Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                     Oct 17 2014, 8:53 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MICHAEL C. BORSCHEL                             GREGORY F. ZOELLER
Fishers, Indiana                                Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DOMINIC JOHNSON,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A05-1403-CR-125
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt Eisgruber, Judge
                        The Honorable Steven Rubick, Magistrate
                            Cause No. 49G01-1202-FC-8949


                                     October 17, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issue

       Dominic Johnson appeals his convictions for auto theft and resisting law

enforcement, asking whether the State offered sufficient evidence to identify Johnson as

the perpetrator of the charged offenses. Concluding there was sufficient evidence to

convict Johnson, we affirm.

                              Facts and Procedural History

       On the morning of February 8, 2012, Sabrina Wisdom started her grey minivan

and left it unoccupied in her driveway so that it could warm up before she drove her

daughter to the bus stop. Upon returning outside, Wisdom discovered that her vehicle

was no longer parked in the driveway, and she promptly called the police.

       Shortly after, Indianapolis Metropolitan Police Department (“IMPD”) Officer

Michael Darst responded to a dispatch regarding the stolen minivan and spotted a vehicle

matching its description in an area not far from Wisdom’s residence. Officer Darst

observed two black males in the minivan and saw that the minivan’s license plate

matched the one in the earlier dispatch. Officer Darst followed the minivan, which in

turn sped up. Officer Darst then activated his emergency lights and sirens, but the

minivan did not yield. Eventually, the minivan slid off the road and crashed into a stop

sign and a fence.

       When the vehicle crashed, Officer Darst stopped his cruiser approximately five

feet behind the minivan to prevent it from backing out. The driver and passenger of the

minivan got out of the vehicle. The passenger surrendered, but despite the officer’s

command to stop, the driver fled on foot heading south through a nearby home’s

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backyard.    Officer Darst detained the passenger and radioed for assistance in

apprehending the driver.

      Officer John Archer, a member of IMPD’s K-9 unit, and his German Shepard,

Tarzan, arrived on the scene in response to Officer Darst’s request for assistance. Tarzan

is a patrol dog that is trained to track people and search for narcotics. Officer Archer

headed south with Tarzan in the direction the minivan’s driver had fled, following a track

of footprints left in the snow by the suspect. Officer Archer continued south through

several yards until the dog took him around the side of a house. Officer Archer saw a

man on the street and asked whether he had seen a black male run through the area. The

man told Officer Archer that he had seen a black man run behind the house. Officer

Archer proceeded around the back of that house, where he could see footprints leading to

the back door. At this point, Tarzan became excited and lifted his head, indicating that

the person whom the officers were tracking was nearby.

      Officer Archer opened the back door and gave two warnings stating that he was

coming inside and intended to release the dog. Officer Archer entered the house and

found a black man, later identified as Johnson, lying on the floor under a blanket. It

appeared to Officer Archer that Johnson was pretending to be asleep. On the floor near

Johnson were a pair of wet shoes and a jacket. Officer Darst was called to the house and

verified that Johnson was the person who fled from the stolen minivan.

      On February 9, 2012, the State charged Johnson with auto theft, a Class C felony;

resisting law enforcement, a Class D felony; and resisting law enforcement, a Class A

misdemeanor. The State also alleged Johnson was an habitual offender. Following a

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bench trial, the trial court concluded Johnson was guilty of all four counts, and the trial

court merged Johnson’s misdemeanor resisting law enforcement conviction into his

felony resisting law enforcement conviction. Johnson received an aggregate sentence of

four years. This appeal followed.

                                 Discussion and Decision

                                 I. Standard of Review

       When reviewing a defendant’s claim of insufficient evidence, the appellate court

will neither reweigh the evidence nor judge the credibility of the witnesses. McHenry v.

State, 820 N.E.2d 124, 126 (Ind. 2005) (citation omitted).         We consider only the

probative evidence and reasonable inferences supporting the verdict, and we must affirm

“if the probative evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

Id. (citation omitted).

                               II. Sufficiency of Evidence

       Johnson argues on appeal that the State did not offer sufficient evidence to support

his convictions. Johnson concedes that the charged offenses occurred, see Brief of

Appellant at 7, but he argues the State failed to prove his identity beyond a reasonable

doubt. In other words, Johnson contends the State did not establish that he was the

person who committed the charged offenses. “As with other sufficiency matters, we will

not weigh the evidence or resolve questions of credibility when determining whether the

identification evidence is sufficient to sustain a conviction. Rather, we examine the



                                            4
evidence and the reasonable inferences therefrom that support the verdict.” Gleaves v.

State, 859 N.E.2d 766, 770 (Ind. Ct. App. 2007).

        A lion’s share of Johnson’s argument on appeal is devoted to the proposition that

Officer Darst’s identification of Johnson—shortly after the crime and at trial—is

unreliable.     In support, he relies on our supreme court’s decision in Swigeart v. State,

749 N.E.2d 540 (Ind. 2001). Johnson’s argument fundamentally misunderstands the

Swigeart decision. Swigeart concerns whether due process requires the exclusion of an

in-court identification after the court has determined an impermissibly suggestive pre-

trial identification must be suppressed; it does not relate to whether a witness’s testimony

is sufficient to establish a defendant’s identity beyond a reasonable doubt. See id. at 544.

At trial, Johnson did not object to Officer Darst’s testimony regarding his on-scene, pre-

trial identification of Johnson or the in-court identification.                      Therefore, Swigeart is

inapplicable to this case. And to the extent Johnson believes the Swigeart factors1 permit

us to reweigh the value and credibility of Officer Darst’s testimony, Johnson is mistaken.

        There was sufficient evidence to identify Johnson as the culprit. Officer Darst

testified at trial that he parked only five feet behind the minivan and was able to see


        1
           The court in Swigeart identified nine factors used to decide whether a witness has a sufficiently
independent basis for an in-court identification. The factors include:

        [t]he amount of time the witness was in the presence of the defendant; the distance between the
        two; the lighting conditions; the witness’ degree of attention to the defendant; the witness’
        capacity for observation; the witness’ opportunity to perceive particular characteristics of the
        perpetrator; the accuracy of any prior description of the perpetrator by the witness; the witness’
        level of certainty at the pretrial identification; and the length of time between the crime and the
        identification.

Swigeart, 749 N.E.2d at 544. The balancing of those factors determines whether the in-court identification will be
excluded. Johnson’s brief analyzes those factors in an attempt to convince us that Johnson’s trial testimony was
unreliable.

                                                        5
Johnson’s face as he exited the vehicle and fled. Officer Darst positively identified

Johnson less than an hour later, and again at Johnson’s trial. Additionally, Officer Archer

and his canine partner tracked Johnson from the stolen vehicle’s crash-site, and a

bystander informed Officer Archer that he witnessed a black man running behind the

house where Johnson was found. Furthermore, Johnson’s wet shoes and jacket were

lying near him on the floor, creating the inference that Johnson had only recently come in

from the snow. These facts are sufficient for a reasonable trier of fact to find Johnson

was the person who committed the acts of auto theft and resisting law enforcement.

                                        Conclusion

          Concluding there was sufficient evidence to support Johnson’s convictions, we

affirm.

          Affirmed.

BAKER, J., and KIRSCH, J., concur.




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