Court of Appeals of Indiana | Memorandum Decision 02A04-1712-CR-2877 | October 9, 2018 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not 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

Gregory L. Fumarolo

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles D. Burrage,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 9, 2018

Court of Appeals Case No.

02A04-1712-CR-2877

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1705-F4-32

Altice, Judge.
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Case Summary

[1] When police stopped the car in which Charles D. Burrage was riding as a 

backseat passenger, Burrage jumped out and fled. After chasing down Burrage, 

an officer returned to the vehicle and discovered a handgun on the back bench 

seat, in plain view, near where Burrage had been seated before he exited the 

vehicle and ran from police. Burrage filed a pretrial motion to suppress the 

handgun, challenging the legality of the traffic stop, and the trial court denied 

the motion. Following a jury trial, Burrage was convicted of Level 4 felony 

unlawful possession of a firearm by a serious violent felon and Class A 

misdemeanor resisting law enforcement. He now appeals his convictions, 

raising the following restated issues:

I. Whether the trial court abused its discretion when it admitted 

the firearm into evidence at trial; and

II. Whether the State presented sufficient evidence to support 

Burrage’s conviction for unlawful possession of a firearm by a 

serious violent felon.

[2] We affirm.

Facts & Procedural History

[3] While driving her four-door black Dodge Magnum on the evening of May 10, 

2017, Christina Green picked up her teenage son, I.C.C., from work. Green’s 

co-worker, Ayanna Weaver, was already seated in the front passenger seat, and

I.C.C. entered the vehicle and sat in the back seat behind Weaver. As a favor 
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for a friend, Green then drove to the Hickory Creek Apartments to pick up a 

man and give him a ride to her own house, where he was to meet other 

individuals. When Green arrived at the Hickory Creek Apartments, the man, 

who Green did not know, but who was later identified as Burrage, entered her 

car and sat in the back seat, on the driver’s side. 

[4] At that time, Fort Wayne Police Department (FWPD) officers, along with 

officers from the United States Marshal’s Task Force, were conducting 

surveillance at the Hickory Creek Apartments, having received information that 

Burrage, who had a pending felony arrest warrant for a violation of his parole, 

was likely to be in that area. Specifically, FWPD Detective Derrick Demorest 

had obtained and executed a search warrant for “ping” information on 

Burrage’s phone, and it revealed that the phone was in the Hickory Creek 

complex. Motion to Suppress Transcript at 27. During surveillance at the 

apartment complex, FWPD Detective James Chambers observed a man 

matching Burrage’s general description get into the backseat of the Dodge 

Magnum. Already in the car, in addition to the driver, was a front seat 

passenger and another backseat passenger, who officers later identified as 

Green’s son, I.C.C. 

[5] The Dodge Magnum left the Hickory Creek Apartments parking lot heading 

eastbound on Lower Huntington Road. Some of the surveilling officers 

followed, while others stayed, in case it was not Burrage who left in the 

Magnum. While following the Magnum, FWPD Detective Sergeant Mark 

Brooks observed it “cross the yellow line, the solid yellow line towards the 
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center four different times in about a half a mile” on Lower Huntington Road. 

Transcript Vol. 1 at 115. The driver of the Dodge Magnum did not signal a lane 

change or a turn on these occasions. Because Detective Sergeant Brooks was in 

plain clothes and driving an unmarked FWPD vehicle that was not equipped 

with emergency lights, he was not permitted under Indiana law to initiate a 

traffic stop, so he notified other officers that he had observed the vehicle “cross 

the center line four times.” Id. at 116. 

[6] The Dodge Magnum then turned northbound onto Airport Expressway, and 

Detective Michael Long, who was in full uniform and was driving a vehicle 

equipped with lights and a siren, activated his vehicle’s lights and initiated a 

traffic stop. According to Green, Burrage told her from the backseat, “[D]on’t 

stop,” and she replied, “I’m not a criminal, I don’t have anything to hide,” at 

which time she pulled the car over to the right shoulder. Id. at 158, 161. I.C.C.

noticed that, as the vehicle was pulling over, Burrage was trying to get out of 

the car, and I.C.C. told Burrage to “calm down and not to get out [sic] the car.” 

Id. at 175. As Burrage was exiting the Dodge Magnum, he pulled a gun out of 

his pants and tried to hand it to I.C.C., but I.C.C. turned away and did not take 

it. Burrage then exited the car and ran. 

[7] Meanwhile, as the Dodge Magnum stopped on the shoulder, Detective Long 

saw an individual exit the vehicle from the back driver’s-side door and run in a 

northeast direction down into an embankment. Detective Long ordered the 

individual to stop and chased him a short distance before he deployed a taser

causing the man to fall. Detective Long arrested the man for resisting law 
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enforcement and identified the individual as Burrage. Detective Long’s vehicle 

was equipped with an in-car camera that captured video of the traffic stop and 

chase.

[8] Detective Long returned to the Dodge Magnum and saw that the remaining 

three occupants were inside but had their hands extended outside of the 

windows. Green was in the driver’s seat, Weaver was in the front passenger

seat, and I.C.C. was seated behind Weaver. As Detective Long approached, 

I.C.C. told him that the person who ran had left a handgun in the vehicle. 

Detective Long looked inside and saw a black handgun laying on the middle of 

the back bench-style seat. The individuals in the car told him that they did not 

know the man who fled. Detective Long instructed the passengers to exit the 

vehicle, and they were patted down for officer safety. No other weapons were 

found on the occupants or in the vehicle. 

[9] Detective Long retrieved the handgun, which was a loaded .40 caliber 

semiautomatic. There was a bullet in the chamber and additional bullets in the 

magazine. During a search of Burrage, police discovered a baggie in his pocket 

containing a green weedy substance, later identified as marijuana. 

[10] On May 16, 2017, the State charged Burrage with Count I, Level 4 felony 

unlawful possession of a firearm by a serious violent felon, Count II, Class A 

misdemeanor resisting law enforcement, and Count III, Class B misdemeanor 

possession of marijuana. In October 2017, Burrage filed a motion to suppress 

the handgun and marijuana, asserting that the search and seizure violated his 
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state and federal constitutional rights. At the hearing, Burrage’s position was 

that the traffic stop was invalid because (1) the radioed traffic infractions were 

that the Dodge Magnum “crossed the center line” a number of times, (2) but 

the road was actually a three-lane road in the relevant area – one each direction 

and a center turn lane – such that the Magnum did not cross any center line or 

violate any statute that required it to stay on the right half of the road, and (3) 

therefore, “there was no violation that justified the stop [of] the vehicle,” and 

the evidence should be suppressed. Motion to Suppress Transcript at 24, 30. The 

State responded that traffic violations justified the stop because officers 

observed the Magnum fail to stay in its lane. Furthermore, even if there was no 

traffic violation, the stop was valid for several other reasons: (1) there was a 

warrant out for Burrage, and officers had a reasonable suspicion that he was in 

the car; (2) Burrage had no standing as a passenger to challenge the stop; and 

(3) Burrage abandoned the weapon when he ran from the car and thereby 

relinquished all interest in the property. Following a hearing, the trial court 

issued an order denying Burrage’s motion to suppress, finding: 

Defendant matched the description of the fugitive sought, the 

traffic stop was valid, the handgun seized was in plain view, was 

abandoned and Defendant had no standing to object to a search.

Appellant’s Appendix Vol. II at 71.

[11] Prior to trial, the trial court granted the State’s motion to dismiss Count III. At 

trial, when Detective Sergeant Brooks was cross-examined about having 

radioed to Detective Long that the Magnum drove “left of center” on four 
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occasions, Detective Sergeant Brooks explained that the vehicle had driven

“into the turn lane four times.” Transcript Vol. 1 at 117. Detective Long 

testified that after learning that “the vehicle had committed a lane violation four 

different times” on Lower Huntington Road, he moved ahead of the 

surveillance detective and initiated the traffic stop. Id. at 126. Green testified 

that when she pulled over to the shoulder, “the person that was in my backseat 

jumped out of my car, took off running,” and she heard her son scream, 

“[T]here’s a gun back here.” Id. at 158, 161. She then turned and saw the gun 

for the first time. Green testified that the gun was not hers nor her son’s, who 

was less than eighteen years old. A man named Marcel Wheeler, who had 

been in a relationship with Green on-and-off for six years, testified that he 

owned the Dodge Magnum, but had not driven it in years. Wheeler testified 

that the gun was not his and that he did not own a gun or have a permit to carry 

one. The handgun was admitted into evidence over Burrage’s objection. No

fingerprints were found on the gun during forensic testing.

[12] The jury found Burrage guilty of resisting law enforcement and carrying a 

handgun without a license. Burrage waived his right to further proceed with the 

jury trial and admitted to a prior qualifying felony required to prove he was a 

serious violent felon in possession of a firearm. After entering judgments of 

conviction, the trial court sentenced Burrage to six years on Count I and one 

year on Count II, to run consecutively. Burrage now appeals.
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Discussion and Decision

I. Admission of Evidence

[13] Burrage argues the trial court abused its discretion when it admitted the 

handgun into evidence at trial over his objection. In ruling on admissibility 

following the denial of the motion to suppress, the trial court considers the 

foundational evidence presented at trial. Carpenter v. State, 18 N.E.3d 998, 1001 

(Ind. 2014). It also considers the evidence from the suppression hearing that is 

favorable to the defendant only to the extent it is uncontradicted at trial. Id. 

Because the trial court is best able to weigh the evidence and assess witness 

credibility, the appellate court will review the trial court’s rulings on 

admissibility for abuse of discretion and reverse only if a ruling is “clearly

against the logic and effect of the facts and circumstances and the error affects a 

party’s substantial rights.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). “But 

the ultimate determination of the constitutionality of a search or seizure is a 

question of law that we consider de novo.” Carpenter, 18 N.E.3d at 1001.

[14] An investigatory stop of a citizen by a police officer does not violate that 

citizen’s constitutional rights if the officer has a reasonably articulable suspicion 

of criminal activity. State v. Lynch, 961 N.E.2d 534, 536 (Ind. Ct. App. 2012). 

Although “[r]easonable suspicion is a ‘somewhat abstract’ concept that is not 

readily reduced to a ‘neat set of legal rules,’” it is well settled that a police 

officer may briefly detain a person whom the officer believes has committed an 

infraction or ordinance violation. Id. at 536-37 (citing Ind. Code § 34-28-5-3, 

stating that “[w]henever a law enforcement officer believes in good faith that a 
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person has committed an infraction or ordinance violation, the law enforcement 

officer may detain that person for a sufficient time”). A decision to stop a 

vehicle is valid so long as the officer’s “on-the-spot evaluation reasonably 

suggests that lawbreaking occurred.” Id. at 537. The determination of 

reasonable suspicion requires de novo review on appeal. Id. 

[15] Burrage contends that the officers did not have reasonable suspicion to initiate a 

traffic stop of the Dodge Magnum and that his convictions for unlawful 

possession of a handgun and resisting law enforcement therefore must be 

reversed. In particular, Burrage relies on the evidence that Detective Brooks 

had radioed to other officers and written in his report that the Dodge Magnum 

“crossed the center line” as it traveled on Lower Huntington Road, but since 

Lower Huntington Road was a three-lane road, “there was no center line to 

cross.” Appellant’s Brief at 14, 21; Defendant’s Ex. B. Thus, Burrage claims, 

“there was no traffic violation” and the stop was pretextual such that 

“everything that happened after the vehicle was stopped . . . is subject to be 

suppressed.” Id. at 21. As he did at the motion to suppress hearing, Burrage 

urges that Ind. Code § 9-21-8-2 is the relevant statute and that there is no 

evidence that he violated it. That statute provides in pertinent part:

Upon all roadways of sufficient width, a vehicle shall be driven 

upon the right half of the roadway except as follows:

(3) Upon a roadway divided into three marked lanes for traffic 

under the rules applicable to a roadway divided into three 

marked lanes.
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I.C. § 9-21-8-2(a)(3) (emphasis added). He argues that because Lower 

Huntington Road is a three-lane roadway, “the driver of the Magnum was not 

required by statute to drive upon the right half of the roadway,” and, in any 

event, “there was no evidence presented . . . that the vehicle crossed over into 

the opposite lane of travel.” Appellant’s Brief at 20. Consequently, he argues the 

stop was invalid, and the firearm should not have been admitted at trial. We 

disagree.1

[16] Burrage’s exclusive focus on the “crossed the center line” evidence is too 

narrow. That is, while there was testimony that Detective Sergeant Brooks had 

radioed that the vehicle was “left of center” or “crossed the center line” – which 

Burrage claims is impossible given that it is a three-lane road – Detective 

Sergeant Brooks gave additional and more explanatory testimony that he 

observed the vehicle “cross the yellow line, the solid yellow line towards the 

center four different times in about a half a mile” and described that it had 

driven “into the turn lane four times.” Transcript Vol. 1 at 115, 117. He also

stated that the driver never signaled a lane change. This evidence indicates that 

 

1 Before proceeding with our analysis of the validity of the traffic stop, we note that, at the trial court level, 

the State argued that Burrage lacked standing to challenge the constitutionality of the search under both the 

4

th Amendment, because he had no reasonable expectation of privacy in the vehicle in which he was a 

passenger, as well as under Article 1 Section 11 of the Indiana Constitution, because Burrage had disclaimed 

any interest in the handgun. In denying Burrage’s motion to suppress, the trial court agreed and based its 

decision, in part, on the determination that Burrage “had no standing to object to a search.” Appellant’s 

Appendix Vol. II at 71. Although we, like the trial court, have concerns about Burrage’s standing to challenge 

the search, we do not address it in our decision because the State on appeal does not raise any issue or 

argument concerning standing. See Bradley v. State, 4 N.E.3d 831, 838 (Ind. Ct. App. 2014) (in resolving a 

claim of unlawful search and seizure, an appellate court should not sua sponte invoke lack of standing), trans. 

denied. 
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the vehicle moved or veered into the center turning lane, which was marked 

with turning arrows, although the driver did not signal a lane change or turn. 

Additionally, Detective Sergeant Brooks testified that, in his training and 

experience, this type of improper lane use “could mean that the driver was 

impaired or distracted, which are both reasons to cause traffic accidents.” Id. at 

115. Given these facts, we find that the officers had reasonable suspicion to 

initiate a stop of the Dodge Magnum. See Pridemore v. State, 71 N.E.3d 70, 74-

75 (Ind. Ct. App. 2017) (finding reasonable suspicion existed to stop a vehicle 

that had crossed into median area located between opposite lanes of travel, 

although officer testified to witnessing vehicle “cross left of center”).

[17] Furthermore, as the State points out, Burrage’s argument that the driver did not 

violate I.C. § 9-21-8-2(a) because the vehicle did not leave “the right half of the 

roadway” ignores another statute, I.C. § 9-21-8-11, which provides rules for 

roadways divided into three or more lanes. It states:

Whenever a roadway has been divided into three (3) or more 

clearly marked lanes for traffic, the following rules apply:

(1) A vehicle shall be driven as nearly as practicable entirely 

within a single lane and may not be moved from the lane until 

the person who drives the vehicle has first ascertained that the 

movement can be made with safety. 

(2) Upon a roadway that is divided into three (3) lanes, a vehicle 

may not be driven in the center lane except under any of the 

following conditions: 
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(A) When overtaking and passing another vehicle where 

the roadway is clearly visible and the center lane is clear of 

traffic within a safe distance. 

(B) In preparation for a left turn. 

(C) Where the center lane is at the time allocated 

exclusively to traffic moving in the direction the vehicle is 

proceeding and is signposted to give notice of the 

allocation.

I.C. § 9-21-8-11.2

[18] Here, Detective Sergeant Brooks observed the Dodge Magnum “cross the 

yellow line, the solid yellow line towards the center four different times in about 

a half a mile” on Lower Huntington Road and not display a turn signal. 

Transcript Vol. 1 at 115. This indicates that, in a short distance, the vehicle 

repeatedly left its lane of travel and moved “towards the center,” which was a 

turning lane, but the vehicle neither slowed to a stop nor signaled a turn or lane 

change. The driver thus failed to comply with I.C. § 9-21-8-11. Burrage argues 

on appeal that because the radio call and written report referred to the vehicle 

as having crossed the center line, the State on appeal was offering “new and 

different reasons” to “legitimize the stop,” namely I.C. § 9-21-8-11, which he 

claims should be rejected as contrary to the evidence. Reply Brief at 5, 7. It was 

 

2

I.C. § 9-21-8-11 was amended effective July 1, 2018, but we refer to the statute in effect at the time Burrage 

was charged in 2017.
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not a “new and different” reason nor contrary to the evidence, however, as 

Detective Long explained at the motion to suppress hearing that what occurred 

was not only crossing a center line; it was also considered “not maintaining a 

lane.” Motion to Suppress Transcript at 24. For the reasons stated, the officers 

had reasonable suspicion to initiate the traffic stop of the Dodge Magnum, and 

the trial court did not abuse its discretion when it admitted the firearm into 

evidence at trial.

3

II. Sufficiency of the Evidence

[19] Burrage argues that the evidence was insufficient to support his conviction for 

unlawful possession of a firearm by a serious violent felon. 4 In reviewing 

sufficiency of the evidence claims, this court does not reweigh the evidence or 

assess the credibility of witnesses. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. 

App. 2004). We consider only the evidence most favorable to the verdict, 

together with all reasonable and logical inferences to be drawn therefrom. Id. 

We will affirm the conviction “if there is substantial evidence of probative value 

to support the conclusion of the trier-of-fact.” Id. The evidence need not 

 

3 The State also asserts that, even if the officers’ stop for a violation of traffic laws was unsound, other reasons 

justified that stop, including: (1) “the officers had reasonable suspicion justifying an identity check of the 

occupants to confirm that Burrage was in the vehicle”; (2) “the seizure [of the handgun] was attenuated from 

the stop”; and (3) discovery of the gun was a result of Burrage’s own conduct, namely placing it on the seat, 

which left it in plain view. Appellee’s Brief at 14, 16, 19. Because we find that the stop was justified for traffic 

violations, we do not reach the State’s arguments.

4 Burrage concedes that “[i]f this [c]ourt finds that the traffic stop was justified, . . . his actions do constitute 

the offense of Resisting Law Enforcement.” Appellant’s Brief at 21. Having found that the stop was valid, we 

confine our sufficiency analysis to the unlawful possession of a firearm by a serious violent felon conviction. 
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overcome every reasonable hypothesis of innocence. Sallee v. State, 51 N.E.3d 

130, 133 (Ind. 2016).

[20] To convict Burrage of Level 4 felony unlawful possession of a firearm by a 

serious violent felon, the State was required to prove that (1) Burrage was a 

serious violent felon as defined in Indiana and (2) he knowingly or intentionally 

possessed a firearm. See Ind. Code § 35-47-4-5. Burrage stipulated at trial that 

he was a serious violent felon under Indiana law. Thus, on appeal, Burrage’s 

claim “deals solely with the sufficiency of the evidence as it relates to Burrage 

being in possession of the firearm,” which was found on the rear bench seat, 

near where he had been seated before he exited the car. Appellant’s Brief at 22. 

[21] Here, at trial, I.C.C. testified that, as the vehicle was being stopped by police,

Burrage “said he had a gun” and pulled the handgun out of his pants, from 

“inside the belt.” Transcript Vol. 1 at 173-74. I.C.C. further testified that 

Burrage “tried to hand it to me,” at which time I.C.C. “stopped looking” and

did not see Burrage set the handgun on the seat, but saw it there after Burrage 

had exited the car. After Burrage opened the door and fled, Green heard I.C.C.

yell, “There’s a gun back here.” Id. at 161. Green testified that the gun did not 

belong to her or to I.C.C., and Wheeler, who owned but did not drive the car, 

testified that it was not his. 

[22] Burrage concedes that I.C.C.’s testimony was direct evidence “that [he] actually 

possessed the firearm” and that I.C.C.’s testimony was supported by Green’s 

testimony. Appellant’s Brief at 24. But he nevertheless contends that the State 
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failed to prove he knowingly or intentionally possessed a firearm because (1) the 

State was unable to provide evidence that Burrage was armed when he came 

out of the Hickory Creek Apartments; (2) there was no testimony that Burrage 

made furtive gestures as the vehicle was being stopped; (3) three other 

individuals remained in the automobile during the time Officer Long chased

Burrage on foot, and “[t]his period was long enough for any of the three to 

place the firearm on the backseat of the vehicle”; and (4) there were no 

fingerprints linking Burrage to the firearm. Id. We find that Burrage’s 

arguments in this regard are challenges to I.C.C.’s eyewitness testimony to 

seeing Burrage with the gun in the back seat right before he opened the door 

and ran. On appeal, we cannot reweigh evidence or judge witness credibility. 

Causey, 808 N.E.2d at 143. I.C.C.’s testimony was sufficient to show that 

Burrage possessed the handgun and left it in the car when he fled. Accordingly, 

the State presented sufficient evidence to convict Burrage of Level 4 felony 

unlawful possession of a handgun by a serious violent felon. 

[23] Judgment affirmed.

Brown, J. and Tavitas, J., concur.