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
Matthew B. MacKenzie Deputy Attorney General Indianapolis,
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. Winborn also argues that the evidence was
insufficient to support his battery and strangulation
[¶2] We affirm.
and Procedural History
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.
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. 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.
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.
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. 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.
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.
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