MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Mar 28 2017, 9:43 am

this Memorandum Decision shall not be                                          CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              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
Danielle L. Gregory                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Billy Guyton,                                            March 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1434
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff.                                      Hagenmaier, Commisssioner
                                                         Trial Court Cause No.
                                                         49G04-1510-F3-36181



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017              Page 1 of 7
                                             Case Summary
[1]   Billy Guyton appeals his convictions for Level 3 felony robbery and Level 5

      felony intimidation. We affirm.


                                                     Issue
[2]   The sole issue is whether the trial court properly refused to allow Guyton to

      show a video to the jury regarding eyewitness identification.


                                                     Facts
[3]   On October 8, 2015, Jorge Gutierrez stopped at a gas station convenience store

      in Indianapolis to buy cigarettes while his wife and children waited in the car.

      As Gutierrez was leaving the store and walking back to his car, he was

      approached by two young African-American men. One of them pointed a gun

      at Gutierrez, and they both demanded that he give them “everything you

      have.” Tr. p. 72. Gutierrez gave them his cell phone, wallet, and cigarettes;

      they took the cash from the wallet, threw the wallet back at Gutierrez, and

      called him a racial slur.


[4]   Gutierrez drove his wife and children home and then returned to the gas station

      and called police. While Gutierrez was speaking with the dispatcher, he saw

      the robbers come back to the gas station, but wearing different clothes, and then

      walk toward a nearby apartment complex. Gutierrez provided a description of

      the robbers to police. Police detained Guyton at the apartment complex shortly

      thereafter because he matched Gutierrez’s description. Guyton had attempted

      to run away from police; when they caught him and patted him down, they
      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 2 of 7
      discovered a cell phone and a pack of cigarettes. The cell phone belonged to

      Gutierrez and the cigarettes were the same brand that he had just purchased.

      Gutierrez subsequently identified Guyton as one of his robbers, the one without

      the gun, in a show-up identification and in a photo array.


[5]   The State charged Guyton with Level 3 felony robbery and Level 5 felony

      intimidation. At Guyton’s jury trial, defense counsel requested during voir dire

      and again during closing argument to show a video to the jurors. The video

      was of an experiment called “The Invisible Gorilla.” Tr. p. 170. In the video,

      which is titled “Selective Attention Test from Simons & Chabris (1999),” a

      narrator instructs the viewer to count how many times players wearing white

      shirts pass a basketball. Then, the video shows three persons wearing white

      shirts and three persons wearing black shirts passing two basketballs back and

      forth; while they are doing so, an individual wearing a gorilla costume walks

      between them. Afterwards, the narrator states the correct number of passes by

      persons wearing white shirts and then says, “But did you see the gorilla?!” Ex.

      A. The apparent implication of the video is that the average person asked to

      concentrate on the number of passes by persons wearing white shirts would not

      have noticed the gorilla.


[6]   Defense counsel submitted the video to the trial court as part of his offer to

      prove and engaged in the following conversation with the trial court:

              [Defense counsel]: The video is a selective authentication test. It
              portrays the visual kind of experiment that demonstrates the
              difficulty of eyewitness testimony. . . . We would just like to play

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 3 of 7
              this in closing just to show the jury the difficulty of eyewitness
              identification. The video is not related to the case in any way. . .
              .


                                                   *****


              THE COURT: Okay. I will accept that as part of the record for
              an Offer to Prove. I just want to reiterate my prior ruling that
              this is a test or a study that is done outside the context of the trial.
              It is not subject to cross exam by the other party. I think it is
              inappropriate to interject that to the jury. I mean, I tell the jury
              every night when they leave not to do experiments or consult
              YouTube and things like that so I think that is in that nature. We
              will accept that for an Offer to Prove.


              [Defense counsel]: I’m sorry. One more thing. I intended to
              offer that only as demonstrative and not substantive.


              THE COURT: Okay. Well, it has to be demonstrative of
              something. Okay? It is demonstrative of a test that was done
              outside the presence of this courtroom . . . .


      Tr. pp. 170-72.


[7]   The jury found Guyton guilty as charged, and he was convicted and sentenced

      accordingly. He now appeals.


                                                  Analysis
[8]   Guyton argues the trial court erred in refusing to allow him to show the

      “Invisible Gorilla” video to the jury. We will reverse a conviction based on a

      trial court’s evidentiary rulings only for an abuse of discretion resulting in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 4 of 7
       prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). “A trial

       court abuses its discretion when its ruling is either clearly against the logic and

       effect of the facts and circumstances before the court, or when the court

       misinterprets the law.” Id.


[9]    Guyton contends the video was only demonstrative evidence and, therefore, did

       not have to meet the higher standards for the admission of substantive evidence.

       “Demonstrative evidence is evidence offered for purposes of illustration and

       clarification.” Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Such evidence

       is admissible “if it sufficiently explains or illustrates relevant testimony as to be

       a potential help to the trier of fact.” Dunlap v. State, 761 N.E.2d 837, 842 (Ind.

       2002). Photographs and videos are treated as demonstrative evidence when

       they are “‘used merely as a nonverbal method of expressing a witness’

       testimony and is admissible only when a witness can testify it is a true and

       accurate representation of a scene personally viewed by that witness.’” Rogers v.

       State, 902 N.E.2d 871, 876 (Ind. Ct. App. 2009) (quoting Bergner v. State, 397

       N.E.2d 1012, 1014 (Ind. Ct. App. 1979)). If a photo or video does not meet this

       requirement, it may be admitted as substantive evidence under the “silent

       witness” theory. Id. This theory applies primarily to things such as security

       camera footage, and to be admissible “‘there must be a strong showing of

       authenticity and competency . . . .’” Id. (quoting Edwards v. State, 762 N.E.2d

       128, 136 (Ind. Ct. App. 2002), trans. denied).


[10]   The video Guyton wished to enter into evidence was completely untethered to

       any witness’s testimony. It did not directly connect to or explain any other

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 5 of 7
       evidence or testimony, or accurately represent any scene related to the case. It

       does not fit within the classic definition of demonstrative evidence. Nor is it a

       “silent witness” to any fact related to the crime.


[11]   Rather, it is clear Guyton wanted to introduce the video as independent

       substantive evidence related to the question of the reliability of eyewitness

       testimony. We are aware that question has been subject to significant scientific

       testing and litigation in recent years. See generally Gorman v. State, 968 N.E.2d

       845, 848-850 (Ind. Ct. App. 2012) (discussing scientific research and court cases

       regarding eyewitness identification), trans. denied. Defendants certainly are

       entitled to present evidence on this question, but they do not have carte blanche

       to introduce evidence in any form they choose or in disregard of the rules of

       evidence. There are a number of procedural safeguards against fact-finders

       placing undue weight on potentially unreliable eyewitness testimony. Id. at

       849-50 (citing Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716 (2012)).

       These include “the Sixth Amendment right to confront and cross-examine

       eyewitnesses, the right to the effective assistance of counsel and to present

       opening and closing argument regarding eyewitness credibility, and the right to

       conviction only upon proof beyond a reasonable doubt.” Id. at 850 (citing

       Perry, 565 U.S. at 245-46, 132 S. Ct. at 728-29). Also, jury instructions may be

       given listing factors to consider in weighing eyewitness testimony, trial courts

       may exclude evidence whose probative value is substantially outweighed by the

       danger of unfair prejudice, and “‘[i]n appropriate cases . . . defendants [are




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 6 of 7
       allowed] to present expert testimony on the hazards of eyewitness identification

       evidence.’” Id. (quoting Perry, 565 U.S. at 247, 132 S. Ct. at 729).


[12]   If the video in this case was to be introduced at all, at a minimum it needed to

       be accompanied by expert testimony explaining its relevance to the case. Such

       testimony would have to be subject to the admissibility requirements of Indiana

       Evidence Rule 702. Furthermore, the State would be entitled to cross-examine

       such a witness; it could not cross-examine the video, as the trial court noted.

       We cannot say for sure whether the video would be admissible even if

       accompanied by such testimony. We can confidently hold, however, that it

       could not be admitted into a vacuum, with no direct relevance to this case, and

       no explanation or testimony as to its relevance. The trial court properly refused

       to allow the video to be played to the jury.


                                                 Conclusion
[13]   The trial court did not abuse its discretion in refusing to play Guyton’s proffered

       video to the jury. We affirm his convictions for robbery and intimidation.


[14]   Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017   Page 7 of 7
