                                                                FILED
                                                           Feb 28 2018, 8:21 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brian A. Karle                                             Curtis T. Hill, Jr.
Ball Eggleston, PC                                         Attorney General of Indiana
Lafayette, Indiana                                         James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Khalil Jalon Payne,                                        February 28, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1707-CR-1606
        v.                                                 Appeal from the Tippecanoe
                                                           Circuit Court
State of Indiana,                                          The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           79C01-1609-F4-39



Pyle, Judge.




Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018             Page 1 of 17
                                        Statement of the Case
[1]   Kahlil Jalon Payne (“Payne”) appeals his conviction for Level 4 felony

      unlawful possession of a firearm by a serious violent felon (“SVF”)1 and the

      trial court’s merger of his convictions. He argues that there was insufficient

      evidence to prove that he committed unlawful possession of a firearm by an

      SVF and that the trial court’s merger of two of his convictions violated the

      constitutional prohibition against double jeopardy. We agree that there was

      insufficient evidence to support Payne’s unlawful possession of a firearm by an

      SVF conviction and reverse it, but we do not find merit in his double jeopardy

      argument. We also note that the trial court merged Payne’s conviction for

      Class A misdemeanor carrying a handgun without a license with his unlawful

      possession of a firearm by an SVF conviction. Because Payne’s carrying a

      handgun without a license conviction remains valid after our reversal of his

      unlawful possession conviction, we instruct the trial court to enter judgment of

      conviction on that count on remand and to re-sentence Payne accordingly.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                      Issues
                 1. Whether there was sufficient evidence to support Payne’s
                    conviction for Level 4 felony unlawful possession of a firearm
                    by an SVF.




      1
          IND. CODE § 35-47-4-5(c).


      Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 2 of 17
              2. Whether the trial court’s merger of Payne’s convictions
                 violated the constitutional prohibition against double jeopardy.

                                                      Facts
[3]   On September 27, 2016, Katelynn Risner (“Risner”) and Stephanie Miller

      (“Miller”) picked up Payne to go to Miller’s house and “[get] high.” (Tr. Vol. 2

      at 10). Payne planned to stay the night at Miller’s apartment, and Risner saw

      him bring a duffel bag full of clothes with him. At Miller’s apartment, which

      was one unit inside of a four-unit building, Miller, Miller’s boyfriend, Risner,

      and Payne smoked spice. Miller “passed out,” and Risner and Payne took her

      van to go to another friend’s house. (Tr. Vol. 2 at 19). When Miller woke, she

      thought that her van had been stolen and called the police.


[4]   Police officers from the Lafayette Police Department responded to the scene.

      Miller told them that she did not want to report the vehicle as stolen any longer

      because she knew that Risner and Payne were wanted on active arrest warrants,

      but she said that she still wanted her van back. While the officers were

      questioning Miller, Risner and Payne returned to her apartment. When they

      opened the door and saw the police officers inside, they “became scared,”

      “retrieved [sic] back [to] the hallway” outside of the apartment, and tried to exit

      the building. (Tr. Vol. 2 at 25). Officer Nathan Stoneking (“Officer

      Stoneking”) followed them and detained Risner in the common hallway.

      Officer Alex Dare (“Officer Dare”) also followed Risner and Payne and saw

      Payne in the common hallway by a stairwell that led to the second floor of the




      Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 3 of 17
      building. (Tr. Vol. 2 at 38). He detained Payne, searched him, and found a bag

      of spice in Payne’s right front pocket.


[5]   After arresting Risner and Payne, the officers discovered two black duffle bags

      near the stairwell in the common hallway. One officer searched the bags and

      located a firearm in one of them. The bag also contained male clothing that

      was “consistent both in style and size” with the clothing that Payne was

      wearing. (Tr. Vol. 2 at 55).


[6]   On September 29, 2016, the State charged Payne with Count 1, Level 4 felony

      unlawful possession of a firearm by an SVF; Count 2, Class A misdemeanor

      carrying a handgun without a license; Count 3, Class A misdemeanor

      possession of a synthetic drug or synthetic drug lookalike substance; Count 4,

      Level 5 felony carrying a handgun without a license; and Count 5, Level 6

      felony possession of a synthetic drug or synthetic drug lookalike substance.


[7]   The trial court held a bench trial on May 24, 2017. At the conclusion of the

      first phase of the trial, the court found that Payne had possessed the firearm the

      police had found in the duffel bag in the hallway.2 The court reasoned that the

      “only reasonable inference” from the evidence was that Payne had “had the

      bags in his possession,” “noticed that the police were there,” and “tried to find

      a place to escape or to hide them” before he had been detained. (Tr. Vol. 2 at




      2
       While the court discussed its conclusions on the evidence, it did not enter a judgment of conviction on the
      underlying unlawful possession of a firearm by an SVF until after the second phase of trial.

      Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018                     Page 4 of 17
      72). The court clarified that it did not “put a lot of weight” on the evidence that

      the clothing found in the duffle bags along with the firearm was the same

      “style” as Payne’s clothes because it was essentially the “kind of clothing that

      many people wear.” (Tr. Vol. 2 at 70). However, the court noted that “the fact

      that it was the defendant’s size [was] prohibitive [sic].” (Tr. Vol. 2 at 71).


[8]   During the second phase of Payne’s bench trial, the State offered certified

      records from a 2010 robbery conviction and claimed that the records proved

      that Payne was the defendant in that cause who had previously been convicted

      of robbery. The records included the charging information, probable cause

      affidavit, supplemental probable cause affidavit, plea agreement, the trial

      court’s order on plea hearing, and the trial court’s sentencing order, which were

      all labeled with the same cause number. The charging information included the

      robbery defendant’s name and birth date, which matched Payne’s name and

      birth date as listed in the instant cause, as well as the robbery defendant’s

      driver’s license number, which did not match the information in the instant

      cause. The plea agreement included the robbery defendant’s name, birth date,

      and signature. The trial court’s order on plea agreement and sentencing order

      contained only the robbery defendant’s name. The State rested its case without

      further testimony.


[9]   Based on this evidence, the trial court concluded that the State had proved that

      Payne had a prior robbery conviction. The trial court found Payne guilty of

      Count 1, unlawful possession of a firearm by an SVF; Count 2, Class A

      misdemeanor carrying a handgun without a license; Count 3, Class A

      Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 5 of 17
       misdemeanor possession of a synthetic drug or synthetic drug lookalike

       substance; and Count 5, Level 6 felony possession of a synthetic drug or a

       synthetic drug lookalike substance. The court concluded that Count 3 merged

       into Count 5, that Payne was not guilty of Count 4, and that Count 2 merged

       into Count 1. The trial court then sentenced Payne to nine (9) years on Count 1

       and one (1) year on Count 5, and ordered him to serve the sentences

       consecutively, for an aggregate sentence of ten (10) years. The court further

       ordered Payne to serve seven and one half (7½) years of his aggregate sentence

       in the Department of Correction, one and one half (1½) years in Community

       Corrections, and one (1) year suspended. Payne now appeals.


                                                    Decision
[10]   On appeal, Payne argues that: (1) there was insufficient evidence to support his

       conviction for unlawfully possessing a firearm as an SVF; and (2) the trial

       court’s merger of his convictions in Count 3 into Count 5 violated the

       constitutional prohibition against double jeopardy. We will address each of

       these arguments in turn.


       1. Sufficiency of the Evidence

[11]   Our standard of review for sufficiency of the evidence claims is well-settled.

       We consider only the probative evidence and reasonable inferences supporting

       the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

       reweigh the evidence or judge witness credibility. Id. We will affirm the

       conviction unless no reasonable fact finder could find the elements of the crime


       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 6 of 17
       proven beyond a reasonable doubt. Id. The evidence is sufficient if an

       inference may be reasonably drawn from it to support the judgment. Id. at 147.


[12]   In order to convict Payne of unlawful possession of a firearm as an SVF, the

       State had to prove that he “knowingly or intentionally possess[ed] a firearm”

       after having been convicted of a qualifying felony, specifically robbery. I.C. §

       35-47-4-5(c). Payne challenges the sufficiency of the evidence supporting both

       the possession and SVF elements of his offense.


[13]   With respect to the possession element, Payne asserts that there was insufficient

       evidence that he possessed the firearm because there was no evidence that the

       bag where the firearm was found belonged to him. In support of this argument,

       he notes that the bag was found in a common hallway of a four-unit apartment

       building and that he did not live in the building.


[14]   To prove that a defendant possessed an item, the State may prove either actual

       or constructive possession. Eckrich v. State, 73 N.E.3d 744 (Ind. Ct. App. 2017),

       trans. denied. Actual possession occurs “when a person has direct physical

       control over [an] item.” Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). When

       a person does not have direct physical control over an item, as was the case

       here, the person may still have constructive possession of the item if he “‘has (1)

       the capability to maintain dominion and control over [it]; and (2) the intent to

       maintain dominion and control over it.’” Id. (quoting Gray v. State, 957 N.E.2d

       171, 174 (Ind. 2011)). In cases where the accused has exclusive possession of

       the premises on which the contraband is found, an inference is permitted that


       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 7 of 17
       he knew of the presence of the contraband and was capable of controlling it.

       Harrison v. State, 32 N.E.3d 240, 248 (Ind. Ct. App. 2015), trans. denied.

       “[W]hen possession of the premises is non-exclusive, this inference is permitted

       only if some additional circumstances indicate the defendant’s knowledge of the

       presence of the contraband and the ability to control it.” Id. Some of these

       recognized additional circumstances include: (1) incriminating statements

       made by the defendant; (2) attempted flight or furtive gestures; (3) a drug

       manufacturing setting; (4) proximity of the defendant to the contraband; (5) the

       contraband being in plain view; and (6) the location of the contraband being in

       close proximity to items owned by the defendant. Id.


[15]   Payne did not have exclusive possession of the premises where the firearm was

       found, but there were additional circumstances permitting the inference that

       Payne constructively possessed the firearm. Specifically, Payne attempted to

       flee the area where police were located and dropped the bag in furtherance of

       his attempted get away. In addition, the bag containing the firearm was found

       in close proximity to the location where Payne was detained, and the firearm

       was found within a bag amongst clothes that belonged to him. Payne asserts

       that there was insufficient evidence that the bag and the clothes in the bag

       belonged to him, but that is a request to reweigh the evidence, which we will

       not do. See Drane, 867 N.E.2d at 146. The State produced evidence that Risner

       saw Payne carrying a duffle bag on his way to spend the night at Miller’s house,




       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 8 of 17
       and the clothes in the bag matched Payne’s clothes in terms of style and size. 3

       Accordingly, we conclude that there was sufficient evidence that Payne

       constructively possessed the bag containing the firearm and the firearm itself.


[16]   Next, Payne contends that there was insufficient evidence to prove that he had

       been convicted of the pre-requisite violent felony necessary to be considered an

       SVF. In order to convict Payne of unlawful possession of a firearm by an SVF,

       the State had to prove that he had previously been convicted of a serious violent

       felony. Berberena v. State, 86 N.E.3d 199, 201 (Ind. Ct. App. 2017), trans. denied.

       INDIANA CODE § 35-47-4-5 lists several offenses that qualify as serious violent

       felonies, and that list includes robbery. I.C. § 35-47-4-5(b)(13).


[17]   At trial, the State introduced a certified record of a prior robbery conviction for

       “Kahil Jalon Payne,” which was the same name listed in this case, and the

       robbery defendant’s birth date matched the birth date listed in Payne’s records

       for the instant cause. (State’s Ex. 1). Payne argues that this certified record was

       insufficient to prove that he was the same person who had committed the

       robbery because the matching name and birth date were not sufficient to prove

       his identity.




       3
         Payne suggests that the trial court found that the style and size of the clothing were not dispositive.
       However, we interpret the trial court’s finding differently. The trial court stated that it did not “put a lot of
       weight” on the evidence that the clothing was the same style as Payne’s, but it also noted that “the fact that it
       was the defendant’s size [was] prohibitive [sic].” (Tr. Vol. 2 at 70, 71). Within the context of the paragraph,
       it is clear that the trial court meant that the defendant’s size was “probative” and that the word “prohibitive”
       is a typographical error. (Tr. Vol. 2 at 71).

       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018                        Page 9 of 17
[18]   Our supreme court has previously explained that “‘[c]ertified copies of

       judgments or commitments containing a defendant’s name or a similar name

       may be introduced to prove the commission of prior felonies.’” Tyson v. State,

       766 N.E.2d 715, 718 (Ind. 2002) (quoting Hernandez v. State, 716 N.E.2d 948,

       953 (Ind. 1999)). However, “‘there must be supporting evidence to identify the

       defendant as the person named in the documents.’” Id. (quoting Hernandez, 716

       N.E.2d at 953). This proof of identity “‘may be in the form of circumstantial

       evidence.’” Walker v. State, 988 N.E.2d 1181, 1187 (Ind. Ct. App. 2013)

       (quoting Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988), reh’g denied), trans.

       denied. “‘If the evidence yields logical and reasonable inferences from which the

       finder of fact may determine beyond a reasonable doubt that it was [the]

       defendant who was convicted of the prior felony, then a sufficient connection

       has been shown.’” Tyson, 766 N.E.2d at 718 (quoting Hernandez, 716 N.E.2d at

       953).


[19]   As Payne argues, we have previously held that a matching name and birth date,

       absent other identifying evidence, are not sufficient to prove identity. Livingston

       v. State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989) (holding that evidence of a

       matching name and birth date or social security number were not sufficient to

       prove the defendant’s identity).4 In response, the State contends that it




       4
         It is important to note that the State in Livingston did not introduce documents with matching name, date of
       birth, and social security number. The State introduced documents with a name and date of birth or social
       security number. It is an open question as to whether matching documents containing all three of the
       aforementioned identifiers would be sufficient to identify a particular defendant beyond a reasonable doubt.
       There are instances where the State has used documents with a name, date of birth, and social security

       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018                     Page 10 of 17
       produced additional evidence of Payne’s identity because the plea agreement in

       the robbery cause and the signed advisement of rights form in the instant cause

       both contained Payne’s signature.


[20]   We do not find this evidence dispositive. Although the plea agreement in the

       robbery cause and the signed advisement of rights form in this cause both

       contained signatures, the signature within the plea agreement had not been

       authenticated as belonging to Payne. Indiana Rule of Evidence 902(1) provides

       that “domestic public documents that are sealed and signed are self-

       authenticating.” However, self-authentication of a document merely relieves



       number to identify a defendant. See Reed v. State, 491 N.E.2d 182 (Ind. 1986) (name, date of birth, and social
       security were sufficient on certain documents, but noted that other evidence such as photographs,
       fingerprints, and identifying testimony were much more likely to survive a challenge to the sufficiency of the
       evidence). However, in most cases, the State also introduced other identifying evidence which significantly
       increased the evidence from which a juror could be firmly convinced that the defendant was the actual person
       convicted of the qualifying felony. While social security numbers were not originally meant to be a unique
       national identifying number, President Franklin Roosevelt issued an executive order authorizing federal
       government agencies who found it necessary “to establish a new system of permanent account numbers
       pertaining to individual persons, [to] utilize exclusively the Social Security account numbers . . . .” Exec.
       Order No. 9397, 3 C.F.R. (1943-1948 Comp.) 283-284 (1943). Even so, from 1946 until 1972, social security
       cards contained the warning “FOR SOCIAL SECURITY PURPOSES – NOT FOR IDENTIFICATION.”
       The Social Security Administration, https://www.ssa.gov/history/hfaq.html (last visited February 9, 2018).
       This warning was removed as a part of a redesign of the card. Id. Whether or not the removal of the warning
       was a result of a policy change, social security numbers have come to be thought of as a quasi-universal
       personal identification number. R. Brian Black, Legislating U.S. Data Privacy in the Context of National
       Identification Numbers: Models From South Africa and the United Kingdom, 34 Cornell L.J. 398 (2001); see also,
       Flavio L. Komuves, We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social
       Security Numbers as Personal Identifiers, 16 Marshall J. Computer & Info. L. 529, 531-532 (1998). However, in
       light of the increasing threat of identity theft, the issuance of duplicate social security numbers, and
       administrative errors, there is an increasing body of research that, contrary to general public perception,
       social security numbers are not reliable individual identifiers. See ID Analytics, Exploring the Impact of SSN
       Randomization Whitepaper March 2014, available at http://www.idanalytics.com/media/Exploring-the-
       Impact-of-SSN-Randomization.pdf (last visited February 9, 2018) (research finding that more than 40 million
       social security numbers are associated with multiple people). As a result, the best practice for prosecutors is
       not to rely solely on name, date of birth, and social security numbers; prosecutors should seek to include
       other methods of identification such as booking photographs, fingerprints, affidavits, physical identifiers, or
       testimony of witnesses. This will have the effect of reducing the risk of misidentification and increase the
       confidence jurors may place in the evidence introduced at trial.

       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018                     Page 11 of 17
       the proponent of providing foundational testimony for admission of the

       document as evidence. Reemer v. State, 835 N.E.2d 1005, 1007 n.4 (Ind. 2005).

       In other words, because the certified records for the robbery case were self-

       authenticating, the State did not have to provide foundational testimony to

       prove that they were official court records. This self-authentication did not

       relieve the State of its burden of authenticating that the signature in the robbery

       records belonged to Payne. See Evid. R. 901(a) (“To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.”).


[21]   Handwriting can be identified and authenticated through a non-expert’s

       opinion if the opinion is “based on familiarity with [the handwriting] that was

       not acquired for the current litigation.” Evid. R. 901(b)(2); Smith v. State, 284

       N.E.2d 522, 525 (Ind. Ct. App. 1972) (“Where the genuineness of a signature

       appearing on a document is in issue, a lay witness is deemed qualified to render

       an opinion as to the authenticity thereof if he is acquainted or familiar with the

       signature of the person whose signature he is called upon to identify.”).

       Handwriting may also be authenticated through the trier of fact or an expert’s

       comparison of the handwriting with an authenticated specimen. Evid. R.

       901(b)(3). However, evidence must be authenticated in some manner. See

       Evid. R. 901(a).


[22]   Here, the State did not introduce expert or non-expert testimony to authenticate

       the signature; nor did Payne admit that the signature was his. Accordingly, the

       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 12 of 17
       signature was never authenticated, and the only evidence the State introduced

       to prove Payne’s identity as the defendant in the robbery cause was the

       evidence of the robbery defendant’s name and birth date. As this Court has

       already held that a defendant’s name and birth date, alone, are not sufficient to

       prove identity, we conclude that there was not sufficient evidence to prove that

       Payne had previously committed the robbery and, therefore, qualified as an

       SVF. See Livingston, 537 N.E.2d at 78. Accordingly, there was also insufficient

       evidence to support his conviction for unlawfully possessing a firearm as an

       SVF. See I.C. § 35-47-4-5(c). We reverse Payne’s conviction and remand with

       instructions for the trial court to vacate it.


[23]   However, we note that the trial court merged Payne’s Count 2 Class A

       misdemeanor carrying a handgun without a license conviction with his

       unlawful possession of a firearm by an SVF conviction prior to entering

       judgment of conviction. Because Payne’s status as an SVF was not an element

       of carrying a handgun without a license, that conviction remains valid. See I.C.

       § 35-47-2-1(a) (providing that “a person shall not carry a handgun in a vehicle

       or on or about the person’s body without being licensed under this chapter to

       carry a handgun”); Carter v. State, 750 N.E.2d 778, 781 n.9 (Ind. 2001) (“If a

       conviction for a greater offense is reversed for reasons specific to the

       incremental elements between the greater and a lesser included offense, a

       conviction for the lesser offense may remain valid.”). We remand with

       instructions for the trial court to enter judgment of conviction on the Class A




       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 13 of 17
       misdemeanor carrying a handgun without a license conviction and to sentence

       accordingly.


       2. Double Jeopardy


[24]   Next, Payne argues that the trial court violated the constitutional prohibition

       against double jeopardy when it recorded on his abstract of judgment that

       Count 3 merged into Count 5.5 He notes that our supreme court has held that a

       double jeopardy violation “‘cannot be remedied by the ‘practical effect’ of

       concurrent sentences or by merger after conviction has been entered.’”

       (Payne’s Br. 17) (quoting Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015)).


[25]   However, Hines refers to instances where a trial court attempts to merge counts

       after entering judgments of conviction on the charges. The trial court here

       specified on Payne’s abstract of judgment that Count 3 had merged, but there is

       no indication in the abstract of judgment or chronological case summary that

       the trial court entered judgment of conviction on Count 3 prior to merger.

       Payne also admits that the trial court did not sentence him on Count 3. Our

       supreme court has held that a “verdict for which the court did not enter

       judgment for one reason or another (merger, double jeopardy, etc.) is

       unproblematic.” Carter, 750 N.E.2d at 781. See also Kilpatrick v. State, 746

       N.E.2d 52, 60 (Ind. 2001) (“[W]here a trial court merges some offenses into




       5
        Payne also challenges the trial court’s merger of Count 2 into Count 1, but we need not address that
       argument as we have reversed Count 1.

       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018                    Page 14 of 17
       others for purposes of sentencing, there is no double jeopardy violation.”).

       Because the trial court did not enter judgment or sentence Payne on Count 3,

       his double jeopardy argument fails.


[26]   Affirmed in part, reversed in part, and remanded with instructions.


       Bailey, J., concurs.


       Kirsch, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 15 of 17
ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brian A. Karle                                             Curtis T. Hill, Jr.
Ball Eggleston, PC                                         Attorney General of Indiana
Lafayette, Indiana                                         James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Khalil Jalon Payne,
Appellant-Defendant,
                                                           Court of Appeals Case No.
        v.                                                 79A02-1707-CR-1606

State of Indiana,
Appellee-Plaintiff.




Kirsch, Judge, dissenting.


I believe that the evidence presented at trial was sufficient to sustain the

conviction of Kahlil Jalon Payne for Level 4 felony unlawful possession of a

firearm by a serious violent felon (“SVF”), and I would affirm the trial court’s

judgment in all respects.


Accordingly, I respectfully dissent.

Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018           Page 16 of 17
The majority opinion notes that in Tyson v. State, 766 N.E.2d 715, 718 (Ind.

2002), our Supreme Court stated that “‘there must be supporting evidence to

identify the defendant as the person named in the documents.’” (quoting

Hernandez v. State, 716 N.E.2d 948, at 953). Additionally, this proof of identity

“‘may be in the form of circumstantial evidence.’” Walker v. State, 988 N.E.2d

1181, 1187 (Ind. Ct. App. 2013) (quoting Baxter v. State, 522 N.E.2d 362, 365

(Ind. 1988), trans. denied. Finally, “‘If the evidence yields logical and reasonable

inferences from which the finder of fact may determine beyond a reasonable

doubt that it was [the] defendant who was convicted of the prior felony, then a

sufficient connection has been shown.’” Tyson, 766 N.E.2d at 718 (quoting

Hernandez, 716 N.E.2d at 953).


Applying these precepts to the facts of this case, we see the following:


First, as noted by the prosecutor at trial, the defendant’s name and its spelling

are unique. Second, the date of birth established in Payne’s 2010 conviction

matches his date of birth in this proceeding. Third, Payne admitted to and did

not contest Counts 3 or 5 in which the same name and date of birth appear as

on the information in Payne’s 2010 conviction. Fourth, and as noted by the

trial judge, Payne admitted that he's the same Khalil Jalon Payne who was

convicted of the misdemeanor that was a predicate for Count 5.




Court of Appeals of Indiana | Opinion 79A02-1707-CR-1606 | February 28, 2018   Page 17 of 17
