MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Feb 26 2015, 9:18 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Marco Webster,                                           February 26, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1404-CR-253
        v.                                               Appeal from the Marion Superior
                                                         Court.
State of Indiana,                                        The Honorable Mark D. Stoner,
                                                         Judge.
Appellee-Plaintiff.
                                                         Cause No. 49G06-1301-FB-6




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 1 of 14
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Marco L. Webster (Webster), appeals his conviction of

      four Counts of robbery while armed with a deadly weapon, Class B felonies,

      Ind. Code § 35-42-5-1 (2013); and one Count of robbery resulting in serious

      bodily injury, a Class A felony, I.C. § 35-42-5-1 (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Webster raises three issues on appeal, two of which we find dispositive and

      restate as follows:

      (1) Whether the trial court abused its discretion in admitting evidence resulting

      from six show-up identifications; and

      (2) Whether the State presented sufficient evidence to uphold Webster’s

      conviction of robbery beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   On New Year’s Eve of 2012, around 12:30 p.m., construction worker Randall

      Crouch (Crouch) had completed a job on the northwest side of Indianapolis,

      Indiana, and was loading tools into his 2004 Ford Econoline work van. A

      black male wearing a brown coat, a hoodie, and a mask over his face

      approached Crouch, pointed a semi-automatic pistol at his face, and ordered

      him to unlock the van and start the ignition. Crouch complied, and after the

      robber had driven out of sight, he reported the carjacking to the Indianapolis



      Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 2 of 14
      Metropolitan Police Department (IMPD), describing the van as half blue and

      half white, with ladders on the roof rack.


[5]   Later that day, shortly before 3:00 p.m., a man armed with a semi-automatic

      handgun walked into the International Parts Store, located at 5360 N. Tacoma

      Avenue in Indianapolis, and yelled for everyone to get down on the floor. At

      that time, three employees were in the building: Todd Norris (Norris), Brian

      Smith (Smith), and Eric Thompson (Thompson). At the gunman’s command,

      Smith removed the cash from the register, and all three gave him the cash from

      their wallets. After the gunman ran out of the store, Smith called 9-1-1 and

      reported that the store had been robbed at gunpoint by “a black male wearing a

      blue and white plaid jacket with a dark hoodie.” (Transcript p. 197).


[6]   Minutes later, a black male “wearing dark pants, . . . a bluish-black plaid jacket

      with a hoodie on, and with a scarf on his face[,]” entered the Harris Tire &

      Automotive Service, located across the street from the International Parts Store

      at 5425 N. Keystone Avenue. (Tr. p. 218). The man aimed a semi-automatic

      handgun at an employee, Danny Stumm (Stumm), and instructed him to empty

      the cash drawer. As Stumm was unlocking the register, the robber noticed a

      customer, Kenneth Rush (Rush), and demanded his wallet. When the

      perpetrator detected movement by another employee, Joshua Scholl (Scholl), he

      immediately turned and shot Scholl in the hip. Scholl retreated to the garage

      bays, where the company’s owner, William Harris (Harris), was servicing a

      vehicle. Scholl, in the midst of calling 9-1-1, alerted Harris to the fact that he

      had been shot. Due to the noise of the compressor, Harris was unaware of the

      Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 3 of 14
      ongoing robbery. When Harris opened the door to the showroom to

      investigate, the robber fired a second shot in Harris’ direction. Although the

      bullet missed Harris, shrapnel hit him on the side of his face. The gunman

      exited the store, and Harris and Scholl observed through the window as he

      entered the driver-side door of a Ford service van, half white and half blue, with

      ladders on top. Harris noted that the license plate number was 1562534.


[7]   Within minutes of the robberies, IMPD officers responded to both locations

      and commenced investigations. The witnesses were all separated for

      interviews, and Scholl was transported to the hospital. In general, they

      described the suspect as a black male in his twenties or thirties and of “average”

      or “medium” height and build. (Tr. pp. 160, 257). The witnesses also

      confirmed that the suspect was wearing a very distinctive blue and white plaid

      coat, dark pants, a dark hoodie that was pulled over his head, and a dark-

      colored scarf that left only his eyes exposed. Norris, Thompson, and Stumm

      described the scarf as having a camouflage pattern. In addition, while ordered

      to lie on the ground, Norris and Thompson observed that the suspect wore

      brand new tennis shoes that “were black and what I remember distinctly was

      the very clean white edges, around the bottom.” (Tr. p. 259). Thompson

      identified the brand of shoes as “Jordans” and further noted that the suspect

      had facial hair “around his nose.” (Tr. pp. 303-04).


[8]   On that same afternoon, IMPD Officer Gary Toms (Officer Toms) was working

      an off-duty security job at Inverness Apartments, located on the northwest side

      of Indianapolis, about a fifteen-to-twenty-minute drive from the International

      Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 4 of 14
       Parts Store and the Harris Tire & Automotive Service. At approximately 3:15

       p.m., a blue and white Ford Econoline van pulled into the parking lot. When it

       passed by Officer Toms’ squad car, he observed that the driver, later identified

       as Webster, was the sole occupant of the van. Immediately recognizing the van

       as the one described in the carjacking reported earlier that day, Officer Toms

       radioed for assistance. Officer Michael Roach (Officer Roach) was in the area

       and arrived moments later. They followed the van’s route to the rear of the

       apartment complex and observed Webster walking on the sidewalk, wearing a

       dark-colored hoodie and carrying a “plaid flannel looking coat or jacket.” (Tr.

       p. 361). When they instructed him to stop, Webster took off running.


[9]    As the officers pursued him on foot, they saw Webster throw the coat and

       several other items down. Officer Roach apprehended Webster, placed him in

       handcuffs, and escorted him to his squad car. Retracing Webster’s steps, the

       officers found a black nine-millimeter handgun and $682 in cash strewn

       throughout the snow, along with the blue and white plaid jacket. Inside the

       jacket pocket was a camouflage-patterned scarf and Rush’s wallet. The van was

       registered to Crouch and had the license plate number 1562534.


[10]   In the midst of his investigation at the International Parts Store, Detective Brent

       Hendricks (Detective Hendricks) received a report that Webster had been

       stopped with a van matching the one described by the Harris Tire &

       Automotive Service employees. Detective Hendricks told the witnesses that

       IMPD “had a person stopped that I wanted them to look at. . . . I specifically

       informed them that it may or may not be the person that robbed them but I did

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 5 of 14
       want them to take a look.” (Tr. p. 487). Between 4:00 p.m. and 5:15 p.m.,

       Norris, Smith, Thompson, Harris, Stumm, and Rush were separately

       transported to Inverness Apartments in order to identify whether Webster was

       the robbery suspect.


[11]   Because Webster had discarded the plaid coat when he fled, Officer Roach held

       the coat up near Webster for the first witness and subsequently draped it over

       Webster’s shoulders for the rest. Each of the six witnesses unequivocally

       identified the jacket as being the same one worn by the robber. In addition to

       the jacket and hoodie, Harris immediately identified the van as the one used by

       the robber, and Rush noted that Webster’s “build and everything seemed to be

       the same.” (Tr. pp. 162-63). Norris also indicated that Webster’s “shoes were

       the dead giveaway.” (Tr. p. 265). Finally, Thompson stated that he “was a

       hundred percent positive that the clothes and the shoes were the same. And I

       could tell from the upper half of [Webster’s] face that it was the same facial

       features as the guy who came and robbed us.” (Tr. p. 303).


[12]   On January 2, 2013, the State filed an Information charging Webster with

       Count I, carjacking, a Class B felony, I.C. § 35-42-5-2 (repealed 2014); Counts

       II through V, criminal confinement, Class B felonies, I.C. § 35-42-3-

       3(a),(b)(2)(A) (2013); Counts VI through IX and Count XI, robbery while

       armed with a deadly weapon, Class B felonies, I.C. § 35-42-5-1 (2013); Count

       X, battery, a Class C felony, I.C. § 35-42-2-1(a)(3) (2013); and Count XII,

       unlawful possession of a firearm by a serious violent felon, a Class B felony,

       I.C. § 35-47-4-5 (2013). On January 11, 2013, the State amended the

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 6 of 14
       Information by adding Count XIII, robbery resulting in serious bodily injury, a

       Class A felony, I.C. § 35-42-5-1 (2013). On March 14, 2013, the State filed an

       Information alleging Webster to be a habitual offender. On December 9, 2013,

       Webster filed a motion to suppress the evidence of the show-up identifications.

       At the suppression hearing on January 10, 2014, Webster withdrew his motion.


[13]   On February 24 and 25, 2014, the first phase of the bifurcated jury trial was

       conducted. Prior to the introduction of evidence, Webster reinstated his motion

       to suppress the evidence resulting from the show-up identifications. The trial

       court held a hearing outside of the jury’s presence and granted the suppression

       motion to the extent that the witnesses were precluded from making in-court

       identifications of Webster. However, the trial court ruled that the witnesses

       would “be allowed to make identification[s] of the clothing but only if . . . there

       is a clear independent basis for being able to identify the clothing.” (Tr. p. 103).

       At the close of the evidence, the jury returned a guilty verdict on Counts III

       through XI and Count XIII. Webster was found not guilty of Counts I and II.

       Following the verdict, Webster waived his right to a jury for the second phase

       of his trial concerning his charge as a serious violent felon (Count XII) and his

       habitual offender enhancement.


[14]   On March 18, 2014, the trial court held a bench trial, at which time the State

       dismissed Count XII, and Webster stipulated to the habitual offender charge.

       The trial court adjudicated Webster to be a habitual offender and proceeded to

       the sentencing hearing. Based on double jeopardy considerations, the trial

       court merged Counts III, IV, and V into Counts VI, VII, and VIII, respectively,

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 7 of 14
       and merged Counts IX and X into Count XIII. A judgment of conviction was

       entered on Counts VI, VII, VIII, and XI, Class B felony robberies of Smith,

       Thompson, Norris, and Rush; and Count XIII, Class A felony robbery of

       Stumm resulting in serious bodily injury to Scholl. The trial court imposed

       concurrent fifteen-year sentences on Counts VI, VII, and VIII; fifteen years on

       Count XI; and seventy years on Count XIII. The trial court ordered the

       sentence on Count XIII to run concurrently with Count XI and consecutively to

       Counts VI, VII, and VIII, for an aggregate, executed term of eighty-five years.


[15]   Webster now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                  I. Admissibility of Identification Evidence

[16]   Webster claims that the trial court abused its discretion in admitting evidence of

       the identifications because the one-on-one show-ups were “overly suggestive.”

       (Appellant’s Br. p. 14). Decisions regarding the admission or exclusion of

       evidence are left to the trial court’s sound discretion and are subject to review

       only for an abuse of that discretion. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct.

       App. 2012). Our court will find an abuse of discretion where “the trial court’s

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

       before the court.” Id.


[17]   The due process guaranteed by the Fourteenth Amendment to the United States

       Constitution requires the suppression of evidence if “the procedure used during

       a pretrial identification is impermissibly suggestive.” Id. It is well established


       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 8 of 14
       that one-on-one show-up identifications are inherently suggestive. Wethington v.

       State, 560 N.E.2d 496, 501 (Ind. 1990). Nevertheless, evidence acquired from a

       show-up confrontation “is not subject to a per se rule of exclusion.” Mitchell v.

       State, 690 N.E.2d 1200, 1203 (Ind. Ct. App. 1998), reh’g denied; trans. denied.

       Instead, “the admissibility of a show-up identification turns on an evaluation of

       the totality of the circumstances and whether they lead to the conclusion that

       the confrontation was conducted in a manner that could guide a witness into

       making a mistaken identification.” Hale, 976 N.E.2d at 123-24.


[18]   When reviewing the totality of the circumstances surrounding an identification,

       we consider:

               (1) the opportunity of the witness to view the offender at the time of
               the crime; (2) the witness’s degree of attention while observing the
               offender; (3) the accuracy of the witness’s prior description of the
               offender; (4) the level of certainty demonstrated by the witness at the
               identification; and (5) the length of time between the crime and the
               identification.
       Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied. Although

       inherently suspect, one-on-one confrontations have been found proper where

       they occurred “shortly after the commission of the crime ‘because of the value

       of permitting a witness to view a suspect while the image of the perpetrator is

       fresh in the witness’s mind.’” Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)

       (quoting Head v. State, 443 N.E.2d 44, 55 (Ind. 1982)).


[19]   In the present case, Webster contends that the one-on-one show-ups were

       impermissibly suggestive because the police officers wrapped the plaid jacket


       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 9 of 14
       around him after he was detained. According to Webster, the witnesses based

       their identifications on the jacket, so an “[i]dentification . . . would not have

       been made but for police holding apparel up next to [him].” (Appellant’s Br. p.

       19). We disagree.1


[20]   It is evident that the witnesses identified Webster at the show-ups based, in

       significant part, on the plaid jacket. See Williams v. State, 398 N.E.2d 674, 678

       (Ind. Ct. App. 1979) (“The fact that the clerk based her identification on the

       clothes worn by the suspects rather than any distinguishing physical

       characteristics affects the credibility of her identification but not its

       admissibility.”). However, at trial, each witness testified that the jacket that

       was displayed at the show-up was the same one worn by the robber, but—as the

       State posits—the witnesses did not positively identify Webster as the perpetrator

       of the robberies. Rather, to link the jacket to Webster, Officer Toms and Officer

       Roach testified that they observed the jacket in Webster’s possession and that

       he threw it onto the ground when he tried to flee. Thus, we find that whether

       the police officers held the jacket up next to Webster, wrapped it around him, or

       left it laying in the snow is irrelevant because the witnesses recognized the

       jacket itself with a high degree of certainty.




       1
         The State argues that Webster failed to properly preserve his claim that “the ‘show-up’ identification of the
       clothing was impermissible” because his motion to suppress “was aimed squarely at the witness[es’] ability to
       identify [Webster]—not the clothing.” (State’s Br. p. 8). Because arguments concerning the identification of
       Webster himself, the clothing in isolation, and the clothing on Webster’s person were intermingled during the
       suppression hearing, we will address Webster’s claim.

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015          Page 10 of 14
[21]   Furthermore, looking to the totality of the circumstances, we cannot say that

       the show-ups were unduly suggestive. The evidence establishes that, prior to

       the show-ups, Norris, Smith, Thompson, Harris, Stumm, and Rush each

       provided consistent and accurate accounts of the suspect’s clothing. See

       Dishman v. State, 525 N.E.2d 284, 285 (Ind. 1988). Additionally, the robberies

       occurred in broad daylight, and even though the robber wore a mask, the

       witnesses had ample opportunity to discern very specific details about the

       suspect, including that his mask had a camouflage pattern and that his gun was

       black and had a “square” front. (Tr. p. 293). Norris and Thompson had a clear

       view of the robber’s feet when forced to lie on the ground, and they described

       both the brand and the style of his shoes.


[22]   Within two hours of the robberies, each of the six witnesses identified Webster’s

       jacket and hoodie as being the same worn by the perpetrator, and they

       confirmed that the camouflage scarf found in Webster’s pocket was the same

       one used by the robber. See Lyles v. State, 834 N.E.2d 1035, 1045 (Ind. Ct. App.

       2005) (noting that an identification occurring several hours after the crime may

       be permissible), trans. denied. Norris and Thompson identified Webster’s shoes

       without hesitation, and—without any prompts from the officers—Harris

       noticed the van in the parking lot and confirmed that it was the same one used




       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 11 of 14
       in the robbery. See Rasnick, 2 N.E.3d at 24-25. Therefore, we find that the trial

       court did not abuse its discretion by admitting evidence from the show-ups.2


                                           II. Sufficiency of the Evidence

[23]   Webster also claims that the State presented insufficient evidence to support his

       conviction. When reviewing a sufficiency claim, our standard of review is well

       settled. We do not reweigh evidence or assess witness credibility, and we will

       consider only the evidence and any reasonable inferences that support the

       verdict. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Our court will affirm

       the conviction so long as “there is probative evidence from which a reasonable

       jury could have found the defendant guilty beyond a reasonable doubt.” Id.


[24]   In order to uphold Webster’s conviction of robbery as a Class A felony, the

       State was required to prove that Webster knowingly or intentionally took

       property from Stumm by either using or threatening the use of force or by

       putting any person in fear, the commission of which resulted in serious bodily

       injury to Scholl. I.C. § 35-42-5-1 (2013). As for his conviction of four Counts

       of robbery as Class B felonies, the State had to establish that Webster, while

       armed with a deadly weapon, knowingly or intentionally took property from

       Norris, Smith, Thompson, and Rush by either using or threatening the use of

       force or by putting any person in fear. I.C. § 35-42-5-1 (2013). Webster does




       2
         Webster next claims that his conviction of both Count X, battery as a Class C felony, and Count XIII,
       robbery as a Class A felony, violates his constitutional rights against double jeopardy. During the sentencing
       hearing, the trial court merged Count X into Count XIII in order to avoid double jeopardy implications,
       entering a judgment of conviction solely on Count XIII. Thus, we find no merit in Webster’s argument.

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015         Page 12 of 14
       not dispute that these crimes occurred; rather he argues that “[n]o witness could

       positively identify [him] as the robber. The only reference the witnesses had

       was to clothing Webster had in his possession when he was taken into

       custody.” (Appellant’s Br. p. 22). Again, we disagree.


[25]   In addition to the descriptions provided by the witnesses, the armed robbery at

       the Harris Tire & Automotive Service was recorded by video surveillance. As

       such, the jury was able to clearly view that the perpetrator wore a blue and

       white plaid jacket, a dark-colored hoodie and dark pants, black shoes with

       white edges, and a camouflage-patterned scarf over his face. An exterior

       camera captured an image of the blue and white van, and Harris recorded the

       license plate number. Approximately fifteen minutes after the second robbery,

       Officer Toms observed Webster driving a blue and white van with the same

       license plate number.


[26]   When Webster exited the van, he was wearing a dark hoodie and was carrying

       a blue and white plaid jacket, which he threw on the ground in the officers’

       presence. The officers discovered that the jacket had been concealing a nine-

       millimeter handgun, a camouflage-patterned scarf, Rush’s wallet, and $682 in

       cash. During the trial, Harris testified that the standard practice at Harris Tire

       & Automotive Service for counting the cash drawer is to bundle the one-dollar

       bills in groups of twenty, securing each bundle with a staple and a post-it note.

       Among the cash that Webster had dropped during the foot chase, the officers

       found two bundles of twenty one-dollar bills that were secured with a staple and

       a post-it note. Moreover, the nine-millimeter gun found in Webster’s

       Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015   Page 13 of 14
       possession had a magazine with the capacity to hold fifteen bullets. When the

       evidence technician collected the gun, there were twelve bullets in the magazine

       and one in the chamber. Two nine-millimeter shell casings were found at the

       Harris Tire & Automotive Service.


[27]   Webster further argues that the evidence was insufficient to establish his

       identity because the witnesses did not provide a precise height estimate of the

       perpetrator and because there were no fingerprints linking Webster to the

       robbery. While we first note that the surveillance footage clearly reveals that

       the robber wore gloves, thereby reducing the likelihood of leaving a fingerprint,

       we find that Webster’s arguments amount to a request that we reweigh

       evidence, which we decline to do. Taken together, the evidence establishes

       beyond a reasonable doubt that it was Webster who perpetrated the robberies.


                                               CONCLUSION

[28]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting evidence regarding the pre-trial identification of

       clothing. We further conclude that the State presented sufficient evidence to

       support Webster’s conviction of one Count of Class A felony robbery and four

       Counts of Class B felony robbery beyond a reasonable doubt.


[29]   Affirmed.


[30]   Vaidik, C. J. and Baker, J. concur




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