MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jan 12 2018, 6:40 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

R.H.,                                                    January 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1707-JV-1542
        v.                                               Appeal from the Marion County
                                                         Superior Court
State of Indiana,                                        The Honorable Marilyn Moores,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Gary Chavers,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1702-JD-318



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018            Page 1 of 9
                                             Case Summary
[1]   R.H. appeals his juvenile delinquency adjudications for what would be Level 3

      felony armed robbery, Level 6 felony pointing a firearm, Class A misdemeanor

      dangerous possession of a firearm, and Class A misdemeanor resisting law

      enforcement if committed by an adult. We affirm in part and reverse in part.


                                                     Issues
[2]   The issues before us are:


              I.       whether there is sufficient evidence to support R.H.’s
                       delinquency adjudications; and


              II.      whether the adjudications for both armed robbery and
                       pointing a firearm violate double jeopardy principles.


                                                     Facts
[3]   On the evening of February 25, 2017, Porter Tapps drove to his girlfriend’s

      apartment in Indianapolis in his minivan. As Tapps got out of the minivan and

      was walking to the apartment, three young men appeared from behind some

      bushes, pointing guns at him. A young man in a blue hoodie demanded that

      Tapps give him the keys to the minivan. This young man and the second

      young man ran to the minivan while the third, who was wearing a light gray or

      white hoodie, continued pointing a gun at him and told him not to move.

      However, Tapps had not given the other two young men the keys to the

      minivan, and they came back and demanded the correct keys. The young man

      in the gray or white hoodie then told Tapps to give him his money. Tapps

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 2 of 9
      recalled giving him approximately sixty dollars: a fifty-dollar bill, a five-dollar

      bill, and four or five ones. The three individuals then drove away in Tapps’s

      minivan.


[4]   Tapps called 911 and reported the incident. A few hours later, Officer Chad

      Gibson of the Indianapolis Metropolitan Police Department saw Tapps’s

      minivan being driven within two-and-a-half miles of where it had been stolen.

      Before making a stop, Officer Gibson called for backup. Officer Scott Baker,

      who had a K-9 with him, initiated a stop of the minivan, with Officer Gibson

      right behind; both officers had their emergency lights on. When the minivan

      stopped, three young men got out of it and started running. Two of them were

      wearing dark hoodie sweatshirts, and the third was wearing a gray hoodie.

      Officer Baker commanded them to stop, but they continued running. Officer

      Baker then deployed his K-9, who caught one of the men wearing a dark hoodie

      and who was the driver of the minivan. Officer Baker also eventually captured

      both of the other young men. The person in the gray hoodie, who was about a

      block-and-a-half away from the minivan when captured, was R.H. A search

      incident to arrest revealed that he had approximately sixty dollars in cash in his

      possession: a fifty-dollar bill, a five-dollar bill, and several ones. He also had

      several rounds of .380-caliber ammunition in his pocket, but no .380-caliber

      weapon ever was recovered. A nine-millimeter handgun was found in the

      minivan.


[5]   Detective James Hurt prepared suspect photo arrays for Tapps. Tapps picked

      R.H. out of an array as the young man who was wearing a white or gray hoodie

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 3 of 9
      and who had taken his money. R.H. was wearing a gray hoodie in the photo

      array, though the hood was around his shoulders and not over his head. None

      of the other five persons in the array was wearing a hoodie.


[6]   At the time of the offense, R.H. was fifteen years old. The State alleged that

      R.H. was delinquent for committing what would be Level 3 armed robbery,

      Level 6 felony pointing a firearm, Class A misdemeanor dangerous possession

      of a firearm, Class A misdemeanor carrying a handgun without a license, and

      Class A misdemeanor resisting law enforcement if committed by an adult. At

      R.H.’s denial hearing, Tapps identified him as the young man in the gray or

      white hoodie who had demanded and taken his money while pointing a gun at

      him. The trial court adjudicated R.H. as charged, although it “merged” the

      carrying a handgun without a license finding with the dangerous possession of a

      firearm finding. It made R.H. a ward of the Department of Correction until he

      is twenty-one unless sooner released by the Department. R.H. now appeals.


                                                   Analysis
                                      I. Sufficiency of the Evidence

[7]   R.H. claims there is insufficient evidence to sustain his delinquency

      adjudications. When reviewing such a claim, we neither reweigh the evidence

      nor judge witness credibility. T.G. v. State, 3 N.E.3d 19, 23 (Ind. Ct. App.

      2014), trans. denied. We consider only the evidence most favorable to the

      judgment along with any reasonable inferences therefrom in determining

      whether the State proved beyond a reasonable doubt that the juvenile


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      committed the charged offense. Id. We will affirm if there is substantive

      evidence of probative value establishing every material element of the offense.

      Id. The uncorroborated testimony of a single witness may be sufficient to

      sustain a delinquency adjudication. Id.


[8]   R.H.’s overall argument is that there was a failure to adequately identify him as

      Tapps’s robber. He directs us to purported reasons to distrust Tapps’s in-court

      identification of him; these include Tapps’s initial statement to police that the

      hoodie was “coverin’ his face” and that, in the police photo array, R.H. was the

      only one wearing a hoodie. Tr. p. 73. A sole eyewitness’s unequivocal

      identification of a defendant as the perpetrator of a crime is sufficient to sustain

      a conviction. Gorman v. State, 968 N.E.2d 845, 850 (Ind. Ct. App. 2012), trans.

      denied. There are a number of factors a fact-finder may consider when weighing

      the reliability of an eyewitness identification, and potential errors in eyewitness

      identification generally must be resolved during trial, not on appeal. Id.


[9]   We note that, although much of R.H.’s argument pertains to the allegedly

      suggestive photo array prepared by Detective Hurt, R.H. did not move to

      suppress Tapps’s identification of him based on the array being so suggestive

      that it violated his due process rights under the Fourteenth Amendment. See

      Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999). Thus, the question of R.H.’s

      identification is purely one of fact. We cannot second guess the trial court’s

      resolution of that question. Also, Tapps clarified during his trial testimony that

      the hoodie R.H. was wearing did not cover his entire face, but only his hair and

      ears. He further testified that he was able to see R.H.’s face clearly and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 5 of 9
       expressed no equivocation regarding his photo array and in-court identifications

       of R.H.


[10]   Additionally, Tapps’s identification of R.H. was not entirely without

       corroboration. A few hours after the robbery, police initiated a traffic stop of

       Tapps’s stolen minivan. R.H. was one of the persons who fled from the

       minivan and eventually was captured by police. He was found to be carrying

       cash in an amount almost precisely identical to the amount Tapps said had

       been stolen and in the denominations Tapps described. This evidence,

       combined with Tapps’s unequivocal identification of R.H., is sufficient to

       establish that R.H. robbed Tapps.


[11]   R.H. also contends there is insufficient evidence that he was armed with a gun

       when he robbed Tapps. Specifically, he claims there is insufficient evidence to

       connect him with the nine-millimeter handgun found in the minivan and notes

       that no gun was found to match the .380-caliber ammunition found on R.H.

       when he was arrested. However, the State was not required to prove that he

       ever possessed either particular gun.


[12]   In order to prove that a defendant possessed a firearm, there must be evidence

       that the defendant in fact was armed with a deadly weapon, not merely that the

       victim feared the defendant might be armed. Gray v. State, 903 N.E.2d 940, 944

       (Ind. 2009). There is no requirement, however, that the weapon be admitted

       into evidence at trial. Id. at 943. A victim’s clear testimony that he or she saw

       the defendant pointing a gun is sufficient to prove that the defendant was in fact


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 6 of 9
       armed. See id. at 945 (citing Harvey v. State, 542 N.E.2d 198, 200 (Ind. 1989)).

       Here, Tapps was quite clear in his testimony that R.H. was pointing a gun at

       him while his cohorts attempted to steal the minivan the first time and when he

       demanded money from Tapps. This was not a case in which the victim thought

       or “figured” that the defendant had a gun. Cf. id. As to the fact that no gun was

       found on R.H. when he was captured, there certainly is a possibility he was able

       to dispose of it during his attempt to escape the police officers. There is

       sufficient evidence to prove that R.H. possessed a firearm when he robbed

       Tapps.


[13]   Finally, R.H. claims there is insufficient evidence that he resisted law

       enforcement. He argues that because Officer Baker did not testify at his denial

       hearing, and it was Officer Baker who gave the verbal command for him and

       his cohorts to stop, there was insufficient evidence that the command was

       directed to R.H. or that R.H. heard it. We disagree. A person who knowingly

       or intentionally “flees from a law enforcement officer after the officer has, by

       visible or audible means, including operation of the law enforcement officer’s

       siren or emergency lights, identified himself or herself and ordered the person to

       stop” commits Class A misdemeanor resisting law enforcement. Ind. Code §

       35-44.1-3-1(a)(3).


[14]   Although Officer Baker did not testify at trial, Officer Gibson did. He

       explained that both he and Officer Baker pulled up behind the minivan with

       their lights activated. He then stayed in his vehicle at first while Officer Baker

       and his K-9 gave chase to the three persons who exited the minivan and started

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 7 of 9
       running. Officer Gibson heard Officer Baker give the command to stop, but the

       three persons kept running until they eventually were apprehended by Officer

       Baker with the help of his K-9. It is reasonable to infer that, between the two

       police vehicles with flashing lights and Officer Baker’s verbal command to stop,

       R.H. knew full well that he needed to stop but did not do so. There is sufficient

       evidence that R.H. committed resisting law enforcement.


                                              II. Double Jeopardy

[15]   R.H. also contends that his delinquency adjudications for both Level 3 felony

       armed robbery and Level 6 felony pointing a firearm violate double jeopardy

       principles. Indiana’s double jeopardy protections apply to juvenile delinquency

       adjudications. H.M. v. State, 892 N.E.2d 679, 682 (Ind. Ct. App. 2008), trans.

       denied. One of the common law rules against double jeopardy prohibits

       conviction and punishment for a crime that consists of the very same act as an

       element of another crime for which the defendant has been convicted and

       punished. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). The State

       concedes that R.H.’s delinquency adjudications for both armed robbery and

       pointing a firearm violate this rule, as the pointing of the firearm at Tapps was

       how he accomplished the robbery. Thus, we reverse R.H.’s adjudication for

       Level 6 felony pointing a firearm.1




       1
         R.H.’s adjudication for dangerous possession of a firearm under Indiana Code Section 35-47-10-5, generally
       criminalizing possession of firearms by juveniles, does not pose a double jeopardy problem. Carrying a gun
       illegally is one crime and using it is another. Guyton, 771 N.E.2d at 1143 (quoting Mickens v. State, 742
       N.E.2d 927, 931 (Ind. 2001)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018          Page 8 of 9
                                                 Conclusion
[16]   There is sufficient evidence to support R.H.’s delinquency adjudications for

       Level 3 armed robbery, Class A misdemeanor dangerous possession of a

       firearm, and Class A misdemeanor resisting law enforcement. We reverse

       R.H.’s adjudication for Level 6 felony pointing a firearm and direct that it be

       vacated from his records.


[17]   Affirmed in part and reversed in part.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1542 | January 12, 2018   Page 9 of 9
