author: BRADFORD, Judge.

text:
    Jose GUZMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 54A01-1209-CR-409.
    Court of Appeals of Indiana.
    April 15, 2013.

      Marcel Katz, Law Offices of Marcel Katz, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

On October 2, 2011, Appellant-Defendant Jose Guzman was involved in a traffic accident when his vehicle collided with a vehicle driven by Charity Bland. Bland died as a result of the injuries she sustained in the accident. Her passenger, Richie Austin, was also severely injured. On October 4, 2011, Guzman was charged with numerous offenses, including Class C felony reckless homicide, stemming from the October 2, 2011 accident. Guzman subsequently pled guilty to the Class C felony reckless homicide charge and, in exchange for Guzman’s guilty plea, the State agreed to drop the remaining charges. The trial court subsequently accepted Guzman’s plea, and on August 9, 2012, sentenced Guzman to an eight-year term of incarceration in the Department of Correction and ordered him to pay restitution to the Estate/Family of Bland and to Austin.

On appeal, Guzman argues that the trial court abused its discretion in ordering him to pay restitution to Austin and in sentencing him. Guzman also argues that his eight-year sentence is inappropriate. Concluding that the trial court acted within its discretion in ordering Guzman to pay restitution to Austin and in sentencing Guzman, and that Guzman’s sentence is not inappropriate, we affirm.

FACTS AND PROCEDURAL HISTORY

The stipulated factual basis entered during the June 19, 2012 guilty plea hearing provides that on October 2, 2011, Guzman was involved in a traffic accident when his vehicle collided with a vehicle driven by Bland. Bland died as a result of the injuries she sustained in the accident. Her passenger, Austin, was also severely injured. During an investigation into the cause of the accident, the investigating officers determined that Guzman’s vehicle had been traveling at a high speed just prior to the accident, but Guzman managed to slow his vehicle to approximately thirty miles-per-hour at the time of impact. Guzman submitted to a blood alcohol test, the results of which indicated that at the time of the accident, Guzman had a blood alcohol concentration (“BAC”) of 0.20.

On October 4, 2011, the State charged Guzman with one count of Class B felony operating a vehicle with a BAC of 0.15 or greater causing death, one count of Class C felony operating while intoxicated causing death, one count of Class C felony reckless homicide, one count of Class D felony operating a vehicle with a BAC of 0.15 or greater causing serious bodily injury, and one count of Class D felony operating while intoxicated causing serious bodily injury. On June 19, 2012, Guzman pled guilty to one count of Class C felony reckless homicide. In exchange for Guzman’s guilty plea, the State agreed to dismiss the remaining charges. Pursuant to the terms of the parties’ plea agreement, sentencing was left to the discretion of the trial court.

The trial court accepted Guzman’s guilty plea and conducted a sentencing hearing on August 9, 2012, at the conclusion of which the court sentenced Guzman to an eight-year term. The trial court also ordered Guzman to pay restitution to the Estate/Family of Bland in the amount of $4,510.65 and to Austin in the amount of $20,631.76. This appeal follows.

DISCUSSION AND DECISION

I. Restitution

Guzman contends that the trial court abused its discretion in ordering him to pay restitution to Austin. Specifically, Guzman claims that the trial court abused its discretion in this regard because Austin was not a victim of the crime to which he pled guilty and because the restitution order was not supported by sufficient evidence. Bennett v. State, 862 N.E.2d 1281, 1286-87 (Ind.Ct.App.2007) (emphases in original).

“The purpose of a restitution order is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victims caused by the offense.” Henderson v. State, 848 N.E.2d 341, 346 (Ind.Ct.App.2006). An “order of restitution is within the trial court’s discretion” and will only be reviewed for an abuse of that discretion. Roach v. State, 695 N.E.2d 934, 943 (Ind.1998) [on reh’g, 711 N.E.2d 1237 (Ind.1999)]. An abuse of discretion occurs if the court’s decision is clearly against the logic and effects of the facts and circumstances before it. See Palmer v. State, 704 N.E.2d 124, 127 (Ind.1999); Davis v. State, 772 N.E.2d 535, 540 (Ind.Ct.App.2002), trans. denied. An abuse of discretion also occurs “when the trial court misinterprets or misapplies the law.” Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App.2004) (citing Tapia v. State, 753 N.E.2d 581, 585 (Ind.2001)).
Indiana Code Section 35-50-5-3(a) provides that a court “may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime.... The court shall base its restitution order upon a consideration of: ... (2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime[.]” (Emphasis added). It is well settled that the trial court “may consider only those expenses incurred by the victim prior to the date of sentencing in formulating its restitution order.” Carswell v. State, 721 N.E.2d 1255, 1259 (Ind.Ct.App.1999) (emphasis added) (citing Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), trans. denied); see also T.C. v. State, 839 N.E.2d 1222, 1225 (Ind.Ct.App.2005). The amount of actual loss is a factual matter that can be determined only upon the presentation of evidence. Shane v. State, 769 N.E.2d 1195, 1199 (Ind.Ct.App.2002) (citing Kellett v. State, 716 N.E.2d 975, 980 (Ind.Ct.App.1999)).

A. Austin Is a Victim of Guzman’s Criminal Actions

Guzman argues that the trial court abused its discretion in ordering him to pay restitution to Austin because Austin was not the victim of the crime to which Guzman pled guilty. In support, Guzman relies on authority suggesting that “a trial court may not order restitution in an amount greater than the sums involved in those crimes to which the defendant actually pleaded guilty.” Kinkead v. State, 791 N.E.2d 243, 245 (Ind.Ct.App.2003) (citing Polen v. State, 578 N.E.2d 755, 756-57 (Ind.Ct.App.1991), trans. denied), trans. denied. Kinkead and Polen, however, can be distinguished from the instant matter because in both cases, the defendants’ criminal actions were financial in nature and the restitution order was not based upon repayment for medical bills stemming from physical injuries sustained because of the defendants’ criminal conduct.

Again, Indiana Code section 35-50-5-3(a) provides that a court “may ... order the person to make restitution to the victim of the crime.” “The court shall base its restitution order upon a consideration of: ... (2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime[.]” Ind.Code § 35-50-5-3(a). “Though ‘victim’ is undefined,” the Indiana Supreme Court has held that a person who suffers “ ‘loss as a direct and immediate result of the criminal acts of a defendant’ ” may be considered a victim under Indiana Code section 35-50-5-3(a). Roach, 695 N.E.2d at 943 (citing Reinbold v. State, 555 N.E.2d 463, 470 (Ind.1990), overruled in part on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995)).

Here, Austin was clearly a victim of Guzman’s criminal behavior and incurred medical and hospital costs as a result. Guzman does not dispute that Austin was injured as a direct result of the collision between his and Bland’s vehicles or that he was under the influence of alcohol at the time of the collision. As such, Austin indisputably qualifies as a victim of Guzman’s criminal acts under Indiana Code section 35-50-5-3(a).

B. Sufficiency of Evidence Supporting Restitution Award

Guzman also claims that the trial court abused its discretion because the evidence was insufficient to support the restitution award. Unlike when restitution is ordered as a condition of probation or a suspended sentence, when restitution is ordered as part of an executed sentence,, and therefore is not a condition of probation or a suspended sentence, an inquiry into the defendant’s ability to pay is not required. Shaffer v. State, 674 N.E.2d 1, 9 (Ind.Ct.App.1996) (citing Bitner v. State, 546 N.E.2d 117, 120 (Ind.Ct.App.1989)). This is so because in such a situation, restitution is merely a money judgment and a defendant cannot be imprisoned for his failure to pay the restitution. Id.

Although the trial court could properly choose to hold a hearing on a defendant’s ability to pay restitution, it is not required to do so, and may make a proper inquiry, depending on circumstances, by such actions as reviewing the pre-sentence report and questioning witnesses. Laker v. State, 869 N.E.2d 1216, 1221 (Ind.Ct.App.2007) (citing Polen, 578 N.E.2d at 758-59). “Evidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind.Ct.App.2011) (quoting T.C., 839 N.E.2d at 1227).

Here, Austin’s attorney submitted a letter to the Montgomery County Probation Department setting out Austin’s claim for restitution for medical expenses incurred as a result of the accident, breaking down the total by amount and to whom the amount was due. This letter was made an addendum to the pre-sentence report and was submitted to the trial court for consideration as a part of said report. The letter establishes the exact amount of loss incurred by Austin. It provides a reasonable basis for determining his loss, and does not subject the trial court to speculation or conjecture with regards to the loss incurred by Austin. As such, we conclude that it is sufficient to support the trial court’s restitution order. See id.

Having concluded that Austin was indisputably a victim of Guzman’s criminal actions and that the evidence is sufficient to support the trial court’s restitution order, we further conclude that the trial court did not abuse its discretion in ordering Guzman to pay restitution to Austin.

II. Sentencing

Guzman also contends that the trial court abused its discretion in sentencing him and that his sentence is inappropriate in light of the nature of his offense and his character.

A. Abuse of Discretion

Guzman claims that the trial court abused its discretion in finding certain aggravating factors and failing to find a certain mitigating factor. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted). When imposing a sentence in a felony case, the trial court must provide a reasonably detailed sentencing statement explaining its reason for imposing the sentence. Id.

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. ' Other examples include entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.

Id. at 490-91.

In sentencing Guzman, the trial court found the following aggravating factors: (1) Guzman’s conduct also caused bodily injury to another person; (2) Guzman’s criminal history, which included a prior DUI conviction and convictions for other driving-related crimes; (3) Guzman had a pending criminal case at the time he committed the instant offense; (4) Guzman, a Mexican immigrant, does not have legal status in the United States; and (5) Guzman’s driver’s license was suspended at the time of the accident. The trial court also found the following mitigating factors: (1) Guzman pled guilty; (2) Guzman had dependents to support; and (3) Guzman appeared remorseful. In addition, the trial court considered the impact the accident had on the victim’s family and the facts and circumstances surrounding the accident, including the report from the investigation into the cause of the accident. After considering each of these factors, the trial court ordered Guzman to pay restitution to the Estate/Family of Bland and to Austin, and imposed an eight-year term of imprisonment.

1. Aggravating Factors

On appeal, Guzman does not challenge all of the aggravating factors considered by the trial court. Guzman argues only that the trial court abused its discretion in considering the fact that his actions resulted in bodily injury to another person, his illegal status, and the impact the accident had on the victim’s family.

i. Actions Resulted in Bodily Injury

Guzman argues that the trial court abused its discretion in finding the fact that his actions resulted in bodily injury to another person as an aggravating factor because the bodily injury was an essential element of two of the charges that were dismissed pursuant to his plea agreement. Guzman cites to Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), and Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007), in support of his argument that the bodily injury suffered by Austin cannot be used as an aggravating factor at sentencing because it is an essential element of a dismissed charge. However, Farmer and Roney were explicitly abrogated by the Indiana Supreme Court’s recent opinion in Bethea v. State, 983 N.E.2d 1134 (Ind.2013).

In Bethea, the Indiana Supreme Court held that “it is not necessary for a trial court to turn a blind eye to the facts of an incident that brought the defendant before them” so long as the parties do not agree to a plea bargain that “forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken.” 983 N.E.2d at 1145. The Court reiterated that, as it stated in Anglemyer, “ ‘the nature and circumstances of the crime as well as the manner in which the crime is committed’ is a valid aggravating factor.” Id. (quoting Anglemyer, 868 N.E.2d at 492). Upon reviewing the facts and circumstances before it, the Court held that the trial court did not err by giving significant weight to the facts relating to the dismissed charges because the parties did not agree to a plea bargain that foreclosed the possibility of the trial court considering said facts. Id. The Court further held that “the State’s obligations under the plea agreement were fulfilled upon the dismissal of the seven remaining counts and it owed the defendant no further duty to omit these facts from the aggravating circumstances consideration.” Id.

Here, like in Bethea, the plea bargain agreed to by the parties did not contain any language foreclosing the trial court from considering the facts and circumstances relating to the dismissed charges. As such, the trial court was not required to “turn a blind eye” to the facts of the incident that brought the defendant before it. See id. The trial court acted within its discretion in considering the nature and circumstances of the accident from which the underlying criminal charges stemmed, including the injuries suffered by Austin, as a valid aggravating factor.

ii. Illegal Status

Guzman also argues that the trial court abused its discretion in finding his status as an illegal immigrant to be an aggravating factor. In Sanchez v. State, however, this court concluded that an individual’s unlawful immigration status is a valid aggravating factor because it demonstrates a disregard for the law, including immigration laws. 891 N.E.2d 174, 176 (Ind.Ct.App.2008). As such, the trial court did not abuse its discretion in finding Guzman’s status as an illegal immigrant to be an aggravating factor.

iii. Impact on Victim’s Family

In addition, Guzman argues that the trial court abused its discretion in finding the serious impact of his conduct on Bland’s family to be an aggravating factor. The Indiana Supreme Court has held that “[i]t is settled law that where ‘[t]here is nothing in the record to indicate that the impact on the families and victims in this case was different than the impact on families and victims which usually occur in such crimes,’ this separate aggravator is improper.” McElroy v. State, 865 N.E.2d 584, 590 (Ind.2007) (quoting Mitchem v. State, 685 N.E.2d 671, 680 (Ind.1997)). We are not convinced that the trial court’s statement at sentencing demonstrates that the impact on Bland’s family was different than the impact on similarly situated families or is so distinct so as to rise to the level of an aggravating circumstance.

Nevertheless, even if the sentencing court in this case improperly used victim family impact as an aggravating circumstance, the sentencing court did find at least five valid aggravating factors. It is well-settled that a single aggravating factor is sufficient to warrant an enhanced sentence. Morgan v. State, 829 N.E.2d 12, 15 (Ind.2005); Gibson v. State, 702 N.E.2d 707, 710 (Ind.1998); Williams v. State, 690 N.E.2d 162, 172 (Ind.1997); Rembert v. State, 832 N.E.2d 1130, 1133 (Ind.Ct.App.2005); Bennett v. State, 787 N.E.2d 938, 947 (Ind.Ct.App.2003), trans. denied. When a sentencing court improperly applies an aggravating circumstance, but other valid aggravating circumstances do exist, a sentence enhancement may still be upheld. Bacher v. State, 722 N.E.2d 799, 803 (Ind.2000) (citing Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709, 715 (Ind.1998)).

In the instant matter, the trial court found five valid aggravating factors. These aggravators include the fact that Guzman’s conduct also caused bodily injury to another person; Guzman had a criminal history which included a prior driving under the influence (“DUI”) conviction and convictions for other driving-related crimes; Guzman had a pending criminal case at the time he committed the instant offense; Guzman, a Mexican immigrant, did not have legal status in the United States; and Guzman’s driver’s license was suspended at the time of the accident. These five valid aggravating factors are sufficient to warrant Guzman’s enhanced sentence.

2. Mitigating Factors

Guzman also claims that the trial court abused its discretion in failing to consider the fact that Bland induced or facilitated the accident as a significant mitigating factor. Although a sentencing court must consider all evidence of mitigating factors offered by a defendant, the finding of mitigating factors rests within the court’s discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). “A court does not err in failing to find mitigation when a mitigation claim is highly disputable in nature, weight, or significance.” Id. (internal quotations omitted). The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.2001) (citing Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997)). Furthermore, while Indiana law mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating factors that are clearly supported by the record may imply that the trial court failed to properly consider them, id., an allegation that the trial court failed to find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind.1999).

Guzman claims that the trial court abused its discretion because it did not find the fact that Bland’s actions contributed to the cause of the accident to be a mitigating factor. In support, Guzman points to the accident investigation report which indicates that Bland failed to yield while attempting to make a left-hand turn in front of Guzman’s vehicle and that Bland had trace amounts of THC in her system. Guzman, however, has failed to provide a nexus between any trace amount of THC that may have been found in Bland’s system and the accident, or evidence establishing that the trace amount of THC found in Bland’s system was such that would lead to impairment. Instead, Guzman merely argues that Bland must have also been driving under the influence and, as a result, should share the blame for the accident. At sentencing, the trial court considered the investigation report as well as Guzman’s argument relating to Bland’s alleged fault in the accident but appeared to be unconvinced that such alleged fault amounted to a significant mitigating factor. The trial court did not abuse its discretion in this regard.

Moreover, Guzman’s attempt to shift the blame for the accident from his own reckless behavior and apparent disregard for the law to Bland does not help his case. Guzman does not challenge the portion of the investigation report which indicated that his vehicle was traveling at an unsafe speed and that his BAC was two-and-one-half times the legal limit at the time of the accident. It seems reasonable to assume that, had Guzman not been driving while impaired or had he been traveling at a safe speed, he likely would have been able to avoid the accident altogether, regardless of Bland’s actions.

Having concluded that the valid aggravating factors found by the trial court warranted an enhanced sentence and that the trial court did not abuse its discretion in failing to find as a mitigating factor that Bland induced or facilitated the offense, we further conclude that the trial court did not abuse its discretion in sentencing Guzman.

B. Appropriateness of Sentence

Guzman also challenges his sentence by claiming that it is inappropriate in light of the nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In analyzing such claims, we “ ‘concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant’s character.’ ” Paul v. State, 888 N.E.2d 818, 825 (Ind.Ct.App.2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind.Ct.App.2002), trans. denied). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez, 891 N.E.2d at 176.

With respect to the nature of Guzman’s offense, the record demonstrates that Guzman recklessly drove a vehicle at a high rate of speed while intoxicated, resulting in a collision with Bland’s vehicle. The investigation into the cause of the accident indicated that Guzman’s vehicle had been traveling at a speed of approximately eighty miles per hour prior to the accident and that Guzman had a BAC of 0.20, which is two-and-one-half times the legal limit. Further, as a result of the collision, Bland died and her passenger, Austin, was severely injured.

With respect to Guzman’s character, the record demonstrates that, while Guzman appears to financially support his wife and dependent children, he nonetheless has a criminal history. Guzman’s criminal history includes prior misdemeanor convictions for driving under the influence of alcohol, driving on a suspended license, and failure to stop at the scene of an accident resulting in damage. At the time of the accident, Guzman was also driving on a suspended license and had a pending misdemeanor case for failure to stop at the scene of an accident.

Guzman argues that it reflects well on his character that he showed remorse, accepted responsibility for his actions, and pled guilty. While we believe that Guzman is, without a doubt, sorry that Bland died and Austin was seriously injured 'in the accident, we find this argument to be disingenuous because Guzman’s attempt to shift the blame for the accident to Bland seems to indicate that he has not fully accepted responsibility for the wrongfulness of his actions. As such, we are left with the belief that Guzman’s decision to plead guilty was more of a tactical decision than a true desire to accept responsibility for his actions.

In light of Guzman’s actions, which included driving a vehicle at a high rate of speed with a BAC of 0.20 and getting into an accident with another vehicle, leaving one person dead and another severely injured; Guzman’s criminal history, which included a prior conviction for driving while intoxicated; and Guzman’s attempt to shift blame for the accident to the deceased victim, we cannot say that his eight-year sentence is inappropriate.

The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

      . Ind.Code § 9-30-5-5(b)(l) (2011).

      . Ind.Code § 9-30-5-5(a).

      . Ind.Code § 35-42-1-5 (2011).

      . Ind.Code § 9-30-5-4 (2011).

      .Ind.Code § 9-30-5-4.

      . On appeal, Guzman argues that his eight-year sentence was manifestly unreasonable. However, we remind Guzman and his counsel that the appropriate standard of review is no longer whether a sentence is manifestly unreasonable but rather whether the sentence is inappropriate. See Ind. Appellate Rule 7(B).


source: Caselaw Access Project

license: Public Domain

text:
    Razien McCULLOUGH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1210-CR-789.
    Court of Appeals of Indiana.
    April 19, 2013.

      Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

INTRODUCTION

Appellant-Defendant Razien McCullough lived in Indianapolis with Lawrence Miles, Kharisma Archie, and Archie’s two young children. Late on December 8, 2010, or early the next morning, McCullough shot and killed Miles and Archie. McCullough shot both Miles and Archie in the head and also shot Archie in the thigh. McCullough concealed the bodies on the back porch of the residence and contacted police the next day. McCullough told police in a statement that he had acted in self-defense. The State charged McCullough with two counts of murder, a jury found him guilty as charged, and the trial court sentenced him to an aggregate term of 115 years of incarceration. McCullough contends that the State failed to produce sufficient evidence to disprove his claim of self-defense and that his sentence is inappropriately harsh. We affirm.

FACTS AND PROCEDURAL HISTORY

In December of 2010, McCullough lived with Miles, Archie, and Archie’s two young children in a house on Temple Avenue in Indianapolis. McCullough had previously known Miles in New Jersey. Late on December 8, 2010, or early the next morning, McCullough, Miles, and Archie became involved in an argument in the basement of the home. At some point, McCullough managed to obtain a handgun and shot both Miles and Archie to death. Miles died of a single gunshot wound to the head that entered at his right temple and exited behind his left ear. Archie suffered two gunshot wounds, a fatal wound to the head that entered in the back and exited near her mouth, breaking her upper jaw and two teeth, and a wound to her thigh. McCullough removed the bodies from the basement and concealed them under a thin piece of wood on the back porch.

At approximately 8:00 p.m. on December 9, 2010, Indianapolis Metropolitan Police Officer Jacob Tranchant was dispatched to a Kroger nearby the house where Miles and Archie were killed, where the officer encountered McCullough. McCullough told police that he wanted to get something off of his chest and that they probably already knew what he had done to the people on Temple. Officer Tranchant and two other officers proceeded to the house on Temple, where they communicated with Archie’s two children through a window. The children eventually allowed the officers entry, where they soon found what appeared to be blood stains in the basement and Miles’s and Archie’s bodies on the back porch. In an interview with police later that evening, McCullough claimed that he had acted in self-defense: he had attempted to intervene in an argument between Miles and Archie, Miles had come at McCullough with a gun, McCullough disarmed and shot Miles in the head, and Archie “came right after [McCullough] and [he] shot her too.” State’s Ex. 84 p. 135. McCullough told police that before killing Miles, he “[put] his weight on him and [he] knew [he] had him.” State’s Ex. 84 p. 145. McCullough told police that he told Archie’s children the next morning before he left the house that Archie and Miles had argued, that Archie was at the store, and that they would be back at some point.

On December 14, 2010, the State, charged McCullough with two counts of murder. ■ On February 24, 2012, McCullough filed a notice of self-defense. On August 21, 2012, the jury found McCullough guilty as charged. On September 6, 2Ó12, the trial court sentenced McCullough to fifty-five- years of incarceration for the murder of Miles, sixty years for the murder of Archie, and ordered that the sentences be served consecutively. The trial court found McCullough’s multiple victims and criminal history to be aggravating circumstances. The trial court found McCullough’s history of mental health issues, the fact that he turned himself in, and the fact that he seemingly attempted to hide Miles’s and Archie’s bodies from her children to be mitigating circumstances, although it noted that McCullough was not taking prescribed medication at the time but was using illegal drugs.

DISCUSSION AND DECISION

I. Whether the State Produced Sufficient Evidence to Rebut McCullough’s Self-Defense Claim

McCullough argues that the State produced insufficient evidence to rebut his testimony that his murders of Miles and Archie were acts of self-defense. A valid claim of self-defense is legal justification for an otherwise criminal act. Birdsong v. State, 685 N.E.2d 42, 45 (Ind.1997). The defense is defined in Indiana Code Section 35_41_3_2(a): “A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.”

When a person raises a claim of self-defense, he is required to show three facts: (1) he was in a place where he had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death or serious bodily harm. Wallace v. State, 725 N.E.2d 837, 840 (Ind.2000). Once a person claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt. Hood v. State, 877 N.E.2d 492, 497 (Ind.Ct.App.2007), trans. denied. The State may meet this burden by rebutting the defense directly, by affirmatively showing the person did not act in self-defense, or by relying upon the sufficiency of its evidence in chief. Id, Whether the State has met its burden is a question of fact for the factfin-der. Id. The trier of fact is not precluded from finding that a person used unreasonable force simply because the victim was the initial aggressor. Birdsong, 685 N.E.2d at 45.

If a person is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated by the State beyond a reasonable doubt. Wilson v. State, 770 N.E.2d 799, 800-01 (Ind.2002). The standard on appellate review of a challenge to the.sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. Id. at 801. We neither reweigh the evidence nor judge the credi-' bility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, the verdict will not be disturbed. Id.

The State produced sufficient evidence to rebut McCullough’s claim of self-defense. Although there seems to be no dispute that McCullough had a right to be in the basement, the only evidence that he acted without fault or that his reactions were reasonable was contained in his statement to police, an audio recording of which was played to the jury. The jury, however, was under no obligation to credit this evidence and did not. Additionally, it is worth noting that there were two victims in this case, including Archie, who was shot twice (including once in the back of the head), all of which renders McCullough’s self-defense claim difficult to believe, to say the least. A further indication of McCullough’s guilty conscience is the fact that, rather than report the incident immediately, he initially concealed the bodies and left the home, leaving Archie’s two children alone for twelve hours. Ultimately, McCullough’s argument amounts to nothing more than an invitation to reweigh the evidence, which we will not do.

II. Whether McCullough’s Sentence Is Inappropriate

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the .Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). As previously mentioned, the trial court sentenced McCullough to an aggregate sentence of 115 years of incarceration.

The nature of McCullough’s offenses is somewhat egregious, murdering two victims by shooting them in the head. The Indiana Supreme Court has observed that “when the perpetrator commits the same offense against two victims, enhanced and consecutive sentences seem necessary to vindicate the fact that there were separate harms and separate acts against more than one person.” Serino v. State, 798 N.E.2d 852, 857 (Ind.2003). Moreover, there is no evidence, apart from McCullough’s self-serving statement to police, that McCullough acted in self-defense. As previously mentioned, Archie was shot twice, once in the thigh and once in the back of the head, which severely undercuts McCullough’s claim that she was attacking him at the time. Archie’s two young children, who are now motherless, were in the house at the time of the murders, and McCullough left them alone in the house for perhaps twelve hours before calling police. The nature of McCullough’s offenses justifies enhanced, consecutive sentences.

McCullough’s character also justifies the imposition of enhanced and consecutive sentences. McCullough’s juvenile and criminal records reveal violent tendencies that have intensified over time, culminating in the murders of Miles and Archie. As a juvenile, McCullough had adjudications for possession of a weapon, two counts of criminal attempt, criminal mischief, three counts of “manufacture/distribute[,]” distributing a controlled substance on school property, and receiving stolen property. Confidential App. at 57. As an adult, McCullough had convictions for second degree conspiracy to commit aggravated assault (a charge that had been reduced from conspiracy to commit murder) and third degree unlawful possession of a weapon. Despite McCullough’s numerous contacts with the criminal justice system and many juvenile adjudications and criminal convictions, he has not conformed his behavior to societal norms.

McCullough’s challenge to the appropriateness of his sentence is based on his assertion that the facts of the incident suggest that his mental illness played a role. Not only is this assertion inconsistent with McCullough’s never-retracted claim that he rationally acted in self-defense, the record does not support it. Pri- or to trial, however, two medical doctors evaluated McCullough for competency and concluded that McCullough was able to appreciate the wrongfulness of his actions. Dr. George Parker concluded that, although McCullough suffers from chronic paranoid schizophrenia, he removed or cleaned up evidence of his crimes and confessed to police, which indicate appreciation of the wrongfulness of his actions. Dr. Ned Masbaum opined that McCullough suffered from probable schizophrenia but that he was able to appreciate the wrongfulness of his actions, noting, as had Dr. Parker, that he moved and hid his victims’ bodies and called police to report what he had done. The record simply does not support McCullough’s contention that mental illness played a part in the commission of his crimes. Additionally, even assuming that mental illness may have played a part in McCullough’s crimes, the trial court noted McCullough’s use of illegal recreational drugs instead of prescribed medications. In light of the nature of his offenses and his character, McCullough has failed to establish that his 115-year aggregate sentence for two murders in inappropriate.

We affirm the judgment of the trial court.

KIRSCH, J., and MAY, J., concur.

      . The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s "Order Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal!,]" issued on September 18, 2012, and effective on July 1, 2012. See Ind. Supreme Court Case No. 94S00-1209-MS-522. We are grateful for the ongoing cooperation of the Honorable Mark D. Stoner of Marion Superi- or Court, the Marion County Public Defender Agency, and the Office of the Indiana Attorney General in the execution of this pilot project.


author: ROBB, Chief Judge.

text:
    Paul SPARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-593.
    Court of Appeals of Indiana.
    April 23, 2013.
    Jay Rodia, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michelle Bumgarner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

ROBB, Chief Judge.

The State has petitioned for rehearing of this court’s decision in Sparks v. State, 983 N.E.2d 221 (Ind.Ct.App.2013), in which we held that the trial court did not handle Sparks’s probation revocation hearing in a way that comports with his due process rights, and we reversed and remanded for a new probation revocation hearing. We grant the petition for rehearing for the sole purpose of clarifying what is required on remand, but affirm our opinion in all respects.

The State’s petition reiterates its original argument that an evidentiary hearing was not required because Sparks admitted to the probation violation after consulting with his attorney. However, as was well-explained in the opinion, Sparks’s admission was suspect in light of the comment made by the trial court. Thus, the particular circumstances surrounding Sparks’s admission rendered the lack of an eviden-tiary hearing in this case fundamental error. Our decision did not change established Indiana law that a probationer may admit to a probation violation and waive the right to a probation violation hearing. See Ind.Code § 35-38-2-3(e).

On remand, the trial court must conduct an evidentiary hearing in which the State proves by a preponderance of evidence that Sparks violated his probation. The State cannot rely on Sparks’s original admission, which this court held was suspect. If Sparks chooses to, once again, admit to the probation violation, there would no longer be a need for an evidentiary hearing, as long as both the trial court and the State abide by due process requirements.

MAY, J., and PYLE, J., concur.

      . Sparks has not filed a brief in response to the petition for rehearing.


author: CRONE, Judge.

text:
    Joanna S. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1209-CR-561.
    Court of Appeals of Indiana.
    April 23, 2013.

      Peter D. Todd, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

A sheriffs deputy observed Joanna S. Robinson briefly drive onto the fog line twice. The deputy decided to stop Robinson for “unsafe lane movement.” Tr. at 24. Based on evidence obtained from this stop, Robinson was convicted of operating while intoxicated and possession of marijuana. On appeal, Robinson challenges the admission of the evidence obtained from the stop, which she had sought unsuccessfully to exclude from trial on the basis that the traffic stop was not supported by reasonable suspicion. The State argues that the deputy had reasonable suspicion that she was impaired. We con-elude that Robinson’s brief contact with the fog line — at night on a road with some curves — was not sufficient to establish reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted, and Robinson’s convictions must be reversed.

Facts and Procedural History

Casey Claeys, a deputy with the Elkhart County Sheriffs Department, worked third shift on October 15, 2011. Around 1:00 a.m., he began following a PT Cruiser on County Road 4. According to Deputy Claeys, he saw “the PT Cruiser drive off the right side, which was the south side of the road, twice.” Id. Deputy Claeys decided to initiate a traffic stop for “unsafe lane movement.” Id.

Robinson was driving the PT Cruiser. Deputy Claeys noticed that she had glossy, bloodshot eyes, slurred speech, and the odor of alcohol on her breath. Robinson admitted to having drunk one beer, and she failed three field sobriety tests. Without being prompted, Robinson told Deputy Claeys that she had marijuana in her bra, which she shook out onto the roadway. Deputy Claeys transported Robinson to the jail, where a certified breath test'was administered. The test indicated that Robinson had .09 grams of alcohol per 210 liters of breath.

Robinson was charged with operating a vehicle with a suspended license, a class A misdemeanor; possession of marijuana, a class A misdemeanor; operating a vehicle while intoxicated, a class A misdemeanor; and operating a vehicle with an alcohol concentration of at least .08 grams per 210 liters of breath, a class C misdemeanor. Robinson filed a motion to suppress the evidence obtained from the traffic stop. The motion asserted that the video from Deputy Claeys’s vehicle showed that she stayed within her lane and that he therefore lacked reasonable suspicion to conduct a traffic stop.

On July 6, 2012, the trial court held a combined bench trial and hearing on the motion to suppress. Deputy Claeys was the only witness. Deputy Claeys testified that the road had a center line and a white fog line along the outer edge of the road. He asserted that both of the passenger-side tires of Robinson’s vehicle “were over the fog line ... [cjompletely off the roadway.” Id. at 48. Deputy Claeys acknowledged that Robinson “immediately” returned to her lane each time. Id. at 51. Robinson’s driving record, the breath test results, and the video from Deputy Claeys’s vehicle were also admitted into evidence. The court took the matter under advisement.

On July 23, 2012, the trial court issued a written order denying Robinson’s motion to suppress and entering judgment on two of the'charges. The court indicated that it had viewed the video several times and could not “conclude from the video that the defendant’s vehicle actually left the roadway.” Appellant’s App. at 33. However, the court found that the video “does show the vehicle veering on two occasions onto the white fog line.” Id. The court concluded that swerving onto the fog line twice was sufficient to justify a brief investigatory stop.

The court concluded that, based on contradictory information in Robinson’s driving record, the State had failed to prove beyond a reasonable doubt that her license was suspended at the time of the traffic stop. The court found Robinson guilty of the remaining charges, but did not enter judgment on the class C misdemeanor driving offense. Robinson now appeals.

Discussion and Decision

Robinson argues that the trial court erred by denying her motion to suppress and admitting the evidence obtained from the traffic stop. Robinson does not specify whether she is challenging the stop based on the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. However, she asserts that the “central issue in this case hinges on the Terry doctrine.” Appellant’s Br. at 2 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We understand this to be an invocation of the Fourth Amendment. See Joseph v. State, 975 N.E.2d 420, 424 n. 6 (Ind.Ct.App.2012) (stating that any claim under Article 1, Section 11 of the Indiana Constitution was waived for failure to make a separate argument pursuant to that provision).

Because Robinson is appealing following a completed trial, the issue before us is “properly framed as whether the trial court abused its discretion by admitting the challenged evidence at trial.” Lindsey v. State, 916 N.E.2d 230, 238 (Ind.Ct.App.2009), trans. denied, (2010).

Our standard of review of a trial court’s determination as to the admissibility of evidence is for an abuse of discretion. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). We will reverse only if a trial court’s decision is clearly against the logic and effect of the facts and circumstances. Id. We will not reweigh the evidence, and we consider any conflicting evidence in favor of the trial court’s ruling. Collins [v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied ) ]. However, we must also consider the uncontested evidence favorable to the defendant. Id. Although a trial court’s determination of historical facts is entitled to deferential review, we employ a de novo standard when reviewing the trial court’s ultimate determinations of reasonable suspicion and probable cause. Myers v. State, 839 N.E.2d 1146, 1150 (Ind.2005) (citing Ornelas v. United States, 517 U.S. 690, 695-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Id. (footnote omitted).

“An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion.” Ornelas, 517 U.S. at 693, 116 S.Ct. 1657.

Reasonable suspicion is a “somewhat abstract” concept, not readily reduced to “a neat set of legal rules.” [United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)]. When making a reasonable suspicion determination, reviewing courts examine the “totality of the circumstances” of the case to see whether the detaining officer had a “particularized and objective basis” for suspecting legal wrongdoing. Id. at 273, 122 S.Ct. [at 750]. The reasonable suspicion requirement is met where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur. Francis v. State, 764 N.E.2d 641, 644 (Ind.Ct.App.2002).

Moultry v. State, 808 N.E.2d 168, 171 (Ind.Ct.App.2004). The State bears the burden of proving that an investigatory stop was not violative of the constitutional protections against unreasonable searches and seizures. State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App.1994). When an investigatory stop is not supported by reasonable suspicion, the evidence collected as a result is excluded from trial pursuant to the “fruit of the poisonous tree” doctrine. Sanchez v. State, 803 N.E.2d 215, 223 (Ind.Ct.App.2004) (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)), trans. denied.

The State argues that this case is similar to State v. McCaa, 963 N.E.2d 24 (Ind.Ct.App.2012), trans. denied. In that case, Newton County Sheriffs Sergeant Shannon Cothran was at the scene of an accident on U.S. Highway 41. Sergeant Cothran received a dispatch “concerning ‘various’ reports of a semi-trailer truck being driven erratically southbound toward the accident site.” Id. at 27. Sergeant Cothran observed a trash hauler drive off the road twice within the course of about half a mile as it approached the accident site. It was also driving slowly in relation to the posted speed limit.

With assistance from another deputy, Sergeant Cothran initiated a traffic stop. The driver, Johnnie McCaa, claimed that he had swerved because he was eating lunch and had spilled his pop. Sergeant Cothran observed that there was a spilled soft drink can on the floor of the truck’s cabin and did not immediately observe any signs of intoxication. Nevertheless, Sergeant Cothran wanted to investigate further. However, due to the accident and the traffic stop, traffic in the southbound lanes of U.S. Highway 41, a busy road, was now completely stopped. Sergeant Coth-ran decided to have McCaa move his truck to a gas station about two miles down the road. As Sergeant Cothran followed McCaa to the gas station, he saw McCaa drive off the road three more times. McCaa failed three field sobriety tests, and a urine sample collected pursuant to a warrant revealed that he had drugs in his system. McCaa was charged with operating while intoxicated, and he successfully moved to suppress the evidence obtained after the initial stop.

The main issue in McCaa was whether it was permissible for Sergeant Cothran to continue the investigation at another location. Under the unusual circumstances of the case, we determined that the officer’s actions were justified. Id. at 31. By the time McCaa reached the gas station, dispatch had received multiple reports of McCaa’s erratic driving, and Sergeant Cothran personally observed McCaa drive off the roadway five times.

McCaa is distinguishable. In this case, the trial court found that Robinson had driven onto the fog line, but was not convinced that she had actually driven off the roadway. Robinson drifted to the right twice, and Deputy Claeys acknowledged that she “immediately” corrected her course. Tr. at 51. The trial court acknowledged that Robinson’s driving was not inconsistent with that of a driver who was momentarily distracted. Robinson’s driving was far less erratic than that of McCaa, who actually drove off the road at least five times and was driving unusually slow.

Both parties discuss Barrett v. State, 837 N.E.2d 1022 (Ind.Ct.App.2005), trans. denied (2006). In that case, the Tippecanoe County Sheriffs Department received a tip from a Meijer employee, who reported that two people had purchased several boxes of cold medication, which can be used to manufacture methamphetamine. The Meijer employee indicated that the individuals were driving a blue Chevrolet Geo Tracker. Sergeant Terry Ruley followed the vehicle from the Meijer parking lot onto Interstate 65. After following the vehicle for several miles, Sergeant Ruley observed that it drifted toward the shoulder and its passenger-side tires were on the fog line for thirty to fifty yards. Sergeant Ruley believed that this was a sign of impairment and initiated a traffic stop.

The vehicle was being driven by Joseph Kelly, and Cynthia Barrett was a passenger. Kelly and Barrett consented to a search of the vehicle, and officers found several items used to manufacture methamphetamine. After being taken into custody, Barrett admitted that she and Kelly had purchased the items so that Kelly and her ex-husband could manufacture methamphetamine, that they had previously attempted to manufacture methamphetamine, and that they intended to sell the drugs. Barrett consented to a search of her home, which revealed additional evidence of manufacturing. Barrett was charged with and convicted of several drug-related offenses.

On appeal, Barrett argued that Sergeant Ruley lacked reasonable suspicion to conduct the traffic stop. A majority concluded that driving on the fog line was a sign of impairment, and combined with the tip, provided reasonable suspicion for the stop. Id. at 1027-28.

Judge Mathias dissented, opining that briefly touching the fog line was insufficient to establish reasonable suspicion: “Here, while the officer testified that he believed the driver was possibly intoxicated, he also admitted that no traffic violation occurred, [and] that there were many reasons a driver could drift onto the fog line without being intoxicated.... ” Id. at 1031 (Mathias, J., dissenting). Judge Mathias cited several cases from other jurisdictions to support his conclusion, including United States v. Colin, 314 F.3d 439, 446 (9th Cir.2002) (car’s touching the right fog line and the center yellow line each for ten seconds after legitimate lane changes did not give officer reasonable suspicion of driving under the influence); United States v. Freeman, 209 F.3d 464, 466-67 (6th Cir.2000) (a motor home’s brief entry into the emergency lane does not constitute probable cause that the driver was intoxicated); United States v. Gregory, 79 F.3d 973, 978 (10th Cir.1996) (where officer did not conduct a road sobriety test after stopping the defendant for briefly crossing into the right emergency shoulder lane, he did not have reasonable suspicion that the defendant was intoxicated); United States v. Ochoa, 4 F.Supp.2d 1007, 1012 (D.Kan.1998) (single drift onto the shoulder did not justify stopping defendant); State v. Tague, 676 N.W.2d 197, 205-06 (Iowa 2004) (single incident of crossing left edge line for a brief moment did not meet reasonableness test under the state constitution); and State v. Binette, 33 S.W.3d 215, 219-20 (Tenn.2000) (occasional drifting from the center of the lane did not amount to reasonable suspicion). See also United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993) (“[I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir.1995).

The Barrett majority’s analysis of the driver’s swerving onto the fog line was intertwined with analysis of the tip concerning possible drug activity, a circumstance not present here. Nevertheless, to the extent that Barrett may be read to stand.for the proposition that briefly driving on the fog line is necessarily sufficient to establish reasonable suspicion of impaired driving, we acknowledge that it likely goes too far. Further review of the cases cited in the dissent, their progeny, and additional authorities from other jurisdictions leads us to the conclusion that brief contact with the fog line or swerving within a lane ordinarily is not sufficient to establish reasonable suspicion of impaired driving. See, e.g., United States v. Sugar, 322 F.Supp.2d 85, 91-92 (D.Mass.2004) (crossing fog line once was not a violation and did not establish reasonable suspicion); State v. Livingston, 206 Ariz. 145, 75 P.3d 1103, 1105-06 (Ariz.Ct.App.2003) (minor breach of the shoulder line on a curvy road did not establish reasonable suspicion), review denied (2004);1 People v. Leyendecker, 337 Ill.App.3d 678, 272 Ill.Dec. 543, 787 N.E.2d 358, 362 (2003) (crossing over fog line while going around curve did not establish reasonable suspicion), appeal denied; State v. Ross, 37 Kan.App.2d 126, 149 P.3d 876, 880 (2007) (briefly driving on shoulder did not provide reasonable suspicion), review denied; Rowe v. State, 363 Md. 424, 769 A.2d 879, 889-91 (2001) (two instances of touching or crossing fog line did not establish reasonable suspicion); Warrick v. Comm’r of Pub. Safety, 374 N.W.2d 585, 585-86 (Minn.Ct.App.1985) (“subtle” weaving within lane insufficient to support reasonable suspicion); State v. Prado, 145 Wash.App. 646, 186 P.3d 1186, 1187 (2008) (“A vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully”).

That is not to say that swerving within a lane or crossing the fog line can never provide reasonable suspicion justifying a traffic stop; the emphasis must remain on the totality of the circumstances. People v. Davis, 58 A.D.3d 896, 870 N.Y.S.2d 602, 603 (2009) (“Here, we decline to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. However, in this case, we are mindful that [the officer] only testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road....”); State v. Pratt, 182 Vt. 165, 932 A.2d 1039, 1041-42 (2007) (“[W]e do not announce a ‘bright line’ rule that intra-lane weaving creates reasonable suspicion to stop in all cases. Instead, we continue to hold that reasonable suspicion must be based on the totality of the circumstances. Thus, ... we do not quarrel [with] cases [holding] that slight degrees of intra-lane weaving alone do not justify a stop.”); Neal v. Commonwealth, 27 Va.App. 233, 498 S.E.2d 422, 425 (1998) (“We agree with our sister states that weaving within a single traffic lane is an articulable fact which may give rise to a reasonable suspicion of illegal activity. An isolated instance of mild weaving within a lane' is not sufficiently erratic to justify an • investigatory stop. The test is one of reasonableness under ‘the totality of the circumstances.’ ”); State v. Post, 301 Wis.2d 1, 733 N.W.2d 634, 641 (2007). (“Thus, we adopt neither the bright-line rule proffered by the State that weaving within a single lane may alone give rise to reasonable suspicion, nor the bright-line rule .advocated by Post that weaving within a single lane must be erratic, unsafe, or illegal to give rise to reasonable suspicion. Rather, we maintain the well-established principle that reviewing courts must determine whether there was' reasonable suspicion for an investigative stop based on the totality of the circumstances”).

Thus, swerving within a lane or ' onto the fog line may or may not give rise to reasonable suspicion. Factors to con-' sider may include whether there is repeated swerving, whether there is swerving over an extended distance or period of time, whether the driver narrowly avoids hitting an object or causing an accident, whether road or weather conditions might explain the driver’s conduct, and whether the driver overcorrects when returning to the proper lane of travel. See, e.g., United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir.1999) (in finding that reasonable suspicion had been established, the court considered the lack of road or weather conditions that would explain the defendant’s repeated drifting onto the shoulder); Arburn v. Dep’t of Motor Vehicles, 151 Cal. App.4th 1480, 61 Cal.Rptr.3d 15, 18-19 (2007) (continuous weaving within lane for span of a block and almost hitting curb established reasonable suspicion); Tyler v. State, 161 S.W.3d 745 (Tex.Crim.App.2005) (reasonable suspicion established where driver “ ‘straddled’ the white lane separating his traveling lane from the shoulder before returning ‘erratically’ to the traveling lane ‘as if to turn at an angle’”).

In this case, Robinson was driving late at night on a road with some curves. On two occasions, she briefly touched the fog line and then immediately returned to her lane. There is no indication that she swerved sharply or overcor-rected. The trial court, which viewed the video several times, acknowledged that Robinson’s driving was not inconsistent with a driver who was momentarily distracted. While we give weight to the trial court’s findings of fact, the ultimate conclusion regarding reasonable suspicion is reviewed de novo. Lindsey, 916 N.E.2d at 238. Given the fact that it was dark, that the road had some curves, and that Robinson made only brief contact with the fog line, we conclude that the State failed to establish that the traffic stop was supported by reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted. We reverse her convictions, which were dependent on the improperly admitted evidence.

Reversed.

ROBB, C.J. and FRIEDLANDER, J., concur.

      . The author of this opinion also wrote the majority opinion in Barrett.


text:
    In the Matter of Robert L. CANADA, Respondent.
    No. 82S00-1003-DI-145.
    Supreme Court of Indiana.
    April 26, 2013.
   PUBLISHED JUDGMENT IN FAVOR OF RESPONDENT

Upon review of the report of the hearing officer, the Honorable Barbara L. Brug-naux, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court concludes that the Commission has not met its burden of proving by clear and convincing evidence that Respondent engaged in professional misconduct. Accordingly, the Court enters judgment for Respondent.

Charges: The Commission alleges that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.5(a): Making an agreement for, charging, or collecting an unreasonable fee. 1.16(d): Failure to refund fees that have not been earned.

Facts: Respondent is a sole practitioner whose practice is devoted to criminal defense. On June 23, 2008, a criminal defendant (“Client”) hired Respondent to represent him on a charge of Conspiracy to Commit Dealing in Methamphetamine, Class A Felony. Client made it clear to Respondent that he wished to resolve the case through a plea agreement. Client and his father signed a fee agreement entitled “Contract for Legal Services” to engage the services of Respondent. The fee agreement stated that Respondent would take the case to conclusion for a “flat fee” of $10,000, to be paid from a cash bond posted by the father. The agreement stated: “This fee is non-refundable because of the possibility of preclusion of other representation, and to guaranty priority of access. The fee is non-refundable unless there is a failure to perform the agreed legal services.”

The hearing officer found that the amount of the fee was reasonable on its face in the Evansville market for someone of Respondent’s skill and experience. After Respondent appeared in the case, the prosecutor offered Client a plea agreement to a class B felony. Although Client initially viewed the plea offer favorably, Client subsequently told Respondent that he was going to hire a different lawyer to see if he could get a better deal. Respondent withdrew his appearance in Client’s case on August 14, 2008. Respondent estimated he had spent about 20 hours working on Client’s case. Client was eventually sentenced on a class B felony pursuant to a similar plea agreement negotiated by replacement counsel. The trial court later released $10,000 of the cash bond to Respondent for his fee.

Discussion: This Court has addressed fee agreements in Matter of O’Farrell, 942 N.E.2d 799 (Ind.2011), Matter of Kendall, 804 N.E.2d 1152 (Ind.2004), and Matter of Thonert, 682 N.E.2d 522 (Ind.1997). Under the guidance provided by these opinions, we conclude that the fee Respondent charged in this case was a permissible flat fee (notwithstanding the fee agreement’s one sentence mentioning possible preclusion of other representation and guaranty of priority of access, which would have been more relevant if the fee were a general retainer). Moreover, the agreement properly advised Client that a refund was possible in the event of a failure to perform the agreed legal services. See Kendall, 804 N.E.2d at 1160. The hearing officer found the amount of the flat fee to be reasonable. We therefore find no infirmity with the fee agreement itself.

The remaining issue is whether Respondent improperly collected and failed to refund an unearned part of the flat fee. Client was, of course, free to discharge Respondent at any time and retain a different attorney. Respondent was not permitted to keep any part of his fee that he did not earn. The only question is whether any part of Respondent’s fee was unearned. According to the evidence, Client made it clear from the outset that he wished to resolve the case through a plea agreement. Respondent spent considerable time on the case and negotiated a plea agreement that Client initially viewed with favor. Client then changed his mind and hired replacement counsel to negotiate a somewhat different plea agreement. Under these circumstances, we conclude that the Commission has not proven by clear and convincing evidence that Respondent did not fully earn his flat fee. See Admis. Disc. R. 23(14)(i) (misconduct must be proven by clear and convincing evidence); cf. O’Farrell, 942 N.E.2d at 808 (record insufficient to prove that some amount of flat fee was unearned when the attorney-client relationship ended before work was completed).

The Court therefore enters judgment for Respondent. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Judgment to the hearing officer and to the parties or their respective attorneys. The Clerk is further directed to post this judgment to the Court’s website, and Thomson Reuters is directed to publish a copy of this judgment in the bound volumes of this Court’s decisions.

All Justices concur.