Sentencing Order" consisted of four pages. (
see App. Vol. II 13-16). Pages one and two are made up of the sentencing order. Pages three and four are made up of the probation order. At sentencing, the trial court ordered Negash to "do those [three hundred and five] (305) days on probation with the standard conditions and fees." (Tr. 62). Additionally, the sentencing order, under the "Amount/Comment" section of "Part IV Sentencing Conditions[,]" provided, in relevant part, that: Negash would be subject to all "standard conditions and fees" of probation. (App. Vol. II at 13). Importantly, the sentencing order also included a section for monetary obligations. That section of Negash's order reads as follows:
Subsection (e) of INDIANA CODE § 35-38-2-1 provides as follows:
In addition to any other conditions of probation, the court may order each person convicted of a misdemeanor to pay:
(1) not more than a fifty dollar ($50) initial probation user's fee; (2) a monthly probation user's fee of not less than ten dollars ($10) nor more than twenty dollars ($20) for each month that the person remains on probation; (3) the costs of the laboratory test or series of tests to detect and confirm the presence of the human immunodeficiency virus (HIV) antigen and antibodies to the human immunodeficiency virus (HIV) if such tests are required by the court under section 2.3 of this chapter; and (4) administrative fee of fifty dollars ($50); to either the probation department or the clerk.
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Image materials not available for display. (App. Vol. II at 14). Further, the order of probation provides, in relevant part, as follows:
Image materials not available for display. (App. Vol. II at 15). Negash is correct that the lines to fill out the fee amounts for the Probation Administrative Fee; Initial User Fee; and Monthly Probation Fee on the order of probation within the Marion County Sentencing Order are blank. However, the special conditions section on the order of probation [35] Affirmed and remanded with instructions. Najam, J., and Crone, J., concur.