Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Oct 21 2014, 10:20 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:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERRICK RUNELL WOODS, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1404-CR-124
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Samuel L. Cappas, Judge
Cause No. 45G04-1209-FA-21
October 21, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Derrick Woods appeals his conviction for Dealing in a Narcotic Drug, 1 a class B
felony. Woods argues that the trial court abused its discretion by admitting evidence that
was obtained following what Woods contends was an illegal investigatory stop and that
the evidence was insufficient to support the conviction. Woods also argues that the trial
court abused its discretion during the sentencing process. Finding no error, we affirm.
FACTS
On September 13, 2012, Munster Police Officer Timothy Nosich was on patrol
when he observed Woods exit a taxi cab and begin to run. Officer Nosich recognized
Woods from a prior police contact and had been investigating Woods after multiple
confidential informants reported that Woods had been selling heroin in Munster.
Furthermore, approximately a week before the encounter in question, Officer Nosich had
received a bulletin from the Cook County Intelligence Unit in Illinois, bearing Woods’s
photograph and indicating that Woods was a suspected heroin dealer in Illinois.
Officer Nosich watched Woods as he slowed to a walk, and the officer observed
that Woods was talking on a cell phone and had something balled up in his right hand.
Based upon Officer Nosich’s knowledge of Woods and the fact that Woods was talking
on a cell phone, the officer suspected that the item Woods held in his hand was narcotics.
Officer Nosich exited his vehicle, an unmarked vehicle bearing lights, sirens, and
a spotlight. The officer was wearing his full police uniform. Officer Nosich approached
Woods and asked if he could speak with him. Woods said, “For what?” and continued
1
Ind. Code § 35-48-4-1(a)(2)(C).
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walking. Tr. p. 38. Officer Nosich again asked if he could speak with Woods and
Woods again replied, “For what?” Id. Woods then began to run away, fleeing from
Officer Nosich, who pursued Woods on foot. Officer Nosich ordered Woods to stop,
yelling “police,” “Derrick,” and “Champagne,” which was Woods’s nickname, but
Woods continued to run. Id. at 39.
Eventually, Officer Nosich caught up to Woods, deployed his taser, and took
Woods into custody. When the taser deployed, a bag fell out of Woods’s hand. It was
later determined that the bag held fifty individual packages of heroin, with each
individual package weighing .06 grams, for a total weight of 2.03 grams of heroin.
Officer Nosich also recovered two cell phones from Woods.
On September 15, 2012, the State charged Woods with class B felony dealing in a
narcotic drug. On March 1, 2013, Woods filed a motion to suppress the evidence seized
by Officer Nosich, arguing that it was the result of an illegal investigatory stop. The trial
court denied the motion. Woods filed a motion to reconsider the motion to suppress on
January 23, 2014, which the trial court denied. On February 4, 2014, a jury found Woods
guilty as charged. Following a February 25, 2014, sentencing hearing, the trial court
imposed a ten-year sentence, with nine years executed and one year suspended to
probation. Woods now appeals.
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DISCUSSION AND DECISION
I. Admission of Evidence
First, Woods argues that the trial court erroneously admitted the evidence seized
by Officer Nosich. Specifically, he argues that Officer Nosich conducted an illegal
investigatory stop and that the evidence seized thereby should not have been admitted.
Woods proceeded to trial after the trial court denied his motion to suppress this
evidence. Inasmuch as direct review of the denial of a motion to suppress is proper only
when the defendant files an interlocutory appeal, Clark v. State, 994 N.E.2d 252, 259
(Ind. 2013), Woods’s appeal on this issue is best framed as a challenge to the admission
of the evidence at trial. The admission of evidence at trial is a matter left to the discretion
of the trial court. Id. at 259-60. We review these determinations for abuse of that
discretion, and will reverse only when admission is clearly against the logic and effect of
the facts and circumstances and the error affects a party’s substantial rights. Id. at 260.
The United States Supreme Court has held that a police officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S.
1, 30 (1968). Indiana has adopted the Terry standard for the purpose of determining the
legality of an investigatory stop under Article 1, section 11 of the Indiana Constitution.
Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996). Reasonable suspicion “entails
some minimal level of objective justification for making a stop—that is, something more
than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of
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suspicion required for probable cause.” Id. Whether an officer had reasonable suspicion
is a fact-sensitive matter, and when evaluating the validity of an investigatory stop, we
must consider the totality of the circumstances. Id.
During a consensual encounter between a police officer and a citizen, the citizen is
free to disregard the officer and walk away. Overstreet v. State, 724 N.E.2d 661, 663
(Ind. Ct. App. 2000). Only when the individual is no longer free to leave does an
investigatory stop begin. Luster v. State, 578 N.E.2d 740, 744 (Ind. Ct. App. 1991). In
this case, therefore, the encounter between Woods and Officer Nosich was consensual
until Woods began fleeing and the officer ordered him to stop, yelling “police.” Tr. p.
39. At that point, the investigatory stop began.
The record reveals that Officer Nosich recognized Woods from a previous arrest,
his department had been investigating Woods for heroin distribution, multiple
confidential informants had stated that Woods was dealing heroin, and Officer Nosich
had just received a bulletin from Illinois bearing Woods’s photograph and indicating that
Woods was a suspected heroin dealer in Illinois. Officer Nosich observed that Woods
exited a taxi while talking on a cell phone and holding a balled-up item in one hand.
Woods immediately began running after exiting the taxi. In Officer Nosich’s years of
experience, which includes twenty to fifty narcotics investigations per year, he had never
witnessed that behavior before when patrolling that particular area. Therefore, the officer
exited his vehicle and approached Woods, asking if he could speak with Woods. Twice,
Officer Nosich asked to speak with Woods, and twice, Woods replied, “For what?” Tr. p.
5
38. After the second time, Woods began running away, fleeing from the officer. Officer
Nosich repeatedly ordered Woods to stop, referring to Woods by name and identifying
himself as a police officer, but Woods continued to flee until the officer caught up to him
and deployed his taser, taking Woods into custody.
The United States Supreme Court has determined that “nervous, evasive behavior
is a pertinent factor in determining reasonable suspicion. Headlong flight—wherever it
occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing,
but it is certainly suggestive as such.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
While Woods was entitled to disregard Officer Nosich and walk away from the initial,
consensual encounter, the fact that Woods engaged in “unprovoked flight,” id., is a
compelling factor to consider when evaluating whether Officer Nosich had reasonable
suspicion to support an investigatory stop. In addition to Woods’s flight, the officer had
prior knowledge of Woods and of the multiple ongoing investigations regarding his drug
activity, the officer observed Woods engaging in behavior that was not normal for the
area, and the officer saw that Woods had a balled up item in his hand. While perhaps
none of these facts would alone rise to the level of reasonable suspicion, when we
consider the totality of the circumstances, we find that Officer Nosich had reasonable
suspicion and that the stop was permissible. Consequently, the trial court did not err in
admitting the evidence seized as a result of the stop.
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II. Sufficiency of the Evidence
Next, Woods argues that the evidence is insufficient to support his conviction.
When we review a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor assess witness credibility. McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct.
App. 2014). Instead, we consider only the probative evidence supporting the conviction
and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence
of probative value from which a reasonable factfinder could have drawn the conclusion
that the defendant was guilty beyond a reasonable doubt, then the verdict will not be
disturbed. Id. To establish that Woods committed class B felony dealing in a narcotic
drug, the State was required to prove beyond a reasonable doubt that he knowingly or
intentionally possessed heroin with the intent to deliver it. I.C. § 35-48-4-1(a)(2)(C). A
conviction for possession with intent to deliver may be supported by either direct or
circumstantial evidence. Montego v. State, 517 N.E.2d 74, 76 (Ind. 1997).
Here, it is undisputed that Woods possessed heroin. The only question is whether
the evidence was sufficient to support the jury’s conclusion that Woods had the intent to
deliver the heroin. The record reveals that Woods got out of a taxi and immediately
began running. He was talking on a cell phone and had a balled-up item in his hand. The
item in his hand was later revealed to be a bag full of fifty individual baggies, each
containing .06 grams of heroin. Police later recovered a second cell phone from Woods’s
vehicle.
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Officer Nosich has been a tactical officer with the Munster Police Department
since 2005, conducting between twenty and fifty narcotics investigations per year. He
testified that generally, the smaller baggies of heroin that Woods had are referred to as
“dime bags” on the street. Tr. p. 58. Each dime bag costs approximately ten dollars. In
Officer Nosich’s experience, heroin users typically possess four to six dime bags of
heroin on any given day. The fact that Woods possessed such a large quantity of the
dime bags supports the jury’s conclusion that he had intent to deliver the heroin. See
Love v. State, 741 N.E.2d 789, 792 (Ind. 2001) (holding that possession of large amounts
of a narcotic substance is circumstantial evidence of intent to deliver).
In addition to the sheer quantity of heroin that was in Woods’s possession, Officer
Nosich testified that, based on his training and experience, the way that the heroin was
packaged indicated that it “was definitely for distribution.” Tr. p. 65. Moreover, the fact
that Woods had two cell phones was further indication, according to Officer Nosich, that
he was a drug dealer. Id. at 64.
Officer Nosich also testified regarding the general differences between heroin
users and dealers. According to Officer Nosich, heroin users are generally disheveled
and sickly in appearance, have sores and track marks on their arms, and tend to be
cooperative with law enforcement. Moreover, heroin users typically have their “kit” with
them, including needles, a ligature, a spoon, and cotton swabs. Id. at 52. Woods, in
contrast, had no sores or track marks, had no paraphernalia on his person or in his
vehicle, seemed healthy, and was not cooperative with law enforcement.
8
In sum, the record reveals the following facts: (1) Woods possessed significantly
more heroin than an average heroin user would typically possess; (2) the heroin in
Woods’s possession was packaged for distribution; (3) Woods had a second cell phone,
which is typical of drug dealers; and (4) Woods does not have any of the distinguishing
characteristics of an average heroin user. A reasonable jury could infer from this
evidence that Woods possessed the heroin with intent to deliver it. Woods’s arguments
to the contrary amount to a request that we reweigh the evidence, which we will not do.
We find that the evidence is sufficient to support the conviction.
III. Sentencing
Finally, Woods argues that the trial court erred by considering a portion of his
criminal history to be an aggravating circumstance. A trial court’s sentencing decisions
are discretionary and entitled to “considerable deference” by the appellate courts.
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). A trial court abuses its discretion
if it: (1) fails “to enter a sentencing statement at all”; (2) enters “a sentencing statement
that explains reasons for imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the reasons”; (3) enters a
sentencing statement that “omits reasons that are clearly supported by the record and
advanced for consideration”; or (4) considers reasons that “are improper as a matter of
law.” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (Ind. 2007).
9
Woods’s sole sentencing argument essentially amounts to a contention that the
trial court erred by considering one portion of his criminal history—a conviction
stemming from an incident that occurred after the incident at issue herein. Specifically,
after Officer Nosich took Woods into custody, Woods began complaining of chest pains.
Officer Nosich transported Woods to the hospital, where he was still considered to be in
custody but on a temporary medical leave. Woods absconded from the hospital and
failed to return to police custody. In a separate criminal proceeding, he was convicted of
class D felony failure to return to lawful detention. The trial court took this conviction
into consideration when imposing the sentence in this proceeding. Woods argues,
without citation to authority, that the trial court should not have considered this
conviction to be part of his criminal history because the offense was committed the day
after he committed the offense at issue herein.
Even if we assume solely for argument’s sake that the trial court should not have
considered this particular conviction to be part of Woods’s criminal history, we note that
a defendant’s criminal history is a valid aggravating factor. Smith v. State, 908 N.E.2d
1251, 1254 (Ind. Ct. App. 2009). Apart from the felony conviction for failing to return to
lawful detention, Woods has a lengthy criminal history. The trial court found that Woods
has had thirty-eight prior contacts with law enforcement, including two misdemeanor
convictions, and one felony conviction for aggravated battery.2 Over the course of
2
Woods raises a one-sentence argument that the 2006 aggravated battery conviction should not be
considered because it is not similar to the offense at issue herein and is too removed in time. The lack of
cogent argument on this issue prevents us from considering it.
10
fourteen years, Woods has been arrested dozens of times in multiple states. See Cotto v.
State, 829 N.E.2d 520, 526 (Ind. 2005) (holding that a defendant’s arrest record can be
considered as part of the sentencing court’s assessment of defendant’s character in terms
of the risk that he or she will reoffend). Furthermore, at the time of sentencing herein,
Woods faced a pending case for aggravated identity theft in Illinois. Consequently, even
if the failure to return to lawful detention conviction is omitted from Woods’s criminal
history, his history is lengthy and substantial. We do not find that the trial court erred by
considering Woods’s criminal history to be an aggravating factor.
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.
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Derrick Runell Woods v. State of Indiana
Combined Opinion