Todd A. Dillon v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 04 2018, 10:25 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Ellen H. Meilaender Caryn N. Szyper Jesse R. Drum Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Todd A. Dillon, April 4, 2018 Appellant-Defendant, Court of Appeals Case No. 24A01-1707-CR-1470 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff Judge Trial Court Cause No. 24C01-1508-F2-966

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 24A01-1707-CR-1470 | April 4, 2018 Page 1 of 10 [1] Todd Dillon appeals his conviction for Level 2 Felony Dealing in

Methamphetamine,1 arguing that the trial court erred by admitting 1) evidence

from a vehicle search and 2) a law enforcement officer’s testimony regarding

admissions the officer had heard Dillon make about dealing methamphetamine

during a probation revocation hearing in a separate cause. Finding no error, we

affirm.

Facts 2 [2] Sometime between midnight and 1:00 a.m. on August 22, 2015, Franklin

County Sheriff’s Deputies Ryan Geiser and Adam Henson were conducting a

traffic stop when Dillon drove past them in a pickup truck. The deputies

observed Dillon driving slowly with his hands “locked at the ten and two and

staring straightforward.” Tr. Vol. I p. 33. As soon as Dillon passed, Deputy

Geiser noticed that Dillon’s vehicle’s rear license plate light was out. Deputy

Geiser pursued Dillon and initiated a traffic stop for this equipment violation

while Deputy Henson concluded the other traffic stop. [3] Deputy Geiser pulled Dillon over, and Deputy Henson arrived soon thereafter.

When Deputy Geiser approached Dillon’s vehicle, Deputy Geiser explained

that he stopped Dillon “due to the license plate being improper.” Id. at 38.

1 Ind. Code § 35-48-4-1.1 2 We heard oral argument on March 16, 2018, at Paoli Jr. & Sr. High School. We thank the school’s administration, faculty, and students for their hospitality. We also thank counsel for their informative and engaging oral advocacy and subsequent discussion with the students.

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Dillon “acknowledge[d] it and that the license plate was pushed in to the

bumper so it wouldn’t be illuminating.” Id. When Deputy Geiser asked Dillon

for his driver’s license and vehicle registration, Dillon gave him his license but

could not find the current vehicle registration, so Deputy Geiser told him that

he could use an expired registration. During the encounter, Deputy Geiser

observed Dillon “to be shaking abnormally and [in] a very nervous state.” Id.

Based on his experience, Deputy Geiser suspected that Dillon was nervous due

to illegal substances or weapons in the vehicle. [4] Deputy Geiser asked Dillon to step out of the vehicle and inquired whether

there was anything illegal in the vehicle. Dillon replied that there was not. The

deputy asked Dillon whether he had any weapons on his person, and Dillon

replied that he did not. The deputy then asked Dillon whether he could

conduct a pat down search, and Dillon agreed. During the pat down, the

deputy retrieved a pocket knife from Dillon’s back pocket and set it on the hood

of his police car. Dillon then took other items out of his pocket, including his

wallet, and set them on the hood of the police car. Deputy Geiser noticed that

the wallet had “a large amount of cash sticking out of the top” and “was

bulging a little bit.” Id. at 175. Dillon also had two cell phones. Meanwhile,

Deputy Henson was conducting a dog sniff around the vehicle; the dog alerted

twice. Deputy Geiser again asked Dillon whether anything illegal was in the

car, and Dillon again stated that there was not. [5] Deputy Henson told Dillon that the dog’s alert on the car gave the deputies

probable cause to search the vehicle, and Dillon said, “have at it.” Id. at 176.

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Deputy Geiser proceeded to search the passenger compartment of the vehicle.

He found an opened cigarette package, inside of which was a clear plastic bag

containing 13.8 grams of methamphetamine. [6] Deputy Geiser advised Dillon of his Miranda3 rights and asked him where he

had gotten the methamphetamine. Dillon replied that the methamphetamine

was not his, that the vehicle was not his, and that multiple people drove the

vehicle. As Deputy Geiser continued to search the vehicle, Dillon told Deputy

Henson that the methamphetamine belonged to him. Deputy Geiser asked him

whether he was dealing in methamphetamine. Dillon replied that he was not

dealing, that the drugs were for his personal use, and that he had bought the

drugs earlier that day. [7] On August 25, 2015, the State charged Dillon with Level 2 felony dealing in

methamphetamine. On September 28, 2015, Dillon had a probation revocation

hearing under a separate cause in Dearborn County. During this hearing,

Dillon was asked whether he admitted or denied dealing in methamphetamine

in Franklin County; Dillon admitted to it approximately five times. [8] On January 8, 2016, Dillon filed a motion to suppress evidence alleging, among

other things, that the traffic stop was invalid because the vehicle had a

functioning license plate light and, therefore, he did not commit a traffic

infraction. A hearing on Dillon’s motion took place on January 20, 2016,

3 Miranda v. Arizona, 384 U.S. 436 (1966).

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during which a video from Deputy Geiser’s in-car camera was played. Deputy

Geiser testified that, although the license plate appeared somewhat illuminated

in the video, that was because the license plate was reflecting the headlights

from Deputy Geiser’s car. He also testified that he inspected the vehicle and

determined that the light was inside the bumper and did not illuminate the

license plate. At the end of the hearing, the trial court denied Dillon’s motion

to suppress. The trial court found that Dillon “was operating a vehicle that had

a license plate light that was not properly mounted and displaying light across

the plate the way it should” and that this stop was for that “equipment

malfunction or violation.” Id. at 123. The trial court concluded that the

evidence was “not suppressible because the time in which we’re talking for the

detention or the stop is not unreasonable.” Id. at 125. [9] A jury trial took place on January 25-26, 2016. Dillon objected to the evidence

relating to the vehicle search and the discovery of the contraband. The trial

court overruled the objection, stating that its ruling on Dillon’s motion to

suppress “was that [the license plate] was not properly lit and that it was just

inside the bumper. And that both Officers testified that it was out.” Id. at 179. [10] During Deputy Geiser’s testimony at trial, the State asked the deputy whether

he was present with Dillon any time after August 22, 2015. Deputy Geiser

replied that he and Dillon were together on September 28, 2015. Dillon

objected, arguing that it would be difficult to cross-examine the deputy about

the testimony the State wanted to elicit regarding Dillon’s probation revocation

hearing in Dearborn County without admitting prejudicial information. The

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trial court overruled the objection, reasoning that because Dillon had been read

his rights and made his statements in a public hearing, Deputy Geiser’s

testimony would be admissible. Deputy Geiser then testified that on September

28, 2015, Dillon was asked whether he admitted or denied dealing in

methamphetamine in Franklin County, that a Franklin County cause number

was read aloud, and that Dillon admitted approximately five times to dealing in

methamphetamine in Franklin County. Deputy Geiser also testified that no

one threatened or coerced Dillon when he made those statements and that

Dillon had an attorney with him at that time. [11] The jury found Dillon guilty of Level 2 felony dealing in methamphetamine.

On April 13, 2016, the trial court imposed a twenty-five-year sentence with five

years suspended to probation. Dillon now appeals.

Discussion and Decision [12] Dillon presents two arguments: 1) that the trial court erred by admitting the

evidence found during the traffic stop because the stop was illegal, and 2) that

the trial court erred by allowing Deputy Geiser to testify about Dillon’s

admissions during his probation revocation hearing in Dearborn County.

I. Admission of Evidence From Search [13] Dillon first argues that, because he did not commit a traffic infraction, the

traffic stop was illegal, and that as a result, the trial court erred by denying his

motion to suppress and admitting the evidence found in the vehicle during the

stop. Because this appeal follows a completed trial, the issue is properly viewed

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as one of admission of evidence, rather than of the denial of a motion to

suppress. E.g., Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2012). The

admission or exclusion of evidence is within the trial court’s discretion, and we

will reverse only if the trial court’s decision clearly contravenes the logic and

effect of the facts and circumstances before it or if the trial court has

misinterpreted the law. E.g., Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct.

App. 2012). To the extent that the evidence admission question turns on the

constitutionality of a search, however, the issue is reviewed de novo. E.g.,

Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017). [14] Indiana Code section 9-19-6-4(e) requires that “[e]ither a tail lamp or a separate

lamp must be placed and constructed so as to illuminate the rear registration

plate with a white light and make the plate clearly legible from a distance of

fifty (50) feet to the rear.” [15] First, when Deputy Geiser approached Dillon’s vehicle and explained the

reason for the stop, Dillon acknowledged that “the license plate was pushed in

to the bumper so it wouldn’t be illuminating.” Tr. Vol. I p. 38. Dillon’s own

admission is sufficient to establish that the vehicle’s lack of illumination of the

rear license plate violated Indiana Code section 9-19-6-4(e) and that,

consequently, the traffic stop was legal. See Merritt v. State, 829 N.E.2d 472, 476

(Ind. 2005) (noting that any method of license plate display not in compliance

with the Indiana statutory requirements “may serve as a basis for reasonable

suspicion for law enforcement officers to make a traffic stop to ascertain

whether the display fully complies with all statutory requirements”).

Court of Appeals of Indiana | Memorandum Decision 24A01-1707-CR-1470 | April 4, 2018 Page 7 of 10 [16] Second, no uncontroverted evidence was elicited during the trial that refuted

the video evidence of the stop. Our Supreme Court has held that “for video

evidence, the same deference is given to the trial court as with other evidence,

unless the video evidence at issue indisputably contradicts the trial court’s

findings. A video indisputably contradicts the trial court’s findings when no

reasonable person can view the video and come to a different conclusion.” Love

v. State, 73 N.E.3d 693, 700 (Ind. 2017). Although Dillon argues that his

license plate was illuminated in the video evidence, Deputy Geiser testified that

the license plate appeared illuminated in the video because it was reflecting the

headlights from Deputy Geiser’s car. Deputy Geiser further explained that “the

license plates are built to reflect and with my headlights, my bright lights, and

my light bar (inaudible) while it’s activated. It shows a reflection.” Tr. Vol. I p.

58. In other words, the video evidence does not indisputably contradict the trial

court’s finding that the license plate on Dillon’s vehicle was improperly lit. [17] Because Dillon committed a traffic infraction, the traffic stop was legal, and the

trial court did not err by admitting the evidence found during the vehicle search.

II. Admission of Testimony [18] Dillon next argues that the trial court erred by allowing Deputy Geiser to testify

about Dillon’s admissions during his probation revocation hearing in Dearborn

County.4 The admission or exclusion of evidence is within the trial court’s

4 Dillon asserts that he was subject to fundamental error because the jury heard this testimony. It appears that he makes a fundamental error argument to get around what he considered a failure to object to Deputy

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discretion, and we will reverse only if the trial court’s decision clearly

contravenes the logic and effect of the facts and circumstances before it or if the

trial court has misinterpreted the law. E.g., Bradford v. State, 960 N.E.2d 871,

873 (Ind. Ct. App. 2012). Indiana Evidence Rule 403 prohibits the admission

of evidence whose “probative value is substantially outweighed” by the danger

of “unfair prejudice.” [19] Dillon contends that the probative value of Deputy Geiser’s testimony was

substantially outweighed by the danger of unfair prejudice. This testimony

offered significant probative value and while we agree that it was prejudicial, it

was not unfairly prejudicial. The jury was not informed of the context in which

Dillon’s statements were made. The State only elicited testimony that Deputy

Geiser was present with Dillon on September 28, 2015; that on that day Dillon

was asked whether he admitted or denied that he was dealing

methamphetamine as alleged in Franklin County; that Dillon admitted to it

approximately five times; that no one threatened or coerced Dillon when he

made those statements; and that Dillon had an attorney with him at that time.

The jury could have reasonably inferred that Dillon made these statements to

law enforcement officers, rather than in a separate case about which the jury

knew nothing. Dillon was not unfairly prejudiced by this testimony.

Geiser’s testimony at trial. However, Dillon objected to the admission of this evidence before Deputy Geiser reached the substance of this portion of his testimony. Accordingly, the issue was preserved for appeal.

Court of Appeals of Indiana | Memorandum Decision 24A01-1707-CR-1470 | April 4, 2018 Page 9 of 10 [20] Moreover, Dillon’s statements at his probation revocation hearing fall into the

category of admissions against interest, and are therefore admissible. Minnick v.

State, 544 N.E.2d 471, 481 (Ind. 1989) (holding that “[w]hen a criminal

defendant makes a statement against interest it is admissible”). Therefore, the

trial court did not err by admitting Deputy Geiser’s testimony regarding

Dillon’s admissions during his probation revocation hearing. [21] The judgment of the trial court is affirmed.

Najam, J., and Brown, J., concur.

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