      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Aug 14 2017, 8:27 am
      court except for the purpose of establishing
                                                                           CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
      estoppel, or the law of the case.                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael C. Borschel                                      Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana

                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Walter White,                                            August 14, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1701-CR-85
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Grant W.
      Appellee-Plaintiff.                                      Hawkins, Judge
                                                               Trial Court Cause No.
                                                               49G05-1511-F2-39758



      Barnes, Judge.


                                             Case Summary
[1]   Walter White appeals his conviction for Level 2 felony kidnapping. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017      Page 1 of 8
                                                    Issues
[2]   White raises two issues, which we restate as:


                      I.       whether the trial court properly admitted
                               evidence regarding a show-up identification;
                               and

                      II.      whether the evidence is sufficient to sustain
                               White’s conviction.


                                                     Facts
[3]   On November 5, 2015, Alan Becker was leaving a CVS store in Lawrence and

      walking toward his vehicle. He was approached by an African American male

      wearing dark pants, a dark hoodie, and a bandanna over his mouth.                     The man

      said, “I’m going to put a cap in your head if you don’t take me to the ATM

      over there and withdraw $2,000.” Tr. p. 109. The man was extending his arm

      toward Becker and “holding his hand out sideways with his hand on top and in

      his hand was something that was cylindrical, sort of looked like the shape of a

      gun but it was covered” by a sock or other similar material. Id. at 110. Becker

      tried to quickly get in his vehicle to get away, but the man jumped into the

      backseat behind Becker. Becker put the vehicle into gear, “tromped on the

      accelerator,” and did a “360 degree turn,” which threw the man against the

      door. Id. at 114. Becker was then able to stop in front of the adjacent Marsh

      store, put the vehicle in park, and jump out. Becker yelled for help, and an off-

      duty officer assisted him. The suspect then ran away.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017    Page 2 of 8
[4]   Officer Matthew Brandenburg with the Lawrence Police Department received a

      dispatch regarding an armed robbery by a “[b]lack male with scarf or hoodie,

      dark clothing” and then received additional information that the suspect was

      seen running east across Oaklandon Road. Id. at 85. Officer Brandenburg

      headed that direction, stopped at the St. Simon school, and scanned the area

      with his spotlight. He saw White “laying face down near the goal line” on the

      football field. Id. Officer Brandenburg apprehended White, and Officer Dustin

      VanTreese brought Becker to the scene. Officer VanTreese shined his spotlight

      on White, and Becker said White was the same height, same build, and had the

      same clothes as the suspect, but he could not identify White as the suspect

      because the suspect had been wearing a mask or bandanna. At that point an

      officer pulled out a bandanna from White’s collar and “pulled it up over”

      White’s face, and Becker identified White as the man that he encountered in the

      CVS parking lot. Id. at 22. Officers were unable to locate a gun on White or in

      the area. Detective Bruce Wright interviewed White at the police station. After

      being read his Miranda rights, White told Detective Wright that he had been at

      the CVS and that he had an interaction with Becker. He denied that he had

      threatened Becker.


[5]   The State charged White with Count I, Level 2 felony kidnapping; Count II,

      Level 3 felony kidnapping; Count III, Level 3 felony attempted armed robbery;

      and Count IV, Class A misdemeanor resisting law enforcement. White filed a

      motion to suppress the show-up identification, which the trial court denied. At

      the jury trial, White objected to the admission of the show-up identification.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017   Page 3 of 8
      The jury found White guilty of Count I and Count II and not guilty of Count

      III and Count IV. Due to double jeopardy concerns, the verdict for Count II

      was merged with Count I, and White was only sentenced on Count I. The trial

      court sentenced him to twenty-four years in the Department of Correction.

      White now appeals.


                                                  Analysis
                                        I. Show-up Identification

[6]   White challenges the admission of the show-up identification. The admission

      of evidence is within the sound discretion of the trial court, and we review the

      trial court’s decision only for an abuse of that discretion. Rasnick v. State, 2

      N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied. The trial court abuses its

      discretion only if its decision is clearly against the logic and effect of the facts

      and circumstances before the court or if the court has misinterpreted the law.

      Id.


[7]   “The Fourteenth Amendment’s guarantee of due process of law requires the

      suppression of evidence when the procedure used during a pretrial identification

      is impermissibly suggestive.” Id. “In some circumstances, a show-up

      identification ‘may be so unnecessarily suggestive and so conducive to

      irreparable mistake as to constitute a violation of due process.’” Id. (quoting

      Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)). In reviewing challenges to

      show-up identifications, we examine the totality of the circumstances

      surrounding the identification, including:


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017   Page 4 of 8
                      (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.



      Id.


[8]   We need not address White’s argument regarding the admission of the show-up

      identification because any error in the admission was harmless. “An error is

      harmless if there is ‘substantial independent evidence of guilt satisfying the

      reviewing court there is no substantial likelihood the challenged evidence

      contributed to the conviction.’” Id. at 26 (quoting Turner v. State, 953 N.E.2d

      1039, 1059 (Ind. 2011)); see also Ind. Trial Rule 61. In general, we disregard

      errors in the admission of evidence unless they affect the substantial rights of a

      party. Rasnick, 2 N.E.3d at 26.


[9]   The admission of the show-up identification evidence relates to the

      identification of the perpetrator. However, White admitted that he had been in

      the CVS parking lot and that he had an interaction with Becker. Consequently,

      identity was not at issue in the case. The only question was whether White had

      threatened and kidnapped Becker. Any error in the admission of the show-up

      identification did not affect White’s substantial rights and was harmless.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017   Page 5 of 8
                                      II. Sufficiency of the Evidence

[10]   White challenges the sufficiency of the evidence to support his conviction.

       When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


[11]   White argues that his guilty verdict for Level 3 felony kidnapping was

       inconsistent with the jury’s not guilty verdict for Level 3 felony attempted

       armed robbery. First, we note that the trial court “merge[d]” the Level 3 felony

       kidnapping verdict and did not enter a sentence on that guilty verdict. Tr. p.

       237. Moreover, our supreme court has held that “[j]ury verdicts in criminal

       cases are not subject to appellate review on grounds that they are inconsistent,

       contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind.

       2010). Consequently, White’s argument is not subject to appellate review.


[12]   To the extent White argues that his conviction for Level 2 felony kidnapping is

       not supported by the evidence, we disagree. Indiana Code Section 35-42-3-2(a)

       provides: “A person who knowingly or intentionally removes another person,

       by fraud, enticement, force, or threat of force, from one place to another

       commits kidnapping.” The offense is a Level 2 felony if it is committed while

       hijacking a vehicle. Ind. Code § 35-42-3-2(b)(3)(B). The State alleged that
       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017   Page 6 of 8
       White “did, while hijacking a vehicle, to-wit: a 2006 Honda Pilot automobile,

       knowingly remove Alan Becker by force or threat of force from one place to

       another.”1 Appellant’s App. Vol. II p. 94.


[13]   The State presented evidence that White approached Becker in the CVS parking

       lot and said, “I’m going to put a cap in your head if you don’t take me to the

       ATM over there and withdraw $2,000.” Tr. p. 109. White was extending his

       arm toward Becker and “holding his hand out sideways with his hand on top

       and in his hand was something that was cylindrical, sort of looked like the

       shape of a gun but it was covered” by a sock or other similar material. Id. at

       110. Becker jumped into his vehicle, but White got into the backseat behind

       Becker. Becker then drove quickly in a circle and threw White against the door.

       Becker was able to stop in front of the adjacent Marsh store, get out of the

       vehicle, and obtain help. The evidence is sufficient to show that White

       knowingly, while hijacking a vehicle, removed Becker from one place to

       another by force or threat of force. The evidence is sufficient to sustain White’s

       conviction for Level 2 felony kidnapping.


                                                    Conclusion
[14]   Any error in the admission of the show-up identification was harmless, and the

       evidence is sufficient to sustain White’s conviction. We affirm.




       1
        In his appellant’s brief, White relies on an earlier version of the charging information. However, the State
       points out that the charging information was later amended. In his reply brief, White acknowledges his
       mistake.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017                Page 7 of 8
[15]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-85| August 14, 2017   Page 8 of 8
