MEMORANDUM DECISION                                                        FILED
                                                                       Nov 14 2016, 8:42 am
Pursuant to Ind. Appellate Rule 65(D),
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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Deborah Markisohn                                       Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General
Indianapolis, Indiana
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Buckhalter,                                 November 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1511-CR-1852
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                     Commissioner
                                                        Trial Court Cause No.
                                                        49F19-1405-CM-27225



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016       Page 1 of 7
                                       Statement of the Case
[1]   Christopher Buckhalter (“Buckhalter”) appeals, following a bench trial, his

      conviction for battery as a Class A misdemeanor. He argues that the trial court

      abused its discretion in admitting into evidence the victim’s show-up and in-

      court identifications of him. Concluding that the trial court did not abuse its

      discretion in admitting this evidence, we affirm.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion in admitting into
              evidence the victim’s show-up and in-court identifications of
              Buckhalter.


                                                    Facts
[3]   On May 24, 2014, the night before the Indianapolis 500, Nicholas Castorena

      (“Castorena”) and his friends were camping in the Coke Lot (“the Lot”) near

      the Indianapolis Motor Speedway. While Castorena and his friends were

      walking around the Lot, they came upon a group involved in an altercation

      with another man. One of Castorena’s friends asked the group, “where’s the

      party at?” (Tr. 24). Someone from the group responded to the comment by

      hitting Castorena’s friend and knocking him to the ground. As Castorena

      attempted to intervene, he was hit in the back of the head. When he turned

      around, Castorena looked right at Buckhalter and clearly saw Buckhalter’s face




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 2 of 7
      before Buckhalter hit Castorena in the face. Castorena and his friends quickly

      turned and ran.


[4]   Later that evening, Castorena and his friends came upon the same group.

      Castorena was hit again but did not see who it was. Gunshots were fired, and

      one of Castorena’s friends was fatally wounded. Speedway Police Department

      Officers arrived at the scene, and Officer Matthew Pridemore (“Officer

      Pridemore”) noticed Castorena, who was covered in blood. Officer Pridemore

      asked Castorena if he had been involved in the altercation, and Castorena

      responded that he had.


[5]   While walking through the Lot with Officer Pridemore, Castorena pointed out

      the group of individuals that had been involved in the two altercations. These

      individuals were standing together and talking. They had not been detained by

      the police at that time. Officer Pridemore radioed a detective and asked the

      detective to detain these individuals. After the individuals were detained,

      Castorena identified Buckhalter as the man who had hit him in the face during

      the first altercation.


[6]   The State charged Buckhalter with Class A misdemeanor battery. At trial, over

      Buckhalter’s objection, Castorena identified Buckhalter as the person who had

      hit him in the face. However, according to Buckhalter, he was walking through

      the Lot when he was “snatched up from behind” without any warning and

      taken to the ground by a police officer who handcuffed him and took him to the




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 3 of 7
      show up. (Tr. 145). The trial court convicted Buckhalter as charged.

      Buckhalter appeals.


                                                 Decision
[7]   Buckhalter argues that the trial court abused its discretion in admitting evidence

      of the show-up and in-court identifications. The admission of evidence is

      within the discretion of the trial court. Clark v. State, 994 N.E.2d 252, 259-60

      (Ind. 2013). We will reverse a ruling on the admission of evidence only for an

      abuse of discretion, which occurs only when the ruling is clearly against the

      logic and effect of the facts and circumstances and the error affects the party’s

      substantial rights. Id. at 260.


      I. Show-up Identification

[8]   Buckhalter first contends that the admission of the show-up identification into

      evidence violated his rights against unreasonable search and seizure under the

      Fourth Amendment to the United States Constitution because the police lacked

      reasonable suspicion to detain him for the show-up identification.1 The Fourth

      Amendment prohibits unreasonable searches and seizures by the government,

      and its safeguards extend to brief investigatory stops of persons or vehicles that




      1
        Buckhalter also argues that the admission of this evidence violated Article 1, Section 11 of
      the Indiana Constitution. However, we do not address state constitutional claims that are
      raised for the first time on appeal. See Mahl v. Aaron, 809 N.E.2d 953, 958 (Ind. Ct. App.
      2004) (declining to address equal protection argument under Indiana Constitution when
      argument at trial was based only on federal constitution). Here, our review of the record
      reveals that Buckhalter did not raise the state constitutional claim at trial. Accordingly, he has
      waived this allegation of error. See id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 4 of 7
       fall short of traditional arrest. C.H. v. State, 15 N.E.3d 1086, 1092 (Ind. Ct.

       App. 2014), trans. denied. However, a police officer may briefly detain a person

       for investigatory purposes without a warrant or probable cause if, based upon

       specific and articulable facts together with the rational inferences from those

       facts, the official intrusion is reasonably warranted and the officer has a

       reasonable suspicion that criminal activity “may be afoot.” Moultry v. State, 808

       N.E.2d 168, 170-71 (Ind. Ct. App. 2004) (quoting Terry v. Ohio, 392 U.S. 266

       (1968)). Reasonable suspicion must be more substantial than an officer’s

       unparticularized suspicion or hunch. C. H., 15 N.E.3d at 1092. In determining

       whether reasonable suspicion exists, we must examine the totality of the

       circumstances of each case to see whether the detaining officer had a

       particularized and objective basis for suspecting wrong-doing. Id.


[9]    Here, Buckhalter specifically argues that the “State presented absolutely no

       evidence at trial as to why Buckhalter had been detained for the show-up.”

       (Buckhalter’s Br. 21). According to Buckhalter, “[s]imply being a black male at

       the Coke Lot on the night of May 24, 2014, was not the individualized

       articulable reasonable suspicion of criminal activity that Terry requires to justify

       a seizure.” (Buckhalter’s Br. 21).


[10]   However, our review of the evidence reveals that Castorena was involved in

       two altercations with the same group, which included Buckhalter, on the same

       night. Following the second altercation, while Castorena was walking through

       the Coke Lot with Officer Pridemore, Castorena noticed and pointed out

       members of that group standing together and talking. Officer Pridemore

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 5 of 7
       radioed a detective and asked him to detain these individuals. In a show-up,

       Castorena identified Buckhalter as the individual who had hit him in the face.

       Castorena, who was a witness to two altercations, provided the detaining officer

       with a particularized and objective basis for suspecting wrong-doing on the part

       of the individuals that he detained for the show-up. The trial court did not

       abuse its discretion in admitting this evidence.


       II. In-Court Identification


[11]   Buckhalter also argues that pursuant to the fruit of the poisonous tree doctrine,

       the unconstitutional show-up identification “tainted the subsequent in-court

       identification.” (Buckhalter’s Br. 27). However, to invoke this doctrine, a

       defendant must show that the seizure was illegal in the first place. Gyamfi v.

       State, 15 N.E.3d 1131, 1136 (Ind. Ct. App. 2014), reh’g denied. Because there

       was no illegal seizure in this case, there can be no fruit of the poisonous tree,

       and Buckhalter’s argument fails.


[12]   Lastly, Buckhalter argues that the trial court erred in admitting the in-court

       identification because there was no independent basis for it. The factors a court

       considers in determining whether an independent basis exists include: (1) the

       amount of time that the witness was in the presence of the defendant; (2) the

       distance between the two; (3) the lighting conditions; (4) the witness’ degree of

       attention to the defendant; (5) the witness’ capacity for observation; (6) the

       witness’ opportunity to perceive particular characteristics of the defendant; (7)

       the accuracy of any prior description of the defendant by the witness; (8) the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 6 of 7
       witness’ level of certainty at the pretrial identification; and (9) the length of time

       between the crime and the identification. Hyppolite v. State, 774 N.E.2d 584,

       594 (Ind. Ct. App. 2002), trans. denied.


[13]   Here, our review of the evidence leads us to agree with the State that

       “application of the above-recited factors to this case shows that Castorena had a

       sufficient independent basis to support his ability to fairly identify [Buckhalter]

       in-court.” (State’s Br. 18). Specifically, Castorena had sufficient opportunity to

       view his attacker. After being hit in the back of the head, Castorena turned and

       looked right at Buckhalter. According to Castorena, he could “clearly see who

       [had] hit [him] in the face.” (Tr. 130). Because Castorena was in extremely

       close physical proximity to Buckhalter, Castorena had a high degree of

       attention fixed on him. In addition, Castorena’s identification of Buckhalter

       was certain. We find no error here, and the trial court did not abuse its

       discretion by admitting the in-court identification of Buckhalter.


[14]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1852 | November 14, 2016   Page 7 of 7
