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Negash v. State

Court of Appeals of Indiana

December 11, 2018

Aaron A. Negash, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable David J. Certo, Judge Trial Court Cause No. 49G09-1705-CM-18997

          Attorney for Appellant Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] Aaron Negash ("Negash") appeals his convictions, following a bench trial, for Class A misdemeanor carrying a handgun without a license[1] and Class A misdemeanor possession of a synthetic drug or lookalike substance.[2] Negash argues that: (1) the trial court abused its discretion when it admitted the synthetic marijuana he possessed into evidence because it had been seized pursuant to an illegal search; (2) there was insufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court erred by ordering Negash to pay probation fees.

         [¶2] We conclude that: (1) the trial court properly admitted the evidence; (2) there was sufficient evidence to support his carrying a handgun without a license conviction; and (3) the trial court did not err in imposing probation fees. However, we remand to the trial court to hold an indigency hearing upon the completion of Negash's sentence.

         [¶3] We affirm and remand with instructions.

         Issues

         1. Whether the trial court abused its discretion when it admitted the synthetic marijuana into evidence.

         2. Whether there was sufficient evidence to support Negash's carrying a handgun without a license conviction.

         3. Whether the trial court abused its discretion by ordering Negash to pay probation fees.

         Facts

         [¶4] On the night of May 22, 2017, police from the Indianapolis Metropolitan Police Department were dispatched to the Living Room Lounge in Indianapolis on a report of shots fired. When Officer Matthew Plummer ("Officer Plummer") and Sergeant Mark Gregory ("Sgt. Gregory") arrived on scene, a suspect was already in custody. They learned that another vehicle was involved in the incident and that a vehicle with three occupants was parked behind the building. Officer Plummer and Sgt. Gregory "walked up and started conversing with the occupants in the vehicle." (Tr. 12).

         [¶5] Negash, who identified himself as "Moses," was seated in the driver's seat of the vehicle.[3] (Tr. 23). There was one front-seat passenger and one back-seat passenger. Officer Plummer spoke with Negash and the back-seat passenger and informed them that he and Sgt. Gregory were investigating a report of shots fired. Officer Plummer asked the occupants whether they "had [] heard anything, [and] [whether] there [were] any weapons in the vehicle[.]" (Tr. 12). The three occupants responded "no." (Tr. 12). While Officer Plummer focused on Negash and the back-seat passenger, Sgt. Gregory spoke to the front-seat passenger, who was "moving around, reaching for the glovebox, going for his wristband, [and] pulling his shirt up." (Tr. 13). The back-seat passenger did not say anything to Officer Plummer, but he pointed to Negash and made "the outline [of] a gun with his index finger and his thumb." (Tr. 13).

         [¶6] Officer Plummer then asked Negash to step out of the vehicle. As Negash stepped out of the vehicle, Officer Plummer observed "a huge bulge in [Negash's] right pocket, sticking out, protruding." (Tr. 14). Officer Plummer immediately conducted a pat-down of the outer layer of Negash's clothing and felt "a baggie of narcotics." (Tr. 14). During the pat-down, Officer Plummer also "looked down as [he] patted down and [could] see straight into the pocket." (Tr. 15). Based on his experiences as a law enforcement officer, Officer Plummer recognized that the baggie contained synthetic marijuana.[4]Officer Plummer arrested Negash and seized the synthetic marijuana. The police then searched the vehicle and located a handgun in the glovebox. The hammer of the handgun was cocked back and the gun was loaded.

         [¶7] Negash stood at the hood of the police vehicle while Officer Plummer was in the same vehicle trying to verify Negash's identity in the computer system. Sgt. Gregory leaned into Officer Plummer's window and asked, "is someone going to be arrested for the gun?" (Tr. 27). Negash interjected and stated, "I have a permit for that gun. It's in the trunk." (Tr. 27). Officer Plummer went to the trunk but did not find a gun permit.

         [¶8] The State charged Negash with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. A bench trial was held on February 13, 2018. At trial, Officer Plummer and Moses Negash testified to the facts above. When the State introduced the synthetic marijuana into evidence, defense counsel objected and stated the following:

I do object to State's exhibit 1, Your Honor, and I would call for the baggie and its contents and the testimony around it to be excluded under the application of the exclusionary rule. It's fruit of the poisonous tree from an unlawful search.
* * *
When he asked Mr. Negash to step out of the car, it became a detention, and at that time Mr. Negash was not advised of his [P]irtle rights.
* * *
It wasn't a gun, and he used further intrusive means of looking into my client's pocket and violated his right to having a warrant for any search or consenting to a search by being read his [P]irtle rights and waiving those rights.

(Tr. 18). The trial court overruled the objection and admitted the synthetic marijuana into evidence. The trial court ...


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