                                                       FILED
                                                    Jun 13 2012, 9:11 am
FOR PUBLICATION
                                                            CLERK
                                                          of the supreme court,
                                                          court of appeals and
                                                                 tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON                              GREGORY F. ZOELLER
Brownsburg, Indiana                          Attorney General of Indiana

                                             GARY R. ROM
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

ANTHONY D. GORMAN,                           )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 49A05-1110-CR-556
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant Hawkins, Judge
                    The Honorable Christine Klineman, Commissioner
                           Cause No. 49G05-1010-FB-81814


                                    June 13, 2012

                             OPINION - FOR PUBLICATION

BARNES, Judge
                                      Case Summary

      Anthony Gorman appeals his convictions for two counts of Class B felony robbery

while armed with a deadly weapon. We affirm.

                                          Issues

      The two issues before us are:

             I.     whether there is sufficient evidence to identify Gorman
                    as the perpetrator of the robberies; and

             II.    whether there is sufficient evidence that a deadly
                    weapon was used during the robberies.

                                          Facts

      At about 2:30 a.m. on August 14, 2010, husband and wife Byron and Samantha

Daniels returned to their apartment complex in Indianapolis. They were sitting in their

vehicle smoking a cigarette with the windows down when a man and a woman they did

not know approached and asked for a light. After Byron and Samantha provided a light,

the man and woman walked away. Soon thereafter, the man returned and pointed a

handgun at Byron’s temple through the driver’s side window. He demanded that Byron

and Samantha give them money and jewelry. After Samantha gave the man $5 and

Byron gave him an earring, he ran away.

      The Danielses called police immediately after the robbery, but the police were

unable to locate a suspect at that time. Several weeks after the robbery, Samantha saw a

person—Gorman—sitting on a neighbor’s porch whom she believed to be the robber.

After contacting police, Samantha was presented on October 10, 2010, with a police

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photo array that included Gorman’s picture, and she identified Gorman as the robber.

Police did not find any other evidence connecting Gorman with the robbery, such as the

gun he used or the proceeds from the robbery.

      On October 27, 2010, the State charged Gorman with two counts of Class B felony

robbery while armed with a deadly weapon. At Gorman’s bench trial on September 8,

2011, Samantha identified him as the person who had robbed her and Byron and stated

she was “a hundred percent” certain that Gorman was the robber. Tr. p. 32. Byron was

unable to identify Gorman as the robber because he had been looking straight forward

during most of the incident while the gun was aimed at his head. As for the gun, Byron,

who stated he was familiar with guns, believed it looked like a 9mm semiautomatic.

Samantha, who said she was not familiar with guns, could only describe the gun as

smaller than a typical police officer’s gun. The trial court found Gorman guilty as

charged and sentenced him accordingly. Gorman now appeals.

                                        Analysis

      Both of Gorman’s arguments raise challenges to the sufficiency of the evidence

supporting his convictions. When reviewing the sufficiency of the evidence to support a

conviction, we do not reweigh the evidence or judge the credibility of the witnesses, and

respect the fact-finder’s exclusive province to weigh conflicting evidence. Jackson v.

State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative evidence and

reasonable inferences therefrom that support the conviction. Id. We will affirm if the



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probative evidence and reasonable inferences from that evidence could have allowed a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

                                      I. Identification Evidence

          Gorman asserts that there is insufficient evidence to support Samantha’s

identification of him as the person who robbed her and Byron. He argues that in a case

involving a sole eyewitness’s identification of a stranger as the perpetrator of a crime,

there should be some evidence corroborating the identification in order for there to be

sufficient evidence to support a conviction.1                As Gorman acknowledges, there is

longstanding precedent from our supreme court holding that where a defendant’s

conviction is based upon his or her identification as the perpetrator by a sole eyewitness,

such identification is sufficient to sustain a conviction if the identification was

unequivocal. Richardson v. State, 270 Ind. 566, 569, 388 N.E.2d 488, 491 (1979). See

also Scott v. State, 871 N.E.2d 341, 344-45 (Ind. Ct. App. 2007) (collecting and

analyzing cases from our supreme court and holding that if identification evidence by a

sole eyewitnesses is equivocal, the identification must be corroborated by circumstantial

evidence), trans. denied. Here, Samantha’s in-court identification of Gorman as the

robber was unequivocal, in that she stated that she was “a hundred percent” certain of the

identification. Tr. p. 32. Under established precedent of our supreme court, this alone

was sufficient to support Gorman’s convictions. We cannot reconsider or declare invalid

that precedent. See Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).

1
    Gorman does not argue for such a rule where the eyewitness knows the identified person.
                                                     4
       Although we cannot overrule Richardson, it would not be inappropriate for us to

question its validity or to suggest to our supreme court that the rule therein be

reconsidered. See id. at 694-95. Gorman argues that basing his conviction solely upon

the basis of one eyewitness’s uncorroborated testimony violates his rights to due process,

to a fair trial, and to due course of law under the United States and Indiana Constitutions.

As we recently acknowledged, this court is “very cognizant of the close scrutiny

eyewitness identification in criminal cases has received in recent years . . . .” Woodson

v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012), trans. denied. Gorman directs us to

a number of cases and studies that have examined reliability issues that may arise with

eyewitness identifications.   There are also, we cannot deny, a number of reported

instances of persons having been falsely convicted on the basis of inaccurate eyewitness

identifications.   See, e.g., Sandra Guerra Thompson, Beyond a Reasonable Doubt?

Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L.

Rev. 1487, 1490 (2008).

       The New Jersey Supreme Court recently undertook a very thorough examination

of the current state of scientific research regarding eyewitness identifications and listed a

number of factors that may affect the reliability of an identification.        See State v.

Henderson, 27 A.3d 872 (N.J. 2011). First, high levels of stress tend to diminish a

witness’s ability to make an accurate identification. Id. at 904. Second, the use of a

visible weapon during a crime can distract a witness from the perpetrator and reduce the

reliability of an identification. Id. at 904-05. Third, the duration of a criminal event,

                                             5
which witnesses tend to overestimate, may affect reliability. Id. at 905. Fourth, as

common sense would indicate, the greater the distance and the poorer the lighting

conditions, the less reliable an identification tends to be. Id. at 906. Fifth, characteristics

of the witness may impact reliability, with either very young or older witnesses and, of

course, witnesses under the influence of drugs or alcohol, tending to be less accurate. Id.

Sixth, changes in facial features between the time of initial observation and a subsequent

identification will reduce reliability, as may (unsurprisingly) the use of a disguise by the

perpetrator. Id. at 907. Seventh, because of “memory decay,” the greater the period of

time between observation and identification to law enforcement, the greater the chance of

identification error, although the amount of time needed to pass before a person’s recall

becomes unreliable is not scientifically established.            Id.     Eighth, cross-racial

identifications tend to be less accurate. Id. Ninth, influence or feedback from co-

witnesses about identification of a perpetrator can affect reliability.        Id. at 908-09.

Finally, as this court observed in Scott, there are studies finding that there is no

correlation between a witness’s stated confidence in his or her identification of a

defendant and the actual accuracy of that identification. Scott, 871 N.E.2d at 345 n.7.

       Gorman argues that a number of the factors identified in Henderson weigh against

the reliability of Samantha’s identification of him as the robber, including a highly

stressful event, the presence of a gun, poor lighting conditions, an allegedly short

duration for the event, and the passage of time between the event and her initial

identification of Gorman. He also argues that no weight should be given to Samantha’s

                                              6
stated “a hundred percent” certainty that he was the robber, given the studies identified in

footnote seven of Scott. Tr. p. 32. On the other hand, there are several factors identified

in Henderson that were not present here, including the close proximity between Samantha

and the robber, the fact that this was not a cross-racial identification, that she apparently

is of an age group whose identifications tend to be more reliable, there is no evidence the

robber used a disguise, and there is no evidence of co-witness influence on her

identification, as Byron never identified Gorman as the robber. We also note that, as

stated in Henderson, a factor such as poor lighting conditions is a matter of common

knowledge; also, factors such as the duration of the event and the passage of time

between the event and identification are not readily quantifiable in terms of how they

impact identifications.

       In sum, we have just described a process of weighing evidence and judging

witness credibility, in which appellate courts should not engage. We believe it would be

unwise to alter the rule stated in Richardson to provide appellate courts essentially with

the ability to second-guess a fact-finder’s assessment of an eyewitness’s testimony, or to

require proof in addition to such testimony, in contravention of well-established legal

principles. We find support for this position in a recent decision from the United States

Supreme Court, Perry v. New Hampshire, -- U.S. --, 132 S. Ct. 716 (2012).

       In Perry, the Court was asked to hold that the Due Process Clause required “trial

judges to prescreen eyewitness evidence for reliability any time an identification is made

under suggestive circumstances,” regardless of whether law enforcement arranged the

                                             7
suggestive circumstances. Perry, -- U.S. at --, 132 S. Ct. at 725. The Court rejected this

argument in an 8-1 decision, holding that no such prescreening was required where law

enforcement did nothing to arrange any suggestive circumstances regarding the

identification. Id., 132 S. Ct. at 730. In reaching this holding, the Court did “not doubt

either the importance or the fallibility of eyewitness identifications.” Id., 132 S. Ct. at

728. It stated, however, “the potential unreliability of a type of evidence does not alone

render its introduction at the defendant’s trial fundamentally unfair.” Id., 132 S. Ct. at

728. It further recognized that a fact-finder, not a court (unless of course, as here, it is the

fact-finder), “traditionally determines the reliability of evidence.” Id., 132 S. Ct. at 728.

It then listed a number of procedural safeguards against fact-finders placing undue weight

on potentially unreliable eyewitness testimony, including the Sixth Amendment right to

confront and cross-examine eyewitnesses, the right to the effective assistance of counsel

and to present opening and closing argument regarding eyewitness credibility, and the

right to conviction only upon proof beyond a reasonable doubt. Id., 132 S. Ct. at 728-29.

It also noted the possibility of giving jury instructions that list factors to consider in

weighing eyewitness testimony, of trial judges excluding evidence whose probative value

is substantially outweighed by the danger of unfair prejudice, and that “[i]n appropriate

cases, some States also permit defendants to present expert testimony on the hazards of

eyewitness identification evidence.” Id., 132 S. Ct. at 728-29.

       Here, trial counsel did extensively cross-examine Samantha regarding her

identification and argued to the trial court regarding the reliability of her identification.

                                               8
We also presume the trial court as fact-finder was well aware that Gorman could be

convicted only upon proof beyond a reasonable doubt.2 All of Gorman’s constitutional

rights to challenge the evidence against him were adequately preserved. The reliability of

particular evidence must be gauged by the fact-finder, not this court. Any potential errors

in eyewitness identification must be resolved during trial, not on appeal.

        We further observe, “[d]ue process does not require that every conceivable step be

taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”

Patterson v. New York, 432 U.S. 197, 208, 97 S. Ct. 2319, 2326 (1977). There would be

potentially substantial criminal justice costs if a sole eyewitness’s identification of a

defendant were not enough to sustain a conviction. Often times, despite the efforts of law

enforcement, there simply is no other evidence to be found. We decline to recommend to

our supreme court that it alter the rule stated in Richardson that a sole eyewitness’s

unequivocal testimony identifying a defendant as the perpetrator of a crime alone is

sufficient to sustain a conviction.

                                         II. Deadly Weapon

        Next, Gorman asserts that even if Samantha accurately identified him, there is

insufficient evidence that he possessed a deadly weapon when he robbed the Danielses.

Robbery is a C felony that may be elevated to a B felony, as here, if there is proof that it

was committed while armed with a deadly weapon. Ind. Code § 35-42-5-1. Gorman was


2
 Trial counsel did not elect to obtain an expert to testify regarding eyewitness identifications, although
such testimony is permitted in Indiana under certain circumstances. See Cook v. State, 734 N.E.2d 563,
570 (Ind. 2000).
                                                    9
specifically alleged to have been armed with a gun, which is a statutorily-defined deadly

weapon. See I.C. § 35-41-1-8(a)(1). Gorman notes that the purported gun he used during

the robbery was never recovered and that Samantha and Byron seemed to be inconsistent

in their descriptions of the weapon. Thus, he claims, there is a lack of sufficient evidence

that what he possessed was an actual, functioning firearm or deadly weapon, as opposed

to possibly a toy.

       In order to prove that a weapon was used in the commission of a crime, it is not

necessary to introduce the weapon into evidence at trial. Gray v. State, 903 N.E.2d 940,

943 (Ind. 2009). There must, however, be some proof that the defendant was actually

armed with a deadly weapon at the time of the crime. Id. at 943-44. It is not enough if a

victim merely feared that the defendant was armed with a deadly weapon, but no such

weapon was shown or displayed and/or the defendant made no statements that he or she

was armed. Id. at 943-44. However, a victim’s testimony that he or she saw the

defendant use what was believed or “figured” to be a gun is, by itself, sufficient proof of

the use of a deadly weapon. Harvey v. State, 542 N.E.2d 198, 200-01 (Ind. 1989).3

       Here, Byron testified that he was familiar with firearms and that the robber

possessed what looked like a 9mm semiautomatic handgun.                      Gorman argues that

Samantha’s description of the weapon was inconsistent with Byron’s description of it.

She also testified that she was not very familiar with firearms, unlike Byron; in any event,


3
 We note that although Gray clarified the law regarding the quantum of proof necessary to establish
possession of a deadly weapon by a defendant, it cited Harvey with approval and there is no indication
Harvey is not still valid authority. See Gray, 903 N.E.2d at 945.
                                                 10
she also indicated that Gorman possessed a handgun of some type, which is consistent

with Byron’s testimony. It was for the trial court here as fact-finder to consider and

weigh any discrepancies between Samantha’s and Byron’s testimony. That testimony

was, by itself, sufficient to prove that Gorman committed the robberies while armed with

a deadly weapon.

                                      Conclusion

      There is sufficient evidence to support Gorman’s convictions for two counts of

Class B felony robbery. We affirm.

      Affirmed.

BAKER, J., and BROWN, J., concur.




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