Toney v. State

989 N.E.2d 382

Michael TONEY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 79A04–1209–CR–471.

Court of Appeals of Indiana.

May 30, 2013.

Appeal from the Tippecanoe Circuit Court; The Honorable Donald L. Daniel, Judge; Cause No. 79C01–1110–FA–20.

Teri A. Flory, Flory and Smith, Attorneys at Law, Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Michael Toney appeals his convictions and sentence for dealing in methamphetamine as a class A felony, possession of a firearm by a serious violent offender as a class B felony, and his status as an habitual offender. Toney raises five issues which we consolidate and restate as:

I. Whether the trial court abused its discretion by admitting evidence obtained pursuant to a search;

II. Whether the court abused its discretion in sentencing Toney.¹

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On September 28, 2011, West Lafayette Police Officer Jonathan Morgan obtained information that arrest warrants from White County and Pulaski County for Toney existed. The White County Sheriff's Office gave Officer Morgan an address at which they believed Toney was staying with his girlfriend, and Officer Morgan met with the Lafayette Street Crimes Unit and updated them with that information and photographs of Toney.

Officer Morgan and other officers then drove to the address where they believed Toney was staying. Officer Morgan and Officer Michael Barthelemy went to the front of the house, and Officer Morgan knocked on the front door. Officer Morgan observed someone lift some window blinds a little bit, peek outside, and then close the blinds immediately.

Lafayette Police Detective Chad Robinson, who was positioned outside the fence in the backyard, radioed that he observed someone inside the residence matching Toney's description and that the man was shirtless. Officer Morgan went to Detective Robinson, and Detective Robinson confirmed that the person inside matched the description of a photograph of Toney. Officer Morgan then returned to the front door and continued to knock.

Penny Ausmanson eventually opened the door and started to walk outside, and Officer Barthelemy ushered her to the driveway. Officer Morgan explained to her why they were there and asked her several times if he could go inside to check for Toney, and she did not respond. Officer Morgan then saw an individual exit a hallway and enter the living room. At this time, the individual was wearing a pair of shorts and a hooded sweatshirt with the hood pulled over his head which partially covered his face, and his hands were in the pocket of the sweatshirt.

Officer Morgan yelled Toney's name, and the individual “just pretty much stood motionless.” Trial Transcript at 20. Officer Morgan was concerned that the individual might be concealing something and asked him to show his hands. After asking the individual several times to remove his hands from his pockets, Officer Morgan knew that the individual was Toney and went inside and took him into custody. As Officer Morgan went inside and placed Toney in handcuffs, the other officers came in behind him and performed a protective sweep as they were concerned that they had already observed one person inside wearing sweatpants and no shirt. Specifically, Officer Barthelemy went in behind Officer Morgan concerned for their safety based on the individual's actions with his hands. Officer Daniel Long also entered the house, observed that the officers' backs faced two rooms that had not been checked, and told Officer Barthelemy that they needed to “clear the house.” Id. at 49. Officer Barthelemy “wasn't exactly sure if [the individual] was Mr. Toney or not because he was partially—his face was partially concealed. And he wouldn't acknowledge who he was.” Id at 33. Officer Barthelemy and Officer Long performed a safety sweep of the house by “walking through quickly to make sure there [was] no one else hiding inside.” Id During the protective sweep, Officer Barthelemy “was hit with a strong chemical type smell that was just overwhelming,” which he knew from past experiences was probably a meth lab. Id. at 34. Officer Long entered a bedroom, saw what appeared to be the grip of a gun of some type sticking out between two mattresses, and he lifted the mattress because people have been known to hide between mattresses and Officer Long had previously found someone hiding in a mattress. A handgun and a sawed-off shotgun were under the mattress. The officers then exited the house.

Officer Barthelemy spoke with Ausmanson, asked if she would give consent to search, told her to think about it, went to his car, and retrieved an advice of rights consent to search form. Officer Barthelemy read the form to her, and Ausmanson signed the form. Officer Morgan entered the residence again and observed a couple of mason jars that had some clear liquids in them, a can of Coleman fuel, coffee filters, smoking pipes, “aluminum foil canoes,” which Officer Morgan knew people used to ingest drugs such as methamphetamine and heroin, a propane tank, which is used in meth labs, meth pipes, rubber tubing, very small Ziploc bags, and other paraphernalia. Id. at 23.

On October 4, 2011, the State charged Toney with Count I, dealing in methamphetamine as a class A felony; Count II, possession of methamphetamine as a class B felony; Count III, possession of an illegal drug lab as a class C felony; Count IV, possession of an illegal drug lab as a class C felony; Count V, dealing in a sawed-off shotgun as a class D felony; Count VI, possession of a schedule II controlled substance as a class C felony; Count VII, possession of a schedule III controlled substance as a class C felony; Count VIII, possession of a schedule IV controlled substance as a class C felony; Count IX, possession of paraphernalia as a class A misdemeanor; Count X, serious violent felon in possession of a firearm as a class B felony; and Count XI, serious violent felon in possession of a firearm as a class B felony.² The State also alleged that Toney was an habitual offender.

On April 16, 2012, Toney filed a motion to suppress “all evidence” which stated that “the police had no search warrant, only an arrest warrant,” “assuming arguendo police had a search warrant or exigent circumstances that the manner of the police search went beyond the permissible scope of entry onto private property,” and “assuming arguendo that entry into the residence was constitutional the search and manipulation of any firearms was beyond the scope of a protective sweep and was to done [sic] with warrant.” Appellant's Appendix at 70. After a hearing, the court denied Toney's motion to suppress on June 5, 2012.

Beginning on August 7, 2012, the court held a jury trial on Counts I through IX. After the State rested, Toney's counsel moved for a judgment on the evidence, and the court denied the motion. The jury found Toney guilty of Counts I, II, III, IV, VI, VII, and IX. The jury then heard evidence regarding Count X, possession of a firearm as a serious violent felon as a class B felony, and Count XI, possession of a firearm as a class B felony, and found Toney guilty as charged. The court then found Toney guilty of being an habitual offender.

The court noted that Toney had two felonies pending and one other case that was dismissed, and found the following aggravating circumstances: Toney's history of illegal use of alcohol and drugs, his Indiana Risk Assessment Score which was in the high range of likelihood to re-offend, his failure to take responsibility for his actions, and the fact that he was on bond on two other crimes at the time he committed the current offenses. The court sentenced Toney to forty years for Count I, dealing in methamphetamine as a class A felony, twenty years for Count X, possession of a firearm by a serious violent offender as a class B felony, and thirty years for being an habitual offender. The court ordered that the sentences be served consecutive to each other for an aggregate sentence of ninety years.

DISCUSSION

I.

The first issue is whether the trial court abused its discretion by admitting evidence obtained pursuant to the search. Although Toney originally challenged the admission of the evidence through a motion to suppress, he now challenges the admission of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind.Ct.App.2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.Ct.App.2005).

We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State. 690 N.E.2d 1115, 1134 (Ind.1997), reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh'g denied, trans. denied.

Toney argues that there were no articulable facts that would cause a reasonably prudent officer to believe that a third person was present in the home as Toney was positively identified by separate officers in both outfits. He contends that the protective sweep revealed “items of contraband” and that “[h]ad the protective sweep not been conducted, there would have been no reason to search the home, and the items would not have been located.” Appellant's Brief at 16. Toney also contends that “[i]f this Court finds the protective sweep was proper, the lifting of the mattress far exceeded the scope allowed under the warrant exception.” Id.

The...