MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Apr 02 2019, 10:26 am

this Memorandum Decision shall not be                                           CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott King                                               Curtis T. Hill, Jr.
Russell Brown                                            Attorney General of Indiana
King, Brown & Murdaugh, LLC
                                                         Matthew B. MacKenzie
Merrillville, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darianna Hamblin,                                        April 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1132
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1512-MR-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019                     Page 1 of 13
                               Case Summary and Issues
[1]   Following a jury trial, Darianna Hamblin was convicted of murder while

      committing robbery, a felony, and attempted armed robbery, a Level 3 felony.

      Hamblin appeals her convictions raising two issues for our review: (1) whether

      the trial court abused its discretion in admitting evidence of a photo array and

      the victims’ subsequent testimony; and (2) whether the State presented

      sufficient evidence to sustain her conviction of attempted armed robbery under

      a theory of accomplice liability. Concluding the trial court did not abuse its

      discretion and the State presented sufficient evidence to sustain Hamblin’s

      conviction, we affirm.



                            Facts and Procedural History
[2]   On December 20, 2015, Cailin Scott was searching Craigslist for a vehicle to fix

      up and sell when he located a 2008 Chevy Impala listed for $4,000. The seller

      told Scott that he could see the vehicle at an address in Gary that, unbeknownst

      to Scott, was currently vacant. Scott contacted his friend, Talion “Chase”

      McNeil, to ride with him to Gary, help assess the vehicle, and to drive the

      vehicle back home should he decide to purchase it. Both Scott and McNeil

      possessed valid handgun permits and they brought firearms along with them.


[3]   Scott and McNeil arrived at the address shortly before 7:00 p.m. that evening.

      The house was dark, but they noticed several individuals standing by a vehicle

      matching the description of the Impala about a block away. Scott called the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 2 of 13
      seller thinking they had the wrong address, but she told Scott that she would be

      out soon. A few minutes later, the seller called Scott and told him that she was

      standing in front of his car.1 Scott and McNeil exited their vehicle, shook the

      female’s hand, and once she asked if Scott had “the cash[,]” she informed them

      that the “car was around back[,]” apparently referring to the back of the house.

      Transcript, Volume 1 at 105. At that point, the Impala turned down the street

      and Scott noted to McNeil, “that looks like the car there, but they just drove

      past us.” Id. Scott described the female as “about five, one, five feet tall. She

      had twisties or dreadlocks hanging around the length of her shoulders, had on a

      sweat suit, sweat pants, sweatshirt.” Id. at 107. Scott later added that the sweat

      suit was “[g]ray.” Id.


[4]   As the female showed Scott and McNeil around to the side of the house, a

      “male figure . . . came from behind the house [with] a firearm.” Id. at 113. The

      male, later identified as Brandon Johnson, pointed his handgun at Scott and

      demanded their money while the female drew a handgun and pointed it at

      McNeil. McNeil threw his wallet, placed his hands on the ground, and said

      “do not shoot.” Id. at 120. As Johnson’s focus was on McNeil, Scott charged 2

      his handgun behind his back. Johnson then turned to Scott and placed his gun

      on Scott’s stomach. Scott told Johnson to “calm down, just stop.” Id. Johnson




      1
       It is not clear from the record where the female came from or why Scott and McNeil failed to see her
      approach their car.
      2
          “Charging” a handgun refers to the act of manually pulling back the slide until a round is chambered.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019                      Page 3 of 13
      continued to press his handgun into Scott’s stomach so Scott grabbed Johnson’s

      handgun with his left hand, drew his own handgun, and shot Johnson. Id.

      Johnson “staggered back” with his handgun still pointed forward and Scott

      continued to fire until Johnson fell.3 Id. at 121. At that point, McNeil drew his

      handgun and fired at the female, who turned and ran “towards the back of the

      house into the woods area . . . .” Id. at 123. As she ran, the female swung her

      arm behind her and, as McNeil later explained:


                  My reaction was if she were to start shooting, we could possibly
                  be shot or someone across the street could possibly be shot, so I
                  made the decision to start firing at her.


      Tr., Vol. 2 at 32-33.


[5]   McNeil and Scott returned to Scott’s car, called 911, and waited for the police

      in a nearby parking lot. Police were dispatched to a report of a gunshot wound

      at approximately 7:00 p.m. During the ensuing investigation, police learned

      that Hamblin had checked herself into the emergency room at a nearby hospital

      at 7:10 p.m. with multiple gunshot wounds and had stated that “she was

      involved” in an incident at the same address. Id. at 128. Hamblin told

      investigators that she saw Johnson, her cousin, with an unknown male, she ran

      over when she heard gun shots, she was then shot herself, and was driven to the

      hospital by a friend.




      3
          Johnson later died as the result of his injuries.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 4 of 13
[6]   On December 21, 2015, Scott and McNeil were brought to the police station to

      view a photo array. Separately, Detective Minchuk took them into a room to

      view six photographs of similar looking women arranged on a table and asked

      them whether “any of [the] pictures look[ed] familiar[.]” Id., Vol. 3 at 113.

      Scott quickly selected Hamblin, writing “I am drawn to this picture more than

      the other inmates. Based on the hair and lips in the involvement of the

      shooting.” Exhibits at 59-60. McNeil took two to three minutes to narrow his

      selection down to two photographs, but he was unable to select one. One of the

      two photographs that he selected was also Hamblin.


[7]   On December 22, 2015, the State charged Hamblin with murder while

      committing robbery, a felony, and two counts of attempted armed robbery, both

      Level 3 felonies. The State eventually filed an amended information adding

      two counts of attempted armed robbery, both Level 2 felonies. Hamblin filed a

      motion to suppress on December 27, 2016, arguing the lineup used to identify

      her was improper and unduly suggestive. The trial court denied Hamblin’s

      motion on March 23, 2017.


[8]   At trial, Scott and McNeil identified Hamblin as the female who participated in

      the robbery, over Hamblin’s continuing objection. The jury found Hamblin

      guilty on all counts and the trial court entered judgments of conviction for

      felony murder and one count of attempted armed robbery. Hamblin was

      sentenced to an aggregate term of 52 years in the Indiana Department of

      Correction. Hamblin now appeals.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 5 of 13
                                  Discussion and Decision
                                    I. Identification Evidence
                                        A. Standard of Review
[9]    The admission of evidence is within the trial court’s discretion and the decision

       is reviewable only for an abuse of discretion. Albee v. State, 71 N.E.3d 856, 860

       (Ind. Ct. App. 2017). A trial court abuses its discretion when its decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.

       In order for identification procedures used by the police to be admissible, they

       must comport with a defendant’s due process rights. Allen v. State, 813 N.E.2d

       349, 360 (Ind. Ct. App. 2004), trans. denied. “The task of this Court is to

       determine whether, under the totality of the circumstances, the identification

       process was conducted in such a manner that it created a substantial likelihood

       of irreparable misidentification.” Jackson v. State, 33 N.E.3d 1067, 1072 (Ind.

       Ct. App. 2015), trans. denied. “If, under the totality of the circumstances, the

       reviewing court finds the out-of-court procedures were not impermissibly and

       unnecessarily suggestive, both the evidence of the pretrial lineup and the in-

       court identification are considered to have been properly admitted by the trial

       court, and there is no need to proceed further.” Harris v. State, 619 N.E.2d 577,

       580 (Ind. 1993).


             B. The Photo Array Was Not Impermissibly Suggestive
[10]   Hamblin begins by arguing the trial court abused its discretion by admitting

       evidence of the photo array and allowing Scott and McNeil, who were “tainted

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 6 of 13
       by the impermissibly suggestive procedure[,] to identify Hamblin in court.”

       Amended Brief of Appellant at 8.


[11]   In Parker v. State, our supreme court explained:


               Factors to be considered in evaluating the likelihood of a
               misidentification include (1) the opportunity of the witness to
               view the criminal at the time of the crime, (2) the witness’s
               degree of attention, (3) the accuracy of the witness’s prior
               description of the criminal, and (4) the level of certainty
               demonstrated by the witness. Among other factors the court may
               consider are (1) the manner and form in which the police asked
               the witness to identify the suspect and the witness’s interpretation
               of their directives and (2) whether the police focused on the
               defendant as the prime suspect, either by their attitude or the
               makeup of the photo array.


       698 N.E.2d 737, 740 (Ind. 1998) (citations and quotations omitted).


[12]   Hamblin’s argument tracks these six factors in alleging the photo array resulted

       in a high likelihood of misidentification. Beginning with the first and second

       factors, Hamblin highlights the attempted robbery’s brief time frame, relative

       darkness, and Scott and McNeil’s focus on Johnson as reasons “that neither

       victim had a true opportunity to observe the female perpetrator at the time of

       the crime.” Amended Br. of Appellant at 10. Although brief, this was “not a

       crime like a mugging or purse snatching where the victim gets only a glance at

       the attacker.” Williams v. State, 774 N.E.2d 889, 891 (Ind. 2002). The record

       reflects Scott and McNeil’s meeting with Hamblin was initially hospitable and a

       street light allowed Scott and McNeil to view Hamblin clearly when she shook


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 7 of 13
       their hands from approximately a foot away. Hamblin then continued in their

       presence until the attempted robbery. For these reasons, we conclude Scott and

       McNeil had a sufficient opportunity to view Hamblin. And, having had such

       an opportunity and remaining in her continued presence, we further conclude

       Scott and McNeal’s degree of attention during the crime itself was rather

       immaterial for the purposes of her identification.


[13]   Hamblin next argues Scott and McNeil’s description was “so lacking in detail . .

       . as to be incapable of evaluation and/or so vague as to be inaccurate[,]” and

       “neither witness displayed any certainty of the female perpetrator’s identity[,]”

       when selecting the photographs from the array. Amended Br. of Appellant at

       11. Scott described the female as “about five, one, five feet tall . . . [with]

       twisties or dreadlocks hanging about the length of her shoulders, [and] had on a

       [gray] sweat suit, sweat pants, sweatshirt.” Tr., Vol. 1 at 107. This description

       identified the suspect’s height, clothing, and a specific hairstyle. Under such

       circumstances, we cannot say the description was “so lacking in detail . . . as to

       be incapable of evaluation[.]” Amended Br. of Appellant at 11. And, to the

       extent Scott or McNeil demonstrated any uncertainty, this was placed in front

       of the jury and we believe it goes to the evidence’s weight, not its competency.


[14]   Neither of the additional factors outlined in Parker lead us to conclude the

       photo array was constitutionally unsound. Hamblin makes much of the

       absence of an express statement that the defendant may not appear in the photo

       array. Although we agree that an express advisement would constitute a better

       practice, the context of Detective Minchuk’s instruction, asking whether “any

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 8 of 13
       of [the] pictures look[ed] familiar[,]” tr., vol. 3 at 113, would suggest to a

       reasonable person that they were free to answer in the negative. See Allen, 813

       N.E.2d at 360 (holding similar language, asking whether the victim “recognized

       anyone from the six photographs[,]” was not unduly suggestive).


[15]   Nor do we find Hamblin’s photograph to be unduly suggestive. Detective

       Minchuk testified that it typically takes him 15-20 minutes to assemble a photo

       array but this one took him several hours because he had to use photographs

       from the Indiana Bureau of Motor Vehicles to ensure similarity. All six

       photographs were headshots with blue backgrounds taken from the same

       distance, featuring similar looking African-American women with similar

       hairstyles. To the extent Hamblin argues her photograph was the only one

       “that had hair fitting the description of ‘dreads’ that were long enough to be

       visible by one wearing a hoodie[,]” Amended Br. of Appellant at 12, we remind

       Hamblin that police are not required to “perform the improbable if not

       impossible task of finding four or five other people who are virtual twins to the

       defendant.” Jackson, 33 N.E.3d at 1073 (quoting Pierce v. State, 267 Ind. 240,

       246, 369 N.E.2d 617, 620 (1977)).


[16]   Therefore, under the totality of the circumstances, we conclude the photo array

       was not impermissibly suggestive. As such, both the evidence of the photo

       array and the victims’ subsequent in-court identifications were properly

       admitted. See Harris, 619 N.E.2d at 580.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 9 of 13
                               II. Sufficiency of the Evidence
                                          A. Standard of Review
[17]   When reviewing the sufficiency of the evidence required to support a criminal

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

       witnesses. Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). Rather,

       we only consider the evidence most favorable to the verdict and any reasonable

       inferences drawn therefrom. Id. We will affirm “if there is substantial evidence

       of probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt.” Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009).


                                    B. Attempted Armed Robbery
[18]   The State bears the burden of proving all elements of the charged crime beyond

       a reasonable doubt. Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992); Ind.

       Code § 35-41-4-1(a) (“A person may be convicted of an offense only if his guilt

       is proved beyond a reasonable doubt.”). A person who “knowingly or

       intentionally takes property from another person” by “using or threatening the

       use of force on any person” commits robbery, a Level 5 felony. Ind. Code § 35-

       42-5-1(a). However, the offense is a Level 3 felony if it is committed while

       armed with a deadly weapon or results in bodily injury to any person other than

       a defendant. Id. Indiana’s attempt statute states: “A person attempts to commit

       a crime when, acting with the culpability required for commission of the crime,

       the person engages in conduct that constitutes a substantial step toward


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 10 of 13
       commission of the crime. An attempt to commit a crime is a felony or

       misdemeanor of the same level or class as the crime attempted.” Ind. Code §

       35-41-5-1(a).


[19]   Furthermore, “[a] person who knowingly or intentionally aids, induces, or

       causes another person to commit an offense commits that offense . . . .” Ind.

       Code § 35-41-2-4.


               An accused’s mere presence at the scene of the crime is
               insufficient to establish that he aided another person to commit
               an offense. Similarly, mere acquiescence in the commission of
               the offense is insufficient to convict a person as an accomplice.
               Rather, in order to sustain a conviction as an accomplice, there
               must be evidence of the defendant’s affirmative conduct, either in
               the form of acts or words, from which an inference of a common
               design or purpose to effect the commission of a crime may be
               reasonably drawn.


       Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998) (citations omitted).


[20]   In determining whether a person aided another in the commission of a crime, a

       reviewing court considers: (1) presence at the scene of the crime; (2)

       companionship with another engaged in criminal activity; (3) failure to oppose

       the crime; and (4) the defendant’s conduct before, during, and after the

       occurrence of the crime. Woods v. State, 963 N.E.2d 632, 634 (Ind. Ct. App.

       2012). Evidence must exist from which a jury can conclude that a defendant

       was engaged in the actus reus or was engaging in behavior which would

       facilitate the commission of the crime. Chappell v. State, 966 N.E.2d 124, 130

       (Ind. Ct. App. 2012), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 11 of 13
[21]   Hamblin argues she was “never in the same location as the perpetrator[,]” there

       was no evidence that “she acquiesced in the commission of the crime or

       actively assisted the perpetrator[,]” and there was no evidence that she “actually

       wielded a weapon or made any demand for money[.]” Amended Br. of

       Appellant at 17. However, as aptly noted by the State, Hamblin’s argument

       “flatly ignores the evidence presented to the jury.” Brief of Appellee at 20.


[22]   Viewed most favorably to the jury’s verdict, the evidence reveals that Hamblin

       worked with her cousin, Johnson, to initiate a fraudulent sale of a vehicle with

       the goal of robbing a potential buyer. After arranging for a meeting at a vacant

       property, Hamblin asked Scott and McNeil if they had “the cash” before luring

       them to the side of the house. Tr., Vol. 1 at 105. Johnson emerged wielding a

       gun and demanded Scott and McNeil’s money while Hamblin pulled a

       handgun of her own, aimed it at Scott and McNeil, and fled the scene only after

       Johnson was shot by Scott and McNeil began shooting at her. Scott and

       McNeil’s testimony was corroborated by the physical evidence recovered at the

       scene and the fact that Hamblin checked herself into a nearby hospital minutes

       after the shooting.


[23]   This evidence supports a conclusion: (1) Hamblin was present at the scene of

       the crime; (2) Hamblin was the companion of Johnson, her cousin, and worked

       in concert with him; (3) Hamblin worked in furtherance of the crime and failed

       to oppose it; and (4) Hamblin’s conduct before, during, and after the occurrence

       of the crime supported a conclusion that she knowingly and intentionally aided



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 12 of 13
       Johnson in the commission of the crime. Woods, 963 N.E.2d at 634. Put

       simply, this evidence is more than sufficient to support Hamblin’s conviction.



                                               Conclusion
[24]   For the reasons set out above, we conclude the trial court did not abuse its

       discretion in admitting evidence of the photo array and the victims’ subsequent

       in-court identification and the State presented sufficient evidence to support

       Hamblin’s conviction of attempted armed robbery. We therefore affirm in all

       respects.


[25]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1132 | April 2, 2019   Page 13 of 13
