MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Feb 16 2017, 5:49 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Tyson,                                           February 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-CR-472
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1405-MR-26845



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017         Page 1 of 7
                                             Case Summary
[1]   Mark Tyson appeals his convictions for murder and Class C felony robbery.

      We affirm.


                                                     Issues
[2]   Tyson raises two issues, which we restate as:


                       I.      whether fundamental error occurred as a result
                               of identifications of Tyson by four witnesses;
                               and

                       II.     whether the evidence is sufficient to sustain
                               Tyson’s conviction for robbery.


                                                     Facts
[3]   In May 2014, Patrick Martin was carrying $10,000 in cash and showing it to

      people. Martin and his friend, Aleem Thomas, sold drugs together. Thomas

      told Martin that he should not “be walking around bragging about [the

      money].” Tr. p. 33. On May 19, 2014, Thomas met Martin at Angela

      Kosarue’s house because someone was going to buy drugs from Martin there.

      The men often sold marijuana at Kosarue’s house. While they were at her

      house, Martin got a phone call and went outside. When he came back inside,

      Keri Brewer and Tyson were with him. Thomas had seen the men before and

      knew that they had purchased drugs from Martin on three or four occasions.

      Kosarue also recognized Tyson as someone that she had seen talking to Martin

      about three times. Brewer was carrying a box cutter, and Tyson was carrying a

      shotgun. In the living room, Tyson pointed the gun at Thomas and told him

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 2 of 7
      “to come off of everything.” Id. at 44. Thomas gave him some marijuana and

      twenty dollars. Tyson also told Kosarue to give him everything, but she did not

      have anything to give him. Two of Kosarue’s children, eleven-year-old P.P.

      and twelve-year-old K.P., heard noises and walked into the hallway. Tyson

      pointed the shotgun at them and told them to go back into their room. Tyson

      walked into the kitchen, where Brewer and Martin were located. Thomas

      heard Tyson tell Martin, “come up off everything. I know you got it. I know

      you got it.” Id. at 47. Tyson then said, “Watch out, Bro. I’m about to get him

      up out of here,” and shot Martin. Id. Tyson and Brewer then ran out of the

      house. When presented with a photo array, Thomas, Kosarue, P.P., and K.P.

      each separately identified Tyson as the man with the shotgun.


[4]   The State charged Tyson with murder, felony murder, Class A felony robbery,

      and a sentencing enhancement for the use of a firearm. The State later

      dismissed the sentencing enhancement. With respect to the robbery charge, the

      State alleged that Tyson:


              did knowingly, while armed with a deadly weapon, that is: a
              gun, take from the person or presence of Patrick Martin and/or
              Aleem Thomas property, that is: cell phone and/or U.S.
              currency, by putting Patrick Martin and/or Aleem Thomas in
              fear or by using or threatening the use of force on Patrick Martin
              and/or said other individual which resulted in serious bodily
              injury, that is: gunshot wounds and stab wounds, to Patrick
              Martin.


      Appellant’s App. Vol. II p. 187.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 3 of 7
[5]   At the jury trial, Thomas, Kosarue, P.P., and K.P. made in-court identifications

      of Tyson as the man who shot Martin. Tyson did not object to the evidence

      concerning the out-of-court photo array identifications or the in-court

      identifications. The jury found Tyson guilty as charged, and the trial court

      entered judgment of conviction for murder and Class C felony robbery. The

      trial court sentenced Tyson to sixty-eight years in the Department of

      Correction. Tyson now appeals.


                                                  Analysis
                                              I. Identifications

[6]   Tyson argues that fundamental error occurred as a result of the “impermissibly

      suggestive out-of-court identifications made by four of the State’s witnesses

      when viewing a photo array.” Appellant’s Br. p. 15. In particular, Tyson

      argues that a detective used methods in obtaining a photo array identification of

      Tyson from Thomas that “raised a substantial likelihood of misidentification,

      given the totality of the circumstances.” Id. at 18. According to Tyson, the

      out-of-court identification “taint[ed] all further identifications, including

      [Thomas’s] in-court identification of Tyson.” Id. at 17. Tyson then argues that

      “it is reasonable to assume” that the detective used the same procedure when he

      showed the photo arrays to Kosarue, P.P., and K.P. Id. at 18.


[7]   Tyson did not object to the admission of evidence concerning the out-of-court

      photo array identifications of him by Thomas, Kosarue, P.P., or K.P. or the in-

      court identifications. Because Tyson failed to object, he may avoid waiver only


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 4 of 7
      by demonstrating that fundamental error occurred. Griffith v. State, 59 N.E.3d

      947, 956 (Ind. 2016). “Error is fundamental if it is ‘a substantial blatant

      violation of basic principles’ and where, if not corrected, it would deny a

      defendant fundamental due process.” Pattison v. State, 54 N.E.3d 361, 365 (Ind.

      2016) (quoting Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000)). “This

      exception to the general rule requiring a contemporaneous objection is narrow,

      providing relief only in ‘egregious circumstances’ that made a fair trial

      impossible.” Id. (quoting Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013)).


[8]   Even if we were to assume that the admission of Thomas’s out-of-court

      identification of Tyson was erroneous and tainted his in-court identification of

      Tyson, we cannot conclude that fundamental error occurred. Thomas’s out-of-

      court and in-court identifications of Tyson were cumulative of the out-of-court

      and in-court identifications of Tyson by Kosarue, P.P., and K.P. We disagree

      with Tyson’s assertion that it is reasonable to assume the alleged irregularities

      in Thomas’s out-of-court identification of Tyson also occurred in Kosarue, P.P.,

      and K.P.’s out-of-court identifications of Tyson. There was simply no evidence

      presented of irregularities in Kosarue, P.P., and K.P.’s identifications. Because

      the evidence at issue was cumulative of several other identifications of Tyson as

      the shooter, no fundamental error occurred by the admission of Thomas’s

      identifications of Tyson. See Wilkes v. State, 7 N.E.3d 402, 405 (Ind. Ct. App.

      2014) (“Because the statements were cumulative of W.V.’s testimony, no

      fundamental error occurred from the admission of those statements.”).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 5 of 7
                               II. Sufficiency of the Robbery Conviction

[9]    Next, Tyson argues that the evidence is insufficient to sustain his conviction for

       Class C felony robbery. In reviewing the sufficiency of the evidence, we neither

       reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

       N.E.3d 1065, 1066 (Ind. 2015). We only consider “the evidence supporting the

       judgment and any reasonable inferences that can be drawn from such

       evidence.” Id. A conviction will be affirmed if there is substantial evidence of

       probative value supporting each element of the offense such that a reasonable

       trier of fact could have found the defendant guilty beyond a reasonable doubt.

       Id. “‘It is the job of the fact-finder to determine whether the evidence in a

       particular case sufficiently proves each element of an offense, and we consider

       conflicting evidence most favorably to the trial court’s ruling.’” Id. at 1066-67

       (quoting Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)).


[10]   Although Tyson was charged with Class A felony robbery, the trial court

       entered his judgment of conviction as a Class C felony. At the time of Tyson’s

       offense, the robbery statute provided: “A person who knowingly or

       intentionally takes property from another person or from the presence of

       another person: (1) by using or threatening the use of force on any person; or (2)

       by putting any person in fear; commits robbery, a Class C felony.” Ind. Code §

       35-42-5-1 (amended by Pub. L. No. 158-2013, § 450 (eff. July 1, 2014)). The

       charging information alleged that Tyson knowingly took “from the person or

       presence of Patrick Martin and/or Aleem Thomas property, that is: cell phone

       and/or U.S. currency, by putting Patrick Martin and/or Aleem Thomas in fear

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 6 of 7
       or by using or threatening the use of force on Patrick Martin and/or said other

       individual . . . .” Appellant’s App. Vol. II p. 187.


[11]   On appeal, Tyson argues that the State failed to prove that he took anything

       from Martin. However, the charging information alleged alternatively that

       Tyson took property from Thomas. The State presented evidence that Tyson

       took money and marijuana from Thomas. Consequently, the evidence is

       sufficient to sustain his conviction.


                                                 Conclusion
[12]   No fundamental error occurred in the admission of the identifications of Tyson,

       and the evidence is sufficient to sustain Tyson’s conviction for robbery. We

       affirm.


[13]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-472 | February 16, 2017   Page 7 of 7
