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Winborn v. State

Court of Appeals of Indiana

April 12, 2018

Tevin Dejaron Winborn, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08-1606-F5-125

          Attorney for Appellant Jeffery M. Haupt Law Office of Jeffery Haupt South Bend, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana.

          Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana.

          MATHIAS, JUDGE.

         [¶1] Tevin Dejaron Winborn ("Winborn") appeals his convictions for Level 5 felony carrying a handgun without a license, Level 5 felony battery to a pregnant woman, and Level 6 felony strangulation. Specifically, Winborn appeals the trial court's denial of his motion to suppress the evidence obtained from Tashala Berry's ("Berry") apartment, arguing that the search and seizure of his backpack violated his rights under the Fourth Amendment.[1] Winborn also argues that the evidence was insufficient to support his battery and strangulation convictions.[2]

[¶2] We affirm.

         Facts and Procedural History

         [¶3] Winborn and Berry had been dating for approximately two and one-half years leading up to June 2016. Winborn regularly spent the night at Berry's apartment and occasionally left personal items there as well. For a time, Winborn had a key to Berry's apartment, but she took it back from him in May 2016. The two had a tumultuous relationship, and there were several holes in the walls of Berry's apartment caused by both her and Winborn.

         [¶4] On June 9, 2016, Berry found out that she was pregnant with Winborn's child and told him. On the evening of June 20, Berry and Winborn got into a heated argument in an unidentified person's apartment where Winborn allegedly choked Berry and slammed her to the kitchen floor.[3] The two went back to Berry's apartment that evening, and Winborn stayed the night. At some point the next morning or early afternoon, the two got into a second argument in which Berry and Winborn both exchanged blows, and the two fell on to Berry's bed where Winborn choked her again. Berry testified that Winborn used one hand when choking her and he did so with enough force to cause her to stop breathing. Tr. Vol. 2, p. 151. Throughout their confrontations, Berry explained, "I am swinging on him. I am punching him. But he is smacking me and choking me." Id. at 173.

         [¶5] During the scuffle on June 21, Berry's phone broke, and she then left the apartment and walked to her aunt's house which was nearby. At her aunt's, Berry called 911. South Bend Police Department Officers Dertz and Teague arrived on scene soon after. Berry relayed what happened, and she indicated that Winborn was still in her apartment.

         [¶6] Officer Teague testified that he asked Berry if the officers had permission to enter the apartment, and that "[s]he actually said yes and left us keys to her apartment at that time." Id. at 11.[4] Prior to approaching the apartment, Officer Dertz looked Winborn up in the "cadis" program, "and it confirmed that he did have a prior conviction for -- I think it was just a handgun without a license at the time." Id. at 38-39.

         [¶7] The officers then approached Berry's apartment and were able to have a brief conversation with Winborn at the front door. Winborn thought the officers were there to serve a warrant for a different offense, and when he realized this was not the case, he invited the officers inside to discuss the altercation with Berry. Soon after, Officer Teague brought Winborn out to his squad car, placed him in the back, and advised him of his Miranda rights.

         [¶8] In the squad car, Winborn provided a recorded version of what took place with Berry. During the conversation, Winborn mentioned to Officer Teague that he had a backpack inside Berry's apartment and that the backpack might contain a firearm. Winborn also explained that he thought the gun may be ...


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