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Peak v. State

Court of Appeals of Indiana

February 25, 2015

Gordon L. Peak, Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 1011

Appeal from the Grant Circuit Court. The Honorable Mark E. Spitzer, Judge. Cause No. 27C01-1201-FD-12.

ATTORNEY FOR APPELLANT: David M. Payne, Ryan & Payne, Marion, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana.

Sharpnack, Senior Judge. Najam, J., and Bradford, J., concur.

OPINION

Page 1012

Sharpnack, Senior Judge

Statement of the Case

[¶1] Gordon L. Peak, Jr., was arrested after police stopped his car and found marijuana on his person. He appeals his conviction of possession of marijuana in excess of thirty grams, a Class D felony. Ind. Code § 35-48-4-11 (2011). We affirm.

Issue

[¶2] Peak raises one issue, which we restate as: whether Peak received ineffective assistance of trial counsel.

Facts and Procedural History

[¶3] On January 22, 2012, Sergeant Shawn Sizemore of the Marion Police Department was sitting in an unmarked car watching a house that was suspected of being used for illegal drug transactions. He saw someone in a silver Buick drive away from the residence and followed it. As Sergeant Sizemore followed the Buick, he saw the driver of the Buick stop at a red light, activate its right turn signal, and then turn right. He concluded that the driver of the Buick had committed an infraction by failing to use a turn signal for 200 feet prior to the turn. Sergeant Sizemore radioed Sergeant John Kauffman, identified the infraction he had observed, and asked him to stop the Buick.

[¶4] Sergeant Kauffman, who was in uniform and driving a marked car, stopped the Buick and walked up to it. Peak was driving, and he had no passengers. Before he began speaking with Peak, Sergeant Kauffman noticed " an overwhelming smell of raw, green marijuana." Tr. p. 108. Peak handed Sergeant Kauffman an identification card and conceded that his license was suspended. Sergeant Sizemore walked up to the car while Sergeant Kauffman spoke with Peak. Sergeant Kauffman told Sergeant Sizemore he smelled an odor of marijuana.

[¶5] Peak appeared to be nervous, would not make eye contact with Sergeant Kauffman, and kept his left hand between his seat and the car door. Sergeant Kauffman asked Peak to get out of the car to make sure " he didn't have a weapon." Id. When Peak stepped out of the Buick, Sergeant Kauffman again smelled an odor of marijuana. Sergeant Sizemore also smelled an odor of marijuana, which he concluded was coming from Peak's person.

[¶6] Sergeant Kauffman had Peak walk to the rear of his car and put his hands on the car to facilitate a pat down. During the pat down, Peak kept his groin pressed up against the car so that Sergeant Kauffman could not reach it. Sergeant Kauffman turned Peak away from the car and patted Peak's groin area. He felt a substance which had " the same feel and ...


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