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COA upholds marijuana, handgun convictions but remands for indigency hearing

December 11, 2018

The Indiana Court of Appeals has affirmed a man’s marijuana and handgun convictions based on sufficient and admissible evidence, but remanded the case for the trial court to hold an indigency hearing on imposed probation fees.

After responding to a call of shots fired at an Indianapolis restaurant, Indianapolis Metropolitan Police Department officers were tipped to a vehicle behind the building with three occupants. After talking with the vehicle’s occupants and observing one “moving around” and another making the shape of a gun with his hand, officers asked Aaron Negash, the driver, to step out of the vehicle.

When Negash complied, Officer Matthew Plummer observed a “huge bulge” in his pocket that, upon a pat down search, proved to be a baggie of synthetic marijuana. A cocked and loaded handgun was also found in the glovebox pursuant to a subsequent search of the vehicle.

Negash claimed to have a permit for the gun, but one was not located, so the driver was charged with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor possession of a synthetic drug or lookalike substance. After being found guilty, Negash’s sentence required him to pay $525 in court fees, including $340 in probation-related fees.

On appeal, Negash made three arguments: that the trial court abused its discretion when it admitted the synthetic marijuana into evidence; that there was insufficient evidence to support his carrying a handgun without a license conviction, and; that the trial court erred in imposing probation fees.

First, Negash contended the search producing the synthetic marijuana was illegal because it violated his rights under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. But the Indiana Court of Appeals disagreed, finding the search was reasonable and did not violate either constitution.

“After Officer Plummer explained that he was there investigating a report of shots fired and asked Negash and the back-seat passenger if they had heard anything, the back-seat passenger pointed to Negash and made ‘the outline [of] a gun with his index finger and his thumb,’” Judge Rudolph Pyle wrote. “Additionally, the front seat passenger acted suspiciously by ‘moving around, reaching for the glovebox, going for his waistband, [and] pulling his shirt up.’

“…Taken together,” Pyle continued, “we conclude that Officer Plummer had reason to believe that he was dealing with an individual who was likely armed and dangerous, thus supporting his request that Negash step out of the vehicle and the subsequent pat down.”

Negash also argued there was insufficient evidence to support his handgun conviction, despite his incriminating statements to officers that he had a permit for the gun. The appellate court ultimately concluded that, coupled with Negash’s close proximity to the handgun, the evidence demonstrated the additional circumstances required to show his knowledge of the handgun and ability to maintain dominion and control over it.

Lastly, Negash challenged the trial court’s decision regarding probation fees, arguing that if the trial court did impose fees, it abused its discretion because it did not conduct an indigency hearing to determine if he is capable of paying the fees assessed to him. On this argument, the appellate court agreed, finding the trial court is required to hold an indigency hearing when imposing probation fees. 

“Therefore, because the trial court imposed probation fees, it will need to hold an indigency hearing, at the latest, at the time that Negash completes his sentence,” Pyle concluded in Aaron A. Negash v. State of Indiana, 18A-CR-840.

 

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