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. 

ATTORNEY FOR APPELLANT

Susan D. Rayl 

Smith Rayl Law Office, LLC 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Ellen H. Meilaender 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA 

Algier Flippin, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-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. 
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Case Summary 

[1] Algier Flippin appeals his convictions for Level 3 felony robbery and Level 3 

felony attempted robbery. After the police arrested him, Flippin and two other 

suspects were presented to the victims in a parking lot for a show-up 

identification. The victims identified Flippin and one other suspect as the 

robbers. Flippin did not object to this evidence at trial. On appeal, he argues 

that the trial court committed fundamental error when it admitted the show-up 

identification because it was unfairly suggestive and prejudicial. Flippin also 

contends that, even if the show-up identification was properly admitted, the 

evidence is insufficient to support his 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 block party in Indianapolis. While 

walking along the eastern border of Garfield 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 demanded that the two men hand over 

their phones, wallets, and car keys. Two 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 MIBOR realtor card. Jones was not carrying 
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any of the demanded items on him and turned out his pockets to show the teens 

that he had nothing of value on him. 

[3] After taking Lackner’s possessions, the teens took off to the west into Garfield 

Park. Lackner and Jones ran to a nearby house and called 911. The call was 

placed at 6:05 p.m. Lackner described the 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 dispatcher 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 African-American teens wearing black and red 

clothing on Pleasant Run Parkway by Garfield Park. Officer Spears was 

driving a fully marked police car with his 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. Officer Spears followed on foot and 

apprehended one of the teens, who was later 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 minutes after K.D. was apprehended, Officer 

Correll was driving on Raymond Street, two blocks west of the railroad tracks; 

he looked north and saw two African-American males running to the west who 

matched the description of the robbers. Officer Correll stopped both individuals 
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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. Officers 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 said 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 approached Lackner and gave him his driver’s 

license and some of his personal effects they had found in Garfield Park. 

Detective Burkert had officers retrace the teens’ westward 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 Lackner’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 north 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 identification of the suspects. “A showup is where a crime has occurred and we either have arrestees or people that are 

detained that possibly match the description. We’ll bring the victims or 

witnesses to that location, have the victim and witness make an identification 

right then and there.” Id. at 121. To ensure that an individual does not feel 
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compelled to identify a person during a show up, Detective Burkert “always 

tell[s] a victim or witness that the people 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 spotlight is shining in their direction so that the suspect 

cannot see the victim or witness. 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 hesitate” 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 different, 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 the second gun. He 

was not as confident in his identification 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. Detective Burkert, without checking for fingerprints, 

returned to Lackner all of his personal effects 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. 
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[9] Flippin and Martin were both charged with 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 State introduced evidence of the show-up 

identification made by Lackner. Flippin did not object to this evidence. The 

jury returned guilty verdicts 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 committed fundamental error by admitting 

the show-up identification. In the alternative, Flippin argues that, even with the 

show-up identification, the evidence 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 identification constituted 

fundamental error and violated his due-process rights 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. 
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Normally, the decision to admit or exclude evidence falls within the sound 

discretion of the trial court, and its determination regarding the admissibility of 

the evidence is reviewed for 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 issue is waived. To prevail on appeal, 

the defendant must demonstrate fundamental error. Fundamental error is an 

extremely narrow exception to the waiver rule, and the defendant is faced with 

the “heavy burden of showing 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). Stated another way, the defendant must show that, given 

the circumstances, the trial court erred when it did not raise the issue sua sponte 

because the alleged error was a blatant violation of due process and presented 

“an undeniable and substantial 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 identification 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 identification depends on the totality of 

the circumstances and “whether they lead to the conclusion that the 

confrontation was conducted in a manner that could guide a witness into 

making a mistaken identification.” Id. In determining whether the show-up 

identification was permissible, we consider several factors, including (1) the 

witness’s opportunity to view the criminal during the crime, (2) the witness’s 
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degree of attention while observing the 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) the 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 the show-up identification was unduly 

suggestive and unnecessary as the suspects were being guarded by police 

officers, and Lackner and Jones were shown each suspect 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” with different colors in it. Later, 

Lackner “didn’t hesitate” to identify Flippin at the show up because Flippin’s 

hair was so distinctive—multi-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. Lackner admitted that he was not as confident 

when identifying Martin, and he could not identify K.D. as one of the robbers. 

Furthermore, only ninety minutes transpired from the time of the robbery to 

when Lackner and Jones were both home after viewing the suspects at the show 

up. 
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[15] Flippin also contends that the show-up identification was improper and violated 

his due-process rights because there was no on-going emergency at the time. 

Again, this entire ordeal—from the time 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 Garfield 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 situation 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 impossible.”). Given the totality of the 

circumstances, we conclude that the trial court did not commit fundamental 

error by admitting the show-up identification.2

 

II. Sufficiency of Evidence 

[16] Flippin also argues that, even if we do not find fundamental error with regard to 

the show-up identification being admitted, the evidence is insufficient to 

support his convictions for robbery and attempted robbery. When reviewing 

the sufficiency of the evidence, we neither 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 via radio. Flippin makes a generalized argument 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 during the show up. Accordingly, this argument is waived. See Ind. 

Appellate Rule 46(A)(8)(a). 
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the credibility of witnesses; that role 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. Rather, 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-American teens, who were all dressed in red 

and black, headed west through Garfield Park. Officer Spears was driving a 

marked police car with his lights and siren 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 running” is necessary to infer guilt. Willis v. 

State, 27 N.E.3d 1065, 1067 (Ind. 2015). The State presented something more: 

Lackner, without hesitation, identified Flippin as one of the robbers. When a 

victim identifies the defendant as the one who robbed him, our Supreme Court 

has stated that “[t]he uncorroborated testimony of the victim is sufficient to 
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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 evidence 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.