Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016 Page 1 of 6

MEMORANDUM DECISION

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 establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy L. Sallee, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 30, 2016

Court of Appeals Case No.

34A02-1606-CR-1341

Appeal from the Howard Superior 

Court

The Honorable G. Thomas Gray, 

Senior Judge

Trial Court Cause No.

34D01-1409-CM-775

Mathias, Judge.

[1] Timothy L. Sallee, Jr. (“Sallee”) was convicted in Howard Superior Court of 

Level 6 felony maintaining a common nuisance, Class A misdemeanor 
Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016 Page 2 of 6

possession of a controlled substance, and Class A misdemeanor possession of a 

synthetic drug or synthetic drug lookalike substance. Sallee appeals his 

convictions and argues that a State’s witness lacked a sufficient independent 

basis for her in-court identification of Sallee. 

[2] We affirm.

Facts and Procedural History

[3] In September 2014, officers assigned to the Kokomo Police Department’s drug 

task force were conducting surveillance of a residence located at 506 

Tomahawk Boulevard in Kokomo. During their surveillance, the officers 

observed numerous vehicles coming and going from the residence. 

[4] On September 23, 2014, Officer Derek Root (“Officer Root”) saw Sallee exit 

the residence with his girlfriend, Kelly Byers (“Byers”). On that same day, 

Officer Root applied for and received a search warrant for 506 Tomahawk 

Boulevard.

[5] During execution of the search warrant, officers discovered a cellophane 

wrapper containing eleven pills inside the front pocket of a man’s shirt hanging 

in the bedroom closet. Ex. Vol., State’s Exs. 11 & 12. The pills were later 

identified as the controlled substance buprenorphine. Tr. p. 65. The officers also 

discovered a packet of “spice” in a bedroom drawer. Subsequent testing 

revealed that the spice contained the controlled substance AB-FUBINACA. In 

addition, the officers found several empty spice or synthetic marijuana packets

and two digital scales.
Court of Appeals of Indiana | Memorandum Decision 34A02-1606-CR-1341 | December 30, 2016 Page 3 of 6

[6] Sallee was charged with Level 6 felony maintaining a common nuisance and 

two Class A misdemeanors: possession of a controlled substance and possession 

of synthetic drug or synthetic lookalike substance. A jury trial was held on April 

15, 2016.

[7] At trial, Lisa Thieke (“Thieke”) testified that she had rented 506 Tomahawk 

Boulevard to Sallee and Byers. Thieke believed that Sallee’s first name was 

possibly Tony. However, she stated that she was certain his last name was 

Sallee. The State asked Thieke if the person to whom she rented the property, 

whom she referred to as Mr. Sallee, was present in the courtroom. Thieke 

responded in the affirmative, and when the State asked Thieke to identify that 

person, she pointed to the defendant, Sallee. Tr. p. 29. Sallee did not object to 

the in-court identification.

[8] The jury found Sallee guilty as charged. The trial court sentenced Sallee to 913 

days for the Level 6 felony maintaining a common nuisance conviction. The 

court ordered 548 days executed in the Howard County Jail, and 365 days 

suspended to probation. Sallee was sentenced to 365 days for the Class A 

misdemeanor convictions, to be served concurrent to each other and to the 

Level 6 felony conviction. Sallee now appeals his convictions.
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Discussion and Decision

[9] Sallee frames his claim on appeal as one for insufficient evidence to support his 

convictions,1 but the only issue argued and supported by citation to authority is 

his assertion that Thieke’s in-court identification was unduly suggestive and 

violated his due process rights. See Appellant’s Br. pp. 9-11. Sallee asks this

Court to “reverse his convictions as a result of the first time in-court 

identification of the witness.” Id. at 12. 

[10] Sallee failed to object to Thieke’s in-court identification. Therefore, he must 

establish that the in-court identification constitutes fundamental error. Hoglund 

v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure to object at trial waives the 

issue for review unless fundamental error occurred.”). “The fundamental error 

doctrine provides a vehicle for the review of error not properly preserved for 

appeal.” Id. “In order to be fundamental, the error must represent a blatant 

violation of basic principles rendering the trial unfair to the defendant and 

thereby depriving the defendant of fundamental due process.” Id. Harm is 

found when error is so prejudicial as to make a fair trial impossible. Id.

[11] It is well settled that “[t]here is a degree of suggestiveness which is inherent in 

all in-court identifications; the practical necessity of having the appellant sit at 

the defendant’s table with defense counsel naturally sets him apart from 

 

1 Concerning his claim that the evidence was insufficient to support his convictions, Sallee argues only that 

“due to the impermissible in-court identification, there was insufficient evidence to link Sallee to the 

residence subject to the search by the Kokomo Police Department and as such insufficient evidence to 

convict Sallee.” Appellant’s Br. at 11-12.
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everyone else in the courtroom.” Jeter v. State, 888 N.E.2d 1257, 1266 (Ind.

2008). “Whether a particular identification procedure rises to a level of 

suggestiveness that constitutes reversible error must be determined from the 

context of the case.” Id. “Suggestiveness is proscribed only when it can 

reasonably be avoided under the circumstances.” Id. “[A]bsent any 

extraordinary effort to single out the defendant at trial, in-court identification is 

not unduly suggestive where the witness is firm in his identification.” Id.

[12] Sallee claims that “[t]here was no evidence that Thieke had any independent 

knowledge of Sallee prior to the in-court identification.” Appellant’s Br. at 10. 

However, Thieke testified that she had rented 506 Tomahawk Boulevard to 

Sallee and Byers. Thieke was confused about Sallee’s first name and believed

that it was possibly Tony. However, she stated that she was certain his last 

name was Sallee. Thieke stated that the person who rented the Tomahawk 

residence was present in the courtroom and identified that person as the 

defendant, Timothy Sallee. Tr. p. 29.

[13] Nothing about Thieke’s unequivocal in-court identification of Sallee was 

unduly suggestive. Thieke explained how she knew Sallee before identifying 

him. The State’s purpose in presenting Thieke’s testimony was to establish that 

the defendant was an occupant of 506 Tomahawk Boulevard. The State also 

presented Officer Root’s testimony that he saw Sallee at the residence on the 

date the search warrant was issued and that 506 Tomahawk was the “known 

residence” of Sallee and Byers. Tr. p. 71.
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[14] For all of these reasons, we conclude that Sallee has not established that the 

trial court committed error, much less error so prejudicial as to make a fair trial 

impossible, in admitting Thieke’s in-court identification of Salle. Therefore, we 

affirm his convictions for Level 6 felony maintaining a common nuisance, Class 

A misdemeanor possession of a controlled substance, and Class A 

misdemeanor possession of a synthetic drug or synthetic drug lookalike 

substance.

[15] Affirmed. 

Robb, J., and Brown, J., concur.