MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing
                                                                   Jan 15 2020, 7:49 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                       CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                        Chief Deputy Attorney General of
Webb                                                     Indiana
Indianapolis, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dion Johnson,                                            January 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-70
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1704-MR-13155



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020              Page 1 of 9
                                            Case Summary
[1]   Dion Johnson was convicted of murder after he shot and killed Terence Hill.

      On appeal, Johnson contends that the trial court abused its discretion in

      admitting certain pre-trial identification evidence. We affirm.



                             Facts and Procedural History                                  1




[2]   In April of 2017, Xiyya Depp was in a relationship and lived with Hill. Around

      mid-day on April 6, 2017, Depp, Hill, Michele Moore, and Theodore

      Washington went to a Family Dollar store together. They then went across the

      street to a gas station where Hill interacted with Johnson, who was known to

      Depp as “Sane.” The group briefly went back to the Family Dollar before

      returning to the gas station. Back at the gas station, Hill went to speak with

      Johnson in Johnson’s burgundy/maroon-colored vehicle.


[3]   Later that evening, Depp, Hill, Moore, Washington, and Johnson ended up at

      Depp’s and Hill’s apartment. An unidentified friend of Johnson’s joined the

      group at the apartment. After Hill and Johnson snorted powdered cocaine, Hill

      went into the bedroom and laid down on the bed beside Depp. Hill “seemed

      nervous and he was shaking.” Tr. Vol. II p. 62. Johnson eventually came into

      the bedroom with a gun in his hand and began accusing Hill of setting him up




      1
        We held oral argument in this case at Mississinewa High School on December 16, 2019. We wish to thank
      counsel for their advocacy and extend our appreciation to the faculty, staff, and students of Mississinewa for
      their fine hospitality.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020                     Page 2 of 9
      and working with “the feds.” Tr. Vol. II p. 63. Johnson instructed his friend to

      watch the front door to the apartment and not to let anyone in or out.


[4]   Johnson ordered everyone but Hill to sit in the living room while he and Hill

      remained in the bedroom. Johnson briefly left the bedroom and came to the

      living room before becoming agitated and aggressive and going back into the

      bedroom, still holding the gun. Soon thereafter, multiple gunshots were fired in

      the bedroom. After hearing the gunshots, Depp and Washington ran from the

      apartment. Moore went to the kitchen and “jumped on top of the refrigerator.”

      Tr. Vol. II p. 124. From her position on top of the refrigerator, Moore observed

      Johnson, with the gun tucked in his waistband, and his friend “swipe[] the table

      with their arms” and “thr[o]w chairs and stuff” before running out of the

      apartment. Tr. Vol. II p. 125. Depp observed Johnson and his friend run from

      the apartment and leave the scene in Johnson’s burgundy-colored car. Depp

      ran back into the apartment and found Hill on the bed with “blood coming out

      of ears, and … bullet holes in his shirt … just laying there with his eyes open,

      kind of.” Tr. Vol. II p. 73.


[5]   Indianapolis Metropolitan Police Officers Richard Tyner and Amanda Gomez

      responded to a dispatch involving “a person shot or shots fired” at the

      apartment. Tr. Vol. II p. 39. Upon arriving at the apartment, Officer Tyner

      observed that Depp, Moore, and Washington were hysterical and crying.

      Officer Tyner entered the apartment and found Hill’s lifeless body on the bed.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 3 of 9
[6]   Investigating officers transported Depp, Moore, and Washington to the

      homicide office where they were separately interviewed by Detectives

      Christopher Craighill and Charles Benner. During her interview, Depp told

      Detective Benner that the shooter was someone that she knew as “Sane” and

      that “Sane” was one of Hill’s Facebook friends. Following the conclusion of

      the Depp’s interview, Depp and Detective Benner scrolled through Hill’s

      Facebook friends. While scrolling through the list, Depp pointed out a picture

      that she identified as the shooter. The picture in question was associated with

      the name “Donnie Ray Son.” Detective Benner escorted Depp from the room

      before completing further research.


[7]   Upon resuming his investigation, Detective Benner went to the Facebook page

      associated with “Donnie Ray Son.” He observed that under the name “Donnie

      Ray Son” was the name “Sane Savage.” State’s Ex. 86B. Detective Benner

      further observed two photographs of the individual identified by Depp as the

      shooter kneeling next to the gravestones of Diamond Rayshelle Johnson and

      Donnie Ray Johnson. Using this information, Detective Benner checked the

      police database and found “that Diamond Johnson has a brother named Dion

      Johnson whose dad is also Donnie Ray Johnson.” Tr. Vol. II p. 220. Detective

      Benner found a booking photo of Johnson, compared it to the Facebook photos

      of Donnie Ray Son, and determined that “Donnie Ray Son was Dion

      Johnson.” Tr. Vol. II p. 220.


[8]   Detective Benner used the prior booking photograph of Johnson to create a

      photo array containing the photograph along with five photographs of similar-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 4 of 9
       looking individuals. Depp subsequently identified Johnson from the photo

       array as the shooter. The photo array was shown to Moore, with Moore also

       identifying Johnson as the shooter.


[9]    On April 10, 2017, the State charged Johnson with murder and Class A

       misdemeanor carrying a handgun without a license. Prior to trial, Johnson

       moved to suppress the pre-trial photo array and Depp’s pre-trial identification

       of him as the shooter. Following an August 9, 2018 hearing, the trial court

       denied Johnson’s motion. The matter proceeded to a jury trial, during which

       both Depp and Moore identified Johnson as the shooter. The jury subsequently

       found Johnson guilty as charged. On December 6, 2018, the trial court

       sentenced Johnson to fifty-five years in the Department of Correction.2



                                    Discussion and Decision
[10]   While Johnson frames the issue as whether the trial court erred by failing to

       suppress the challenged identification evidence, Johnson did not seek an

       interlocutory appeal but rather appeals following the conclusion of trial. As

       such, the issue is more appropriately framed as “whether the trial court abused

       its discretion by admitting the evidence at trial.” Washington v. State, 784

       N.E.2d 584, 587 (Ind. Ct. App. 2003).


                 The admission or exclusion of evidence is entrusted to the
                 discretion of the trial court. We will reverse a trial court’s


       2
           Johnson’s handgun conviction was dismissed prior to sentencing.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 5 of 9
               decision only for an abuse of discretion. We will consider the
               conflicting evidence most favorable to the trial court’s ruling and
               any uncontested evidence favorable to the defendant. An abuse
               of discretion occurs when the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or it misinterprets the law. In determining whether an
               error in the introduction of evidence affected an appellant’s
               substantial rights, we assess the probable impact of the evidence
               on the jury. Admission of evidence is harmless and is not
               grounds for reversal where the evidence is merely cumulative of
               other evidence admitted.

       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations

       omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal

       theory supported by the record, even if the trial court did not use that theory.”

       Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).


[11]   In challenging the admission of the photo array and Depp’s pre-trial

       identification testimony, Johnson argues that “[w]ith the seed of [Depp’s and

       Detective Benner’s] prior discussion and review of photographs from [Hill’s]

       Facebook page firmly planted in Depp’s mind, she selected Johnson from the

       array. This procedure was unduly suggestive, and the trial court erred by failing

       to sustain Johnson’s motion to suppress evidence.” Appellant’s Br. p. 13.

       Johnson further argues that


               [Detective] Benner’s scrolling of Hill’s Facebook page
               impermissibly suggested Depp’s identification of Johnson.
               [Detective] Benner knew from Depp’s statement the suspect in
               shooting Hill was identified as “Sane.” He could have, and
               should have, scrolled through Hill’s Facebook page in her
               absence and reached the same conclusions. The constitutional

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 6 of 9
               harm occurs because of the extent [Detective] Benner
               incorporated Depp into his investigation. Her viewing of Hill’s
               Facebook page contemporaneously with and under the control of
               [Detective] Benner, impermissibly suggested the subsequent
               photo array identification by her of Johnson.


       Appellant’s Br. pp. 14–15.


[12]   “Due process of law under the Fourteenth Amendment requires suppression of

       testimony concerning a pre-trial identification when the procedure employed is

       impermissibly suggestive.” Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).


               A photographic array is impermissibly suggestive if it raises a
               substantial likelihood of misidentification given the totality of the
               circumstances. Factors to be considered in evaluating the
               likelihood of a misidentification include (1) the opportunity of
               the witness to view the criminal at the time of the crime, (2) the
               witness’s degree of attention, (3) the accuracy of the witness’s
               prior description of the criminal, and (4) the level of certainty
               demonstrated by the witness.
       Id. (internal citation omitted). “In order to succeed on this argument, the

       defendant must demonstrate that law enforcement personnel or the prosecutors

       were responsible for the unnecessarily suggestive identification procedure.”

       O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001).


[13]   In challenging the admission of Depp’s identification testimony, Johnson

       argues that the process used by Detective Benner to create the photo array was

       impermissibly suggestive. Specifically, he argues that Detective Benner’s

       “scrolling of Hill’s Facebook page impermissibly suggested Depp’s

       identification of Johnson.” Appellant’s Br. p. 14. Johnson, however, does not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 7 of 9
       explain what about Detective Benner’s actions was impermissibly suggestive,

       merely arguing that Detective Benner should have completed his initial review

       of Hill’s Facebook friends without Depp present.


[14]   We are unable to say that the mere act of scrolling through Facebook with a

       witness amounts to impermissibly suggestive behavior by Detective Benner.

       Depp was not identifying an unknown individual. Instead, she was identifying

       an individual with whom she had been familiar, by sight and by nickname, for

       approximately five years. Depp informed Detective Benner that the shooter

       was one of Hill’s Facebook friends. She then sat with Detective Benner and

       scrolled through a list of Hill’s Facebook friends, stopping and identifying a

       picture as a picture of the shooter. After Depp identified the picture as being a

       picture of the shooter, Detective Benner refrained from completing any further

       investigation into the identity of the person in the photograph until Depp was

       no longer present.


[15]   Johnson has pointed to nothing in the record indicating that Detective Benner

       acted in a suggestive manner while scrolling through Hill’s Facebook friends

       with Depp. Johnson merely argues that Detective Benner should not have

       scrolled though the page while Depp was present. Given Depp’s familiarity

       with Johnson, we are unpersuaded that the mere fact that she looked through

       Hill’s Facebook friends with Detective Benner had any impact on her

       identifications of Johnson as the shooter. We therefore conclude that the trial

       court did not abuse its discretion in admitting the challenged evidence at trial.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 8 of 9
[16]   The judgment of the trial court is affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020   Page 9 of 9
