MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Mar 07 2019, 9:34 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                       Curtis T. Hill, Jr.
Montgomery Law Office                                    Attorney General of Indiana
Lafayette, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachary Sondgeroth,                                      March 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1932
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1712-F3-33



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019                  Page 1 of 7
                                          Case Summary
[1]   In November of 2017, Zachary Sondgeroth and juveniles G.L. and W.D. (“the

      Juveniles”) robbed Anthony Cutillo at gunpoint. Upon being detained by police

      officers in a parking lot, Sondgeroth was identified by Cutillo as one of the

      individuals who robbed him. The State charged Sondgeroth with, inter alia,

      Level 3 felony armed robbery, Level 3 felony conspiracy to commit armed

      robbery, Class A misdemeanor carrying a handgun without a license, and Class

      A misdemeanor theft. A jury found Sondgeroth guilty as charged, and he

      received an aggregate sentence of twenty years of incarceration. Sondgeroth

      contends that the trial court erroneously allowed the show-up identification

      evidence and prior bad act evidence to be admitted at trial. Because we

      disagree, we affirm.



                            Facts and Procedural History
[2]   On November 29, 2017, at approximately 7:45 p.m., Cutillo was walking

      toward a Meijer gas station when Sondgeroth pulled his vehicle over near

      Cutillo and began conversing with him. Shortly thereafter, the Juveniles

      approached Cutillo and held him at gunpoint. Upon taking Cutillo’s

      possessions, the Juveniles entered Sondgeroth’s vehicle and Sondgeroth drove

      away. Benjamin Grant witnessed the robbery, followed Sondgeroth’s vehicle,

      and called police to inform them that the vehicle had parked at a nearby church.

      Police arrived at the church and removed Sondgeroth and the Juveniles from

      the vehicle. Inside the vehicle, police discovered a handgun underneath the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019   Page 2 of 7
      driver’s seat and various items which were later confirmed to be Cutillo’s. At

      approximately 8:22 p.m., an officer drove Cutillo to the church parking lot for

      Cutillo to attempt to identify the individuals who had robbed him. Cutillo was

      informed by officers that they had detained three potential suspects. Cutillo

      identified Sondgeroth and the Juveniles as the three individuals who had

      robbed him, stating confidently that he was “a hundred percent certain.” Tr.

      Vol. II p. 234.


[3]   On December 6, 2017, the State charged Sondgeroth with Level 3 felony armed

      robbery, Level 3 felony conspiracy to commit armed robbery, Class A

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

      theft.1 Sondgeroth moved to suppress the show-up identification and any

      subsequent in-court identifications, which motion was denied. A jury trial was

      held on May 8, 2018, through May 9, 2018, and Sondgeroth was found guilty

      as charged. The trial court sentenced Sondgeroth to an aggregate sentence of

      twenty years of incarceration.



                                  Discussion and Decision




      1
        The State also charged Sondgeroth with Level 4 felony unlawful possession of a firearm by a serious violent
      felon, Level 5 felony carrying a handgun without a license, and Level 6 felony theft. Sondgeroth proceeded to
      a bench trial on those charges and was convicted; however, he does not appeal those convictions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019                     Page 3 of 7
                                   I. Show-up Identification
[4]   Sondgeroth contends that the trial court erroneously allowed the show-up

      identification evidence to be admitted at trial. Specifically, Sondgeroth contends

      that the show-up identification procedure was unduly suggestive. We review a

      trial court’s decision to admit or exclude evidence for an abuse of discretion.

      Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct. App. 2013). “An abuse of discretion

      occurs if a trial court’s decision is clearly against the logic and effect of the facts

      and circumstances before the court.” Id.


[5]   When the procedure administered during a pretrial identification is

      impermissibly suggestive, the Fourteenth Amendment’s guarantee of due

      process requires the suppression of such evidence. Rasnick v. State, 2 N.E.3d 17,

      23 (Ind. Ct. App. 2013), trans. denied. Some show-up identification procedures

      “may be so unnecessarily suggestive and so conducive to irreparable mistake as

      to constitute a violation of due process.” Hubbell v. State, 754 N.E.2d 884, 892

      (Ind. 2001). Due process does not require a per se exclusion of pre-trial

      identification evidence involving suggestive or unnecessary procedures but,

      rather, “admission of such evidence if, under the totality of circumstances, the

      identification is reliable.” Id.


              We review challenges to show-up identifications by examining
              the totality of the circumstances surrounding the identification,
              including (1) the opportunity of the witness to view the offender
              at the time of the crime; (2) the witness’s degree of attention
              while observing the offender; (3) the accuracy of the witness’s
              prior description of the offender; (4) the level of certainty
              demonstrated by the witness at the identification; and (5) the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019   Page 4 of 7
              length of time between the crime and the identification.
              Identifications of a freshly apprehended suspect have been held
              to be not unnecessarily suggestive despite the suggestive factors
              unavoidably involved in such confrontations because of the value
              of the witness’s observation of the suspect while the image of the
              offender is fresh in his mind.


      Rasnick, 2 N.E.3d at 23 (internal citations and quotations omitted).


[6]   We conclude that the show-up identification procedure in the current matter

      was not impermissibly suggestive. Cutillo had ample opportunity to view

      Sondgeroth when Sondgeroth engaged him in conversation just before the

      robbery. The two stood approximately ten to fifteen feet apart as Sondgeroth

      asked Cutillo for directions and questioned why Cutillo was carrying a

      clipboard. Prior to the show-up identification, Cutillo was able to describe

      Sondgeroth to police as a white male, wearing a black t-shirt, and older in age

      than the two other males, which was an accurate description upon

      identification. Cutillo was “a hundred percent certain” Sondgeroth was one of

      the three individuals who had robbed him, and only approximately thirty-seven

      minutes had passed since the robbery. While Sondgeroth is correct in noting

      that an officer told Cutillo that there were three potential suspects, six or seven

      police officers were present during the identification, and all three individuals

      were handcuffed, these facts do not make the identification procedure

      impermissibly suggestive. Rather, they are merely consistent with the scene of

      an alleged armed robbery and actions taken to maintain officer and public




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019   Page 5 of 7
      safety. Given the totality of the circumstances, Sondgeroth has failed to

      establish that the trial court abused its discretion.


                                             II. Prior Bad Act
[7]   Sondgeroth contends that the trial court abused its discretion by allowing

      evidence of a prior bad act. Specifically, Sondgeroth contends that the trial

      court erroneously allowed the State to introduce evidence regarding Sondgeroth

      allegedly stealing two cartons of cigarettes from a gas station prior to

      committing the offenses in the current matter to establish motive at trial.2 We

      need not address Sondgeroth’s contention on the merits as any error that may

      have occurred could only be considered harmless.


               An error is harmless when it results in no prejudice to the
               substantial rights of a party. While there are important contextual
               variations to this rule, the basic premise holds that a conviction
               may stand when the error had no bearing on the outcome of the
               case. At its core, the harmless-error rule is a practical one,
               embodying the principle that courts should exercise judgment in
               preference to the automatic reversal for error and ignore errors
               that do not affect the essential fairness of the trial.


      Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal citations, quotations,

      and footnotes omitted).




      2
       One of the Juveniles, W.D., testified that after stealing the cigarettes, Sondgeroth challenged the Juveniles
      to commit something better than his theft, which led to the robbery of Cutillo.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019                        Page 6 of 7
[8]   In the current matter, prior bad act aside, the evidence of Sondgeroth’s guilt

      was overwhelming. First, Grant witnessed Sondgeroth and the Juveniles rob

      Cutillo, followed Sondgeroth’s vehicle into the church parking lot, and reported

      the crime to police, keeping vigil until police arrived on the scene. Moreover,

      Cutillo identified Sondgeroth as one of the three individuals who had robbed

      him not only on the night of the crime but in court as well. Finally, the gun

      used in the robbery and the items taken from Cutillo during the robbery were

      recovered by police in Sondgeroth’s vehicle within a short period of time

      following the robbery. Therefore, Sondgeroth cannot show that the admission

      of evidence of his prior alleged theft prejudiced his substantial rights.


[9]   The judgment of the trial court is affirmed.


      Bailey, J, and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1932 | March 7, 2019   Page 7 of 7
