Pursuant to Ind. Appellate Rule 65(D),
this 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:

JESSE R. POAG                                    GREGORY F. ZOELLER
Newburgh, Indiana                                Attorney General of Indiana

                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                               FILED
                                                                          Feb 08 2012, 9:58 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                   CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




KENNETH A. HORTON,                               )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )       No. 82A01-1105-CR-231
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                            Cause No. 82C01-0710-FB-1199




                                      February 8, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issues

       After a jury trial, Kenneth Horton was convicted of robbery, a Class C felony, and

auto theft, a Class D felony. Horton raises two issues for our review, which we restate as:

1) whether the trial court abused its discretion in admitting evidence seized during the

execution of a search warrant when the warrant had not been signed by a judge or

magistrate, and 2) whether the trial court abused its discretion in admitting an in-court

identification using a photographic array. Concluding the trial court did not abuse its

discretion in either respect, we affirm.

                               Facts and Procedural History

       In October 2007, Horton walked into a Fifth Third Bank branch wearing

sunglasses and a mustard or rust-colored sweatshirt with the hood up. He was carrying a

hand-held police scanner. Horton handed a bank teller a note that said “I have a gun.”

The teller handed Horton money from her cash drawers, and he ran out. He drove away

from the bank in a tan-colored Chevrolet minivan that did not have a license plate. Soon

thereafter, police found an abandoned van in the parking lot of a nearby restaurant. In

addition to matching the description of Horton’s getaway vehicle, the van was confirmed

as stolen from a nearby car dealership. Police officers discovered a hooded sweatshirt

outside the restaurant that matched the description of what the bank robber was wearing.

Surveillance video showed the driver of the van fleeing on foot toward a nearby

apartment complex. After officers began talking with residents at the apartment complex,

the residents indicated the descriptions given matched Horton, a fellow resident at the

complex. Officers knocked at Horton’s apartment, but no one answered.


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       The following day, police applied for a search warrant for Horton’s apartment.

Police obtained the warrant, but it was not signed by the judge. Police executed the

warrant and found a police scanner and sunglasses inside a duffel bag in Horton’s closet,

which were later identified by witnesses as the same items Horton had during the

robbery. Police also found a key to the tan minivan.

       During the police department’s investigation of the robbery, three bank employees

were given a photo array to identify the robber. Two of the three employees identified

someone other than Horton as the person most resembling the bank robber. The third

employee could not make an identification. At trial, the third employee was once again

shown a photo array and asked to identify the man who most resembled the bank robber,

and she identified Horton as the robber. Horton now appeals. Additional facts will be

supplied as necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       Trial courts have broad discretion in deciding whether to admit evidence, and we

review such decisions only for an abuse of discretion. Kimbrough v. State, 911 N.E.2d

621, 631 (Ind. Ct. App. 2009). An abuse of discretion occurs when the trial court’s ruling

is clearly against the logic, facts, and circumstances presented. Id. Error may not be

predicated upon a ruling that admits or excludes evidence unless a substantial right of the

party is affected. Evidence Rule 103(a).

                II. Evidence Gathered from Executing the Search Warrant

       Horton acknowledges that the omission of a judge’s signature on a search warrant

will not invalidate the warrant because the signing of a search warrant is a ministerial act.
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State v. Smith, 562 N.E.2d 428, 429 (Ind. Ct. App. 1990); see also Webster v. State, 579

N.E.2d 667, 669 (Ind. Ct. App. 1991) (“Moreover, the signature of the issuing judge on a

search warrant is a ministerial requirement, and the failure of the judge to sign the

original or a copy of the warrant does not invalidate the warrant provided the judge found

probable cause existed and intended to issue the warrant.”). As long as a judge or

magistrate found probable cause and intended to issue the warrant, his or her signature is

not an essential part of the warrant. Smith, 562 N.E.2d at 429. Horton argues there is

nothing in the record indicating the judge found probable cause to issue a search warrant

for his apartment.

       The Vanderburgh trial court judge presiding over the search warrant, the

Honorable Scott Bowers, testified at trial.

       Q.     . . . Judge, did you get the opportunity to review the Affidavit for
              Search Warrant?
       A.     Yes.
       ***
       Q.  And you dated and signed the subscription, . . . is that correct?
       A.  Yes.
       Q.  Do you recall the circumstances of this Search Warrant and
           Affidavit?
       ***
       A.  I recall that I had a warrant presented to me, and I remember an
           armed robbery that involved the [apartment complex]. The reason I
           remember the [apartment complex] is that in 1977 I actually lived in
           those apartment units . . . .
       ***
       Q.  And how long were you a Judge for the Vanderburgh Superior Court
           ...
       A.  Twenty-four years.
       ***
       Q.  And could you recall how many Search Warrants, Affidavits [sic]
           that were presented to you that you found to be insufficient to show
           probable cause?
       A.  . . . I do have specific recollection of one affidavit for a warrant for
           arrest for child molesting I rejected and sent that to the prosecutor’s
                                              4
             office for correction because the perpetrator’s age was not stated,
             and that’s an element of the offense. I had a search warrant that I
             rejected where I specifically recollect where the search affidavit
             indicated the search was related to a drug sale, and the warrant on its
             face called for the search for instrumentalities for the crime of
             burglary. So I sent that back to have the warrant corrected on that
             one. There may have been others, but it would be less than half a
             dozen in twenty four [sic] years.
      Q.     And on this particular Search Warrant do you have a recollection as
             to whether or not at that time you found probable cause based upon
             the affidavit?
      A.     . . . I believe that I told my wife that I had issued such a warrant
             because our prior being in that complex, and I would certainly
             remember if I had rejected the warrant.
      ***
      A.  . . . I would not have signed the Affidavit on it rejecting the warrant,
          because I would normally read through the affidavit, have the officer
          sign, the swearing officer, have him sign the affidavit then I would
          sign because it was sworn to before me.
      ***
      Q.  And it’s your belief that you would not have signed the affidavit as
          being sworn to before you if you thought it did not show probable
          cause?
      A.  Absolutely not, and I would, like I said I would sign an affidavit and
          warrant together, that way everything is signed at the same time.
      Q.  And you this morning read the affidavit which was presented to you
          in 2007?
      A.  Yes, sir.
      Q.  And having read that would you have found probable cause based on
          the contents of that affidavit?
      A.  Yes.

Transcript at 145-51.

      Horton contends “[t]here is no record whatsoever that judge actually found

probable cause in this case, and that is what is required under both Smith and Webster.”

Appellant’s Brief at 6. In Smith, this court concluded that even if the search warrant

lacked the judge’s signature, the warrant was still valid because a probable cause hearing

was held and the judge determined probable cause existed for issuing the warrant. 562

N.E.2d at 430. In Webster, we concluded the lack of a signature on the search warrant
                                            5
did not invalidate the warrant because an order book recorded the finding of probable

cause and the judge’s intention to issue the warrant. 579 N.E.2d at 669.

       We cannot say that the trial court’s denial of Horton’s motion to suppress evidence

resulting from the unsigned search warrant is clearly against the logic, facts, and

circumstances that were before the trial court. Although the trial court did not have

evidence from a probable cause hearing, as in Smith, or from an order book, as in

Webster, evidence was presented supporting the conclusion that Judge Bowers found

probable cause. Judge Bowers testified that he would have remembered finding a lack of

probable cause and supported this statement by demonstrating how few search warrant

affidavits he rejected in his twenty-four years as a trial court judge. He also testified to

his belief that he mentioned to his wife he issued the warrant, and that he would not have

signed the affidavit had he not found probable cause. We review the trial court’s denial

of a defendant’s motion to suppress evidence for abuse of discretion. Here, the trial court

did not abuse its discretion because evidence was presented to the court supporting a

conclusion that Judge Bowers found probable cause.

                                     III. Photo Array

       Horton contends the bank teller’s identification of the robber during trial from a

photo array was unduly suggestive because Horton was sitting in the courtroom next to

defense counsel. Horton refers us to Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998),

where our supreme court stated that due process of the law under the Fourteenth

Amendment requires suppression of testimony about a pre-trial identification when the

procedure employed is unnecessarily suggestive.          Horton acknowledges that this

constitutional requirement applies to pre-trial identification rather than identification
                                             6
during trial, but he requests that we extend the requirement to in-court identification

procedures. As to this request, our supreme court has already spoken. In Harris v. State,

619 N.E.2d 577, 580 (Ind. 1993), Harris argued evidence of a witness’s pretrial and in-

court identification was impermissively suggestive and in violation of his due process

rights. The court stated:

       Where a trial court has admitted evidence of pretrial and an in-court
       identification of the accused by the same witness, the reviewing court must
       determine whether, under the totality of the circumstances, the pretrial
       confrontation was so impermissibly suggestive and conducive to irreparable
       mistaken identification that the accused was denied due process of law
       under the Fourteenth Amendment. The reviewing court must first
       determine whether law enforcement officials conducted the out-of-court
       procedure in such a fashion as to lead the witness to make a mistaken
       identification. If, under the totality of the circumstances, the reviewing
       court finds the out-of-court procedures were not impermissibly and
       unnecessarily suggestive, both the evidence of the pretrial lineup and the in-
       court identification are considered to have been properly admitted by the
       trial court, and there is no need to proceed further.

Id. (citations and quotations omitted); see also Farrell v. State, 622 N.E.2d 488, 494 (Ind.

1993) (“Under the totality of the circumstances, we conclude that the pre-trial lineup was

not impermissibly suggestive, and this evidence was properly admitted. Accordingly, we

need not address whether an independent basis existed for [the victim’s] in-court

identification because it was also properly admitted by the trial court.”).

       Here, Horton does not contend that any pre-trial identification was impermissibly

suggestive and conducive to irreparable mistaken identification. Nevertheless, any such

argument would fail because none of the three witnesses who were asked to identify the

robber from a photo array during the investigation of the robbery identified Horton as the

culprit. Any discrepancies between witness identification prior to trial and during trial

were appropriately left for the trier of fact to resolve.
                                               7
      Even if the in-court identification of Horton was in violation of his constitutional

rights, any such error would be harmless in light of the substantial evidence presented

against him. Surveillance video from where the van was abandoned revealed the robber

running towards Horton’s apartment complex, which was nearby. The hooded sweatshirt

worn during the robbery, which was distinct in color, was found near Horton’s apartment.

A key to the stolen van used as a getaway vehicle was found in Horton’s apartment,

along with a hand-held police scanner like the one the robber carried and sunglasses

resembling the ones worn during the robbery.         Further, the descriptions given by

witnesses match Horton: a black male over six feet tall with a gap between his front teeth

and a stocky build.    Even without any in-court identification of Horton, the State

presented sufficient evidence to find Horton guilty of robbery and auto theft beyond a

reasonable doubt.

                                       Conclusion

      We conclude the trial court did not abuse its discretion in admitting evidence from

the search of Horton’s apartment or an in-court witness identification of Horton as the

robber, and we therefore affirm.

      Affirmed.

NAJAM, J., and VAIDIK., J. concur.




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