      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                           FILED
      regarded as precedent or cited before any                        Dec 30 2016, 7:01 am

      court except for the purpose of establishing                         CLERK
                                                                       Indiana Supreme Court
      the defense of res judicata, collateral                             Court of Appeals
                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Derick W. Steele                                        Gregory F. Zoeller
      Deputy Public Defender                                  Attorney General of Indiana
      Kokomo, Indiana
                                                              Caryn N. Szyper
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Timothy L. Sallee, Jr.,                                 December 30, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              34A02-1606-CR-1341
              v.                                              Appeal from the Howard Superior
                                                              Court
      State of Indiana,                                       The Honorable G. Thomas Gray,
      Appellee-Plaintiff                                      Senior Judge
                                                              Trial Court Cause No.
                                                              34D01-1409-CM-775



      Mathias, Judge.


[1]   Timothy L. Sallee, Jr. (“Sallee”) was convicted in Howard Superior Court of

      Level 6 felony maintaining a common nuisance, Class A misdemeanor


      Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016   Page 1 of 6
      possession of a controlled substance, and Class A misdemeanor possession of a

      synthetic drug or synthetic drug lookalike substance. Sallee appeals his

      convictions and argues that a State’s witness lacked a sufficient independent

      basis for her in-court identification of Sallee.


[2]   We affirm.


                                    Facts and Procedural History

[3]   In September 2014, officers assigned to the Kokomo Police Department’s drug

      task force were conducting surveillance of a residence located at 506

      Tomahawk Boulevard in Kokomo. During their surveillance, the officers

      observed numerous vehicles coming and going from the residence.


[4]   On September 23, 2014, Officer Derek Root (“Officer Root”) saw Sallee exit

      the residence with his girlfriend, Kelly Byers (“Byers”). On that same day,

      Officer Root applied for and received a search warrant for 506 Tomahawk

      Boulevard.


[5]   During execution of the search warrant, officers discovered a cellophane

      wrapper containing eleven pills inside the front pocket of a man’s shirt hanging

      in the bedroom closet. Ex. Vol., State’s Exs. 11 & 12. The pills were later

      identified as the controlled substance buprenorphine. Tr. p. 65. The officers also

      discovered a packet of “spice” in a bedroom drawer. Subsequent testing

      revealed that the spice contained the controlled substance AB-FUBINACA. In

      addition, the officers found several empty spice or synthetic marijuana packets

      and two digital scales.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016   Page 2 of 6
[6]   Sallee was charged with Level 6 felony maintaining a common nuisance and

      two Class A misdemeanors: possession of a controlled substance and possession

      of synthetic drug or synthetic lookalike substance. A jury trial was held on April

      15, 2016.


[7]   At trial, Lisa Thieke (“Thieke”) testified that she had rented 506 Tomahawk

      Boulevard to Sallee and Byers. Thieke believed that Sallee’s first name was

      possibly Tony. However, she stated that she was certain his last name was

      Sallee. The State asked Thieke if the person to whom she rented the property,

      whom she referred to as Mr. Sallee, was present in the courtroom. Thieke

      responded in the affirmative, and when the State asked Thieke to identify that

      person, she pointed to the defendant, Sallee. Tr. p. 29. Sallee did not object to

      the in-court identification.


[8]   The jury found Sallee guilty as charged. The trial court sentenced Sallee to 913

      days for the Level 6 felony maintaining a common nuisance conviction. The

      court ordered 548 days executed in the Howard County Jail, and 365 days

      suspended to probation. Sallee was sentenced to 365 days for the Class A

      misdemeanor convictions, to be served concurrent to each other and to the

      Level 6 felony conviction. Sallee now appeals his convictions.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016   Page 3 of 6
                                           Discussion and Decision

[9]    Sallee frames his claim on appeal as one for insufficient evidence to support his

       convictions,1 but the only issue argued and supported by citation to authority is

       his assertion that Thieke’s in-court identification was unduly suggestive and

       violated his due process rights. See Appellant’s Br. pp. 9-11. Sallee asks this

       Court to “reverse his convictions as a result of the first time in-court

       identification of the witness.” Id. at 12.


[10]   Sallee failed to object to Thieke’s in-court identification. Therefore, he must

       establish that the in-court identification constitutes fundamental error. Hoglund

       v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure to object at trial waives the

       issue for review unless fundamental error occurred.”). “The fundamental error

       doctrine provides a vehicle for the review of error not properly preserved for

       appeal.” Id. “In order to be fundamental, the error must represent a blatant

       violation of basic principles rendering the trial unfair to the defendant and

       thereby depriving the defendant of fundamental due process.” Id. Harm is

       found when error is so prejudicial as to make a fair trial impossible. Id.


[11]   It is well settled that “[t]here 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



       1
         Concerning his claim that the evidence was insufficient to support his convictions, Sallee argues only that
       “due to the impermissible in-court identification, there was insufficient evidence to link Sallee to the
       residence subject to the search by the Kokomo Police Department and as such insufficient evidence to
       convict Sallee.” Appellant’s Br. at 11-12.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016            Page 4 of 6
       everyone else in the courtroom.” Jeter v. State, 888 N.E.2d 1257, 1266 (Ind.

       2008). “Whether a particular identification procedure rises to a level of

       suggestiveness that constitutes reversible error must be determined from the

       context of the case.” Id. “Suggestiveness is proscribed only when it can

       reasonably be avoided under the circumstances.” Id. “[A]bsent any

       extraordinary effort to single out the defendant at trial, in-court identification is

       not unduly suggestive where the witness is firm in his identification.” Id.


[12]   Sallee claims that “[t]here was no evidence that Thieke had any independent

       knowledge of Sallee prior to the in-court identification.” Appellant’s Br. at 10.

       However, Thieke testified that she had rented 506 Tomahawk Boulevard to

       Sallee and Byers. Thieke was confused about Sallee’s first name and believed

       that it was possibly Tony. However, she stated that she was certain his last

       name was Sallee. Thieke stated that the person who rented the Tomahawk

       residence was present in the courtroom and identified that person as the

       defendant, Timothy Sallee. Tr. p. 29.


[13]   Nothing about Thieke’s unequivocal in-court identification of Sallee was

       unduly suggestive. Thieke explained how she knew Sallee before identifying

       him. The State’s purpose in presenting Thieke’s testimony was to establish that

       the defendant was an occupant of 506 Tomahawk Boulevard. The State also

       presented Officer Root’s testimony that he saw Sallee at the residence on the

       date the search warrant was issued and that 506 Tomahawk was the “known

       residence” of Sallee and Byers. Tr. p. 71.



       Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016   Page 5 of 6
[14]   For all of these reasons, we conclude that Sallee has not established that the

       trial court committed error, much less error so prejudicial as to make a fair trial

       impossible, in admitting Thieke’s in-court identification of Salle. Therefore, we

       affirm his convictions for Level 6 felony maintaining a common nuisance, Class

       A misdemeanor possession of a controlled substance, and Class A

       misdemeanor possession of a synthetic drug or synthetic drug lookalike

       substance.

[15]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016   Page 6 of 6
