                                                                May 20 2015, 6:51 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Jeremy K. Nix                                             Gregory F. Zoeller
Matheny, Hahn, Denman & Nix LLP                           Attorney General of Indiana
Huntington, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Erica L. Jackson,                                         May 20, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          35A02-1410-CR-770
        v.                                                Appeal from the Huntington Superior
                                                          Court
                                                          The Honorable Jeffrey R.
State of Indiana,                                         Heffelfinger, Judge
Appellee-Plaintiff                                        Cause No. 35D01-1309-FD-195,
                                                          35D01-1310-CM-654




Bailey, Judge.




Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015                  Page 1 of 11
                                              Case Summary
[1]   Erica L. Jackson (“Jackson”) appeals her convictions for two counts of Theft,

      as Class D felonies,1and six counts of Check Deception, as Class A

      misdemeanors.2 We affirm.



                                                       Issues
[2]   Jackson presents two issues for review:

                 I.           Whether the trial court abused its discretion by refusing a
                              tendered instruction on Check Deception as a lesser-included
                              offense of Theft; and
                 II.          Whether the trial court abused its discretion by admitting
                              evidence obtained in an unduly suggestive photo lineup.


                                  Facts and Procedural History
[3]   On July 31, 2012, Jackson’s checking account had a balance of negative

      $1,836.51. During the following month, at various locations in Huntington

      County, Jackson presented seven checks drawn on that checking account. In

      October of 2012, Jackson presented an eighth check. The majority of these

      checks included a hand-written driver’s license number with two numbers




      1
        Ind. Code § 35-43-4-2(a). This statute has been revised, effective July 1, 2014, to provide that Theft may be
      a misdemeanor or a Level 5 or 6 felony. We refer to the version of the statute in effect at the time of
      Jackson’s offenses.
      2
          I.C. § 35-43-5-5.


      Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015                             Page 2 of 11
      transposed. All the checks were dishonored and certified mail notifications

      were returned to senders.


[4]   The State charged Jackson with six counts of Check Deception, corresponding

      with small checks presented at convenience stores. The State charged Jackson

      with two counts of Theft, as a result of checks presented to SS Peter and Paul

      Church, whereby Jackson purchased Bingo cards and received hundreds of

      dollars of cash in excess of the purchases.


[5]   On September 5, 2014, Jackson was brought to trial before a jury. She was

      convicted on all counts. On September 30, 2014, the trial court imposed

      concurrent three-year sentences for the Theft counts, with one year suspended

      to probation. For the Check Deception counts, the trial court sentenced

      Jackson to concurrent one-year sentences, all suspended to probation. Jackson

      now appeals.



                                 Discussion and Decision
                           Instruction on Lesser-Included Offense
[6]   Without elaboration, the trial court refused the following instruction proffered

      by the defense:

              The law permits the jury to determine whether the Accused is guilty of
              certain charges which are not explicitly included in the indictment/
              information. These additional charges which the jury may consider
              are called included offenses. They are called included offenses because
              they are offenses which are very similar to the charged offense.
              Usually the only difference between the charged offense and the

      Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015        Page 3 of 11
        included offense is that the charged offense contains an element that is
        not required to be proven in the included offense, or that the charged
        offense requires a higher level of culpability than the included offense.
        If the State proves each of the essential elements of the charged
        offense, then you need not consider the included offense(s), however if
        you find the State failed to prove each of the essential elements of the
        charged offense, you must find the accused not guilty of the charged
        offense.
        If you do find the Accused not guilty of the charged offense then you
        may consider whether the Accused is guilty of the included offense(s).
        You must not find the accused guilty of more than one crime for each
        count.
        In this case, the accused is charged with Theft. For the offense of
        Theft, the State of Indiana is required to prove the following:
        Erika [sic] Jackson, in Huntington County, Indiana, knowingly and
        intentionally exerted unauthorized control over the property of another
        person with the intent to deprive the person of the value or use of the
        property. If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the accused not guilty of Theft, a
        Class D Felony, as charged in Count 1 and Count 2.
        You may then consider any lesser included crime. The crime of check
        deception is included in the charged crime of Theft. For the offense of
        check deception, the State of Indiana is required to prove the
        following: A person who knowingly or intentionally issues or delivers
        a check, a draft, or an order on a credit institution for the payment of
        or to acquire money or other property, knowing that it will not be paid
        or honored by the credit institution upon presentment in the usual
        course of business, commits check deception, a Class A misdemeanor.
        If the State failed to prove each of these elements beyond a reasonable
        doubt, you must find the accused not guilty of Check Deception.
        If the State did prove each of the elements of the crime of check
        deception beyond a reasonable doubt, you may find the accused guilty
        of check deception a Class A misdemeanor.
(App. 149.) The trial court has broad discretion in instructing the jury and we

generally review its instructional determinations only for an abuse of discretion.

McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). Jackson contends that the
Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015           Page 4 of 11
      refusal of her tendered instruction constitutes an abuse of discretion because she

      was entitled to have the jury instructed on a factually lesser-included offense.


[7]   In Wright v. State, 658 N.E.2d 563 (Ind. 1995), our Indiana Supreme Court set

      forth the proper analysis to determine when a trial court should, upon request,

      instruct the jury on a lesser included offense of the crime charged. The analysis

      of the charging information and the elements contains three steps: (1) a

      determination of whether the lesser included offense is inherently included in

      the crime charged; if not, (2) a determination of whether the lesser included

      offense is factually included in the crime charged; and, if either, (3) a

      determination of whether a serious evidentiary dispute exists whereby the jury

      could conclude the lesser offense was committed but not the greater. Id. at 566-

      67. If the third step is reached and answered in the affirmative, the requested

      instruction should be given on the inherently or factually included lesser

      offense. Horan v. State, 682 N.E.2d 502, 506 (Ind. 1997).


[8]   An offense is inherently included if the alleged lesser included offense “may be

      established by proof of the same material elements or less than all the material

      elements defining the crime charged or … the only feature distinguishing the

      alleged lesser included offense from the crime charged is that a lesser culpability

      is required…” Wright, 658 N.E.2d at 566. “If the charging instrument alleges

      that the means used to commit the crime charged include all of the elements of

      the alleged lesser included offense, then the alleged lesser included offense is

      factually included in the crime charged.” Id. at 567.



      Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015      Page 5 of 11
[9]    Pursuant to Indiana Code Section 35-43-4-2, a person “who knowingly or

       intentionally exerts unauthorized control over property of another person, with

       intent to deprive the other person of any part of its value or use, commits theft.”

       Pursuant to Indiana Code Section 35-43-5-5, a person “who knowingly or

       intentionally issues or delivers a check, a draft, or an order on a credit

       institution for the payment of or to acquire money or other property, knowing

       that it will not be paid or honored by the credit institution upon presentment in

       the usual course of business, commits check deception.” Here, the information

       did not specify the means by which Jackson allegedly exerted unauthorized

       control over cash belonging to SS Peter and Paul Church. However, it was

       readily apparent in the presentation of argument and evidence that the State

       contended Jackson obtained the cash by presenting checks she knew would be

       dishonored.


[10]   As such, the State does not disagree with Jackson that Check Deception was a

       factually lesser-included offense of Theft as charged. Rather, the State contends

       that the decision to give or refuse the instruction on the factually included offense

       would turn upon the presence or absence of a serious evidentiary dispute as to

       whether the lesser offense was committed while the greater was not. According

       to the State, there was no serious evidentiary dispute.


[11]   A serious evidentiary dispute exists where the jury can conclude that the lesser

       offense was committed and the greater offense was not. Chanley v. State, 583

       N.E.2d 126, 130 (Ind. 1991).                 In determining whether there is a serious

       evidentiary dispute, Wright and its progeny dictate that the evidence presented by

       Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015       Page 6 of 11
       both the State and the defense must be taken into account. Webb v. State, 963

       N.E.2d 1103, 1107 (Ind. 2012).


[12]   The State elicited testimony that an employee of Fabulous 105, an entertainment

       venue that SS Peter and Paul Church rented for Bingo games, received checks in

       August of 2012 drawn on Jackson’s checking account. At that time, the account

       was already significantly overdrawn. On each occasion, Bingo cards costing

       approximately $35 to $40 were purchased with $250 checks; excess cash was

       tendered to the person presenting the checks. Jackson testified that she was not

       the individual who presented those checks. She asserted that her checks had been

       stolen and used by another person. More specifically, Jackson claimed that she

       was a victim of identity theft.


[13]   In other words, Jackson did not deny that the acts charged by the State were

       committed. She claimed that another individual was the perpetrator. As there

       was no controversy regarding whether a lesser offense was committed while a

       greater offense was not, the trial court did not abuse its discretion by refusing the

       instruction.3




       3
        We also note that the proffered instruction, purportedly based upon a pattern jury instruction, was
       erroneous with reference to relevant statutory language, stating that the mens rea for Theft was “knowingly
       and intentionally” as opposed to “knowingly or intentionally.” App. 149; I.C. § 35-43-4-2 (emphasis added.)

       Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015                          Page 7 of 11
                                                 Photo Array
[14]   Prior to trial, Jackson moved to suppress evidence that Sherry Metz (“Metz”),

       the owner of Fabulous 105, and Taumara MacDonald (“MacDonald”), an

       employee who sold Bingo cards, had each identified Jackson from a photo

       array. The photo array included jail intake photographs of five women and a

       Bureau of Motor Vehicles photograph of Jackson.


[15]   After a hearing, the motion to suppress was denied. At trial, Metz and

       MacDonald each made an in-court identification of Jackson. Each also

       acknowledged having signed beneath Jackson’s photograph in an array.

       Jackson unsuccessfully objected to the admission of State’s Exhibits 5 and 6, the

       signed photo arrays, on grounds that the arrays were “unduly suggestive.” (Tr.

       131, 148.)


[16]   The admission of evidence is within the trial court’s discretion and the decision

       is reviewable for an abuse of discretion. Allen v. State, 813 N.E.2d 349, 360

       (Ind. Ct. App. 2004). However, the identification of a defendant must comport

       with the standards of due process. Id. If an out-of-court identification

       procedure was unduly suggestive, testimony relating to it is inadmissible. Id.

       The task of this Court is to determine whether, under the totality of the

       circumstances, the identification process was conducted in such a manner that

       it created a substantial likelihood of irreparable misidentification. Id. Our

       Indiana Supreme Court has held that a photo array is impermissibly suggestive

       only where the array is accompanied by verbal communications or the


       Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015      Page 8 of 11
       photographs in the display include graphic characteristics that distinguish and

       emphasize the defendant’s photograph in an unusually suggestive manner. Id.

       (citing Bell v. State, 622 N.E.2d 450, 455 (Ind. 1993) overruled on other grounds by

       Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005)).


[17]   Even when an unnecessarily suggestive pretrial confrontation has occurred, an

       in-court identification is permissible if the State has satisfied its burden to

       establish by clear and convincing evidence that, independent of the

       unconstitutional confrontation, an independent basis for the witness’s in-court

       identification exists. Heiman v. State, 511 N.E.2d 458, 460 (Ind. 1987). The

       factors to be considered include the witnesses’ opportunity to view the criminal

       when the crime was committed, their degree of attention at the time, the

       accuracy of their prior descriptions, their level of certainty in the pre-trial

       identification and the length of time between the crime and the identification.

       Id.


[18]   Jackson claims that the trial court abused its discretion by admitting State’s

       Exhibits 5 and 6 and related testimony because Jackson’s photograph was a

       higher quality close-up causing her features to be more distinguishable than

       those of the women in jail intake photographs. We acknowledge that law

       enforcement officers compiling a photo array are not required to “perform the

       improbable if not impossible task of finding four or five other people who are

       virtual twins to the defendant.” Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d

       617, 620 (1977). Here, our examination of the photo array does not lead to the

       conclusion that the distinction identified by Jackson is critical such as to likely

       Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015       Page 9 of 11
       lead to misidentification. Each of the photographs is of sufficient clarity to

       allow an examination of facial features.


[19]   Moreover, Metz and MacDonald each had an independent basis for in-court

       identification of Jackson, having encountered Jackson at Fabulous 105 during

       business hours. MacDonald testified that she was “fairly certain” Jackson was

       the woman to whom she gave Bingo cards and cash. (Tr. 130.) According to

       MacDonald, Jackson’s eyes and neck tattoo were distinguishing features. Metz

       was “100% certain” that Jackson was the woman in Fabulous 105 who had

       presented checks. (Tr. 148.) According to Metz, Jackson was at Fabulous 105

       on at least three occasions in August of 2012, typically with her boyfriend,

       described as a thin black man “always” wearing a baseball cap. (Tr. 145.)

       Metz considered Jackson’s hairstyle, which she called a “poof” style, to be

       distinguishing. (Tr. 145.) Further, Metz had “prior dealings with” Jackson six

       years earlier. (Tr. 146.)


[20]   Under the totality of the circumstances, the trial court did not abuse its

       discretion in admitting pretrial identification evidence.



                                                Conclusion
[21]   Jackson did not establish that the trial court abused its discretion by refusing her

       proffered instruction, nor did Jackson establish that the trial court abused its

       discretion in the admission of evidence.


[22]   Affirmed.

       Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015    Page 10 of 11
Riley, J., and Barnes, J., concur.




Court of Appeals of Indiana | Opinion 35A02-1410-CR-770 | May 20, 2015   Page 11 of 11
