Adam Taylor v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D), this
     Memorandum Decision shall not be
                                                                    Jul 23 2014, 10:27 am
     regarded as precedent or cited before any
     court except for the purpose of
     establishing the defense of res judicata,
     collateral estoppel, or the law of the case.
    
    ATTORNEY FOR APPELLANT:                                   ATTORNEYS FOR APPELLEE:
    
    CHRIS PALMER FRAZIER                                      GREGORY F. ZOELLER
    Marion County Public Defender Agency                      Attorney General of Indiana
    Indianapolis, Indiana
                                                              BRIAN REITZ
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana
    
    
                                    IN THE
                          COURT OF APPEALS OF INDIANA
    
    ADAM TAYLOR,                                              )
                                                              )
           Appellant-Defendant,                               )
                                                              )
                    vs.                                       )       No. 49A05-1311-CR-566
                                                              )
    STATE OF INDIANA,                                         )
                                                              )
           Appellee-Plaintiff.                                )
    
    
                            APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Peggy Hart, Commissioner Cause No.
                                        49G20-1206-FB-040039
    
    
                                                    July 23, 2014
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    FRIEDLANDER, Judge
           Following a jury trial, Adam Taylor was convicted of Possession of a Firearm by a
    
    Serious Violent Felon1 as a class B felony; Dealing in Marijuana2 as a class D felony;
    
    Possession of a Controlled Substance3 as a class D felony; and Resisting Law Enforcement4
    
    as a class A misdemeanor. Taylor now appeals, presenting two issues for our review:
    
           1. Did the trial court abuse its discretion in denying Taylor’s motion to
              suppress evidence seized during a search of his vehicle?
    
           2. Is the sentence imposed inappropriate?
    
           We affirm.
    
           On June 12, 2012, Indianapolis Metropolitan Police Officer Matthew Earley pulled
    
    over a vehicle he saw run a four-way stop. Officer Earley requested backup before he
    
    approached the vehicle, and Officer Ryan Gootee arrived on the scene. When Officer
    
    Earley approached the passenger side window, he smelled a strong odor of raw marijuana
    
    and asked Taylor, the sole occupant of the vehicle, to provide his driver’s license. Taylor
    
    complied. Officer Earley then asked Taylor to step out of the vehicle, and when Taylor
    
    refused, Officers Earley and Gootee forcibly removed Taylor from the vehicle and placed
    
    him in handcuffs.
    
           The officers then conducted a search of Taylor’s car. During the search, the officers
    
    found a bag of marijuana and a handgun in the center console. Officer Earley confirmed
    
    that Taylor had a prior conviction and did not have a handgun license. The officers placed
    
    Taylor under arrest and during a search incident to arrest, discovered four ecstasy pills and
    
    1
      Ind. Code Ann. § 35-47-4-5 (Westlaw, Westlaw current through 2012 Second Regular Session).
    2
      Ind. Code Ann. § 35-48-4-10 (Westlaw, Westlaw current through 2012 Second Regular Session).
    3
      I.C. § 35-48-4-7 (Westlaw, Westlaw current through 2012 Second Regular Session).
    4
      Ind. Code Ann. § 35-44.1-3-1 (Westlaw, Westlaw current through 2012 Second Regular Session).
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    $3,015 in his pockets. Officer Gootee opened the trunk of the vehicle and found a large
    
    duffle bag containing marijuana, a digital scale, rubber bands, and numerous plastic bags.
    
           Taylor was arrested and charged with possession of a firearm by a serious violent
    
    felon, dealing in marijuana, possession of marijuana, possession of a controlled substance,
    
    and resisting law enforcement. The jury found Taylor guilty as charged. The trial court
    
    merged the possession of marijuana and dealing in marijuana offenses and entered a
    
    judgment of conviction on the remaining counts. The trial court then sentenced Taylor to
    
    an aggregate term of sixteen years in the Department of Correction. Taylor now appeals.
    
                                                  1.
    
           Although Taylor claims the trial court erred in denying his motion to suppress, the
    
    issue is more properly framed as whether the trial court abused its discretion when it
    
    admitted the challenged evidence at trial. See Packer v. State, 
    800 N.E.2d 574
     (Ind. Ct.
    
    App. 2003), trans. denied. Taylor argues that the search of his car resulting in the discovery
    
    of marijuana occurred in violation of his rights under the Fourth Amendment and article 1,
    
    section 11 of the Indiana Constitution. Specifically, Taylor argues that the arresting officer
    
    had insufficient training to recognize the smell of raw marijuana and therefore lacked
    
    probable cause to search the vehicle.
    
           The admission or exclusion of evidence is within the sound discretion of the trial
    
    court and the trial court’s decision on such matters will be reversed on appeal only for an
    
    abuse of discretion. Palilonis v. State, 
    970 N.E.2d 713
     (Ind. Ct. App. 2012), trans. denied.
    
    An abuse of discretion occurs when the trial court’s ruling is clearly against the logic and
    
    effect of the facts and circumstances before the court.          Id.   When reviewing the
    
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    admissibility of evidence, we do not reweigh the evidence, and we consider conflicting
    
    evidence most favorable to the trial court’s ruling. Collins v. State, 
    822 N.E.2d 218
     (Ind.
    
    Ct. App. 2005). We must, however, consider uncontested evidence favorable to Taylor.
    
    See id. In addition, the ultimate determination of the constitutionality of a search or seizure
    
    is reviewed de novo. Woodson v. State, 
    966 N.E.2d 135
     (Ind. Ct. App. 2012), trans. denied.
    
           The Fourth Amendment of the United States Constitution and article 1, section 11
    
    of the Indiana Constitution afford individuals protection from unreasonable seizures and
    
    warrantless searches. Id. The automobile exception, however, is a well-recognized
    
    exception to the Fourth Amendment warrant requirement. Myers v. State, 
    839 N.E.2d 1146
    
    (Ind. 2005). A search falls within this exception when the vehicle is readily mobile and
    
    probable cause exists to believe it contains contraband or evidence of a crime. Id. (citing
    
    Maryland v. Dyson, 
    527 U.S. 465
     (1999)).            While almost identical to the federal
    
    constitution, Indiana’s search and seizure clause is independently interpreted and applied.
    
    Baniaga v. State, 
    891 N.E.2d 615
     (Ind. Ct. App. 2008). Under the Indiana Constitution,
    
    the legality of a governmental search turns on an evaluation of the reasonableness of the
    
    police conduct under the totality of the circumstances. Litchfield v. State, 
    824 N.E.2d 356
    
    (Ind. 2005).
    
           Taylor does not dispute that the odor of raw marijuana, if detected by a properly
    
    trained police officer, would justify a warrantless search of the vehicle under the Fourth
    
    Amendment and article 1, section 11 of the Indiana Constitution. See State v. Hawkins,
    
    
    766 N.E.2d 749
     (Ind. Ct. App. 2002) (holding that the distinctive odor of burnt marijuana
    
    detected by a trained and experienced police officer is sufficient to constitute probable
    
                                                  4
    cause to search a motor vehicle). Instead, he argues that Officer Earley had insufficient
    
    training in recognizing the smell of marijuana. See State v. Holley, 
    899 N.E.2d 31
     (Ind.
    
    Ct. App. 2008) (holding that a warrantless search was not justified where there was no
    
    evidence that the police officer was trained to identify the odor of marijuana).
    
           In this case, Officer Earley testified that while at the IMPD training academy, he
    
    took a class in identifying narcotics that spanned a number of days, and in which the
    
    instructors brought in raw marijuana and performed a controlled burn. This training
    
    offered the officers-in-training an opportunity to identify the look and smell of marijuana
    
    in its raw and burnt forms. Officer Earley testified further that he had encountered
    
    marijuana as part of his field experience more than one hundred times. This testimony was
    
    more than sufficient to support the trial court’s evidentiary ruling. Taylor’s arguments to
    
    the contrary are simply requests to reweigh the evidence, which we will not do. In light of
    
    Officer Earley’s testimony regarding his training and experience with the smell of
    
    marijuana, we cannot say the trial court abused its discretion in admitting evidence seized
    
    during the search of the vehicle.
    
                                                 2.
    
           Finally, Taylor argues that his aggregate sentence of sixteen years is inappropriate
    
    in light of the nature of the offense and the character of the offender. Article 7, section 4
    
    of the Indiana Constitution grants our Supreme Court the power to review and revise
    
    criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this
    
    court to perform the same task. Cardwell v. State, 
    895 N.E.2d 1219
     (Ind. 2008). Pursuant
    
    to App. R. 7(B), we may revise a sentence “if, after due consideration of the trial court’s
    
                                                 5
    decision, the Court finds that the sentence is inappropriate in light of the nature of the
    
    offense and the character of the offender.” Wilkes v. State, 
    917 N.E.2d 675
    , 693 (Ind.
    
    2009). Nevertheless, “we must and should exercise deference to a trial court’s sentencing
    
    decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision
    
    and because we understand an d recognize the unique perspective a trial court brings to its
    
    sentencing decisions.” Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007).
    
           Whether we regard a sentence as inappropriate “turns on our sense of the culpability
    
    of the defendant, the severity of the crime, the damage done to others, and myriad other
    
    factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d at 1224.
    
    Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
    
    outliers, and identify some guiding principles for trial courts and those charged with
    
    improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
    
    each case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not
    
    whether another sentence is more appropriate; rather, the question is whether the sentence
    
    imposed is inappropriate.” King v. State, 
    894 N.E.2d 265
    , 268 (Ind. Ct. App. 2008)
    
    (emphasis in original).
    
           Taylor was sentenced to sixteen years for the class B felony, three years for each of
    
    the two class D felonies, and one year for the class A misdemeanor, all sentences to run
    
    concurrently. A class B felony has a sentencing range of six to twenty years, with an
    
    advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5 (West, Westlaw current
    
    through 2012 Second Regular Session). A class D felony has a sentencing range of six
    
    months to three years, with an advisory sentence of one and a half years. I.C. § 35-50-2-7
    
                                                 6
    (West, Westlaw current through 2012 Second Regular Session). A class A misdemeanor
    
    has a maximum sentence of up to one year. I.C. § 35-50-3-2 (West, Westlaw current with
    
    all legislation of the Second Regular Session of the 118th General Assembly (2014) with
    
    effective dates through May 1, 2014).
    
           With regard to the nature of the offense, we note that over 400 grams of marijuana,
    
    four ecstasy pills, and $3,015 in cash were seized. As to the character of the offender, we
    
    observe that Taylor’s criminal history includes multiple felony and misdemeanor
    
    convictions, including robbery as a class B felony, battery as a class C felony, battery as a
    
    class D felony, possession of marijuana, and disorderly conduct. Furthermore, as a
    
    juvenile, Taylor committed what would have been armed robbery as a class B felony if
    
    committed by an adult. Taylor’s history of criminal activity is indicative of violence and
    
    extreme disregard of the law. Taylor has failed to meet the burden of persuading this court
    
    that his sixteen-year sentence was inappropriate.
    
           Judgment affirmed.
    
    MATHIAS, J., and PYLE, J., concur.
    
    
    
    
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