Opinion
24A-CR-28
06-28-2024
Donald E. Lamb II, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Jamie C. Egolf Fort Wayne, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Steven Godfrey, Judge Trial Court Cause No. 02D04-2302-F2-8
Attorney for Appellant Jamie C. Egolf Fort Wayne, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General
Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] Donald E. Lamb II was convicted of Level 3 felony possession of cocaine and Class C misdemeanor possession of paraphernalia and sentenced to twelve years. He now appeals, arguing the trial court erred in admitting the cocaine into evidence and that his sentence is inappropriate. We affirm.
Facts and Procedural History
[¶2] On the afternoon of February 16, 2023, officers from the Fort Wayne Police Department responded to a 911 call regarding a domestic disturbance in progress. The call was being made from inside a car, and the caller told the dispatcher that she was in fear of being stabbed by the driver. The dispatcher determined the caller's location by using the Rapid GPS information provided by cell-phone carriers to aid law enforcement. The caller was thought to be in the area of Anthony Boulevard and Oxford Street. The 911 caller described the car as a gray Buick.
[¶3] Detectives Geoff Norton and Jeremy Nicodemus were in the area and quickly spotted a bluish-gray Buick. The Buick had tinted windows, so the detectives could not see how many people were inside the car. After observing the Buick make a turn and travel over the center line, Detective Norton activated his emergency lights. The Buick stopped, and Lamb exited the car. Detective Norton ordered Lamb to walk backwards toward him and Detective Nicodemus. Detective Nicodemus, who suspected that Lamb was armed and dangerous based on the 911 call, handcuffed him and patted him down for officer safety. During the pat down, Detective Nicodemus felt in the back pocket of Lamb's pants what he suspected from his training and experience to be a crack pipe. When Detective Nicodemus told the other officers on the scene that he had found a crack pipe, Lamb, without being asked, confirmed that it was a crack pipe. The crack pipe was removed from Lamb's pocket, and Detective Nicodemus saw that it contained a "burnt residue," which "confirm[ed] [his] belief that it was a crack pipe." Tr. Vol. II p. 250. Detective Nicodemus arrested Lamb for possession of paraphernalia. Tr. Vol. III p. 2. Lamb was then searched incident to arrest, and cocaine was found on his person. A large amount of cocaine was later found in a backpack on the front passenger seat of the car.
[¶4] While Detective Nicodemus was tending to Lamb, Detective Norton and the other officers went to the Buick to see if the 911 caller was inside, but no one was inside. The officers were later informed that they had the wrong car.
[¶5] The State charged Lamb with Level 2 felony dealing in cocaine, Level 3 felony possession of cocaine, and Class C misdemeanor possession of paraphernalia. Before trial, Lamb moved to suppress the cocaine and crack pipe, arguing that he didn't commit a traffic violation and thus the detectives didn't have reasonable suspicion to conduct a traffic stop in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. See Appellant's App. Vol. II p. 49. Following a hearing, the trial court denied the motion to suppress.
[¶6] A jury trial was held, and Lamb renewed his objection to the admission of the crack pipe and cocaine based on his motion to suppress. See Tr. Vol. II pp. 210, 214-15. The trial court overruled his objection. Lamb testified in his own defense that only the cocaine found on his person belonged to him. The jury found Lamb not guilty of Level 2 felony dealing in cocaine but guilty of Level 3 felony possession of cocaine and Class C misdemeanor possession of paraphernalia.
[¶7] At sentencing, evidence was presented that Lamb, age fifty-four, had forty-three misdemeanor convictions and five felony convictions. In addition, he had his probation revoked three times, his parole revoked twice, a suspended sentence revoked twice, and a work-release placement revoked once. Lamb was also on probation in another case when he committed these offenses. The trial court found two aggravators: (1) Lamb's extensive criminal history and (2) prior rehabilitative efforts have failed. The court found two mitigators: (1) Lamb's drug addiction and (2) his "acceptance of responsibility" for possessing some of the cocaine (which was entitled to "very little weight," see Tr. Vol. III p. 147). Finding the aggravators to outweigh the mitigators, the court sentenced Lamb to twelve years for the Level 3 felony and sixty days for the Class C misdemeanor, to be served concurrently.
[¶8] Lamb now appeals.
Discussion and Decision
I. The trial court did not err in admitting the cocaine
[¶9] Lamb contends the trial court erred in admitting the cocaine into evidence. While rulings on the admissibility of evidence are generally reviewed for an abuse of discretion, when a challenge to such a ruling is based on the constitutionality of a search or seizure, our review is de novo. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2007).
[¶10] Lamb argues that because the detectives couldn't tell whether he was committing a misdemeanor or an infraction in his possession of the crack pipe, they didn't have probable cause to arrest him, thereby invalidating the search incident to arrest. See Edwards v. State, 759 N.E.2d 626, 629 (Ind. 2001) (explaining that according to the search-incident-to-arrest exception to the warrant requirement, "once a lawful arrest has been made, authorities may conduct a full search of the arrestee for weapons or concealed evidence"). But as the State points out, this is a different argument than the one Lamb made below. In the trial court, Lamb argued that he didn't commit a traffic violation and thus the detectives didn't have reasonable suspicion to conduct a traffic stop. On appeal, Lamb concedes that the officers had reasonable suspicion to stop him and conduct a protective search for weapons. See Appellant's Br. p. 10. Lamb has waived this argument for review. See Turner v. State, 183 N.E.3d 346, 359-60 (Ind.Ct.App. 2022) (holding that a party may not present an argument on appeal unless the party raised that argument before the trial court), trans. denied.
[¶11] In limited circumstances, a defendant can seek review of a waived issue for fundamental error. But Lamb has not argued fundamental error, and so review of this issue is waived as well. See Bowman v. State, 51 N.E.3d 1174, 1179-80 (Ind. 2016) (holding that where the appellant "failed to raise the issue of fundamental error in his initial appellate brief[,]" such a claim was "entirely waived").
[¶12] Notwithstanding the double waiver, there is no fundamental error. To establish fundamental error, the defendant must show that the alleged error constituted a clearly blatant violation of basic and elementary principles of due process and presented an undeniable and substantial potential for harm. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).
Notably, Lamb did not file a reply brief to respond to the State's argument that he has doubly waived his constitutional argument.
[¶13] According to Indiana Code section 35-33-1-1(a)(4), a police officer may arrest a person when the officer has probable cause to believe that the person is committing or attempting to commit a misdemeanor-not an infraction-in the officer's presence. See also Taylor v. State, 842 N.E.2d 327, 333 n.6 (Ind. 2006). Lamb says that because there are paraphernalia infractions and misdemeanors, the detectives didn't have probable cause to arrest him for a misdemeanor and thus the search incident to arrest was invalid. While there are paraphernalia offenses that are infractions, they are for manufacturing paraphernalia and dealing in paraphernalia. See Ind. Code §§ 35-48-4-8.1, -8.5. Lamb, however, was arrested for possession of paraphernalia, see Tr. Vol. III p. 2, which is a misdemeanor, see I.C. § 35-48-4-8.3. The detectives had probable cause to arrest Lamb for possession of paraphernalia upon finding the crack pipe with burnt residue in his pocket during the protective search for weapons. See Kyles v. State, 888 N.E.2d 809, 813 (Ind.Ct.App. 2008) (concluding that an officer had probable cause to believe the defendant committed misdemeanor possession of paraphernalia because he saw a crack pipe on the driver's seat shortly after the defendant had exited the car from the driver's side door). Because the search incident to arrest was valid, the trial court did not err in admitting the cocaine.
II. Lamb's sentence is not inappropriate
[¶14] Lamb also contends that his twelve-year sentence for Level 3 felony possession of cocaine is inappropriate under Indiana Appellate Rule 7(B), which provides that an appellate 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." The appellate court's role under Rule 7(B) is to "leaven the outliers," and "we reserve our 7(B) authority for exceptional cases." Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quotation omitted). "Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case." Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.Ct.App. 2016).
Lamb also says the trial court abused its discretion in sentencing him because it "misappl[ied]" the aggravators and mitigators. Appellant's Br. p. 8. Lamb, however, does not develop this argument, and it is therefore waived. See Ind. Appellate Rule 46(A)(8)(a). To the extent he argues that the trial court abused its discretion in weighing the aggravators and mitigators, this argument is not available. See Salhab v. State, 153 N.E.3d 298, 304 (Ind.Ct.App. 2020) (noting that "the relative weight ascribed by the trial court to any aggravating and mitigating circumstances is no longer subject to our review").
[¶15] The sentencing range for a Level 3 felony is three to sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). The trial court sentenced Lamb to an above-advisory term of twelve years.
[¶16] Even accepting that there is nothing extraordinary about these offenses, Lamb's extensive criminal history-which he does not acknowledge on appeal-easily supports his above-advisory sentence. As the trial court detailed, Lamb has forty-three misdemeanor convictions and five felony convictions and has had his probation, parole, suspended sentence, and work-release placement revoked multiple times. Moreover, Lamb was on probation when he committed these offenses. Although, as Lamb points out, he accepted responsibility for possessing some of the cocaine and suffers from addiction, these things are outweighed by his extensive criminal history. Lamb has failed to persuade us that his above-advisory sentence is inappropriate.
[¶17] Affirmed.
Weissmann, J., and Foley, J., concur.