MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be
                                                                                     Aug 20 2020, 8:38 am
regarded as precedent or cited before any
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
John M. Haecker                                          Curtis T. Hill, Jr.
Squiller & Hamilton, LLP                                 Attorney General of Indiana
Auburn, Indiana                                          Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob M. Nodine,                                         August 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-290
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Kevin P. Wallace,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         17D01-1910-F6-381



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020         Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jacob Nodine (Nodine), appeals his conviction for theft,

      a Level 6 felony, Ind. Code § 35-43-4-2(a).


[2]   We affirm.


                                                   ISSUES
[3]   Nodine raises two issues on appeal, which we restate as the following:


          (1) Whether the trial court abused its discretion by admitting certain

              evidence; and


          (2) Whether the State presented sufficient evidence beyond a reasonable

              doubt to convict Nodine of theft.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 5, 2019, Kenneth Jenkins (Jenkins) arrived at approximately

      9:45 p.m. at the Wal-Mart in Auburn, Indiana, to work his shift that began at

      10:00 p.m. and lasted until 7:00 a.m. the following morning. Because he was

      running late, he accidently left his car keys in his 1998 Pontiac Grand Prix.


[5]   At 12:08 a.m. on September 6, 2019, about a quarter of a mile from the Wal-

      Mart at which Jenkins worked, Officer Justin Nawrocki (Officer Nawrocki) of

      the Auburn Police Department conducted a traffic stop of a silver Dodge

      Durango which had a broken headlight. The person in the passenger seat

      identified himself as Nodine. Shortly after that traffic stop, the Wal-Mart


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 2 of 10
      surveillance cameras captured the same silver Dodge Durango coming from

      “the general area” where Officer Nawrocki had made the traffic stop and enter

      the Wal-Mart’s parking lot. (Transcript Vol. II, p. 121). The surveillance video

      further showed one of the occupants exit the silver Dodge Durango, enter

      Jenkins’ Pontiac Grand Prix and drive away with the vehicle. At the end of his

      shift the following morning, Jenkins walked to the parking lot, but his vehicle

      was gone. Jenkins reported the incident to the police.


[6]   On September 10, 2019, Allen Tink (Tink) was at his car repair shop when two

      men walked into his shop. One of the men, who identified himself as “Jake,”

      stated that his car had broken down and he wanted to know whether he could

      park it on Tink’s property. (Tr. Vol. II, p. 91). When Tink checked, there were

      two cars on the side of the road: a Pontiac Grand Prix and a Dodge Durango.

      Tink agreed and told the men to leave the keys inside the vehicle. The two men

      thereafter pushed the Pontiac Grand Prix into Tink’s driveway.


[7]   During their investigation, the police discovered that the Dodge Durango was

      registered to a car dealership in Ohio. After the police contacted the dealership,

      the dealership supplied information which directed the officers to Nodine’s

      address. Also, as part of their investigation, the police began checking areas in

      the county where officers had “been recovering stolen vehicles through a rash of

      car thefts.” (Tr. Vol. II, p. 175). On September 12, 2019, when the police

      visited Tink’s car repair shop, they found Jenkins’ Pontiac Grand Prix.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 3 of 10
[8]    When the police spoke to Tink, he reported that “a kid by the name of Jake

       stated that [his] car had broke[n] down outside [and] asked if he could leave the

       vehicle there.” (Tr. Vol. II, p. 177). Tink indicated that although he did not

       know Jake’s last name, he had “seen him around town a few times.” (Tr. Vol.

       II, p. 177).


[9]    The day after Jenkins’ vehicle was recovered, Detective Mark Heffelfinger

       (Detective Heffelfinger) processed the vehicle and he found a cigarette butt, a

       cup, and a straw. DNA analysis showed that Nodine contributed to the DNA

       sample found on the straw. Detective Heffelfinger later visited Tink’s shop and

       he showed Tink a photograph of Nodine to determine if Nodine was the person

       Tink knew as Jake. Tink confirmed that Nodine was Jake and that it was

       Nodine, who, with the help of another male, pushed Jenkins’ vehicle into his

       shop’s driveway.


[10]   On October 4, 2019, the State filed an Information, charging Nodine with two

       Counts of theft, Level 6 felonies, one Count of criminal mischief, a Class A

       misdemeanor, and one Count of driving while suspended, a Class A

       misdemeanor. Prior to his jury trial, the State dismissed all the charges but for

       the one theft charge relating to Jenkins’ vehicle. At trial, Nodine moved to

       suppress Tink’s prior identification of him based on the photograph supplied by

       Detective Heffelfinger, but his motion was denied. During Tink’s testimony

       and outside the presence of the jury, Nodine made an offer of proof about

       Tink’s prior identification of him from the one photograph supplied by

       Detective Heffelfinger. When Tink was questioned as to whether he

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 4 of 10
       remembered identifying Nodine from the photograph, Tink stated that he could

       not remember ever seeing the photograph. Later in the trial, Detective

       Heffelfinger testified, over Nodine’s objection, that Tink had identified Nodine

       from the photograph he had supplied as the man who identified himself as Jake

       and as the same man who had pushed Jenkins’ vehicle into Tink’s shop. At the

       close of the evidence, the jury found Nodine guilty as charged. On January 16,

       2020, the trial court conducted a sentencing hearing and sentenced Nodine to

       an executed two-year sentence in the Indiana Department of Correction.


[11]   Nodine now appeals. Additional information will be provided as necessary.


                               DISCUSSION AND DECISION
                                        I. Admission of the Evidence

[12]   When ruling on the admissibility of evidence, the trial court is afforded broad

       discretion, and we will only reverse the ruling upon a showing of abuse of

       discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse

       of discretion involves a decision that is clearly against the logic and effect of the

       facts and circumstances before the court. Id. We consider the evidence most

       favorable to the trial court’s ruling and any uncontradicted evidence to the

       contrary to determine whether there is sufficient evidence to support the ruling.

       Id.


[13]   Nodine argues that Detective Heffelfinger’s procedure of identifying him from a

       single photograph was unduly suggestive. Nodine claims that the

       circumstances around the identification procedure indicate that it likely

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 5 of 10
       produced a mistaken identification, and Detective Heffelfinger’s testimony that

       Tink identified Nodine as Jake from a single photograph should not have been

       admitted into evidence.


[14]   “The Due Process Clause of the Fourteenth Amendment requires suppression

       of testimony concerning a pre-trial identification when the procedure employed

       is impermissibly suggestive.” Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001).

       A pre-trial identification may occur in a manner so suggestive and conducive to

       mistaken identification that permitting a witness to identify a defendant at trial

       would violate due process. Id. A pre-trial photographic identification is

       impermissibly suggestive “if it raises a substantial likelihood of misidentification

       given the totality of the circumstances.” Id. An argument that an identification

       is unduly suggestive is weakened when the witness is not identifying an

       unknown defendant but is instead used “simply to confirm that the [suspect that

       the witness] identified was the same person as the defendant.” Neukam v. State,

       934 N.E.2d 198, 201 (Ind. Ct. App. 2010).


[15]   In Neukam, Neukam fathered a child with his ex-girlfriend Jamie Dolan

       (Dolan), but Dolan had started dating Carlos Aquino (Aquino). Id. at 199.

       Sometime thereafter, Neukam sent Aquino a text message telling him not to

       talk to Dolan. Id. In response, Aquino telephoned Neukam, who told Aquino

       to watch his back. Id. One day, Neukam went to Dolan’s house and began

       hitting Aquino’s car with a flashlight. Id. Aquino was able to drive away to

       work but was followed by Neukam. Id. When Aquino eventually parked and

       exited his vehicle, Neukam began battering Aquino with the flashlight,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 6 of 10
       rendering him unconscious. Id. At the hospital, an officer interviewed Aquino,

       and Aquino gave the officer Neukam’s name as his attacker. Id. Later, Aquino

       went to the police station where he was shown a single photograph, a BMV

       photograph of Neukam, and Aquino identified the person in the photo as

       Neukam. Id. The State charged Neukam with battery and criminal mischief.

       Id. Neukam subsequently filed a motion to suppress Aquino’s pre-trial

       identification of him arguing that the identification process was unduly

       suggestive because the police only showed Aquino one photo of him that had

       his name. Id. The trial court denied his motion, and at the conclusion of his

       jury trial, Neukam was found guilty as charged. Id. On appeal, Neukam

       argued that the trial court committed reversible error by overruling his motion

       to suppress Aquino’s pre-trial identification. Id. We disagreed and found that

       the identification procedure where Aquino confirmed to the police that

       Neukam was the same person from the BMV photograph, was not

       impermissibly suggestive. Id. at 201. A key part of that holding was that

       although the police showed Aquino a single photograph of Neukam, it was not

       so that Aquino could identify an unknown assailant, but simply to confirm that

       Neukam was the same person as the defendant. Id.


[16]   The State argues that we should reach a similar result as our holding in Neukam.

       Turning to the facts of this case, when the police spoke with Tink, Tink

       reported that a kid named Jake had told him that his car had broken down

       outside his shop, and asked Tink to store the vehicle at his shop. Tink

       additionally stated that although he did not know Jake’s last name, “he’d seen

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 7 of 10
       him around town a few times.” (Tr. Vol. II, p. 177). Like the holding in

       Neukam, Nodine was not stranger to Tink. Tink had met Nodine/Jake or at

       least seen him in person before Nodine/Jake brought him the stolen vehicle.

       As in Neukam, Tink already knew the suspect and he simply confirmed that the

       perpetrator he knew matched the picture shown to him by Detective

       Heffelfinger. Thus, like in Neukam, we hold that Detective Heffelfinger’s

       procedure of having Tink confirm that the person who introduced himself as

       Jake was Nodine, was not unduly suggestive. Accordingly, we hold that the

       trial court did not abuse its discretion in admitting the pretrial identification of

       Nodine.


                                       II. Sufficiency of the Evidence

[17]   When reviewing a claim of insufficient evidence, it is well-established that our

       court does not reweigh evidence or assess the credibility of witnesses. Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,

       and any reasonable inferences that may be drawn therefrom, in a light most

       favorable to the verdict. Id. We will uphold the conviction “‘if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

       (Ind. 2004)). Circumstantial evidence alone is sufficient to support a

       conviction. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). Circumstantial

       evidence need not overcome every reasonable hypothesis of innocence. Clemons

       v. State, 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). Reversal is appropriate only

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 8 of 10
       when reasonable persons would not be able to form inferences as to each

       material element of the offense. Id.


[18]   Pursuant to Indiana Code section 35-43-4-2(a), the State was required to prove

       that Nodine “knowingly or intentionally exert[ed] unauthorized control over

       property of another person, with intent to deprive the other person of any part

       of its value or use[.]” Nodine contends that no evidence was presented that he

       operated Jenkins’ vehicle, thus, he maintains that the State provided no

       evidence that he stole Jenkins’ vehicle.


[19]   The record shows that on the night Jenkins’ vehicle was stolen, Nodine was one

       of the male occupants in the Dodge Durango that Officer Nawrocki stopped

       shortly before the theft. Further, the Wal-Mart surveillance cameras showed

       one of the male occupants exit the Dodge Durango, enter Jenkins’ vehicle, and

       drive away with Jenkins’ vehicle. In addition, a few days after Jenkins’ vehicle

       was stolen, two men arrived at Tink’s auto repair shop and one of the men who

       identified himself as Jake, pushed Jenkins’ vehicle into Tink’s auto shop

       driveway. Further, from a photo, Tink confirmed to Detective Heffelfinger that

       Nodine and Jake were one and the same person. Lastly, the DNA evidence

       confirmed that Nodine’s DNA was inside Jenkins’ vehicle. Based on all the

       evidence presented and reasonable inferences, we conclude that the State

       presented sufficient evidence beyond a reasonable doubt that Nodine knowingly

       or intentionally exerted unauthorized control over Jenkins’ vehicle with the

       intent to deprive Jenkins of the value or use of his vehicle.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 9 of 10
                                             CONCLUSION
[20]   Based on the foregoing, we conclude that the pre-trial identification of Nodine

       as the perpetrator was not impermissibly suggestive and the State presented

       sufficient evidence beyond a reasonable doubt to support Nodine’s theft

       conviction.


[21]   Affirmed.


[22]   May, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-290 | August 20, 2020   Page 10 of 10
