Charles Dunmore v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of Apr 01 2013, 9:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES DUNMORE, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1209-CR-769
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Judge
Cause No. 34D01-1203-FD-193
April 1, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant Charles Dunmore (Dunmore), appeals his conviction for
Count I, Possession of Cocaine, a Class D felony, Ind. Code § 35-48-4-6, and Count II,
Resisting Law Enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-1.
We affirm.
ISSUE
Dunmore raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion in admitting evidence.
FACTS AND PROCEDURAL HISTORY
About midnight on March 4, 2012, Kokomo Police Department Officer Mark
Miller (Officer Miller) was parked with his headlights off at the intersection of Indiana
and Jefferson Streets watching a house that had been the subject of many complaints of
illegal drug activity. As another police officer drove past, Officer Miller noticed
Dunmore crouching down and jogging along behind the police car. Officer Miller turned
on his headlights and drove through the intersection to see what Dunmore was doing.
When Dunmore saw Officer Miller’s police car, he took off running. Office Miller
watched Dunmore run behind a dumpster. Officer Miller got out of his car, identified
himself as a police officer, and ordered Dunmore to come out and show his hands.
Dunmore suddenly took off running again. Officer Miller shouted, “Police officer,
stop!” but Dunmore did not respond to the officer’s commands. (Transcript p. 173), At
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some point during the pursuit, Dunmore threw an object to the ground. Officer Miller
retrieved the object, a small white rock in a plastic baggie. Subsequent tests revealed that
the baggie contained .38 grams of cocaine base. After Officer Miller retrieved the
cocaine, the Officer handcuffed Dunmore.
On March 4, 2012, the State filed an Information charging Dunmore with
possession of cocaine and resisting law enforcement. On August 10, 2012, Dunmore
filed a motion to suppress, which the trial court denied. At the close of the evidence, a
jury convicted Dunmore as charged.
Dunmore now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
Dunmore contends that the trial court abused its discretion in denying his motion
to suppress the cocaine he threw on the ground while Officer Miller was pursuing him.
We note, however, that Dunmore did not file an interlocutory appeal. Rather, he
proceeded to trial and objected to the admission of the same evidence. Once a case
proceeds to trial, the question of whether the trial court erred in denying a motion to
suppress is no longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind. Ct. App. 2006),
trans. denied. A ruling upon a pretrial motion to suppress is not intended to serve as the
final determination of admissibility because it was subject to modification at trial. Id.
On appeal, Dunmore’s only available argument is whether the trial court abused its
discretion in admitting evidence at trial. Id.
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We reverse a trial court’s ruling on the admissibility of evidence only when the
trial court abused its discretion. Id. An abuse of discretion may occur if a decision is
clearly against the logic and effect of the facts and circumstances before the court. Id.
Dunmore argues that the trial court abused its discretion in admitting evidence
because the cocaine was seized without a warrant or reasonable suspicion. We addressed
this same issue in Gooch v. State, 834 N.E.2d 1052 (Ind. Ct. App. 2005). There, a police
officer observed Gooch and a woman walking away from an abandoned house. Id. at
1053. The officer ordered the couple to stop so he could investigate their connection to
the abandoned house. Id. Gooch ignored the officer’s command and continued walking
until he crouched down behind a parked car. Id. When the officer ordered Gooch to
stand and raise his hands, Gooch threw something. Id. The officer noticed two bags of
marijuana and cocaine on the ground. Id.
The State charged Gooch with one count of possession of cocaine. Id. Gooch
filed a motion to suppress the cocaine, which the trial court denied. Id. In an
interlocutory appeal, this court determined that it did not have to address Gooch’s Fourth
Amendment claim because he abandoned the cocaine that he sought to suppress. Id.
Specifically, this court noted that even though the officer was attempting to restrain
Gooch’s activities, Gooch’s freedom was not interrupted, inasmuch as he failed to
initially obey the officer’s instructions. Id. Only after Gooch tossed the bag did the
officer use force to restrain and handcuff Gooch. Id. As a result, the bag was subject to a
lawful seizure by the police when Gooch tossed it to the ground. Id. Morever, Gooch
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had not been seized at the time he tossed the bag of cocaine, so the drugs were not the
product of an illegal seizure. Id. at 1054-55. We therefore affirmed the denial of
Gooch’s motion to suppress. Id. at 1055. See also California v. Hodari D., 499 U.S. 621
(1991).
Here, as in Gooch, although Officer Miller was attempting to restrain Dunmore’s
acitivies, Dunmore’s freedom was not interrupted, inasmuch as he failed to initially obey
Officer Miller’s instructions. Only after Dunmore tossed the bag did Officer Miller
handcuff Dunmore. As a result, the bag was subject to a lawful seizure by the police
when Dunmore tossed it to the ground. Moreover, Dunmore had not been seized at the
time he tossed the bag, so the drugs were not the product of an illegal seizure. We
therefore find that the trial court did not abuse its discretion when it admitted the cocaine
into evidence.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
in admitting evidence.
Affirmed.
BAKER, J. and BARNES, J. concur
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