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FOR PUBLICATION
ATTORNEY FOR APPELLANT: ANN M. SUTTON Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DONALD WARE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0602-CR-76

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant Hawkins, Judge Cause No. 49G05-0508-MR-130877

January 9, 2007

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Donald Ware appeals following a jury trial in which he was found guilty of murder, a felony, battery, a Class C felony, and two counts of criminal recklessness, Class D felonies. The trial court sentenced Ware to an aggregate sentence of seventy years. Ware now appeals his convictions and sentence, raising four issues, which we restate as: 1. Whether the trial court properly admitted evidence obtained through a search performed pursuant to a search warrant and statements made following a warrantless arrest; Whether the trial court properly admitted evidence that the State did not disclose to Ware prior to trial; Whether sufficient evidence exists to support Ware's convictions; and Whether Ware's sentence is inappropriate in light of the nature of the offense and his character.

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3. 4.

We conclude that the trial court properly admitted the evidence obtained pursuant to the search and arrest, and the evidence that the State did not disclose prior to trial. We further conclude that sufficient evidence exists to support Ware's convictions. Finally, we conclude that Ware's sentence is not inappropriate in light of his character and the nature of the offense. We affirm. 1

Facts and Procedural History On July 24, 2005, a group of teenage boys gathered in an area near the intersection of Rockville Road and Girls School Road in Marion County for the purpose of throwing
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We heard oral argument in this case on November 28, 2006, at DePauw University in Greencastle, Indiana. We thank counsel for their advocacy and extend our appreciation to DePauw for hosting the oral argument.

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eggs at passing cars. At one point, the boys struck Lisa Baker's car. Baker stopped and began yelling that she was going to call the police. The boys then struck a pickup truck, which was later determined to be driven by Ware. Ware stopped, exited his truck, and yelled at the boys. He then returned to his truck and drove to where Baker had stopped her car. While talking to Baker, Ware made racially derogatory comments about the boys and told Baker that he had a rifle and was going to get the boys. 2 Ware asked Baker where the boys were, and after Baker pointed in the general direction, Ware drove after the boys. While the boys were running from Ware's truck, two shots were fired, killing Brandon Dunson and wounding Michael Dyer. Tracy Nash was the first police officer to arrive on the scene. Officer Nash was unaware that there had been a shooting, and was on the scene to investigate reports of boys throwing eggs at passing vehicles. He noticed Ware's truck because it was traveling at a high rate of speed and saw it pull into a public storage facility's parking lot. When Officer Nash pulled in behind the truck, Ware exited his truck and approached the driver's side of Officer Nash's vehicle. Ware told Officer Nash that he had been struck in the head by an egg, and told Officer Nash that the boys who had thrown the eggs were running behind the public storage facility. Officer Nash told Ware not to leave, and went to look for the boys. When Officer Nash returned to the parking lot after an unsuccessful search for the boys, Ware had left the scene. Dunson's friends who were running with him were afraid of being caught and did not

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Baker testified that Ware told her "that's okay, I'm going to get the nigger mother fuckers

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stop when Dunson was shot. Later that night, one of Dunson's friends who had not participated in the egging became concerned about Dunson and went to look for him. He found Dunson's body in the grass near the public storage facility and called the police. After learning that a shooting had occurred, the police turned their attention to identifying the man with whom Baker and Officer Nash spoke. Baker was shown a photographic array and initially identified, with ninety percent confidence, Chester Williams as the man with whom she spoke. After being shown a second photographic array, Baker identified Williams with one hundred percent confidence. However, further investigation ruled out Williams as a suspect. A few days later, the police received an anonymous phone call indicating that a man named "Donny" was responsible for shooting Dunson, and that he lived in Avon, Indiana, and drove a red pickup truck. Police then began surveillance of Ware's house and determined that Ware was "Donny." Officers then showed a photographic array to Officer Nash, who identified Ware as the man with whom he spoke the night of the shooting. The police then applied for a warrant to search Ware's house and vehicle. The facts set out in the probable cause affidavit accompanying the warrant application are: (1) The boys identified the shooter as a white male who was driving a red pickup truck; (2) Baker spoke with a white male operating a red pickup truck and talking on a cellular phone who told her that he had a gun and was going to pursue the boys; (3) Officer Nash spoke with a white male operating a red Ford F150 pickup

because I got a rifle." Transcript at 307.

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truck who pointed him in the direction of the boys and left the scene before Officer Nash returned; (4) Officer Scheid received an anonymous call indicating that the white male who shot Dunson is named "Donny," lives in Avon, Indiana, and drives a red pickup truck with a toolbox in the bed. The caller stated that Donny told her on the night of the shooting that he had shot at someone who had egged him. The caller further stated that Donny sells drugs and had remained in his home since the day of the shooting. The caller finally provided Donny's cell phone number; (5) Officer Boomershine undertook surveillance of the home identified by the anonymous caller and observed a red Ford F150 pickup with a toolbox in the bed and a white male who appeared to be approximately 5'10'' and 200 pounds; (6) The license plate on the pickup truck indicated that the truck was registered to Terri Eberwein; (7) Ware's arrest record indicated that when he had been arrested for possession of cocaine, operating while intoxicated, and resisting arrest, he had been driving a red pickup truck with the same VIN as the truck registered to Eberwein; (8) The cell phone records for the number supplied by the anonymous caller indicated that Eberwein was the subscriber; (9) Officers learned from a "Justis Bail Interview" that Ware had previously 5

lived with Eberwein; (10) Officer Nash picked Ware's photograph out of an array, identifying him as the man with whom he spoke at the scene of the shooting. After receiving the search warrant, officers found eggshells and residue in and on Ware's truck, and found roughly forty-nine grams of marijuana in Ware's residence. No gun was recovered during this search or throughout the remainder of the investigation. Officers took Eberwein, who was at the residence at the time of the search, to the police station for questioning. Eberwein told officers that upon returning home the night of the shooting, Ware had told her he had been egged and had "said something about, you know shooting but he didn't say at what or anything," and that he said "he fired some rounds or some shots." State's Exhibit 113. The next day, officers arrested Ware without a warrant and took him in for questioning. Ware admitted being on the scene that night and speaking to Baker and Officer Nash, but denied shooting at the boys or having a gun. Prior to trial, Ware filed a motion to suppress the evidence obtained as a result of the search and arrest, arguing that probable cause supported neither. After a hearing, the trial court denied Ware's motion. At trial, the boys who had participated in the egging testified. All the boys testified that they saw a red or dark-colored pickup truck chasing them. Three of the boys testified that at some point while they were leaving the scene they saw a truck driving around in the area with someone standing in the truck's bed. The jury also heard the testimony of Officer Nash and Baker, 3 who both identified Ware as the person with whom

Baker testified that after seeing a photograph of Ware, she immediately knew that he was the man with whom she had spoken and that her original identification of Williams was inaccurate.

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they spoke that night. Eberwein also testified, and admitted telling officers that Ware had mentioned shooting a gun the night of the incident, but said that when she gave her statement to police, she had been intimidated, was under the influence of prescription and illegal drugs, and had falsified some information in her statement. The jury found Ware guilty of murder, battery, and two counts of criminal recklessness. Ware filed a motion for the trial court to enter alternative final judgment and a motion for a new trial. The trial court denied both motions at the beginning of the sentencing hearing. The trial court sentenced Ware to sixty years for murder, six years for battery, and two years for each of the criminal recklessness counts. The trial court then ordered that all sentences be served consecutively based on the number of victims, for an aggregate sentence of seventy years. Ware now appeals his convictions and sentence. Discussion and Decision I. Evidence Obtained Pursuant to the Search and Arrest Ware argues that probable cause did not support the search of Ware's residence and vehicle or his arrest and that therefore the evidence resulting from the search and arrest was erroneously admitted. Specifically, Ware argues that police failed to disclose in the probable cause affidavit that Baker had made a previous identification of Williams as the man with whom she spoke, and that "the crux of the warrant application comes from an anonymous tip." Appellant's Brief at 12. A. Standard of Review This case comes to us following a bench trial and conviction, not as an interlocutory appeal from the trial court's denial of Ware's motion to suppress. Therefore, the issue on 7

appeal is whether the trial court erred in admitting the evidence obtained during the allegedly illegal search. See Washington v. State, 784 N.E.2d 584, 586-87 (Ind. Ct. App. 2003). We will reverse the trial court's ruling only when it has abused its discretion in admitting the evidence. Id. at 587. A trial court abuses its discretion if its decision is clearly contrary to the facts and circumstances before it. Id. 1. Evidence Obtained Pursuant to the Search Warrant In deciding whether to issue a search warrant, the magistrate should "`make a practical, common sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Query v. State, 745 N.E.2d 769, 771 (Ind. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). On appeal, we must determine whether a substantial basis existed from which the magistrate could conclude that probable cause existed. Id. We give a magistrate's conclusion "significant deference" and uphold such a conclusion if reasonable inferences drawn from the evidence before the magistrate at the time the warrant was granted support the determination of probable cause. Id.

a. Anonymous Informant The United States Supreme Court has held that uncorroborated hearsay from a source of unknown credibility, standing alone, is insufficient to support a finding of probable cause and issuance of a search warrant. Gates, 462 U.S. at 227. Similarly, Indiana Code section 35-33-5-2(b) requires that probable cause affidavits based on hearsay either: 8

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that establishes that the totality of the circumstances corroborates the informant's statements. Independent police investigation corroborating an anonymous informant's statements will establish the trustworthiness of the hearsay for the purposes of establishing probable cause. 4 State v. Spillers, 847 N.E.2d 949, 954 (Ind. 2006). However, "[t]he confirmation of `easily obtained facts and conditions existing at the time of the tip' is insufficient to establish an informant's credibility." Newby v. State, 701 N.E.2d 593, 601 (Ind. Ct. App. 1998) (quoting Gates, 462 U.S. at 245). Indiana courts have found that confirming merely that a suspect lives in the residence and drives the vehicle identified by the informant is not adequate to establish the informant's credibility and therefore such confirmation does not support a finding of probable cause. State v. Mason, 829 N.E.2d 1010, 1018 (Ind. Ct. App. 2005); see also Jaggers, 687 N.E.2d at 184 (police investigation confirming facts about the location of suspect's house and two marijuana patches located apart from the suspect's residence failed to satisfy subsection (b)(2) because the totality of the circumstances did not corroborate the informant's hearsay); Newby, 701 N.E.2d at 601 ("facts describing [the defendant's] residence were easily observable and within the public domain" and failed to establish the informant's credibility).

The trustworthiness of hearsay for purposes of proving probable cause can also be established where "the informant has given correct information in the past; . . . some basis for the informant's knowledge is shown; or . . . the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted." Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997). "Depending on the facts, other considerations may come into play." Id.

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In Mason, an anonymous informant told police that the defendant was involved in illicit activity with underage girls. The police verified that the defendant's address and vehicle conformed to the informant's information. The police also observed the defendant leave his residence with a teenage girl and drive her home. We found that this information did not support a finding of probable cause because the information confirmed by the police was "easily observable to anyone who knew where the defendant lived and could describe the type of vehicle he drove," and the fact that the defendant drove a girl home did not confirm that he was engaged in any sort of criminal activity. Mason, 829 N.E.2d at 1018. Here, much of the information confirmed by the police regarding Ware's identity

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