MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
Nov 17 2015, 8:36 am
65(D), this Memorandum Decision
shall not be 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
Jeremy M. Noel Gregory F. Zoeller
Monroe County Public Defender’s Attorney General of Indiana
Office
Bloomington, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew W. Carie, November 17, 2015
Appellant-Defendant, Court of Appeals Case No.
53A05-1503-CR-93
v. Appeal from the Monroe Circuit
Court;
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff. Judge;
Trial Court Cause No.
53C02-1408-F3-805
May, Judge.
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[1] Andrew W. Carie appeals his convictions of and sentences for Level 4 felony
burglary and Level 6 felony criminal confinement, as well as a sentence
enhancement for his adjudication as an habitual offender. He presents four
issues for our review, which we restate as:
1. Whether the trial court abused its discretion when it
denied Carie’s motion to suppress evidence obtained from
a search of his pockets shortly following the crime;
2. Whether the State presented sufficient evidence Carie
committed Level 6 felony criminal confinement;
3. Whether the trial court abused its discretion in sentencing
Carie; and
4. Whether Carie’s sentence is inappropriate based on his
character and the nature of the offense.
We affirm.
Facts and Procedural History
[2] Sometime in the early morning of August 21, 2014, J.L. was awakened by the
weight of a man on top of her. The man was covering her mouth and nose with
his hand. The man began pulling back the bedcovers, and J.L. was able to
maneuver from underneath him. She ran out of her home and called 911.
[3] Officers Ryan McClain and Jordan Hassler found Carie in an unlit alley behind
J.L.’s house. Carie told them the person they were looking for ran north
toward a nearby cemetery. Officer McClain asked Carie if he had any
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weapons, and Carie indicated he was carrying a large pocket knife. Carie gave
Officer McClain permission to pat him down, and Officer McClain found the
knife, a bandana, a flashlight, and two sets of gloves. The officers radioed to
determine if any other person had been sighted in the area, as Carie indicated,
and when no one was located, they placed Carie in the back of their patrol car.
[4] Officer Hassler checked J.L.’s house and found nobody inside. Outside a
bathroom window he found a camouflaged jacket with Carie’s identification in
one of the pockets. The officers also found muddy shoeprints leading from the
bathroom to J.L.’s bedroom.
[5] The State charged Carie with Level 3 felony attempted rape, Level 4 felony
burglary, and Level 6 felony criminal confinement. The State also alleged Carie
was an habitual offender and a repeat sexual offender. Carie filed a motion to
suppress the evidence found as a part of Officer McClain’s patdown search.
The trial court denied the motion after a hearing.
[6] A jury was unable to reach a verdict on the attempted rape charge, but found
Carie guilty of Level 4 felony burglary and Level 6 felony criminal
confinement. The jury also found Carie was an habitual offender. The trial
court sentenced Carie to thirty-two years for burglary -- twelve years for Level 4
felony burglary with a twenty year habitual offender enhancement. The court
also imposed a two and one-half year sentence for Level 6 felony criminal
confinement, which is to be served concurrent with the thirty-two year sentence
for burglary.
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Discussion and Decision
Admission of Evidence
[7] Carie did not seek interlocutory review of the denial of his motion to suppress
but instead appeals following trial. This issue is therefore “appropriately
framed as whether the trial court abused its discretion by admitting the evidence
at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our
review of rulings on the admissibility of evidence is essentially the same
whether the challenge is made by a pre-trial motion to suppress or by trial
objection. Id. We do not reweigh the evidence, and we consider conflicting
evidence most favorable to the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
[8] Carie claims Officer McClain’s investigatory stop violated his rights under the
Fourth Amendment of the United States Constitution and Article 1, Section 11
of the Indiana Constitution. “Under Terry [v. Ohio, 391 U.S. 1 (1968)], an
officer is permitted to stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts that
criminal activity may be afoot, even if the officer lacks probable cause.”
Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009) (internal quotations omitted).
The “reasonable suspicion” requirement of the Fourth
Amendment is satisfied if the facts known to the officer at the
moment of the stop are such that a person “of reasonable
caution” would believe that the “action taken was appropriate.”
In other words, the requirement is satisfied where the facts
known to the officer, together with the reasonable inferences
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arising from such facts, would cause an ordinarily prudent person
to believe that criminal activity has occurred or is about to occur.
Reasonable suspicion entails something more than an inchoate
and unparticularized suspicion or hunch, but considerably less
than proof of wrongdoing by a preponderance of the evidence.
[9] Crabtree v. State, 762 N.E.2d 241, 246 (Ind. Ct. App. 2002) (citations omitted).
We review a determination of reasonable suspicion de novo rather than for abuse
of discretion, but we give due weight to inferences drawn from the facts by the
trial court. Bannister v. State, 904 N.E.2d 1254, 1255 (Ind. 2009). “The State
has the burden to show that under the totality of the circumstances its intrusion
was reasonable.” Id. at 1256.
[10] The language of Article 1, Section 11 of the Indiana Constitution closely tracks
the language of the Fourth Amendment. Starks v. State, 846 N.E2d 673, 680
(Ind. Ct. App. 2006), reh’g denied, trans. denied. But “[r]ather than looking to
Fourth Amendment jurisprudence to evaluate Article 1, Section 11 claims, we
place the burden on the State to show that, under the totality of the
circumstances, the police activity was reasonable.” Id.
[11] The Officers had reasonable suspicion that Carie was involved in criminal
activity. Officer McClain encountered Carie in a dark alley behind J.L.’s house
a few minutes after she called 911. J.L. told the officers she believed the person
who attacked her was a man and was larger than her. Carie admitted he had a
knife and he consented to a patdown search. Officer McClain testified the
items found on Carie - the knife, a bandana, gloves, and a flashlight - were
consistent with burglary tools. After they were unable to confirm Carie’s claim
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a person ran from the scene, the officers handcuffed Carie and placed him in the
back of their patrol car.
[12] Based on the totality of the circumstances, the investigative stop did not violate
Carie’s rights under the Fourth Amendment of the United States Constitution
or Article 1, Section 11 of the Indiana Constitution. See Bannister, 904 N.E.2d
at 1255 (we consider whether search was reasonable under the Fourth
Amendment based on the totality of the circumstances); and see Starks, 846
N.E.2d at 680 (we consider whether search was reasonable under Article 1,
Section 11 of the Indiana Constitution based on the totality of the
circumstances). Carie’s argument is an invitation for us to reweigh the evidence
and judge the credibility of witnesses, which we cannot do. See Lundquist, 834
N.E.2d at 1067 (appellate court cannot reweigh evidence or judge the credibility
of witnesses).
Sufficiency of Evidence
[13] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id.
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[14] A conviction may be sustained on the uncorroborated testimony of a single
witness. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146. It is therefore
not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference reasonably may be
drawn from it to support the trial court’s decision. Id. at 147.
[15] To prove Carie committed Level 6 felony criminal confinement, 1 the State had
to present sufficient evidence Carie “knowingly or intentionally” confined J.L.
without her consent. Ind. Code § 35-42-3-3 (2014). “Confine” is defined as
“substantially interfer[ing] with the liberty of a person.” Ind. Code § 35-42-3-1.
Carie argues the evidence is insufficient to prove he confined J.L. because
“there is no evidence that any interference with [J.L’s] liberty was substantial”
and “she was able to get away without any evidence of a struggle.” (Br. of
Appellant at 6-7.)
[16] “Any amount of force can cause a confinement because force, however brief,
equals confinement.” Hopkins v. State, 747 N.E.2d 598, 606 (Ind. Ct. App.
2011), trans. denied. That J.L. was able to escape does not “negate the
determining factor that a jury could find, beyond a reasonable doubt, that a
nonconsensual confinement took place.” Spivey v. State, 436 N.E.2d 61, 63
1
Carie does not challenge his conviction for Level 4 felony burglary.
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(Ind. 1982). We held in Sammons v. State, “[t]he fact that the time involved was
brief is not the determinative factor of ‘substantial.’ While time may be a
factor, it is the type or nature of interference that is most significant.” 397
N.E.2d 289, 294 (Ind. Ct. App. 1979).
[17] J.L. was asleep when Carie entered her house. She awoke to Carie, who was
heavier than she, on top of her. He was covering her mouth and nose with his
hand. J.L. broke free when Carie tried to pull down the bedcover. J.L. testified
“there was a bruise on my face and my muscles were just thrashed, like I was so
achy for a couple of days.” (Tr. at 110.) The State presented sufficient evidence
Carie confined J.L. without her consent.
Sentencing Abuse of Discretion
[18] When the trial court imposes a sentence within the statutory range, we review
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We may reverse a decision that is
“clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.
1985)).
[19] Our review of the trial court’s exercise of discretion in sentencing includes an
examination of its reasons for imposing the sentence. Id. “This necessarily
requires a statement of facts, in some detail, which are peculiar to the particular
defendant and the crime . . . [and] such facts must have support in the record.”
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Id. The trial court is not required to find mitigating factors or give them the
same weight that the defendant does. Flickner v. State, 908 N.E.2d 270, 273
(Ind. Ct. App. 2009). However, a court abuses its discretion if it does not
consider significant mitigators advanced by the defendant and clearly supported
by the record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators
have been identified, the trial court has no obligation to weigh those factors. Id.
at 491.
[20] Carie argues the trial court abused its discretion when it sentenced him without
finding mitigators. During Carie’s sentencing hearing, his counsel argued Carie
had a difficult childhood. Our Indiana Supreme Court has held, “evidence of a
difficult childhood warrants little, if any, mitigating weight.” Coleman v. State,
741 N.E.2d 697, 700 (Ind. 2000), reh’g denied, cert. denied sub nom. Coleman v.
Indiana, 534 U.S. 1057 (2001). The trial court focused on Carie’s lengthy
criminal record as the reason for his sentence. As the trial court is not required
to give Carie’s proposed mitigating circumstance the weight he would prefer,
we conclude the trial court did not abuse its discretion when sentencing him.
See Flickner, 908 N.E.2d at 273 (trial court not required to find mitigating factors
or give them the same weight that the defendant does).
Inappropriate Sentence
We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E. 2d 621,
633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not
only the aggravators and mitigators found by the trial court, but also any other
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factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.
App. 2007), trans. denied. The appellant bears the burden of demonstrating his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The trial court sentenced Carie to an aggregate sentence of thirty-two years -
twelve years for the Level 4 felony burglary and two and one-half years for
Level 6 criminal confinement, to be served concurrently, with the burglary
sentence enhanced by twenty years based on Carie’s adjudication as an habitual
offender.
[21] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The sentencing range for a Level 4 felony is two to twelve years, with an
advisory sentence of six years. Ind. Code § 35-05-2-5.5. The sentencing range
for a Level 6 felony is six months to two and one-half years, with an advisory
sentence of one year. Ind. Code § 35-50-2-7(b).
[22] One factor we consider when determining the appropriateness of a deviation
from the advisory sentence is whether there is anything more or less egregious
about the offense committed by the defendant that makes it different from the
“typical” offense accounted for by the legislature when it set the advisory
sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.
Carie entered J.L.’s house in the middle of the night and confined her in her
bed by lying on top of her and putting his hand over her mouth and nose. J.L.
sustained minor injuries from the attack. The sentence is appropriate based on
the nature of the crime.
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[23] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. Carie’s criminal history spans thirty years.
His adjudications as a juvenile include criminal trespass, conversion, and
voyeurism. Carie’s adult criminal history shows a pattern of sexually-related
crimes including two convictions of child molesting, two convictions of failure
to register as a sex offender, and convictions of criminal confinement and public
indecency. Based on Carie’s criminal history, his sentence is not inappropriate.
Conclusion
[24] The trial court did not abuse its discretion when it denied Carie’s motion to
suppress because the investigative stop did not violate his rights under the
Fourth Amendment of the United States Constitution or Article 1, Section 11 of
the Indiana Constitution. There was sufficient evidence Carie committed Level
6 felony criminal confinement. Finally, the trial court did not abuse its
discretion when it sentenced Carie, and Carie’s sentence is appropriate based on
the nature of the offense and his character. Accordingly, we affirm.
[25] Affirmed.
Crone, J., and Bradford, J., concur.
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