Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                 Feb 28 2014, 9:04 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CHRIS P. FRAZIER                                   GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   IAN MCLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES A. LYNN,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 70A04-1307-CR-317
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE RUSH CIRCUIT COURT
                           The Honorable David E. Northam, Judge
                               Cause No. 70C01-1301-FB-23


                                       February 28, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                      STATEMENT OF THE CASE

          James Lynn (“Lynn”) appeals his convictions and sentence for burglary,1 a Class

B felony, and theft,2 a Class D felony.

          We affirm.

                                             ISSUES

          1. Whether the trial court erred in admitting into evidence a photo array
             alleged to be unduly suggestive.

          2. Whether sufficient evidence supports Lynn’s convictions.

          3. Whether Lynn’s sentence is inappropriate under Indiana Appellate Rule
             7(B).


                                             FACTS

          On December 21, 2012, Rebecca McDonald (“McDonald”) came home from work

and saw a white truck that she did not recognize in her driveway. McDonald was talking

to a friend on her cell phone and told her about the truck; the friend said that she would

call 911. McDonald parked next to the truck and blocked its exit from her driveway.

McDonald got out of her vehicle and saw Lynn bringing items out of her home and

putting them into the white truck. Lynn saw McDonald in the driveway, and he reached

across the inside of the truck and blew the horn. Another man came out of McDonald’s

house and got into the white truck. The white truck fled and rammed McDonald’s car in

the process. As the white truck fled, McDonald saw the license plate number of the truck

and reported it to the police.

1
    Ind. Code § 35-43-2-1(1)(B)(i).
2
    Ind. Code § 35-43-4-2.
                                                2
       Law enforcement investigated the license plate number and determined that the

truck was registered to Paul Rice (“Rice”). Law enforcement also connected Lynn to the

truck through photographs from a scrap yard in Delaware County. With this information,

police were able to put together photo arrays to show McDonald. McDonald identified

Lynn and Rice as the men who burglarized her house.

       On January 11, 2013, the State charged Lynn with burglary as a Class B felony

and theft, a Class D felony. Prior to trial, Lynn filed a motion to suppress the photo array

prepared by police and shown to McDonald in an effort to identify him. Lynn claimed

that he was denied due process because the photo array was unduly suggestive. The trial

court denied Lynn’s motion. Lynn is depicted in photograph number six (6) below:




(App. 100).


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       On May 7, 2013, the trial court conducted a jury trial. Lynn renewed his objection

to the photo array when it was offered into evidence by the State. However, he did not

object to McDonald’s in-court identification. The jury found Lynn guilty of both counts

and the trial court set the matter for sentencing. The trial court held a sentencing hearing

on June 6, 2013 and sentenced Lynn to twenty (20) years executed on the burglary

conviction and three (3) years executed on the theft conviction. The trial court ordered

all of the executed time served in the Department of Correction with the counts running

concurrently.

                                         DECISION

       Lynn argues that: (1) the trial court erred by admitting an unduly suggestive photo

array; (2) that insufficient evidence supports his convictions; and (3) that his sentence is

inappropriate and should be revised pursuant to Indiana Appellate Rule 7(B). We address

each claim separately.

1. Unduly Suggestive Photo Array

       Lynn claims that the trial court erred in admitting the photo array into evidence.

Specifically, Lynn claims that the other images in the photo array were so different from

his that he stood out as the likely suspect.

       Due process of law requires suppression of testimony concerning an out-of-court

identification when the procedure employed was unnecessarily suggestive. James v.

State, 613 N.E.2d 15, 27 (Ind. 1993).              However, if, under the totality of the

circumstances, an identification is reliable, a trial court may admit it even though the

procedure may have been suggestive. Lyons v. State, 506 N.E.2d 813, 815 (Ind. 1987).

                                               4
In evaluating the suggestiveness of an out-of-court identification procedure, we look to:

(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.

       In creating a photo array, law enforcement officers 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.’” Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993) (quoting

Pierce v. State, 369 N.E.2d 617, 620 (Ind. 1977)). A photo array will be acceptable if the

defendant ‘“does not stand out so strikingly in his characteristics that he virtually is alone

with respect to identifying features.’” Id.

       Reviewing the photo array in the record, we cannot say that Lynn’s photograph

stands out from the other photographs included. While two of the photographs in the

array depict suspects with a good amount of hair, the remaining three appear to have bald

or balding hair similar enough to Lynn as to not seem overly suggestive.

       Even if the photo array was suggestive, the totality of the circumstances would

still allow for its admission. McDonald stood in her driveway about four (4) feet from

the truck and saw Lynn and Rice taking things out of her house. Lynn and Rice rammed

her vehicle as they drove away. McDonald was also able to get a license plate number

for the truck. Finally, McDonald saw another photo array in which she recognized no

one before seeing the array with Lynn. This would seem to suggest that McDonald was

confident in her recollection of Lynn from the encounter. Given the totality of the



                                              5
circumstances, McDonald’s identification is reliable, and the court did not err in

admitting the photo array.

2. Sufficient Evidence

       Lynn also claims that his convictions are not supported by sufficient evidence.

       When reviewing the sufficiency of the evidence to support a conviction,
       appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict. It is the fact-finder’s role, not that of
       appellate courts, to assess witness credibility and weigh the evidence to
       determine whether it is sufficient to support a conviction. To preserve this
       structure, when appellate courts are confronted with conflicting evidence,
       they must consider it most favorably to the trial court’s ruling. Appellate
       courts affirm the conviction unless no reasonable fact-finder could find the
       elements of the crime proven beyond a reasonable doubt. It is therefore not
       necessary that the evidence overcome every reasonable hypothesis of
       innocence. The evidence is sufficient if an inference may reasonably be
       drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and

citations omitted).

       Here, Lynn’s argument focuses on his presumption that the photo array was

unduly suggestive and a suggestion that the investigation by law enforcement was

insufficient. However, we have already determined that the photo array was not unduly

suggestive. Further, Lynn concedes that McDonald positively identified him during the

trial, but claims the identification “was likely colored by her desire to see someone

punished for the burglary[.]” (Lynn’s Brief, 13). Lynn’s remaining arguments focus on

the police’s failure to do things, such as search his house for any of McDonald’s items

and failing to interview a man Lynn named during his investigation. We see Lynn’s

arguments as a request to reweigh the evidence heard by the jury. We decline to do so.


                                            6
See Drane, 867 N.E.2d at 146-47. The evidence summarized in the FACTS section

combined with McDonald’s in-court identification provided the jury with sufficient

evidence to find Lynn guilty beyond a reasonable doubt.

3. Inappropriate Sentence

       Finally, Lynn claims that his sentence is inappropriate under Indiana Appellate

Rule 7(B). Lynn gives us no suggestion as to what his sentence should be. He only

states that his sentence is not in line with the nature of the offense and his character.

       Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the power

to revise an inappropriate sentence in light of the nature of the offense and character of

the offender, giving due consideration to the trial court’s decision. The defendant must

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Under Rule 7(B), we seek “to attempt to leaven the outliers, and identify

some guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).                Whether a sentence is

inappropriate ultimately depends upon “the culpability of the defendant, the severity of

the crime, the damage done to others, and a myriad of other factors that come to light in a

given case.” Id. at 1224.

       In determining whether a sentence is inappropriate, we first look to the advisory

sentence provided by the statute. Childress, 848 N.E.2d at 1081. The sentencing range

for Class B felony burglary is between six (6) and twenty (20) years, with an advisory

sentence of ten (10) years. I.C. § 35-50-2-5. The sentencing range for Class D felony

                                               7
theft is between six (6) months and three (3) years, with an advisory sentence of one and

one half (1½) years.

      As to the nature of the offense and Lynn’s character, the evidence shows that Lynn

broke into McDonald’s house with Rice and stole several items.          When caught by

McDonald, he and his accomplice did not abandon their crime. Rather, they finished

loading McDonald’s items into the truck while she watched and fled, striking

McDonald’s vehicle in the process. Lynn’s nine year criminal history is extensive. He

has misdemeanor convictions for battery, disorderly conduct, conversion, and check

deception. Lynn also has felony convictions for obtaining or attempting to obtain a

legend drug by fraud, two separate theft convictions, and possession of a narcotic drug.

Given the potential harm Lynn could have caused in fleeing, the actual damage inflicted

on McDonald vehicle, and his extensive criminal history, neither the nature of the offense

nor Lynn’s character persuades us to revise his sentence.

      Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




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