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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 establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ROBERT D. KING, JR. The Law Office of Robert D. King, Jr., P.C. Indianapolis, Indiana

FILED
Nov 17 2010, 9:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY J. WOODS, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 49A04-1003-CR-158

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Michael Jensen, Magistrate Cause No. 49G20-0906-FB-55935

November 17, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Anthony Woods appeals his conviction, following a bench trial, of possession of cocaine within 1,000 feet of a family housing complex, a Class B felony.1 For our review, Woods raises two restated issues: 1) whether the trial court abused its discretion by admitting allegedly unlawfully obtained evidence; and 2) whether sufficient evidence disproves Woods's claim that he was at the family housing complex only briefly and no children at least three years younger than him were present. Concluding the trial court did not abuse its discretion by admitting the cocaine as evidence, and sufficient evidence proves children at least three years younger than Woods were present when he possessed cocaine at the family housing complex, we affirm. Facts and Procedural History In the early morning of June 13, 2009, Officer Bragg and Officer Scott of the Indianapolis Metropolitan Police Department were conducting a foot patrol of the Beechwood Gardens Apartments ("Beechwood complex"), a public housing complex in Indianapolis. The Beechwood complex has 164 apartments and rents to families,

including families with children. Due to recent reports of narcotics and gun activity, Officers Bragg and Scott, wearing full police uniforms, conducted a "thorough walkthrough" of the Beechwood complex. Transcript at 26. At some point during the walkthrough, the officers spoke with a woman previously known to them whose two children were playing outside under her supervision and were between ten and fifteen years old.

Woods was also convicted of resisting law enforcement, a Class A misdemeanor, and public intoxication, a Class B misdemeanor, but does not challenge those convictions.

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At approximately 1 a.m., the officers came across a group of four or five men, including Woods, standing in a parking lot of the Beechwood complex. The men

appeared to Officer Bragg to be between thirty- and fifty-some years old. One of the men turned and quickly walked away as the officers approached, and Officer Scott went to follow that man. Of the men who remained, two appeared to be drinking alcohol and one was recognized by Officer Bragg as an individual he had stopped one or two weeks previously and found in possession of an assault rifle. Officer Bragg attempted to engage the men in "general conversation" such as asking them whether they lived at the Beechwood complex and why they were there. Id. at 29. The men were nonresponsive and gave Officer Bragg a "blank stare." Id.2 Officer Bragg also asked the men if they had any weapons, and all responded negatively. Officer Bragg then began to pat down one of the men who was drinking alcohol and who raised his hands to about shoulder height as a sign of being cooperative. Officer Bragg did not tell the other men that they were going to be patted down or that they needed to stay put, and Officer Bragg made no comment directed specifically at Woods. As Officer Bragg was patting down the one man, Woods "walk[ed] over a couple of steps" toward Officer Bragg and dropped a clear plastic baggie. Id. at 32. Woods was several feet away from Officer Bragg when he dropped the baggie and appeared to be trying to "go behind" Officer Bragg's field of vision. Exhibit Volume at 22. 3 Officer Bragg turned and saw the baggie appeared to contain rock-like crack cocaine. He then

However, Officer Bragg testified in his deposition, admitted into evidence at trial, that the men gave a "common yes/no response all at one time" when asked whether they lived there. Exhibit Volume at 18. 3 Officer Bragg's trial testimony was that Woods was five to eight feet away when he dropped the baggie, and his deposition testimony was that Woods was approximately three feet away.

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told Woods to put his hands on a nearby car, but Woods did not comply and instead shoved Officer Bragg in the arm and shoulder. The officers subdued Woods and placed him under arrest, at which time they observed signs of Woods's intoxication. They also recovered the baggie, which later tested positive for cocaine. The State charged Woods with possession of cocaine within 1,000 feet of a family housing complex, a Class B felony, resisting law enforcement, a Class A misdemeanor, and public intoxication, a Class B misdemeanor. Woods filed a motion to suppress, and in lieu of an evidentiary hearing, the parties stipulated to admitting Officer Bragg's deposition into evidence. On November 24, 2009, the trial court denied the motion to suppress. Woods waived his right to a jury trial. On January 4, 2010, the trial court held a bench trial at which Officer Bragg testified and his deposition was admitted as part of the trial record. The cocaine baggie was admitted into evidence over Woods's objection that his dropping the cocaine was "forced abandonment because there's illegal detention of not only Mr. Woods but the other individual at the scene." Tr. at 54. Woods also argued that if convicted, his conviction should be entered as merely a Class D felony because he was at the Beechwood complex only briefly and there was no evidence he was at least three years older than any children present. The trial court took this argument under advisement and, on January 27, 2010, found Woods guilty as charged. Following a sentencing hearing, the trial court sentenced Woods to fifteen years. He now appeals.

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Discussion and Decision I. Admission of Evidence A. Standard of Review Although Woods states the issue as whether the trial court erred by denying his motion to suppress, because Woods appeals from a completed trial, "the issue is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). We defer to the trial court's findings of historical fact, do not reweigh the evidence, and consider conflicting evidence in a light most favorable to the trial court's ruling. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). We "consider[] afresh any legal question of the constitutionality of a search or seizure." Id. B. Fourth Amendment4 Woods argues the cocaine was seized as a result of an improper patdown search and was therefore inadmissible. Yet Woods was not the subject of Officer Bragg's patdown, another individual was. Fourth Amendment rights are personal rights and a defendant may not vicariously assert the Fourth Amendment rights of a third party. Smith v. State, 744 N.E.2d 437, 439 (Ind. 2001) (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)). That is, "[i]n order to qualify as a person aggrieved by an unlawful search . . . one must have been a victim of a search . . ., one against whom the search was directed," and not be claiming prejudice only from the use of evidence obtained as a result of a search directed at a third party. Rakas, 439 U.S. at 134-35 (quotation and

Woods addresses only the Fourth Amendment to the U.S. Constitution and does not develop an argument under Article 1, section 11 of the Indiana Constitution.

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emphasis omitted). Thus, Woods cannot prevail merely by showing that Officer Bragg lacked reasonable suspicion to conduct the patdown of the other individual. Further, Woods's cocaine baggie was not seized until after he dropped it on the ground. Woods acknowledges he abandoned the cocaine. Abandoned property generally is not the subject of Fourth Amendment protections. Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005); see California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that cocaine abandoned while defendant was running from police but before he was seized was properly admissible evidence). However, Woods argues "there was a causal nexus between the improper patdown and Woods abandoning the cocaine." Brief of Appellant at 9. If a person's decision to discard an item is caused by improper police conduct, then the abandonment is not voluntary and the evidence is not admissible. Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000), trans. denied; see also Gooch v. State, 834 N.E.2d 1052, 1054 (Ind. Ct. App. 2005) ("[I]f property is abandoned after a citizen is improperly detained, the evidence is not admissible."), trans. denied; State v. Pease, 531 N.E.2d 1207, 120910, 1212 (Ind. Ct. App. 1988) (concluding contraband that defendant abandoned after being subjected to improper patdown was not admissible). Nonetheless, "if the

abandonment is truly voluntary

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