MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Apr 28 2016, 8:37 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Obed Bailey, April 28, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1497
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
The Honorable Peggy R. Hart,
Commissioner
Trial Court Cause No.
49G20-1405-FB-23110
Crone, Judge.
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Case Summary
[1] Obed Bailey appeals his conviction and sentence for class B felony unlawful
possession of a firearm by a serious violent felon (“SVF”). He contends that the
handgun recovered by police was seized in violation of the federal
constitutional guarantees against unreasonable search and seizure. Specifically,
he asserts that even though he abandoned the handgun when he fled police, he
abandoned it after he was unconstitutionally detained, and therefore the
handgun is inadmissible. He also appeals his fourteen-year sentence, arguing
that it is inappropriate in light of the nature of his offense and his character.
[2] We conclude that the police officers’ initial approach of the vehicle in which
Bailey was an occupant was a consensual encounter. By the time the police
removed Bailey from the vehicle for a patdown search for weapons, the totality
of the circumstances show that there existed reasonable suspicion that he had
engaged in criminal activity and could be armed. Accordingly, Bailey was not
unconstitutionally detained and his abandoned handgun was admissible. We
also conclude that Bailey fails to carry his burden to show that his sentence is
inappropriate. Therefore, we affirm.
Facts and Procedural History
[3] The Speedway Police Department had an agreement with the management of
Coppertree Apartment Complex (“Coppertree”) providing that its police
officers could act as agents of Coppertree and remove individuals who lacked a
contractual interest in the property. Tr. at 49-50, 93. In May 2014, around 8:30
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p.m., an anonymous caller advised police dispatch that three suspicious-looking
black males were around one of Coppertree’s laundry areas. Id. at 46, 93. The
caller stated that two of the males may have been breaking into the laundry
room coin machines and one of the males wore a knit hat with a “ball” on top
and appeared to be acting as a “lookout.” Id. at 24, 47, 93. As police were
responding, the caller provided an update that the black males were sitting in a
green vehicle and gave police the vehicle’s license plate number.
[4] Three Speedway police officers responded to the scene, all in marked cars and
in uniform. None of them activated their lights or sirens. Officer Christopher
Helmer arrived first. Officer Helmer worked parttime for Coppertree as a
security officer, and therefore he knew that Coppertree had previous issues with
thefts from the laundry room machines. Officer Helmer saw a green vehicle
with a license number matching the reported license number in the vicinity of
the laundry room. He saw four black men in the vehicle, and noticed that the
person in the front passenger seat, later identified as Bailey, had on a stocking
cap with a ball on top. He parked his car and approached the vehicle to
“[i]dentify all the subjects … [and] determine if they lived there, if they had the
right to be there at all and then [deal] with the situation accordingly.” Id. at 15.
Officer Helmer went to the back of the driver’s side of the vehicle and spoke
with the backseat passenger. That passenger, Jeremy Armstrong, “answered
[Officer Helmer’s] questions but he was staring straight ahead” and “was
avoiding eye contact, he was compliant but was visibly nervous.” Id. at 15, 16.
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[5] Officer John Hammel arrived a few seconds after Officer Helmer. Officer
Hammel parked his car and approached the passenger side of the vehicle, and
spoke to the backseat passenger identified as Demetrius Stokes:
[Officer Hammel] asked his name and […] was going to ask his
birthdate[, but] in the course of that he appeared to be very
nervous and would not make eye contact with [the officer]. He
continually moved his left hand down around the seat under his
body. [Officer Hammel] gave him verbal directions to keep his
hands visible and in his lap. When [Stokes] disregarded [the]
directions and continued to reach down and under his leg area …
[Officer Hammel] thought that he [might] be trying to access a
weapon or … trying to hide something so [the officer] asked him
to step from the vehicle at that time.
Id. at 96.
[6] Officer Nathan Shipley arrived and parked his vehicle behind the green vehicle.
Id. at 47. Officer Shipley saw Officer Helmer near the left rear door and Officer
Hammel near the rear right door. He also saw that the rear passengers had
already been removed to be patted down. One of the officers informed Officer
Shipley that the right rear passenger had been moving his left hand, acting
nervous, and refusing to comply with orders to show his hands. Officer Shipley
believed that given the nature of the call, there could be weapons involved. To
“ensure the officer safety,” Officer Shipley approached the front passenger side
to remove Bailey from the vehicle so he could pat him down for weapons. Id.
at 48.
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[7] Officer Shipley told Bailey that “[he] needed to pat him down,” and asked him
to exit the vehicle. Id. at 50. Bailey complied but would not make eye contact
with Officer Shipley. Officer Shipley asked Bailey to put his hands on the hood
of the car. Bailey refused to face the car, so Officer Shipley “grabbed his right
hand … in order to escort it to the car where [he] needed it to be.” Id. at 51.
Bailey ripped his hand away and ran east. Officer Shipley pursued and yelled,
“Police, stop.” Id. at 52. Officer Shipley was about twenty feet behind Bailey
when he saw Bailey pull a handgun from his waist and raise it to about
shoulder level. Id. Officer Shipley yelled “gun” loud enough to be heard by
the other officers. Id. at 20, 97. As Bailey turned to go around a building,
Officer Shipley saw him throw the gun into a bush. Officer Helmer eventually
caught up to Bailey, deployed his taser, and took Bailey into custody. 1 Officer
Shipley returned to the bush and located the handgun. It had one bullet in the
chamber and seven rounds in the magazine.
[8] The State charged Bailey with class B felony unlawful possession of a firearm
by a SVF, class D felony obstruction of justice, and class A misdemeanor
resisting law enforcement. 2 Bailey waived his right to trial by jury. He also
filed a motion to suppress the handgun, arguing that it was inadmissible
because it was seized in violation of the Fourth Amendment to the United
1
The other occupants of the green vehicle were given trespass warnings and asked to leave the area.
2
The resisting law informant charge was based on Bailey knowingly fleeing Officer Shipley after Officer
Shipley had identified himself by visible or audible means and ordered Bailey to stop. Appellant’s App. at
23; Ind. Code § 35-44.1-3-1(a)(3).
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States Constitution. The trial court conducted a combined suppression hearing
and bench trial. Bailey testified and claimed that he did not throw a firearm.
Id. at 119-20. After taking the matter under advisement, the trial court issued
an order denying Bailey’s motion to suppress. The trial court found Bailey
guilty of unlawful possession of a firearm by a SVF and resisting law
enforcement and not guilty of obstruction of justice.
[9] At sentencing, the trial court found that Bailey’s criminal history and the fact
that he was on parole when he committed the current offenses were aggravating
circumstances and that there were no mitigating circumstances. The trial court
sentenced Bailey to an executed term of fourteen years for unlawful possession
of a firearm by a SVF and a concurrent term of one year for resisting law
enforcement. This appeal ensued.
Discussion and Decision
Section 1 – The police seizure of Bailey’s handgun did not
violate his Fourth Amendment rights.
[10] Bailey argues that the police seized the handgun in violation of the protections
against unreasonable search and seizure guaranteed by the Fourth Amendment
to the United States Constitution, and therefore the gun was inadmissible. 3 The
3
Bailey also raises a claim under Article 1, Section 11 of the Indiana Constitution, but he did not present
that argument to the trial court. “A party generally waives appellate review of an issue or argument unless
that party presented that issue or argument before the trial court.” Griffin v. State, 16 N.E.3d 997, 1006 (Ind.
Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans.
denied)). Therefore, Bailey’s state constitutional claim is waived.
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constitutionality of a search or seizure is a question of law that we review de
novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011). “However, we give
deference to a trial court’s determination of the facts, which will not be
overturned unless clearly erroneous.” Campos v. State, 885 N.E.2d 590, 596
(Ind. 2008). Further, we do not reweigh the evidence, and we view conflicting
evidence in the light most favorable to the trial court’s ruling. Id. “As an
appellate court, we may affirm a trial court’s judgment on any theory supported
by the evidence.” Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002).
[11] The Fourth Amendment states,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
“The fundamental purpose of the Fourth Amendment ‘is to protect the
legitimate expectations of privacy that citizens possess in their persons, their
homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.
App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).
In general, the Fourth Amendment prohibits searches and seizures conducted
without a warrant that is supported by probable cause. Clark v. State, 994
N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism, evidence obtained
without a warrant is not admissible in a prosecution unless the search or seizure
falls into one of the well-delineated exceptions to the warrant requirement. Id.
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“Where a search or seizure is conducted without a warrant, the State bears the
burden to prove that an exception to the warrant requirement existed at the
time of the search or seizure.” Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct.
App. 2010), trans. denied (2011).
[12] One exception to the warrant requirement is abandoned property. Abandoned
property is usually not subject to Fourth Amendment protection and may be
seized without a warrant. Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App.
2005). Bailey concedes that he abandoned the handgun when he threw it into
the bush as he was fleeing from Officer Shipley. However, he asserts that he
abandoned the handgun as a result of an unconstitutional detention, and
therefore it is not admissible. See J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App.
2015) (“Abandoned property is inadmissible if the abandonment occurs after
the owner is improperly detained.”); Gooch v. State, 834 N.E.2d 1052, 1054 (Ind.
Ct. App. 2005) (“[I]f property is abandoned after a citizen is improperly
detained, the evidence is not admissible.”), trans. denied; Wilson v. State, 825
N.E.2d 49, 51 (Ind. Ct. App. 2005) (same); State v. Pease, 531 N.E.2d 1207,
1211-12 (Ind. Ct. App. 1988) (where officer felt a hard object in Pease’s shirt
during patdown search and asked him what it was and then Pease fled and
threw container of amphetamines away, amphetamines were inadmissible
because patdown search violated Fourth Amendment).
[13] We observe that the conditions imposed on police to satisfy the Fourth
Amendment differ depending on the type of interaction occurring between a
police officer and a citizen. Thus, to decide whether Bailey was detained in
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violation of the Fourth Amendment, we first consider what type of interaction
occurred between the police and the occupants of the green vehicle:
There are three levels of police investigation, two of which
implicate the Fourth Amendment and one of which does not.
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. Second, pursuant to Fourth Amendment
jurisprudence, 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 [occurred] or is
about to occur. 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. This is a consensual
encounter in which the Fourth Amendment is not implicated.
Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citations omitted).
[14] Bailey asserts that when the officers initially approached the green vehicle to
speak to the occupants, they were performing an investigatory stop requiring
reasonable suspicion. The State contends that the initial encounter between the
police and the occupants of the green vehicle was consensual. According to the
State, the encounter did not become an investigatory stop until the passengers
were removed from the vehicle to be patted down for weapons, at which time
the police had reasonable suspicion that the occupants could be armed. We
agree with the State that the initial encounter was consensual.
[15] Determining whether an encounter is consensual or involves some level of
detention
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turns on an evaluation, under all the circumstances, of whether a
reasonable person would feel free to disregard the police and go
about his or her business. The test is objective–not whether the
particular citizen actually felt free to leave, but whether the
officer’s words and actions would have conveyed that to a
reasonable person. Examples of facts and circumstances that
might lead a reasonable person to believe that he or she was no
longer free to leave could include the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
officer’s request might be compelled.
Clark, 994 N.E.2d at 261-62 (citations and quotation marks omitted).
[16] Officers Helmer’s and Hammel’s initial approaches to the green vehicle are
similar to that in Powell, in which another panel of this Court concluded that the
officer’s initial approach to a parked vehicle in which Powell was an occupant
was a consensual encounter. 912 N.E.2d at 862. In that case,
the vehicle in which Powell was seated was parked on the side of
a street. The vehicle was “not running.” Officer Deshaies
parked his squad vehicle behind the vehicle in which Powell and
another individual were seated. The record reveals that Officer
Deshaies was in police uniform and driving a fully marked squad
vehicle, but that he did not activate the emergency lights of his
squad vehicle. There is no evidence that Officer Deshaies
activated his squad vehicle’s siren or approached the vehicle
occupied by Powell in a manner that would be considered
aggressive or intimidating. Upon exiting his squad vehicle,
Officer Deshaies approached the driver’s side of the vehicle on
foot. The record does not reflect that Officer Deshaies displayed
a weapon as he approached Powell’s vehicle or that Officer
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Deshaies used any language or spoke in a tone of voice which
mandated compliance.
Id. (citations and quotation marks omitted). 4 The Powell court concluded that
“under the circumstances, Officer Deshaies did not have to possess reasonable
suspicion of wrongdoing in order to park behind or approach Powell’s vehicle
in order to ask Powell his purpose for being in the area.” Id. (emphasis added).
[17] Here, the officers did not activate their emergency lights or sirens. They
approached the vehicle on foot. They did not display their weapons or
approach the vehicle in an aggressive or intimidating manner. Officers Helmer
and Hammel asked the rear passengers their names. There is no evidence that
they used any language or spoke in a tone that would lead a reasonable person
to conclude that they were not free to leave. Therefore, the initial encounter
between the officers and the vehicle occupants was consensual, and the officers
did not need reasonable suspicion to approach the vehicle. 5
[18] Bailey asserts that when the officers removed the passengers from the vehicle
for a patdown search, the officers lacked reasonable suspicion of criminal
wrongdoing. The State concedes, and we conclude, that when Officers Helmer
4
Powell has an extensive list of federal and state cases that have concluded that a police officer’s approach to
a parked vehicle does not implicate the Fourth Amendment. 912 N.E.2d at 861-62.
5
Although Officer Shipley parked his car somewhere behind the green vehicle, there is no evidence that he
parked in a manner that blocked the green vehicle, and he arrived after the officers had already removed the
backseat passengers from the vehicle. Furthermore, Officer Deshaies also “pulled up behind” Powell’s
vehicle, but that fact standing alone did not lead the Powell court to conclude that Powell was subject to an
investigatory stop. 912 N.E.2d at 862.
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and Hammel removed the backseat passengers for a patdown search, the
consensual encounter became an investigatory stop requiring reasonable
suspicion. The State also concedes that when Officer Shipley removed Bailey
from the passenger seat for a patdown search, he needed reasonable suspicion
to do so.
As another exception to the Fourth Amendment’s warrant
requirement, an officer may conduct a brief investigatory stop of
an individual when, based on a totality of the circumstances, the
officer has a reasonable, articulable suspicion that criminal
activity is afoot. The investigatory stop, also known as a Terry
stop, is a lesser intrusion on the person than an arrest and may
include a request to see identification and inquiry necessary to
confirm or dispel the officer’s suspicions. Reasonable suspicion
is determined on a case by case basis. The reasonable suspicion
requirement is met where the facts known to the officer at the
moment of the stop, together with the reasonable inferences from
such facts, would cause an ordinarily prudent person to believe
criminal activity has occurred or is about to occur.
J.B., 30 N.E.3d at 55 (citations and quotation marks omitted).
[19] The facts known to the officers at the time that they removed the backseat
passengers from the vehicle, as well as shortly thereafter when Officer Shipley
removed Bailey, are that Officer Helmer knew that Coppertree had a history of
theft from its laundry room coin machines. All three officers had responded to
a report of three suspicious black males present at one of the laundry rooms,
who could be breaking into one of the coin machines. The report included the
observation that one of the men, who appeared to be acting as a lookout, was
wearing a knit hat with a ball on it. Before the officers arrived at the scene, the
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caller had updated her report, informing dispatch that the men were sitting in a
green vehicle and providing the vehicle’s license plate number. The officers saw
that one of the passengers in the green vehicle had a stocking cap with a ball on
it and that the vehicle’s license number matched the reported license number.
[20] Bailey argues that these facts are insufficient to establish reasonable suspicion
because “[w]hen the suspicion arises solely from the information of an
anonymous tip, ‘… the tip must be corroborated by police and it must exhibit
sufficient indicia of reliability.’” Appellant’s Br. at 11 (quoting Berry v. State, 766
N.E.2d 805, 807 (Ind. Ct. App. 2002)). But this is not all the information that
the officers had when they removed the men from the vehicle. Additional
information became available to the officers, and we must consider the totality
of the circumstances to determine whether the police had reasonable, articulate
suspicion of criminal activity. See J.B., 30 N.E.3d at 55.
[21] When Officers Helmer and Hammel asked the backseat passengers for their
names, the passengers appeared nervous and avoided eye contact. We
acknowledge that “[a] vague and general characterization of demeanor, such as
‘nervousness,’ does not rise to the level of reasonable suspicion.” Tumblin v.
State, 736 N.E.2d 317, 322-23 (Ind. Ct. App. 2000), trans. denied. But in this
case there is more. Officer Helmer saw one of the passengers keep moving his
left hand down around the seat under his body, and he refused to comply when
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instructed to keep his hands visible and in his lap. 6 Summarizing the totality of
the circumstances, we observe that Officer Helmer knew that Coppertree had a
history of theft involving the laundry room machines, there had been a report of
suspicious behavior and a possible theft from those machines, the vehicle and
its license number fit the reported description, and one of the men was wearing
a hat as described by the caller. In addition, the occupants were nervous and
failed to make eye contact and one occupant refused to obey the officer’s
request to keep his hands visible. All together, these circumstances support a
reasonable suspicion that the men in the vehicle had been involved in criminal
activity, either theft or trespass.
[22] There was also reasonable suspicion that the men could be armed. “In addition
to detainment, Terry permits a reasonable search for weapons for the protection
of the police officer, where the officer 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.” Malone v. State, 882 N.E.2d 784,
786-87 (Ind. Ct. App. 2008) (citing Terry v. Ohio, 392 U.S. 1, 27, (1968)).
“Officer safety is of paramount importance. Police officers are daily placed in
difficult and dangerous situations, some of which are life threatening. The law
6
The State contends that “[w]hen the officers approached the green car, there is a reasonable inference that
the two backseat passengers, whom Officer Helmer and Officer Hammel spoke with, failed to answer
whether they lived at Coppertree.” Appellee’s Br. at 20. To the contrary, the record supports the conclusion
that the passengers answered the officer’s questions. Officer Helmer testified that the occupant of the rear
passenger seat “answered his questions” and “was complaint.” Tr. at 15, 16. Officer Hammel’s testimony
supports a strong inference that he did not ask the driver’s-side rear passenger anything other than his name
before he was compelled to begin directing the passenger to keep his hands visible and in his lap. Id. at 96.
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has to provide protections for such officers.” Id. at 787. Here, the occupants
were nervous, failed to make eye contact, and one occupant refused to obey the
officer’s request to keep his hands visible. Thus, to ensure their own safety, the
officers were permitted under the Fourth Amendment to remove the men,
including Bailey, from the vehicle and pat them down for weapons.
[23] Because we have determined that Bailey was constitutionally detained, his
argument that the handgun is inadmissible because he abandoned it as a result
of an unconstitutional seizure must fail. As such, we conclude that the trial
court properly admitted the abandoned handgun.
Section 2 – Bailey has failed to carry his burden to establish
that his sentence is inappropriate.
[24] Bailey argues that his fourteen-year executed sentence is inappropriate
pursuant to Indiana Appellate Rule 7(B), which states, “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” When reviewing a sentence,
our principal role is to leaven the outliers rather than necessarily achieve what is
perceived as the correct result. Cardwell, 895 N.E.2d at 1225. “We do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “In assessing the nature of the offense and character of the offender, we
may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d
1055, 1060 (Ind. Ct. App. 2013). “[S]entencing is principally a discretionary
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function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015). Bailey has the burden to show that his sentence is
inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218.
[25] Turning first to the nature of the offense, we observe that “the advisory sentence
is the starting point the Legislature selected as appropriate for the crime
committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing
range for a class B felony is six to twenty years with an advisory sentence of ten
years. Ind. Code § 35-50-2-5. Bailey’s fourteen-year sentence is above the
advisory and above the State’s recommended sentence of twelve years but
below the statutory maximum.
[26] Bailey asserts that there was nothing about the nature of his offense that makes
it more serious than the garden-variety unlawful possession of a firearm by a
SVF. We disagree. As the State notes, “A garden-variety possession offense
might involve, for example, having a handgun stored in one’s car that is found
during a search of the car.” Appellee’s Br. at 32 (citing Hansbrough v. State, 2016
WL 365182, No. 29A04-1508-CR-1121 (Ind. Ct. App. Jan. 29, 2016), trans.
denied). Here, Bailey had actual possession of a fully loaded gun. He had a
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round in the gun’s chamber, so it was ready to fire. Bailey fled from law
enforcement and raised the gun to shoulder level. Thus, he generated a
situation that could have resulted in the shooting of a police officer or innocent
bystander. The nature of his offense created a significant threat to public safety.
[27] As for Bailey’s character, although he was twenty-five years old when he
committed the instant offenses and twenty-seven years old at sentencing, he had
three prior felonies and two prior misdemeanors. His felonies consist of class C
felony burglary, class C felony battery committed by means of a deadly weapon
or resulting in serious bodily injury, and class D felony theft. His crimes show a
propensity for violence. He also has prior class A misdemeanor convictions for
conversion, resisting law enforcement, and possession of marijuana. Further,
Bailey committed the instant offenses while on parole for the battery
conviction, just four months after being released from the Department of
Correction. Bailey argues that even though his mother died when he was
thirteen, he managed to graduate from high school and complete some college.
Though laudable, as an adult, Bailey has persistently violated the law. We
conclude that Bailey has failed to carry his burden to show that his sentence
was inappropriate. Therefore, we affirm.
[28] Affirmed.
Najam, J., and Robb, J., concur.
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