Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 1 of 11 

### 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.

A TTORNEY FOR A PPELLANT Susan D. Rayl Smith Rayl Law Office, LLC Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIA N A
Algier Flippin, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff June 30, 2017 Court of Appeals Case No. 49A02-1701-CR-87 Appeal from the Marion Superior Court The Honorable Lisa Borges, Judge Trial Court Cause No. 49G04-1509-F3-32727

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 2 of 11 

# Case Summary

[1] Algier Flippin appeals his convictions for Level 3 felony robbery and Level 3 felony attempted robbery. After the poli ce arrested him, Flippin and two other suspects were presented to the vict ims in a parking lot for a show-up identification. The victims identified Flippin and one other suspect as the robbers. Flippin did not obje ct to this evidence at tria l. On appeal, he argues that the trial court committed fundamenta l error when it admitted the show-up identification because it was unfairly su ggestive and prejudicial. Flippin also contends that, even if th e show-up identification wa s properly admitted, the evidence is insufficient to support hi s convictions for robbery and attempted robbery. Finding no error and sufficient evidence, we affirm. 

# Facts and Procedural History

[2] Around 6:00 p.m. on September 12, 2015, Joseph Lackner and Roy Jones were walking home from a neighborhood bl ock party in Indianapolis. While walking along the eastern border of Ga rfield Park, Lackner and Jones saw a group of teens on the opposite side of the street. The teens crossed the street, surrounded Lackner and Jones, and de manded that the two men hand over their phones, wallets, and car keys. Tw o teens pointed guns at Lackner and Jones. Lackner handed over his iPhone , wallet, and keys. Lackner’s iPhone case doubled as his wallet, which held his credit cards, driver’s license, business cards, a single $100 bill, and his MIBO R realtor card. Jones was not carryingCourt of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 3 of 11 any of the demanded items on him and tu rned out his pockets to show the teens that he had nothing of value on him.

[3] After taking Lackner’s possessions, the t eens took off to the west into Garfield Park. Lackner and Jones ran to a near by house and called 911. The call was placed at 6:05 p.m. Lackner described th e robbers as a group of four or five African-American teens who were wearing black jackets with red logos. One of the teens had dreadlocks. The 911 dispatch er relayed this information to police. While Lackner was still on the phone with 911, Indianapolis Metropolitan Police Department Officer Mark Spears, who was responding to the robbery, reported seeing a group of four Africa n-American teens wearing black and red clothing on Pleasant Run Parkway by Garfield Park. Officer Spears was driving a fully marked police car with hi s lights and siren on. When the teens saw him, they took off running. While in pursuit of the teens, Officer Spears reported back to dispatch that he needed a perimeter set up to confine where the teens could run. The teens ran north to Raymond Street and continued running north along the railroad tracks. O fficer Spears followed on foot and apprehended one of the teens, who was late r identified as K.D. K.D. was taken into custody at 6:10 p.m.

[4] Officer Douglas Correll also responded to the robbery and began working as part of the perimeter team. A few minut es after K.D. was apprehended, Officer Correll was driving on Raymond Street, tw o blocks west of the railroad tracks; he looked north and saw two African-Am erican males running to the west who matched the description of the robbers. Officer Correll stopped both individualsCourt of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 4 of 11 and took them into custody; they were later identified as Flippin and Lamont Martin. Officer Spears later identified Flippin and Martin as two of the three teens who had evaded him. Office rs never located the fourth teen.

[5] While officers were pursuing the teens, Lackner and Jones were taken back to their home. Detective Jean Burkert met with each of them separately and took their statements. Lackner sa id that the teen who held the gun on him had “wild hair” with “different colors in it[.]” Tr. Vol. II p. 9. During his meeting with Detective Burkert, a couple approach ed Lackner and gave him his driver’s license and some of his personal effect s they had found in Garfield Park. Detective Burkert had officers retrace the teens’ westwa rd path through the park to look for more of Lackner’ s possessions. Officers followed a trail of discarded items belonging to Lackner, including his business cards, MIBOR card, and his wallet/iPhone case. Along with Lackne r’s personal effects, officers were searching for the two guns but were unsuccessful in locating the weapons or Lackner’s iPhone.

[6] After taking their statements, Detective Burkert transported Lackner and Jones, one at a time, to a parking lot just nort h of Garfield Park. Waiting in the lot were Officers Spears and Correll with the three suspects they had apprehended. Detective Burkert conducted a show-up iden tification of the suspects. “A showup is where a crime has occurred and we ei ther have arrestees or people that are detained that possibly match the desc ription. We’ll bring the victims or witnesses to that location, have the vict im and witness make an identification right then and there.” Id. at 121. To ensure that an individual does not feelCourt of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 5 of 11 compelled to identify a pe rson during a show up, Detective Burkert “always tell[s] a victim or witness that the peop le they are about to see may or may not be involved” and to focus on the individual’s face. Id. The victim or witness remains in a police car, and the suspects are presented to the victim or witness, one at a time, for identification. The suspect is approximately twenty-five to thirty feet away and a spot light is shining in their di rection so that the suspect cannot see the victim or witn ess. The suspect will be with an officer but will not be in handcuffs to reduce the appearance of guilt. These steps were taken when Lackner and Jones participated in the show-up identifications.

[7] Jones was not able to identify any of the three suspects as having taken part in the robbery. Lackner, however, “didn’t he sitate” to identify Flippin as the teen with the “wild hair” who had held a gun on him. Id. at 125. Flippin had multicolored dreadlocks. State’s Exs. 16, 19. Lackner mentioned to Detective Burkert that Flippin’s clothes were diffe rent, but she reminded him, “you don’t focus on the clothes. You focus on the face.” Tr. Vol. II p. 131. Despite the clothing, Lackner was positive that Flippin was one of the robbers.

[8] Lackner was also able to identify Martin as the robber with th e second gun. He was not as confident in his identifi cation of Martin but was “in the 90 percentile.” Id . at 23. Lackner was not able to identify K.D. as having taken part in the robbery. De tective Burkert, without ch ecking for fingerprints, returned to Lackner all of his personal e ffects that the officers had recovered. Both Lackner and Jones had returned to their home by 7:30 p.m., roughly ninety minutes after calling 911.Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 6 of 11 [9] Flippin and Martin were both charged wi th Level 3 felony robbery (Lackner), Level 3 felony attempted robbery (Jones ), and Class A misdemeanor resisting law enforcement. K.D. was charged with only resisting law enforcement. At a two-day jury trial for Flippin, the Stat e introduced evidence of the show-up identification made by Lackner. Flippi n did not object to this evidence. The jury returned guilty verdic ts on all three charges. Flippin was sentenced to a total term of eighteen years, with six years suspended.

[10] Flippin now appeals.


# Discussion and Decision

[11] Flippin contends that the trial court co mmitted fundamental error by admitting the show-up identification. In the alternat ive, Flippin argues that, even with the show-up identification, the ev idence presented at trial is insufficient to support his convictions for robbery and attempted robbery. 1 

## I. Fundamental Error

[12] Flippin argues that the admission of the show-up identifi cation constituted fundamental error and viol ated his due-process righ ts because it was “so extremely unfair that its use impairs the concept of ordered liberty.” Appellant’s Br. p. 16 (citing Perry v. New Hampshire , 565 U.S. 228, 237 (2012)).

1 Flippin does not challenge the sufficiency of the evidence supporting his resisting-law-enforcement conviction.Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 7 of 11 Normally, the decision to admit or exclude evidence falls within the sound discretion of the trial court, and its de termination regarding the admissibility of the evidence is reviewed fo r an abuse of discretion. Gordon v. State , 981 N.E.2d 1215, 1217 (Ind. Ct. App. 2013). But where, as here, the defendant does not make a contemporaneous objection, the issu e is waived. To prevail on appeal, the defendant must demonstrate fundamen tal error. Fundamental error is an extremely narrow exception to the waiver rule, and the defendant is faced with the “heavy burden of showin g that the alleged errors are so prejudicial to the defendant’s rights as to make a fair trial impossible.” Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014). Stat ed another way, the defend ant must show that, given the circumstances, the trial court erred wh en it did not raise the issue sua sponte because the alleged error was a blatant violation of due process and presented “an undeniable and substant ial potential for harm.” Id.

[13] Our Supreme Court has cautioned against the use of show-up identifications because of their inherent suggestiveness, see Wethington v. State , 560 N.E.2d 496, 501 (Ind. 1990), but identi fication evidence gathered via a show-up procedure is “not subject to a per se rule of exclusion[,]” Gordon , 981 N.E.2d at 1218. Instead, the admissibility of show-up iden tification depends on the totality of the circumstances and “whether they lead to the conclusion that the confrontation was conducted in a manne r that could guide a witness into making a mistaken identification.” Id. In determining whether the show-up identification was permissible, we cons ider several factors, including (1) the witness’s opportunity to view the crimin al during the crime, (2) the witness’sCourt of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 8 of 11 degree of attention while observing th e criminal, (3) the accuracy of the witness’s prior description of the criminal, (4) the witness’s level of certainty when identifying the criminal, and (5) th e length of time between the crime and identification . Rasnick v. State , 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied.

[14] Flippin specifically argues that th e show-up identification was unduly suggestive and unnecessary as the susp ects were being guarded by police officers, and Lackner and Jones were shown each susp ect individually rather than in a lineup or photo array. We disagree that it was unduly suggestive. Lackner was only a few feet away from Flippin and the other teens when they robbed him and attempted to rob Jones. The robbery lasted for approximately five minutes, ample time for Lackner to imprint specific details about the robbers. Lackner gave statements to the 911 dispatcher and police that one of the teens had dreadlocks or “wild hair” wi th different colors in it. Later, Lackner “didn’t hesitate” to identify Fl ippin at the show up because Flippin’s hair was so distinctive—mult i-colored dreadlocks. Tr. Vol. II p. 125. Despite Flippin’s clothing being different, Lackner was still positive in his identification of Flippin as one of the robbers. Lack ner admitted that he was not as confident when identifying Martin, and he could not identify K.D. as on e of the robbers. Furthermore, only ninety minutes transp ired from the time of the robbery to when Lackner and Jones were both home after viewing the suspects at the show up.Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 9 of 11 [15] Flippin also contends that the show-up id entification was improper and violated his due-process rights because there was no on-going emergency at the time. Again, this entire ordeal—from the ti me of the robbery to when Lackner identified Flippin—transpired in under ninety minutes. Officers had a report of a group of teens walking around the Ga rfield Park area with guns robbing people. To determine whether they had apprehended the correct individuals, it was imperative for police to know if the armed robbers were still at large or in custody. The exigency of the situatio n called for an expedited identification process. See Slanton v. State  ̧510 N.E.2d 1343, 1348 (Ind. 1987) (stating that show-up identifications are proper “where circumstances rendered an alternative approach such as a line-up im possible.”). Given the totality of the circumstances, we conclude that the trial court did not commit fundamental error by admitting the sh ow-up identification. 2 

## II. Sufficiency of Evidence

[16] Flippin also argues that, ev en if we do not find fundam ental error with regard to the show-up identification being admitte d, the evidence is insufficient to support his convictions for robbery and attempted robbery. When reviewing the sufficiency of the evidence, we neit her reweigh the evidence nor determine

2 Flippin raises a third argument regarding the show up: There was an inherent risk in the method of communication used by the police during the show-up proceedings. Detective Burkert communicated with Officers Spears and Correll vi a radio. Flippin makes a generalized ar gument that the use of radios “could have” led to a misidentification. Appellant’s Br. p. 25. He does not cite from the record a specific miscommunication that occurred du ring the show up. Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8)(a).Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 10 of 11 the credibility of witnesses; that ro le is reserved for the factfinder. Bailey v. State , 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction.” Id. A conviction will be affirmed “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.

[17] Flippin does not challenge the fact that Lackner was robbed and an attempted robbery was committed against Jones. Ra ther, he argues that there is no evidence outside of the show -up identification to tie him to these crimes. The crimes were committed by a group of four or five African-American teens, who were dressed in red and black. The teens then fled to the west through Garfield Park. While Lackner was still on the phone with the 911 dispatcher, Officer Spears saw a group of four African-Americ an teens, who were all dressed in red and black, headed west th rough Garfield Park. O fficer Spears was driving a marked police car with his lights and si ren on, and once the teens saw him they began running. “[E]vidence of flight may be considered as circumstantial evidence of consciousness of guilt.” Myers v. State , 27 N.E.3d 1069, 1077 (Ind. 2015). But “something more than runn ing” is necessary to infer guilt. Willis v. State , 27 N.E.3d 1065, 1067 (Ind. 2015). Th e State presented something more: Lackner, without hesitation, identified Flippin as one of the robbers. When a victim identifies the defendant as th e one who robbed him, our Supreme Court has stated that “[t]he uncorroborated te stimony of the victim is sufficient toCourt of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 11 of 11 support the conviction.” Rhyne v. State , 446 N.E.2d 970, 972 (Ind. 1983); see also Houze v. State , 441 N.E.2d 1369, 1371 (Ind. 1982); Poston v. State , 429 N.E.2d 643, 644 (Ind. 1981). The eviden ce is sufficient to support Flippin’s convictions for Level 3 felony robbery and Level 3 felony attempted robbery.

[18] Affirmed. Bailey, J., and Robb, J., concur.