      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                     FILED
      regarded as precedent or cited before any                                  Jan 13 2020, 5:44 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
      Matthew J. McGovern                                      Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana
                                                               Courtney L. Staton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jefferson Billimon,                                      January 13, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1007
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court
      State of Indiana,                                        The Honorable Michael J. Cox,
      Appellee-Plaintiff.                                      Magistrate
                                                               Trial Court Cause No.
                                                               82C01-1806-F4-4079



      Mathias, Judge.


[1]   Jefferson Billimon (“Billimon”) was convicted in Vanderburgh Circuit Court of

      Level 4 felony unlawful possession of a firearm by a serious violent felon, two


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020                   Page 1 of 9
      counts of Level 5 felony intimidation, and two counts of Level 6 felony pointing

      a firearm. Billimon appeals his convictions and sentence raising two issues,

      which we restate as:


        I. Whether Billimon’s due process rights were violated by the show-up
           identification procedure; and,

       II. Whether remand is necessary to correct the inconsistency between oral
           and written sentencing statements.

      We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History
[2]   On June 9, 2018, at approximately 9:00 p.m., Evan Riehle (“Evan”) and James

      Dixey (“James”’) were walking James’s dog, Tiny. During the walk, Tiny

      urinated on a light pole. As they continued walking, Evan heard someone

      behind him. He turned around and saw Billimon walk toward them from the

      front porch of a house on South Elliott Street.


[3]   Billimon pulled a gun from his waistband and pointed it at Evan and James. He

      cocked the gun and said, “That’s disrespectful.” Tr. Vol. II p. 38; Tr. Vol. III,

      pp. 104, 137. Billimon was upset that Tiny urinated in his yard. Billimon

      continued to point his gun at James and asked James to apologize. James

      apologized to prevent the situation from escalating. Evan and James then

      returned home where they called the police.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 2 of 9
[4]   The encounter with Billimon lasted two to three minutes. Both Evan and James

      gave a description of Billimon to the investigating officers. James stated that

      Billimon had “black or darker skin” and “matty” or “curly” hair. Tr. Vol. II,

      pp. 14–15. James informed the officer that Billimon had an accent and was

      wearing a dark colored shirt. Evan stated that Billimon had “[c]urly hair, dark

      complexion, maybe a Mexican” or black. Tr. Vol. II, p. 43. Evan said Billimon

      was 5’7” or 5’8” and “scrawny.” Id. Evan also noted that Billimon had an

      accent.


[5]   Evansville Police Department officers responded to the 911 call and proceeded

      to the residence on Elliott Street. Billimon’s father, Jasper Billimon, spoke to

      the officers and stated that his son met the description of the man who

      threatened James and Evan with a gun. Billimon exited the home at the

      officers’ request, and he was placed into custody for officer safety. Billimon was

      the only individual that exited the home that matched the description given by

      James and Evan.


[6]   Approximately twenty to thirty minutes after Billimon threatened Evan and

      James, Evansville Police Department Detective Karin Montgomery arrived at

      James’s home. She explained that she would drive him by a residence, and the

      man who threatened him would possibly be outside the residence. The detective

      then drove James to Billimon’s house and parked her vehicle at the end of the

      alley. Two or three men were standing against a police vehicle next to a police

      officer. An assisting officer shined a light on the group to give James a better



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 3 of 9
      view. James remained in the vehicle and identified Billimon as the man who

      threatened him.


[7]   When James returned home, Evan and James were not permitted to speak to

      one another. The detective repeated the procedure with Evan and drove him to

      Billimon’s house. Evan remained in the detective’s vehicle. There were still two

      or three individuals standing against a car in the driveway of Billimon’s house.

      An officer shined a light on the group allowing Evan to see their facial features.

      Evan identified Billimon as the man who pointed a gun at him. He also noted

      that Billimon had changed his clothes.


[8]   After James and Evan identified Billimon, the officers began to search for the

      gun. Detective Michael Beitler searched the perimeter of the home and

      surrounding yard. He found a handgun lying against the fence of the property.

      Based on the handgun’s condition, the detective did not believe that the gun

      had been lying against the fence for any significant length of time. Tr. Vol. 3, p.

      193.


[9]   On June 12, 2018, Billimon was charged with Level 4 felony unlawful

      possession of a firearm by a serious violent felon, two counts of Level 5 felony

      intimidation, and two counts of Level 6 felony pointing a firearm. 1 Prior to trial,




      1
       Billimon was also charged with Level 5 felony carrying a handgun without a license, but this count was
      dismissed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020                Page 4 of 9
       Billimon filed a motion to suppress any evidence of or derived from the “show-

       up” identification. The trial court denied the motion and found:


               [A]lthough such procedure is ordinarily disapproved, the Court
               has considered: the separation of the two complaining witnesses
               when they independently identified the suspect, the relatively
               short period of time between the incident and the identifications,
               the length of time and the opportunity to observe the suspect
               (distance and lighting) when the suspect was in the witnesses’
               presence, the witnesses’ ability to observe and recollect particular
               characteristics of the suspect and their certainty of that
               recollection, and the presence of another individual or
               individuals next to the suspect when he was identified. Although
               law enforcement’s procedure was arguably suggestive, under the
               totality of the circumstances, the Court finds that the
               identifications were sufficiently reliable.


       Appellant’s App. p. 8.


[10]   Jury trial commenced on February 19, 2019. During trial, over Billimon’s

       objection, Evan and James unequivocally identified Billimon as the man who

       threatened him. Tr. Vol. 3, pp. 104, 143, 164.


[11]   Billimon’s sentencing hearing was held on April 2, 2019. The trial court noted

       that Billimon’s criminal history was a significant aggravating factor. In its oral

       sentencing statement, the trial court ordered Billimon to serve eight years in the

       Department of Correction, and the trial court ordered the sentence to be served

       consecutive to a sentence for a conviction in Spokane County, Washington.

       The written sentencing judgment ordered Billimon to serve eight years for each

       conviction regardless of the level of felony. Billimon now appeals.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 5 of 9
                                       Show Up Identification
[12]   Billimon argues the show up identification violated his due process rights. The

       Due Process Clause of the Fourteenth Amendment requires suppression of

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

       impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999). Such

       procedures are known as “show-up identifications.” The admissibility of a

       show-up identification turns on an evaluation of the totality of the

       circumstances and whether the circumstances lead to the conclusion that the

       confrontation was conducted in a manner that could guide a witness into

       making a mistaken identification. Gordon v. State, 981 N.E.2d 1215, 1218 (Ind.

       Ct. App. 2013).


[13]   Our courts consider the following factors in evaluating the admissibility of a

       show-up identification:


               (1) the opportunity of the witness to view the criminal at the time
               of the crime,

               (2) the length of initial observation of the criminal,

               (3) lighting conditions,

               (4) distance between the witness and the criminal,

               (5) the witness’s degree of attention,

               (6) the accuracy of the witness’s prior description of the criminal,

               (7) the level of certainty demonstrated by the witness, and

               (8) any identifications of another person.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 6 of 9
       Id.


[14]   “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 v. State, 2

       N.E.3d 17, 23 (Ind. Ct. App. 2013) (quotations omitted), trans. denied.


[15]   However, Billimon argues that the show-up identification was impermissibly

       suggestive because Evan and James knew that law enforcement had a suspect in

       custody. And during the show-up identification, Billimon was in handcuffs and

       standing next to an officer. Billimon also claims that Evan’s and James’s

       identification of Billimon is unreliable because they could not determine

       whether he was African-American or Mexican. He observes that their

       descriptions of Billimon’s hair were not identical. James stated that Billimon’s

       hair was matted and curly, but Evan stated it was curly like a “big” Afro. Tr.

       Vol. II, pp. 14–15, 43; Tr. Vol. III, pp. 108, 151.


[16]   But Billimon agrees that the altercation took place “while there was still some

       sun light,” approximately fifteen feet “from a light pole which illuminated the

       area.” Appellant’s Br. at 12. Both Evan and James had an unobstructed view of

       Billimon during the altercation which lasted between two and three minutes.

       They were both focused on Billimon while he threatened them with his

       handgun.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 7 of 9
[17]   Only thirty minutes after Billimon threatened them, Evan and James separately

       participated in the show-up identification, and both identified Billimon. Neither

       Evan nor James noticed that Billimon was in handcuffs. And Billimon was

       standing against a police car with an officer and two or three other men who

       also had dark complexions. Both Evan and James were confident in their

       identification of Billimon as the man who threatened them with a gun.


[18]   Under the totality of these circumstances, we conclude that the show-up

       identification was not impermissibly suggestive. And even if we were to

       conclude otherwise, Evan’s and James’s identifications of Billimon were

       reliable under these circumstances. Therefore, Billimon’s due process rights

       were not violated when the trial court denied Billimon’s motion to suppress and

       admitted evidence of the show-up identifications into evidence at trial.2


                                                    Sentencing
[19]   From the trial court’s statements during the sentencing hearing, we can

       reasonably assume that the court intended to impose an aggregate eight-year

       sentence to be served consecutive to the sentence imposed for an offense

       Billimon had been convicted of committing in Spokane County, Washington.

       However, the trial court’s sentencing order imposes eight years for each

       conviction regardless of the level of felony. Appellant’s App. p. 123. While



       2
        Billimon also argues that Evan’s and James’s subsequent in-court identifications of him at trial were tainted
       by the impermissibly suggestive show-up identification procedure. Because we conclude that the show-up
       procedure was not unduly suggestive and Evan’s and James’s identifications of Billimon were reliable, we
       conclude the in-court identifications were also properly admitted.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020                   Page 8 of 9
       eight years is a legal sentence for Billimon’s Level 4 felony conviction, it is not a

       legal sentence for his Level 5 and Level 6 felony convictions. See Ind. Code §§

       35-50-2-5.5, -6, -7. Moreover, in its written sentencing order, the trial court

       ordered the eight-year sentence imposed for each conviction to be served

       consecutive to Billimon’s sentence for his Washington offense. Appellant’s

       App. p. 123.


[20]   The parties agree that we should remand this case to the trial court to correct its

       sentencing order. See Appellant’s Br. at 14–15, Appellee’s Br. at 15. Remand is

       required to correct the illegal sentences and to clarify whether Billimon’s

       sentences will run concurrent or consecutive to each other.


                                                 Conclusion
[21]   The show-up identification at issue did not violate Billimon’s due process

       rights. However, the trial court’s sentencing order requires correction and

       clarification. We therefore remand this case to the trial court for proceedings

       consistent with this opinion.


[22]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1007 | January 13, 2020   Page 9 of 9
