      MEMORANDUM DECISION
                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D), this                            Aug 29 2018, 10:42 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                          CLERK
                                                                              Indiana Supreme Court
      purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                                   and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark Small                                                Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Indiana Attorney General

                                                                Kelly A. Loy
                                                                Supervising Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jimmy Nave, Jr.,                                         August 29, 2018

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               48A04-1708-PC-2007
              v.                                               Appeal from the Madison Circuit
                                                               Court

      State of Indiana,                                        The Honorable David A. Happe,
      Appellee-Respondent.                                     Judge

                                                               Trial Court Cause No.
                                                               48C04-1412-PC-44



      Sharpnack, Senior Judge.


                                       Statement of the Case
[1]   Jimmy Nave, Jr., appeals the denial of his petition for post-conviction relief.

      We affirm.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018          Page 1 of 12
                                                     Issue
[2]   Nave raises two issues, which we consolidate and restate as: whether the post-

      conviction court erred in rejecting his claims of ineffective assistance of trial

      counsel and appellate counsel.


                               Facts and Procedural History
[3]   The facts of Nave’s criminal case are as follows:


              On February 16, 2013, Ruth Clark, who was eighty-one years old
              at the time, left a shopping mall in Madison County and returned
              to her car in the mall parking lot. After Clark entered her car and
              sat in the driver’s seat, a man later identified as Nave entered the
              back seat of her car, reached around Clark’s seat, grabbed her by
              the face and mouth, and held a six-to-eight-inch knife to her
              neck. Clark was unable to move her arms due to this restraint by
              Nave but still attempted to call for help. Nave told her to “shut
              up” and ordered her to “drive.” Tr. p. 31.
              Fortunately for Clark, Robert Derrickson, a mall employee who
              was in the parking lot at the time, heard Clark’s muffled screams
              and responded. Derrickson saw Nave in Clark’s car with his
              hand over her mouth. Derrickson went to the car and asked
              Nave, “what [is] going on[?]” Tr. pp. 56-57. When Nave saw
              Derrickson, he exited the other side of the vehicle. Nave did not
              immediately leave the vicinity and stood face-to-face with
              Derrickson briefly until he began to walk away and leave the
              mall area. Derrickson noticed that Nave had something dark in
              his hand but was unable to identify what it was. Derrickson later
              identified Nave as the man he had seen in Clark’s car.
              As a result of this incident, Clark was visibly shaken. Although
              she initially told the police she was unhurt, she in fact had a
              bleeding wound on her face and later developed bruises on her
              face and hands.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 2 of 12
                On February 22, 2013, the State charged Nave with Class A
                felony kidnapping and Class B felony attempted carjacking. On
                June 24, 2013, a bench trial was held. Nave testified and
                admitted that he had gotten into Clark’s car, but claimed that he
                did so only to confront her because she had backed into his
                vehicle. The trial court rejected Nave’s version of events and
                found him guilty as charged.
      Nave v. State, Cause No. 48A02-1307-CR-632, *1 (Ind. Ct. App. 2013), trans.

      denied.


[4]   Nave appealed, claiming the evidence was insufficient to sustain his kidnapping

      conviction and that his sentence was inappropriate. A panel of this Court

      affirmed the trial court’s judgment. See id.


[5]   In 2014, Nave filed a petition for post-conviction relief. The post-conviction

      court held an evidentiary hearing on January 20, 2017 and denied the petition

      on June 7, 2017. This appeal followed.


                                   Discussion and Decision
                                       I. Standard of Review
[6]   Post-conviction proceedings are civil proceedings in which the petitioner must

      prove claims by a preponderance of the evidence. Hampton v. State, 961 N.E.2d

      480, 491 (Ind. 2012). When appealing from the denial of a petition for post-

      conviction relief, the petitioner stands in the position of one appealing from a

      negative judgment. Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). “As

      such, the petitioner faces a rigorous standard of review.” Wesley v. State, 788

      N.E.2d 1247, 1250 (Ind. 2003). To prevail on appeal, the petitioner must show

      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 3 of 12
      that the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Campbell, 19 N.E.3d at 274.


[7]   The post-conviction court issued findings of fact and conclusions thereon

      pursuant to Indiana Post-Conviction Rule 1(6). We review the post-conviction

      court’s factual findings for clear error, but we review questions of law de novo.

      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The post-conviction court is

      the sole judge of the weight of the evidence and the credibility of witnesses.

      Davison v. State, 763 N.E.2d 441, 444 (Ind. 2002).


      II. Sixth Amendment Right to Effective Assistance of Counsel
[8]   Nave claims his trial counsel made unreasonably deficient choices that resulted

      in him being found guilty. To demonstrate a violation of the Sixth Amendment

      right to effective assistance of counsel, a petitioner must prove the two

      components of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.

      Ct. 2052, 80 L. Ed. 2d 674 (1984). Passwater v. State, 989 N.E.2d 766, 770 (Ind.

      2013). The petitioner must show that counsel’s performance fell below an

      objective standard of reasonableness and that the deficient performance was

      prejudicial. Bethea v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). A petitioner

      demonstrates prejudice by establishing a reasonable probability that, but for

      counsel’s errors, the result of the proceeding would have been different. Id. at

      1138-39. We afford great deference to counsel’s discretion to choose strategy

      and tactics. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Further, we




      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 4 of 12
       strongly presume that counsel provided adequate assistance and exercised

       reasonable professional judgment in all significant decisions. Id.


                                        1. Probable Cause for Arrest

[9]    Nave first argues his trial counsel should have moved to suppress all evidence

       obtained from his warrantless arrest because he believes there was no probable

       cause. As a result, he claims the arrest violated his federal and state

       constitutional protections against unreasonable search and seizure, and if

       counsel had filed a motion to suppress, the motion would have been granted.


[10]   The Fourth Amendment provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.
[11]   Article one, section eleven of the Indiana Constitution contains similar

       language:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.
[12]   In Indiana, a police officer may arrest a person without a warrant if the officer

       has “probable cause to believe the person has committed or attempted to

       commit, or is committing or attempting to commit, a felony . . . .” Ind. Code §
       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 5 of 12
       35-33-1-1 (2005). When a person is arrested without a warrant, the following

       procedure applies:


               (a) At or before the initial hearing of a person arrested without a
               warrant for a crime, the facts upon which the arrest was made
               shall be submitted to the judicial officer, ex parte, in a probable
               cause affidavit. In lieu of the affidavit or in addition to it, the
               facts may be submitted orally under oath to the judicial officer. If
               facts upon which the arrest was made are submitted orally, the
               proceeding shall be recorded by a court reporter, and, upon
               request of any party in the case or upon order of the court, the
               record of the proceeding shall be transcribed.
               (b) If the judicial officer determines that there is probable cause to
               believe that any crime was committed and that the arrested
               person committed it, the judicial officer shall order that the
               arrested person be held to answer in the proper court. If the facts
               submitted do not establish probable cause or if the prosecuting
               attorney informs the judicial officer on the record that no charge
               will be filed against the arrested person, the judicial officer shall
               order that the arrested person be released immediately.
       Ind. Code § 35-33-7-2 (1982).


[13]   An officer filed a probable cause affidavit after Nave’s arrest. Nave claims that

       the facts and circumstances, as set forth in the probable cause affidavit, do not

       establish probable cause for his arrest. Probable cause to arrest exists when, at

       the time of the arrest, the officer has knowledge of facts and circumstances that

       would warrant a reasonable person to believe that the suspect has committed

       the criminal act in question. Clark v. State, 808 N.E.2d 1183, 1192 (Ind. 2004).

       The amount of evidence necessary to meet the probable cause requirement is

       determined on a case-by-case basis. Id. It is grounded in notions of common


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 6 of 12
       sense, not mathematical precision. Id. Probable cause requires only a fair

       probability of criminal activity, not a prima facie showing, and may be

       established by evidence that would not be admissible at trial. Lamagna v. State,

       776 N.E.2d 955, 958 (Ind. Ct. App. 2002). Information received from witnesses

       can serve as the basis for probable cause to arrest an individual. Decker v. State,

       19 N.E.3d 368, 373 (Ind. Ct. App. 2014), trans. denied.


[14]   In the current case, the probable cause affidavit stated that Ruth Clark described

       her assailant as an African-American male wearing “dark clothing, dark knit

       cap and dark jacket.” Appellant’s App. Vol. 2, p. 6. She further stated the

       assailant left the scene by walking to the north corner of the mall. Similarly,

       Robert Derrickson described the suspect as an African-American male wearing

       “Blk [sic] cap, leather looking coat, dark pants possibly work pants.” Id. He

       told the officer the suspect walked north around the mall.


[15]   Next, the affidavit indicates Nave arrived at Manie Vive’s garage to ask for a

       ride. Vive described Nave’s clothing to the officer and gave the officer Nave’s

       name. The clothing was “the same described by the victim and witness.” Id.

       Vive told the police Nave said he had just come from the mall.


[16]   Another officer went to Nave’s residence and saw a “similar looking male”

       walk up to the home. Id. at 7. The male identified himself as Nave’s brother,

       Chris Nave. Chris told the officer that Nave had called him to say he was “in

       trouble.” Id.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 7 of 12
[17]   The foregoing evidence from the probable cause affidavit would warrant a

       reasonable person to believe that Nave was the person who attacked Clark.

       Clark, Derrickson, and Vive described his clothing, and Vive knew Nave’s

       name. Nave argues that the affidavit contains inconsistencies and

       uncorroborated hearsay, but the State was not obligated to provide proof

       beyond a reasonable doubt in the affidavit. Under these circumstances, Nave’s

       counsel did not perform deficiently by failing to file a motion to suppress

       because the motion would not have been granted.


                         2. In-Court Identification and Due Process of Law

[18]   Nave argues his trial counsel rendered ineffective assistance by failing to object

       to Robert Derrickson’s in-court identification of Nave as the person who

       attacked Clark. “[T]o prevail on a claim of ineffective assistance due to the

       failure to object, the defendant must show an objection would have been

       sustained if made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007).


[19]   Nave argues Derrickson’s in-court identification was improper because the

       process through which Derrickson originally identified Nave for the police was

       unduly suggestive. “There is a degree of suggestiveness which is inherent in all

       in-court identifications; the practical necessity of having the appellant sit at the

       defendant’s table with defense counsel naturally sets him apart from everyone

       else in the courtroom.” Jeter v. State, 888 N.E.2d 1257, 1266 (Ind. 2008).

       Nevertheless, a defendant’s Fourteenth Amendment due process right may be

       violated by the admission of identification evidence that is the product of


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 8 of 12
       unduly suggestive procedures. Young v. State, 700 N.E.2d 1143, 1146 (Ind.

       1998).


[20]   We must consider the facts surrounding the pretrial procedure, including the

       manner and form in which the police asked the witness to attempt the

       identification and the witness’s interpretation of their directives, and whether

       officials singled out the defendant as the suspect they most had in mind either

       by their attitude displayed toward appellant or by the physical constitution of

       the photo array or corporeal lineup. Brooks v. State, 560 N.E.2d 49, 55 (Ind.

       1990). Whether a particular identification procedure rises to a level of

       suggestiveness that constitutes reversible error must be determined from the

       context of the case. Jeter, 888 N.E.2d at 1266. Inconsistencies in identification

       testimony affect the credibility of the witness, not the admissibility of the

       identification. Harris v. State, 619 N.E.2d 577, 581 (Ind. 1993).


[21]   Derrickson testified at Nave’s criminal trial. He stated that when he

       approached Clark’s car and yelled, Nave got out of the car on the other side and

       “kind of stood there” before walking away. Tr. Transcript Vol. 1, p. 57.

       Derrickson agreed that he had gotten “a good look” at Nave after the attack

       and identified him in court as the perpetrator. Id. at 65.


[22]   Detective Scott Sanderson interviewed Derrickson on February 16, 2013, after

       the attack. Derrickson agreed that he could possibly identify Clark’s attacker.

       The detective showed Derrickson a photographic lineup, saying “Just take your

       time and look and tell me if you see anybody that looks like that person. And if


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 9 of 12
       you don’t know, you just don’t know. That’s fine, too.” PCR Tr. Vol. 3, p. 10.

       The State did not preserve the lineup, and the record does not indicate whether

       a picture of Nave was included in the lineup. Derrickson was unable to identify

       anyone as the attacker.


[23]   Detective Sanderson told Derrickson the lineup “isn’t good” and that he

       wanted to find “a lot clearer photo.” Id. He offered to create another lineup, “a

       better one maybe.” Id. at 11. The detective stressed, “So if you don’t really

       know a hundred percent, I mean, I don’t want you to just pick.” Id.

       Derrickson agreed he would review a “better photo lineup” later. Id.


[24]   On February 26, 2013, Detective Sanderson presented a different photographic

       lineup to Derrickson. He identified Nave as the attacker. At Nave’s trial,

       Derrickson testified about his inability to identify anyone in the February 13,

       2013 lineup and his identification of Nave in the February 26, 2013 lineup.


[25]   Nave argues we must presume that his photograph was included in the first

       photo array because the State failed to preserve the array. Reply Br. p. 6 (citing

       Loomis v. Ameritech Corp., 764 N.E.2d 658 (Ind. Ct. App. 2002), trans. denied).

       Even if Nave is correct, any inconsistencies between Derrickson’s reactions to

       the February 13 and February 26 lineups would be relevant to his credibility,

       not to the admissibility of Derrickson’s identification of Nave. Further,

       Detective Sanderson never singled out Nave as a suspect or implied that a

       suspect was included in the February 13, 2013 lineup. To the contrary, the




       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 10 of 12
       detective stressed that he was interested only in Derrickson’s honest, accurate

       response regardless of the result.


[26]   Nave claims that during Detective Sanderson’s February 13, 2016 presentation

       of the photographic lineup, the detective specifically pointed out Nave’s

       photograph to Derrickson. We disagree with Nave’s reading of the record.

       After Derrickson indicated he would be willing to review another photographic

       lineup on a later occasion, Detective Sanderson stated as follows:


               This one here was really kind of a spur of the moment thing, and
               I thought if somebody got a really great look at somebody, they
               might have been able to tell. I knew it would probably be a little
               difficult. When you came out of the mall, before that incident,
               you don’t remember ever seeing this guy anywhere (inaudible)
               when you seen [sic] him today at all?
       PCR Tr. Vol. III, p. 11. We are obligated to review the post-conviction record

       in the light most favorable to the judgment, and we read Sanderson’s question

       as a general question rather than as pointing to a specific picture in the

       photographic lineup.


[27]   To summarize, we conclude the pretrial identification procedures were not

       unduly suggestive, and the trial court’s admission of Derrickson’s in-court

       identification of Nave as the attacker did not violate Nave’s right to due process

       of law. See Harris, 619 N.E.2d at 581 (witness’s change of mind in description

       of suspect went to credibility, not to admissibility of identification). Nave’s trial

       counsel did not render ineffective assistance in failing to object to the in-court

       identification because the objection would have been overruled.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 11 of 12
                                            3. Appellate Counsel

[28]   Nave argues he received ineffective assistance of appellate counsel for failing to

       challenge the probable cause for his arrest and for failing to challenge

       Derrickson’s in-court identification of him as the suspect. Claims of ineffective

       assistance of appellate counsel are governed by the two-part Strickland test

       discussed above. Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). We have

       already determined that Nave did not receive ineffective assistance of trial

       counsel on the issues of probable cause and in-court identification.

       Accordingly, his claims of ineffective assistance of appellate counsel on these

       issues must also fail.


                                                Conclusion
[29]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[30]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-PC-2007 | August 29, 2018   Page 12 of 12
