MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Aug 23 2018, 10:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                       CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
purpose of establishing the defense of res judicata,                      and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Shayla Monique Brazier,                                  August 23, 2018

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         71A03-1712-CR-2949
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
State of Indiana,                                        The Honorable John M. Marnocha,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No. 71D02-1706-
                                                         F3-36




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018       Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Shayla Monique Brazier (Brazier), appeals her conviction

      for robbery, a Level 3 felony, Ind. Code § 35-42-5-1; and conspiracy to commit

      burglary, a Level 4 felony, I.C. §§ 35-43-2-1(1); -41-5-2.


[2]   We affirm.


                                                   ISSUES
[3]   Brazier presents 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 her Level 3 felony robbery conviction was a result of a unanimous

      jury verdict.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2017, Talanda Peck (Peck) and her three daughters, T.O., aged seven, T.O.

      aged four, and R.O. aged three, resided at 1814 South Twyckenham, South

      Bend, Indiana. In May 29, 2017, Peck went out of town and left her daughters

      in the care of her nephew Tyshawn Owens (Owens). Jason Gibson (Gibson) is

      Owens’ longtime friend and he would frequently visit Owens at Peck’s home.

      Two weeks prior, Peck had informed Owens that she did not want Gibson

      visiting her home.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 2 of 15
[5]   On May 29, 2017, against Peck’s wishes, Owens invited Gibson to Peck’s

      house. Brazier, who is Gibson’s girlfriend, and her one-year old son, spent the

      night at Peck’s home. That night, seven-year-old T.O. encountered Gibson

      who mistakenly entered her room as he was looking for the restroom. After she

      directed Gibson to the restroom, she went back to sleep.


[6]   The next day, May 30, 2017, Gibson, Brazier, and her son, left Peck’s home.

      Later that morning, Gibson and Brazier went to Deangelo Dove’s (Dove),

      apartment that he shared with his girlfriend Dezarie Parker (Parker), to obtain

      some “weed.” (State’s Exh. 52 at 9:00). According to Brazier, Dove and

      Parker were relocating to Chicago and they needed money for the move. At

      some point, Dove asked Gibson “whose house can I break into?” and Gibson

      suggested Peck’s home. (State’s Ex. 51 at 1:19:34). According to Brazier, Dove

      intended to sell the property he stole from Peck’s home to his “weed man” for

      money. (State’s Ex. 51 at 1:33:00). Sometime that morning, Parker purchased

      duct tape from the Family Dollar store.


[7]   At approximately 11:00 a.m., Peck’s home security camera captured Dove

      entering the house through the front door. A neighbor saw a Buick, which had

      front-end damage, backed up to the back door. Seven-year-old T.O. then heard

      commotion, and subsequently saw Gibson and Dove inside her home. Dove

      used duct tape to tie up Owens, seven-year-old T.O., and four-year-old T.O.

      Seven-year-old T.O. observed that Dove had a gun in his pocket. Afterward,

      Dove went into Peck’s bedroom where he rummaged the “drawers and . . .

      stole [Peck’s] TV.” (Tr. Vol. II, p. 70). There was also a woman, and seven-

      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 3 of 15
      year-old T.O. observed that the woman removed “cameras,” and a couple of

      “TVs.” (Transcript Vol. II, p. 70). Owens later disclosed to seven-year-old

      T.O. that the woman was Gibson’s girlfriend. In total, Dove, Gibson, and the

      woman described as Gibson’s girlfriend, removed five televisions, cameras, a

      computer, an iPad, a vacuum cleaner, an old cell phone, and a number of

      personal items including a pair of Jordan sneakers. After the intruders left,

      Owens removed the duct tape from himself and the children. The police were

      then contacted.


[8]   That evening, Officer Alexander Gutierrez (Officer Gutierrez) of the South

      Bend Police Department was out on patrol. At approximately 8:20 p.m.,

      Officer Gutierrez located a Buick that had front end damage at a parking lot.

      Officer Gutierrez turned his vehicle around, parked it, and waited to “see if [the

      Buick] was going to move.” (Tr. Vol. II, p. 85). When the Buick began leaving

      the area, Officer Gutierrez followed the vehicle. At some point, the vehicle

      stopped, and a man matching Dove’s description exited the vehicle. The Buick

      continued to travel, and shortly thereafter, Officer Gutierrez initiated a traffic

      stop.


[9]   The Buick was being driven by Dove’s sister, Caprice Guiden (Guiden), and

      Parker and her son were also inside. The vehicle “was loaded with a lot of . . .

      electronics [and] some clothing.” (Tr. Vol. II, p. 87). Guiden and Parker were

      arrested and transported to the police station for questioning. During a search

      of the Buick, the officers located Dove’s ATM card on the front passenger seat.

      Guiden later consented to the search of her home. In Guiden’s detached

      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 4 of 15
       garage, the police recovered some of the items stolen at Peck’s home—i.e., a

       vacuum cleaner, two televisions, a cell phone, an iPad, and a Jordan shoe box.

       Gibson’s fingerprints were found on the iPad.


[10]   That same evening, Brazier was arrested for questioning. After she was read

       her Miranda rights, Brazier claimed that she had no role in the home invasion.

       She claimed that earlier that morning, Gibson, Dove, and Parker, had

       deliberated on committing a robbery of Peck’s home. Brazier stated that she

       agreed to watch Parker’s and Dove’s baby, so that the baby would not be left

       alone while the three were out committing the robbery. According to Brazier,

       at approximately 2:30 p.m., she met up with Dove and Parker to return their

       baby, and while conversing, Dove and Parker mentioned that they had broken

       “one or two TVs” while carrying them out of Peck’s home. (State’s Ex. 51 at

       1:44). Afterward, Brazier drove to her mother’s apartment. Dove, Parker, and

       Gibson followed her there. Referring to the items that they had stolen from

       Peck’s house, Gibson asked Dove “where all the stuff at?” and Dove and Parker

       stated that they had sold the stolen items “to the weed man . . . for half money

       half weed.” (State’s Exh. 52, at 12:00).


[11]   On June 5, 2017, the State filed an Information, charging Brazier with Counts

       I, II, and III, armed robbery, Level 3 felonies. On October 25, 2017, the State

       filed a Motion to Amend Information and stated,

               3. By this motion, the State seeks to amend Counts I, II, and III of the
               information to allege that [Brazier] [a]ided, [i]nduced, or [c]aused
               another person in committing the robberies against Tyshawn Owens
               and the two minor children at [Peck’s home].
       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 5 of 15
               4. The State also seeks to file an [a]dded Count IV, to charge
               [c]onspiracy to [c]ommit [b]urglary, a Level 4 [f]elony. This charge
               also relates to the same conduct that forms the basis for Counts I, II,
               and III of the [I]nformation, but focuses on the alleged agreement that
               [Brazier] and others made leading up to the offense.


       (Appellant’s App. Vol. II, p. 100).


[12]   On November 13, 2017, ahead of Brazier’s jury trial, the trial court conducted a

       hearing on Brazier’s motion to suppress any in-court identification testimony

       from seven-year-old T.O., and four-year-old T.O. At the close of the

       suppression hearing, the trial court determined that four-year-old T.O. did not

       understand the “nature of an oath and a promise to tell the truth,” and was

       therefore an incompetent witness. (Tr. Vol. II, p. 16). However, the trial court

       determined that seven-year-old T.O., had sufficient recollection of the home

       invasion, and there was “in sufficient [sic] detail” that seven-year-old T.O. had

       been susceptible to “any sort of outside influence” that would taint her “in-

       court identification” of the robbers. (Tr. Vol. II, p. 17).


[13]   The trial court afterward proceeded with Brazier’s jury trial, which concluded

       on November 15, 2017. At the close of the evidence, the jury found Brazier

       guilty of Count I, Level 3 felony armed robbery, and Count IV, Level 4

       conspiracy to commit burglary. On December 13, 2017, the trial court

       conducted a sentencing hearing, and subsequently sentenced Brazier to

       concurrent terms of nine years on each offense in the Department of Correction

       (DOC). However, the trial court suspended five years of each offense to



       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 6 of 15
       probation, and further ordered Brazier to serve probation for twelve months

       following her release from the DOC.


[14]   Brazier now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             A. In-Court Identification

[15]   Brazier challenges the trial court’s denial of her motion to suppress the

       testimony of seven-year-old T.O.’s in-court identification that depicts her as one

       of the robbers. We note, however, that Brazier did not file an interlocutory

       appeal. Rather, she proceeded to trial. Once a case proceeds to trial, the

       question of whether the trial court erred in denying a motion to suppress is no

       longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind. Ct. App. 2006), trans.

       denied. A ruling upon a pretrial motion to suppress is not intended to serve as

       the final determination of admissibility because it was subject to modification at

       trial. Id. On appeal, Brazier’s only available argument is whether the trial court

       abused its discretion in admitting T.O.’s in-court identification testimony at

       trial. Id.


[16]   The admission or exclusion of evidence falls within the sound discretion of the

       trial court, and its determination regarding the admissibility of evidence is

       reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d

       1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 7 of 15
[17]   During the trial, when the State elicited T.O.’s in-court identification, Brazier

       did not object. “[F]ailure to make a contemporaneous objection to the

       admission of evidence at trial, so as to provide the trial court an opportunity to

       make a final ruling on the matter in the context in which the evidence is

       introduced, results in waiver of the error on appeal.” Brown v. State, 783 N.E.2d

       1121, 1125 (Ind. 2003). Absent a showing of fundamental error, a party may

       not raise an issue on appeal when that issue was not raised at trial. Hornback v.

       State, 693 N.E.2d 81, 84 (Ind. Ct. App. 1998). Brazier did not make a

       contemporaneous objection to the admission of T.O.’s in-court identification.

       Furthermore, Brazier does not argue that fundamental error occurred as a result

       of the admission. Waiver notwithstanding, we address her claim on the merits.


[18]   Due process of law under the Fourteenth Amendment requires suppression of

       testimony concerning a pretrial identification when the procedure employed is

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

       Nevertheless, a witness who participates in an improper pretrial identification

       procedure may still identify a defendant in-court if the totality of the

       circumstances shows clearly and convincingly that the witness has an

       independent basis for the in-court identification. Young v. State, 700 N.E.2d

       1143, 1146 (Ind. 1998).


[19]   To determine whether a witness had an independent basis for the in-court

       identification, we consider the following factors: (1) the amount of time the

       witness was in the presence of the perpetrator; (2) the distance between the

       witness and the perpetrator; (3) the lighting conditions at the time; (4) the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 8 of 15
       witness’s degree of attention to the perpetrator; (5) the witness’s capacity for

       observation; (6) the witness’s opportunity to perceive particular characteristics

       of the perpetrator; (7) the accuracy of any prior description of the perpetrator by

       the witness; (8) the witness’s level of certainty at the pretrial identification; and

       (9) the length of time between the crime and the identification. Id.


[20]   Brazier argues that

               In the present case, there was not an adequate independent basis for
               T.O.’s in-court identification. According to T.O.’s testimony, the male
               was the person who taped up T.O. and not the female. There is no
               evidence on the record as to the length of time that T.O. was in the
               presence of the woman. Furthermore, there is no evidence in the
               record as to the distance that T.O. was from the woman nor is there
               any evidence of the lighting conditions at the time. T.O.’s capacity for
               observation is also questionable, given that at the hearing on the
               motion to suppress she said that [T.O.] and [four-year-old T.O. were]
               in her mother’s bedroom when they heard a noise[,] and at trial she
               stated they were in the living room when they heard a noise.
               Furthermore, . . . T.O.’s only description of the woman is that she was
               black and had an afro. She couldn’t remember any other details.


       (Appellant’s Br. p. 18).


[21]   Seven-year-old T.O. testified that “two boys and one girl” committed the

       robbery in her home. (Suppression Tr. p. 5). T.O. identified one of the men as

       Gibson, and she stated that she knew Gibson because he regularly visited her

       home to “rap” with Owens “on the computer.” (Suppression Tr. p. 5). Based

       on previous encounters, T.O. accurately identified Gibson as one of the robbers.

       Also, T.O. provided a precise description of Dove as the other perpetrator.

       T.O. testified that the third robber was a woman she had never met before, and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 9 of 15
       she described the woman as a “little fat and a little skinny,” and her “skin was

       black and her hair was in an afro.” (Suppression Tr. p. 5). T.O. stated that

       while the robbery was taking place, she looked at the woman “for two

       seconds,” but looked away because the woman was looking at her.

       (Suppression Tr. p. 9). T.O. testified that it was Owens who later disclosed to

       her that the woman was Gibson’s girlfriend. T.O. added that the woman—

       Gibson’s girlfriend—took “the cameras and [she] ran upstairs to take the other

       TVs.” (Suppression Tr. p. 7). T.O. stated that the robbers, Dove, Gibson, and

       Gibson’s girlfriend, were in her “house for like five minutes or [] ten minutes.”

       (Suppression Tr. p. 8). When asked the distance between Gibson’s girlfriend

       and herself, T.O. testified that she was “closer”. (Suppression Tr. p. 8).


[22]   At Brazier’s jury trial, T.O. consistently testified that the first time she saw the

       woman who assisted Dove and Gibson in the robbery was during the home

       invasion. When asked if she could identify the woman, T.O. first described the

       woman’s race as African-American and added that the woman “had an afro.”

       (Tr. Vol. II, p. 68). Twice, T.O. was asked to give other descriptive features of

       the woman, but T.O. shrugged her “shoulders,” and at that moment she offered

       “no response.” (Tr. Vol. II, p. 69). However, when T.O. was asked to point at

       the woman whom she had seen during the robbery, she pointed at Brazier.

       When asked how she found out that Brazier was Gibson’s girlfriend, T.O.

       stated, “[B]ecause I saw her in my house.” (Tr. Vol. II, p. 69). T.O. was then

       asked what role Brazier played during the robbery, and T.O. stated that Brazier

       took “cameras” and “went upstairs and took the TVs.” (Tr. Vol. II, p. 70). At


       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 10 of 15
       some point during her direct examination, T.O. described Brazier physique as

       “kind of fat, kind of skinny.” (Tr. Vol. II, p. 76).


[23]   Brazier argues that T.O.’s description of her became more accurate only after

       Owens informed T.O., ahead of the jury trial, that she was Gibson’s girlfriend.

       In turn, the State argues that

               First, the record is clear that [T.O.] was not subjected to any suggestive
               pretrial identification procedures prior to making her in-court
               identification, nor does [Brazier] make any argument that she was [].
               [T.O.] was not taken to do a show-up identification and was not
               shown a photo array or any photograph of [Brazier]. There is also no
               evidence in the record that she was exposed to any pretrial media
               reports about the robbery or ever had anyone identify [Brazier] to her
               as the robber. Rather, at both the pre-trial hearing and during her trial
               testimony, [T.O.] consistently testified that the robbery was the first
               time she had ever seen [Brazier], that she had not ever seen [Brazier]
               again after the robbery until that day in court, and that she had not
               been shown any pictures of [Brazier] since the crime.


       (Appellees’ Br. pp. 11-12) (internal citations omitted).


[24]   Although Owens informed T.O. that Brazier was Gibson’s girlfriend, thereby

       implying that T.O. was exposed to suggestive pre-trial identification, we find

       that T.O.’s in-court identification did not rest on any post-robbery knowledge.

       Considering the factors identified in Young, we find that the ten minutes that the

       robbers were inside Peck’s home, was sufficient time for T.O. to be able to

       observe and identify the robbers. T.O.’s description of Brazier was consistent at

       both the suppression hearing and at trial. T.O. testified that she was close to

       Brazier, and that they looked directly at each other during the robbery. T.O.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 11 of 15
       stated that Brazier was “kind of fat, kind of skinny.” (Tr. Vol. II, p. 70). T.O.

       then described Brazier’s race as African-American and that Brazier had “afro

       hair.” (Tr. Vol. II, pp. 68, 76). Notably, the robbery occurred around mid-

       morning, so the record supports the inference that the lighting was reasonably

       good. Referring to Brazier, T.O. confidently stated, “I saw her in my house,”

       and she took “cameras” and “went upstairs and took the TVs.” (Tr. Vol. II, pp.,

       69, 70). Here, we find no indication that T.O. was ever equivocal in her

       identification of Brazier, and in view of the totality of the circumstances, we

       conclude that T.O. had an independent basis upon which to identify Brazier in

       court as a perpetrator to the robbery. Accordingly, we conclude that the trial

       court did not abuse its discretion in admitting T.O.’s in-court identification of

       Brazier.


                                             B. Unanimous Verdict


[25]   Brazier argues that at her jury trial, “the State’s theory shifted between Brazier

       actually participating in the home invasion and being present [in] removing

       items . . . from [Peck’s] house to watching [Parker’s] child so that [Dove,

       Parker, and Gibson] could commit the robbery.” (Appellant’s Br. p. 19).

       Brazier then argues, “[b]ased upon these mutually exclusive theories of guilt

       advanced by the State, it is impossible to determine whether or not the jury

       actually reached a unanimous verdict in the case.” (Appellant’s Br. p. 20).


[26]   Here, the State advanced alternative theories about Brazier’s criminal liability

       with respect to the Level 3 felony robbery offense, namely, either that she was


       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 12 of 15
       guilty of: (1) personally committing the robbery with Dove and Gibson; or (2)

       aiding or abetting in the robbery. The trial court instructed the jury on

       accomplice liability. Under the theory of accomplice liability, a person who

       knowingly or intentionally aids, induces, or causes another person to commit a

       crime is guilty of committing that crime himself. See Ind. Code § 35-41-2-4; also

       see, Brooks v. State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008). To be convicted

       as an accomplice, there must be affirmative evidence showing the defendant

       was acting in concert with the principal in the commission of the crime. Brooks,

       895 N.E.2d at 133-34.


[27]   “There is no distinction between the criminal responsibility of a principal and

       that of an accomplice.” Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App.

       2011). A person may be convicted as an accomplice even if he was charged as a

       principal; in fact, the State may even change its theory of liability during the

       trial itself. See Suggs, 883 N.E.2d at 1192. Therefore, “individual jurors

       themselves need not choose among the theories, so long as each is convinced of

       guilt.”’ Taylor v. State, 840 N.E.2d 324, 334 (Ind. 2006).


[28]   In Taylor, the State pursued two theories on how the defendant could be guilty

       of murder, either by killing the victim or by aiding and abetting another person

       to kill the victim. Taylor, 840 N.E.2d at 331. Taylor argued in part that the jury

       should have been instructed that in order to convict him of murder, the verdict

       had to be unanimous on one of the two prosecution theories. Id. at 332. Our

       supreme court observed that the jury had to determine only whether Taylor

       committed one act of murder either as the principal or as an accomplice and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 13 of 15
       noted that Taylor would have been equally guilty of murder whether he acted

       as the principal shooter or merely as an accomplice. Id. at 333.


[29]   In the instant case, the State presented evidence that Brazier was present during

       the robbery, and that she removed televisions and cameras from Peck’s home.

       That evidence was sufficient to prove that Brazier acted as a principal. When

       the police interviewed Brazier, Brazier acknowledged that she was aware of the

       planned robbery, and she stated that she agreed to babysit Parker’s child to

       enable Parker, Dove, and Gibson to execute the robbery at Peck’s home.

       Indeed, this evidence was sufficient to sustain Brazier’s conviction for robbery

       as an accomplice.


[30]   In Taylor, our supreme court held that the “[t]he jury need not unanimously

       agree on the precise factual details of how [an offense] occurred in order to

       convict.” Id. at 334 (citation and quotation marks omitted). Instead, “the jury

       must agree unanimously that each element of the charged crime has been

       proved.” Id. Applying the rationale advanced in Taylor to the present case, and

       because there was sufficient evidence to convict Brazier of her charged offense

       under either of the State’s theory, we conclude that the jury did not need to

       reach a unanimous verdict.


                                             CONCLUSION
[31]   For the foregoing reasons, we conclude that the trial court did not abuse its

       discretion by admitting T.O.’s testimony, and the evidence was sufficient to

       convict Brazier of robbery either as a principal or as an accomplice.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2949 | August 23, 2018   Page 14 of 15
[32]   Affirmed.


[33]   Vaidik, C. J. and Kirsch, J. concur




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