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                                   Sep 25 2014, 9:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

GARY L. GRINER                                  GREGORY F. ZOELLER
Mishawaka, Indiana                              Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH WASHINGTON,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 71A03-1402-CR-64
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable John M. Marnocha, Judge
                             Cause No. 71D02-1307-FC-159


                                    September 25, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge
      Kenneth Washington appeals his conviction of burglary, a Class C felony, Ind.

Code § 35-43-2-1 (1999). We affirm.

      Carlton Briggs was the property manager for a house in South Bend, Indiana.

Jama Luttrell owned the house and used it as a rental property. On July 13, 2013, Briggs

and a prospective tenant met at the house at 8:30 a.m. Briggs had last visited the house

two days before the meeting. He had noted during his visit that all doors and windows

were secure, and “everything seemed okay” inside. Tr. p. 214. He did not go into the

basement at that time.

      When Briggs arrived at the house on July 13, the prospective tenant said that a

bike was in the backyard. Briggs went into the backyard to look at the bike, which did

not belong there. As Briggs and the prospective tenant returned to the front of the house,

they saw a man later identified as Washington walk out of the house’s front door.

      Briggs told Washington he was not supposed to be in there and that he was calling

the police. Washington ran to the front gate, closed it behind him, and ran away from the

house. Briggs chased him. Briggs called the police as he ran, providing a description of

Washington.    He saw Washington try to enter another home, and when that failed

Washington resumed running.

      Briggs lost sight of Washington but encountered a police officer and provided a

description again. The officer directed Briggs to return to Luttrell’s house. Briggs met

other officers at the house and went inside with them. The house’s back door had been

pried open and then closed again, and the deadbolt was laying on the floor inside. Briggs



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found pieces of copper pipe in a plastic bag on a countertop by the backdoor. The pieces

had been ripped out of the basement and broken up.

        Briggs also saw clothing scattered on the floor in another room. The previous

tenant had left a bag of clothes there, and it looked to Briggs as though someone had slept

on the clothes.

        Next, an officer at the house was informed that a suspect had been apprehended,

and Briggs agreed to see if he recognized the person. An officer drove Briggs to a

location where Washington was in custody. Briggs, who had last seen Washington

twenty to thirty minutes prior, identified him as the man he saw exiting Luttrell’s house

and running away.

        The State charged Washington with burglary and resisting law enforcement, a

Class A misdemeanor. Washington filed a motion to suppress all evidence related to

Briggs’ “show-up” identification of Washington. The trial court denied the motion after

a hearing.      A jury determined that Washington was guilty as charged.                         The court

sentenced Washington, and this appeal followed.

        Washington raises three issues, which we expand and restate as:

        I.      Whether the trial court erred by admitting evidence of the “show-up”
                identification.1


1
  In its brief, the State frames this issue in two places as follows: “The State presented sufficient evidence
that the Defendant committed dealing in methamphetamine and possession of methamphetamine within
one thousand feet of a housing complex.” Appellee’s Br. pp. i, 8. Elsewhere in its brief, the State more
correctly states the issue as “Whether the trial court abused its discretion in admitting evidence of Briggs’
identification of Defendant.” Id. at 1. The record is devoid of any reference to methamphetamine or
public housing. We conclude that the State copied the errant passages from another brief, and we
recommend more careful editing in the future. Even so, we do not excuse the carelessness of the deputy
who drafted the State’s brief.
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       II.    Whether the trial court abused its discretion in instructing the jury.

       III.   Whether the trial court abused its discretion in limiting Washington’s
              closing argument to the jury.

       IV.    Whether there is sufficient evidence to support Washington’s burglary
              conviction.

                            I. “SHOW-UP” IDENTIFICATION

       Washington argues that Briggs’ “show-up” identification of Washington shortly

after his capture was the result of an unduly suggestive procedure that violated his right

to due process under the Fourteenth Amendment. Thus, he concludes, the trial court

erred in admitting Briggs’ testimony about the identification.

       As a preliminary matter, the State argues that Washington waived appellate review

of this claim. Prior to trial, Washington filed a motion to suppress all evidence related to

Briggs’ identification of him. However, the filing of a motion to suppress is insufficient

to preserve an issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). A

party must offer a contemporaneous objection at the time the evidence is introduced at

trial. Id. The reasoning behind this rule, in part, is to immediately and fully alert the trial

court of the legal issue. Shoultz v. State, 995 N.E.2d 647, 654 (Ind. Ct. App. 2013), trans.

denied.

       At trial, Briggs described being taken to a location to see if he recognized the

person they had in custody. He said he had identified Washington as the burglar and

explained at length, without objection, the basis for his identification.              Further,

Washington cross-examined Briggs at length about the identification procedure and the



                                              4
strength of Briggs’ conviction that Washington was the person he saw at Luttrell’s house

and in police custody.

       After Briggs was excused from the stand and after a ten-minute recess, the

attorneys approached the bench. Washington’s counsel said he “made a tactical error”

and “should have objected” to the identification testimony. Tr. pp. 279-80. At that point,

the trial court noted the objection for the record and deemed it overruled. However,

Washington’s objection came too late to allow the trial court to timely consider the

matter. He has waived appellate review of his challenge to the admissibility of Briggs’

testimony.   See Shoultz, 995 N.E.2d at 654 (challenge to evidence waived because

defendant did not assert objection contemporaneously with the introduction of the

evidence).

       In any event, if a trial court errs in admitting evidence, the admission is harmless

error if it is cumulative of other evidence appropriately admitted. Allen v. State, 994

N.E.2d 316, 319 (Ind. Ct. App. 2013). At trial, an officer testified without objection that

she brought Briggs to Washington’s location and that Briggs identified Washington as the

man he saw leaving Luttrell’s house. Thus, even if Washington had timely objected to

Briggs’ testimony, any error in its admission was harmless.

       Waiver and harmless error notwithstanding, due process of law requires

suppression of testimony concerning an out-of-court identification if the procedure

employed was unnecessarily suggestive. James v. State, 613 N.E.2d 15, 27 (Ind. 1993).

Factors to be considered in evaluating the identification include: (1) the opportunity of

the witness to view the criminal at the time of the crime; (2) the witness’s degree of

                                            5
attention; (3) the accuracy of the witness’s prior description of the criminal; and (4) the

level of certainty demonstrated by the witness. Id. Another factor is the amount of time

that elapsed between the commission of the crime and the show-up identification. Slaton

v. State, 510 N.E.2d 1343, 1348 (Ind. 1987).

         Here, Briggs had ample opportunity to view Washington as he exited the house

and ran away. In addition, Briggs testified that he watched Washington carefully as he

fled.    Finally, only twenty to thirty minutes passed between Briggs’ last sight of

Washington and the “show-up” identification, and Briggs was certain that Washington

was the burglar. Thus, even if the claim had been preserved for review, it is without

merit.

             II. JURY INSTRUCTION ON EYEWITNESS IDENTIFICATION

         Washington argues the trial court erred in rejecting his proposed jury instruction

on eyewitness identification. Instruction of the jury is generally within the discretion of

the trial court and is reviewed only for an abuse of that discretion. Brakie v. State, 999

N.E.2d 989, 993 (Ind. Ct. App. 2013), trans. denied. When reviewing the refusal to give

a proposed instruction, we consider: (1) whether the proposed instruction correctly states

the law; (2) whether the evidence supports giving the instruction; and (3) whether other

instructions already given cover the substance of the proposed instruction. Id.

         Washington tendered Instruction Number Four, which states as follows:

               One of the most important issues in this case is the identification of
         the Accused as the perpetrator of the crime. The State has the burden of
         proving identity, beyond a reasonable doubt.



                                               6
             It is not essential that the witness himself be free from doubt as to
      the correctness of his statement. However, you, the jury, must be satisfied
      beyond a reasonable doubt of the accuracy of the identification of the
      Accused before you may convict him. If you are not convinced beyond a
      reasonable doubt that the Accused was the person who committed the
      crime, you must find the Accused not guilty.

              Identification testimony is an expression of the belief or impression
      by the witness. Its value depends on the opportunity the witness had to
      observe the offender at the time of the offense and to make a reliable
      identification later.

              If the identification by the witness may have been influenced by the
      circumstances under which the Accused was presented to him for
      identification, you should scrutinize the identification with great care. You
      may also consider the length of time that lapsed between the occurrence of
      the crime and the next opportunity of the witness to see Accused as a factor
      bearing on the reliability of the identification.

             Finally, you must consider the credibility of each identification
      witness in the same way as any other witness, consider whether he had the
      capacity and opportunity to make a reliable observation on the matter
      covered in the witness’ testimony.

Appellant’s App. p. 101.

      The trial court rejected this proposed instruction, asserting that the Indiana

Supreme Court does not “favor instructions such as this.” Tr. p. 403. The trial court is

correct, because Indiana law “is distinctly biased against jury instructions which single

out eyewitness identification testimony.” Hopkins v. State, 582 N.E.2d 345, 353 (Ind.

1991) (quoting Brown v. State, 468 N.E.2d 841, 843 (Ind. 1984)). In addition, a trial

court must not give an instruction that emphasizes the testimony of a single witness. Id.

      In this case, Washington’s proposed instruction unduly focused on eyewitness

testimony and thus contravenes the holding in Hopkins. Furthermore, the trial court

instructed the jury on factors to consider when weighing witnesses’ testimony. Thus, the

                                            7
subject of Washington’s proposed instruction was adequately covered by other

instructions. See Emerson v. State, 724 N.E.2d 605, 608-609 (Ind. 2000) (trial court did

not err in rejecting instruction on eyewitness identification; general instruction on

credibility of witnesses was sufficient to address the subject). The trial court did not

abuse its discretion.

                              III. CLOSING ARGUMENT

       Washington claims the trial court erroneously limited his closing argument.

Conduct during a closing argument is a matter within the sound discretion of the trial

court, and a conviction will not be reversed unless there has been a clear abuse of that

discretion resulting in prejudice to the accused. Bowles v. State, 737 N.E.2d 1150, 1154

(Ind. 2000).

       The transcript shows that during voir dire, Washington read a statement to the

panelists about eyewitness identification. Tr. p. 427. He reread the statement to the jury

during closing argument. Id. at 429-30. The trial court barred Washington from citing to

the source of the statement. Id. at 427-28. Washington claims he was prejudiced by the

court’s decision because “the jury was left to fend for itself about the law on

misidentification because the trial court refused to allow argument or instructions on the

law.” Appellant’s Br. p. 14. He fails to cite to any authority to establish that he should

have been allowed to tell the jury the source of the statement on eyewitness testimony.

       Further, the record fails to show any prejudice. As noted above, the trial court’s

instruction on witness credibility was sufficient to inform the jury how to weigh

eyewitness testimony. In addition, the trial court permitted Washington to address the

                                            8
jury about issues involving eyewitness identification. Washington has not demonstrated

that the trial court abused its discretion by preventing him from citing to the source of his

comments on witness identification.

                        IV. SUFFICIENCY OF THE EVIDENCE

       When reviewing a challenge to the sufficiency of the evidence underlying a

criminal conviction, we neither reweigh the evidence nor assess the credibility of

witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. Ct. App. 2012). The evidence and

all reasonable inferences are viewed in a light most favorable to the conviction. Id. We

affirm if there is substantial evidence of probative value supporting each element of the

crime from which a reasonable trier of fact could have found the defendant guilty beyond

a reasonable doubt. Id. Elements of offenses and identity may be established entirely by

circumstantial evidence and the logical inferences drawn therefrom. Holloway v. State,

983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013).

       In order to obtain a conviction for burglary, the State was required to prove

beyond a reasonable doubt that Washington (1) broke and entered into (2) Jama Luttrell’s

building (3) with the intent to commit theft in the building. Ind. Code § 35-43-2-1.

       Washington argues there is insufficient evidence that he intended to commit theft

in Luttrell’s house. The evidentiary inference pointing to the defendant’s intent must be

separate from the evidentiary inference of the defendant’s breaking and entering. Baker

v. State, 968 N.E.2d 227, 230 (Ind. 2012).

       In this case, the damage to the house’s back door supports a reasonable inference

of breaking and entering. Regarding the intent to commit theft, Briggs and an officer

                                             9
found that a copper pipe had been ripped away from fixtures in the basement, broken

down into smaller pieces, and bagged for transport. In addition, Washington was in the

house when Briggs arrived. This is sufficient evidence of intent to commit theft separate

and distinct from the breaking and entering. See id. at 231 (sufficient evidence of intent

to commit theft where the defendant opened cupboards and drawers after breaking into a

structure).

       Washington claims that Briggs and the officers did not find any tools for cutting

pipe and that the pipe pieces could have been cut months prior to Briggs’ discovery.

These claims are requests to reweigh the evidence, which our standard of review forbids.

       For the reasons stated above, we affirm the judgment of the trial court.

       Affirmed.

       NAJAM, J., and BAILEY, concur.




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