Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall no t be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : SUZY ST. JOHN Indianapolis, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

JOSHUA WOTOWIEC, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A05

- 1111

- CR

- 609 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM T HE MARION SUPERIOR COURT The Honorable William J. Nelson, Judge Cause No. 49F07

- 1106

- CM

- 46490

July 31 , 2012 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Joshua Wotowiec (Wotowiec), appeals his conv iction for carrying a handgun without a license, a Class A misdemeanor, Ind. Code § 35

- 47

- 2

- 1. We affirm.
ISSUE Wotowiec raises the following issue on appeal: Whether Wotowiec was denied effective assistance of trial counsel.

FACTS AND PROCEDURAL HISTORY On June 27, 2011, Indianapolis Police Officer Malachi West (Officer West) was dispatched to a trailer park lot located at 3023 W

. Morris Street , Indianapolis, Indiana, in response to a report of a loud party and the presence of a person with a handgun.
Ac cording to the radio dispatch , the person with the handgun was a white male named Josh who wore a black colored shirt. Officer West pulled his vehicle into the trailer park and observed five people on the front porch of a trailer and one male, later ident ified as
Wo towiec, wearing a black shirt ru n into the trailer. Officer West then approached the trailer and patted down everyone on the porch for weapons. Officer West requested permission from Traci Denis (Denis), who lived at the trailer, to enter and search for Wotowiec, asking her why he had acted suspiciously. After initially objecting, she gave permission. Officer West entered the trailer and found Wotowiec in the back bedroom, wearing a black shirt and lying face down on a bed with the lights of f. Wotowiec’s eyes were closed and one of his arms hung off the side of the3

bed, while the other arm was near the mattress. After asking Wotowiec to stand up, Officer West patted him down for weapons. Officer West found a magazine and loose bullets alon g with a loaded magazine in Wotowiec’s pockets . Officer West also found a loaded gun hidden betwe en the mattress and boxspring. Wotowiec was then handcuffed.
A lthough he initially denied ownership of the gun, a fter receiving Miranda warnings, Wotowiec e xplained that someone had g iven the gun to him earlier. Unable to verify Wotowiec’s story, Officer West arrested him.
On June 29, 2011 , the State filed an Information charging Wotowiec with Count I, carrying a handgun without a license, I .C. § 35

- 47

- 2

- 1

. On November 1, 2011 , a bench trial was conducted

. During Officer West’s testimony, Wotowiec’s counsel made a motion to suppress from the search and seizure of his person , arguing that it was the
result of an invalid , warrantless search. In particular, Wotowiec’s counsel argued that Officer West coerced Denis into allowing entry into the trailer

. The State responded that Wotowiec lacked standing to challenge the search since he did not live at or own the trailer . The trial court denied the motion beca use Denis testified that she permitted Officer West to enter the trailer after he explain ed why he was there

. Later, during closing argument, Wotowiec’s counsel reiterated the ground for his motion to suppress and trial court denied the motion , finding Wo towiec guilty as charged. Specifically , the
trial court stated that:
t he 911 call was made at a person with a handgun, the description matched the defendant, the officers had the homeowner’s permission to enter the residence. Defendant was found in the bedroom, patted down for officer safety since the run was a person with a gun. He found ammunition [...]4

two inches away from where the defenda n t ’s right hand had been [.] I think the officer had uh, given the nature of the call, had the right to search th e immediate area for the weapon. (Transcript pp. 36 ). The trial court thereafter sentenced Wotowiec to 365 days incarceration with 361 days suspended to probation

. Wotowiec now appeals. Additional facts will be provided as necessary.

D ISCUSSION AND DEC ISION We first note that the State did not file an appellate brief. The obligation of controverting arguments presented by the appellant properly remains with the State. Matekyo v. State , 901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied

. Where, a s here, the appellee fails to submit a brief, the appellant may prevail by making a prima facie case of error, i.e. , an error at first sight or appearance. Id . Still, we must correctly apply the law to the facts of the record to determine if reversal is required. Id

. I. Standard of Review Wotowiec ’s sole argument on appeal is that he was denied the effe ctive assistance of trial counsel by counsel’s failure to argue suppression of the handgun . Ordinarily, a post

- conviction proceeding is the preferred fo rum for ineffective assistance of counsel claims ; raising the claim on direct appeal forecloses relitigation of the claim in a petition for post

- conviction relief

. Woods v. State , 701 N.E.2d 1208, 1219 (Ind. 1998) , cert. denied , 528 U.S. 861 (1999)

.5

Ine ffective assistance of counse l claims are subject to the two

- p art test established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984). Our supreme court has summarized the relevant requirements of th is two

- p art test: First , a defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as counsel g uaranteed to the defendant by the Sixth Amendment. Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, meaning a tri al where the result is reliable. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one th at is sufficient to undermine confidence in the outcome. Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Kubsch v. State , 934 N.E.2d 1138, 1147 (Ind. 2010).
W otowiec a sserts that hi s trial counsel’s performance was deficient and prejudicial because the charges resulted in a conviction. Specifically, Wotowiec contends that he was subjected to an invalid investigatory stop. Because Officer West lacked reasonabl e suspicion to conduct an investigatory stop and the subsequent pat

- down search , Wotowiec argues that Officer West obtained the gun as the result of an illegal search under the Fourth Amendment to the United States Constitution . Wotowiec claims that a cha llenge to the investigatory stop was meritorious, supported by the evidence , and would have prevailed if raised

. Apart from the failure to challenge the investigatory stop, however, Wotowiec asserts no other deficiency in his trial counsel’s performance. Wotowiec makes no6

argument that the purported deficiency was “so serious as to deprive the defendant of a fair trial, meaning a trial where the result is reliable.” Id

. Thus, Wotowiec’s argument rests solely upon whether there is “a reasonable probabil ity that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id

. T he success of Wotowiec’s argument under Strickland ultimately depends upon the success of his challenge to Officer West’s investigatory stop. II. Investigatory Stop
In Terry v. Ohio , 392 U.S. 1 , 30 (1968), the United States Supreme Court held that, consistent with the Fourth Amendment, the police can briefly detain a person for investigatory purposes if the officer has a reasonable s uspicion o f criminal activity. Terry also permits a police officer to conduct a limited pat

- down search of a suspect’s outer clothing to search for a weapon. Wilson v. State , 670 N.E.2d 27, 29 (Ind. Ct. App. 1996). Reasonable suspicion entails some minimum level of obje ctive justification for making the stop; something more than an inchoate and unparticularized suspicion or hunch, but less than the suspicio n required for probable cause. Id

. We examine the totality of the circumstances to determine whether the of ficer had a particularized and objective basis for suspecting criminal activity. See id

. Wotowiec contends that Officer West had no reasonable suspicion that he was involved in criminal activity and thus had no reason to stop him . In light of the radio d ispatch report and Officer West’s testimony , Wotowiec asserts that the stop could only have been founded upon Officer West’s concerns of personal and public safety , which ,7

standing alone, is an insufficient basis for a Terry stop

. See State v. Atkins , 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005), trans. denied

. F irst , Wotowiec notes that the dispatch reported only that a person with a gun was at the trailer ; it did not contain mention of any shots fired or any threats made. Next , Wotowiec asserts that the possession of a handgun
is not necessarily a crime , and Officer West testified that he requested entry to the trailer out of concerns for everyone’s safety

. Thus, Wotowiec contends that his detention was based solely upon Officer West ’s concerns for safet y , rather than a reasonable suspicion of criminal activity. Wotowiec’s argument ultimately fails because it omits details of Wotowiec’s
behavior upon Officer West ’s approach to the trailer. While officer safety, standing alone, is an insufficient basis t o justify an investigatory stop, where otherwise objective facts trigger reasonable suspicion, the officer’s safety concerns then existing do not otherwise negate justification for the stop. Instead, “an officer’s subjective motivation
for a search is mea sured against an objective standard of reasonableness.” State v. Schlechty , 926 N.E.2d 1, 7 (Ind. 2010), cert. denied , 131 S.Ct. 934, 178 L.Ed.2d 776 (2011). Although the report contained no information that a shooting had occurred, the report specifica lly communicated that a male , named Josh , was at the trailer wearing a black shirt and possessing a gun . As Officer West approached in his marked police car , he saw a male wearing a black shirt run into the trailer. Under certain circumstances, “[f]light from properly identified law enforcement officers is sufficient to justify an8

investigatory stop. ” Wilson , 670 N.E.2d at 30. Consequently, the radio dispatch and Wotowiec’s behavior following Officer West’s arrival furnished the specific reasonable
infe rences required to conduct the Terry stop and frisk. T he fact that the specific individual about whom Officer West received a report exhibited e vasive behavior upon Officer West’s arrival was sufficient to cause an ordinarily prudent person to believe tha t criminal activity had or was about to occur. See id

. C onsidering the totality of the circumstances, the facts then known to Officer West were sufficient to create a reasonable suspicion of criminal activity. Thus, we find Wotowiec ’s argument on appeal
insufficient to establish prima facie error insofar as a challenge to the investigatory stop would not have prevailed even if his trial counsel raised it at trial. Accordingly, Wotowiec did not receive ineffective assistance of counsel.
CONCLUSION
Base d upon the foregoing, we conclude that Wotowiec was not denied effective assistance of counsel

. Affirmed. NAJAM, J. and DARDEN, S. J. concur