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: ATTORNEYS FOR APPELLEE:

GARY L. GRINER GREGORY F. ZOELLER

Mishawaka, Indiana Attorney General of Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENNETH WASHINGTON, )

)

Appellant-Defendant, )

)

vs. ) No. 71A03-1402-CR-64

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable John M. Marnocha, Judge

Cause No. 71D02-1307-FC-159

September 25, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge
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Kenneth Washington appeals his conviction of burglary, a Class C felony, Ind. 

Code § 35-43-2-1 (1999). We affirm.

Carlton Briggs was the property manager for a house in South Bend, Indiana. 

Jama Luttrell owned the house and used it as a rental property. On July 13, 2013, Briggs 

and a prospective tenant met at the house at 8:30 a.m. Briggs had last visited the house 

two days before the meeting. He had noted during his visit that all doors and windows 

were secure, and “everything seemed okay” inside. Tr. p. 214. He did not go into the 

basement at that time.

When Briggs arrived at the house on July 13, the prospective tenant said that a 

bike was in the backyard. Briggs went into the backyard to look at the bike, which did 

not belong there. As Briggs and the prospective tenant returned to the front of the house, 

they saw a man later identified as Washington walk out of the house’s front door.

Briggs told Washington he was not supposed to be in there and that he was calling 

the police. Washington ran to the front gate, closed it behind him, and ran away from the 

house. Briggs chased him. Briggs called the police as he ran, providing a description of 

Washington. He saw Washington try to enter another home, and when that failed 

Washington resumed running.

Briggs lost sight of Washington but encountered a police officer and provided a 

description again. The officer directed Briggs to return to Luttrell’s house. Briggs met 

other officers at the house and went inside with them. The house’s back door had been 

pried open and then closed again, and the deadbolt was laying on the floor inside. Briggs 
3

found pieces of copper pipe in a plastic bag on a countertop by the backdoor. The pieces 

had been ripped out of the basement and broken up.

Briggs also saw clothing scattered on the floor in another room. The previous 

tenant had left a bag of clothes there, and it looked to Briggs as though someone had slept 

on the clothes.

Next, an officer at the house was informed that a suspect had been apprehended, 

and Briggs agreed to see if he recognized the person. An officer drove Briggs to a 

location where Washington was in custody. Briggs, who had last seen Washington 

twenty to thirty minutes prior, identified him as the man he saw exiting Luttrell’s house 

and running away.

The State charged Washington with burglary and resisting law enforcement, a 

Class A misdemeanor. Washington filed a motion to suppress all evidence related to 

Briggs’ “show-up” identification of Washington. The trial court denied the motion after 

a hearing. A jury determined that Washington was guilty as charged. The court 

sentenced Washington, and this appeal followed.

Washington raises three issues, which we expand and restate as:

I. Whether the trial court erred by admitting evidence of the “show-up” 

identification.1

 

1

In its brief, the State frames this issue in two places as follows: “The State presented sufficient evidence 

that the Defendant committed dealing in methamphetamine and possession of methamphetamine within 

one thousand feet of a housing complex.” Appellee’s Br. pp. i, 8. Elsewhere in its brief, the State more 

correctly states the issue as “Whether the trial court abused its discretion in admitting evidence of Briggs’ 

identification of Defendant.” Id. at 1. The record is devoid of any reference to methamphetamine or 

public housing. We conclude that the State copied the errant passages from another brief, and we 

recommend more careful editing in the future. Even so, we do not excuse the carelessness of the deputy 

who drafted the State’s brief.
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II. Whether the trial court abused its discretion in instructing the jury.

III. Whether the trial court abused its discretion in limiting Washington’s 

closing argument to the jury.

IV. Whether there is sufficient evidence to support Washington’s burglary 

conviction.

I. “SHOW-UP” IDENTIFICATION

Washington argues that Briggs’ “show-up” identification of Washington shortly 

after his capture was the result of an unduly suggestive procedure that violated his right 

to due process under the Fourteenth Amendment. Thus, he concludes, the trial court 

erred in admitting Briggs’ testimony about the identification.

As a preliminary matter, the State argues that Washington waived appellate review 

of this claim. Prior to trial, Washington filed a motion to suppress all evidence related to 

Briggs’ identification of him. However, the filing of a motion to suppress is insufficient 

to preserve an issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). A 

party must offer a contemporaneous objection at the time the evidence is introduced at 

trial. Id. The reasoning behind this rule, in part, is to immediately and fully alert the trial 

court of the legal issue. Shoultz v. State, 995 N.E.2d 647, 654 (Ind. Ct. App. 2013), trans. 

denied.

At trial, Briggs described being taken to a location to see if he recognized the 

person they had in custody. He said he had identified Washington as the burglar and 

explained at length, without objection, the basis for his identification. Further, 

Washington cross-examined Briggs at length about the identification procedure and the 
5

strength of Briggs’ conviction that Washington was the person he saw at Luttrell’s house

and in police custody.

After Briggs was excused from the stand and after a ten-minute recess, the 

attorneys approached the bench. Washington’s counsel said he “made a tactical error” 

and “should have objected” to the identification testimony. Tr. pp. 279-80. At that point, 

the trial court noted the objection for the record and deemed it overruled. However, 

Washington’s objection came too late to allow the trial court to timely consider the 

matter. He has waived appellate review of his challenge to the admissibility of Briggs’ 

testimony. See Shoultz, 995 N.E.2d at 654 (challenge to evidence waived because 

defendant did not assert objection contemporaneously with the introduction of the 

evidence).

In any event, if a trial court errs in admitting evidence, the admission is harmless 

error if it is cumulative of other evidence appropriately admitted. Allen v. State, 994 

N.E.2d 316, 319 (Ind. Ct. App. 2013). At trial, an officer testified without objection that 

she brought Briggs to Washington’s location and that Briggs identified Washington as the 

man he saw leaving Luttrell’s house. Thus, even if Washington had timely objected to 

Briggs’ testimony, any error in its admission was harmless.

Waiver and harmless error notwithstanding, due process of law requires 

suppression of testimony concerning an out-of-court identification if the procedure 

employed was unnecessarily suggestive. James v. State, 613 N.E.2d 15, 27 (Ind. 1993). 

Factors to be considered in evaluating the identification include: (1) the opportunity of 

the witness to view the criminal at the time of the crime; (2) the witness’s degree of 
6

attention; (3) the accuracy of the witness’s prior description of the criminal; and (4) the 

level of certainty demonstrated by the witness. Id. Another factor is the amount of time 

that elapsed between the commission of the crime and the show-up identification. Slaton 

v. State, 510 N.E.2d 1343, 1348 (Ind. 1987).

Here, Briggs had ample opportunity to view Washington as he exited the house 

and ran away. In addition, Briggs testified that he watched Washington carefully as he 

fled. Finally, only twenty to thirty minutes passed between Briggs’ last sight of 

Washington and the “show-up” identification, and Briggs was certain that Washington 

was the burglar. Thus, even if the claim had been preserved for review, it is without 

merit. 

II. JURY INSTRUCTION ON EYEWITNESS IDENTIFICATION

Washington argues the trial court erred in rejecting his proposed jury instruction 

on eyewitness identification. Instruction of the jury is generally within the discretion of 

the trial court and is reviewed only for an abuse of that discretion. Brakie v. State, 999 

N.E.2d 989, 993 (Ind. Ct. App. 2013), trans. denied. When reviewing the refusal to give 

a proposed instruction, we consider: (1) whether the proposed instruction correctly states 

the law; (2) whether the evidence supports giving the instruction; and (3) whether other 

instructions already given cover the substance of the proposed instruction. Id.

Washington tendered Instruction Number Four, which states as follows:

One of the most important issues in this case is the identification of 

the Accused as the perpetrator of the crime. The State has the burden of 

proving identity, beyond a reasonable doubt.
7

It is not essential that the witness himself be free from doubt as to 

the correctness of his statement. However, you, the jury, must be satisfied 

beyond a reasonable doubt of the accuracy of the identification of the 

Accused before you may convict him. If you are not convinced beyond a 

reasonable doubt that the Accused was the person who committed the 

crime, you must find the Accused not guilty. 

Identification testimony is an expression of the belief or impression 

by the witness. Its value depends on the opportunity the witness had to 

observe the offender at the time of the offense and to make a reliable 

identification later. 

If the identification by the witness may have been influenced by the 

circumstances under which the Accused was presented to him for 

identification, you should scrutinize the identification with great care. You 

may also consider the length of time that lapsed between the occurrence of 

the crime and the next opportunity of the witness to see Accused as a factor 

bearing on the reliability of the identification. 

Finally, you must consider the credibility of each identification 

witness in the same way as any other witness, consider whether he had the 

capacity and opportunity to make a reliable observation on the matter 

covered in the witness’ testimony.

Appellant’s App. p. 101. 

The trial court rejected this proposed instruction, asserting that the Indiana 

Supreme Court does not “favor instructions such as this.” Tr. p. 403. The trial court is 

correct, because Indiana law “is distinctly biased against jury instructions which single 

out eyewitness identification testimony.” Hopkins v. State, 582 N.E.2d 345, 353 (Ind. 

1991) (quoting Brown v. State, 468 N.E.2d 841, 843 (Ind. 1984)). In addition, a trial 

court must not give an instruction that emphasizes the testimony of a single witness. Id.

In this case, Washington’s proposed instruction unduly focused on eyewitness 

testimony and thus contravenes the holding in Hopkins. Furthermore, the trial court 

instructed the jury on factors to consider when weighing witnesses’ testimony. Thus, the 
8

subject of Washington’s proposed instruction was adequately covered by other 

instructions. See Emerson v. State, 724 N.E.2d 605, 608-609 (Ind. 2000) (trial court did 

not err in rejecting instruction on eyewitness identification; general instruction on 

credibility of witnesses was sufficient to address the subject). The trial court did not 

abuse its discretion.

III. CLOSING ARGUMENT

Washington claims the trial court erroneously limited his closing argument. 

Conduct during a closing argument is a matter within the sound discretion of the trial 

court, and a conviction will not be reversed unless there has been a clear abuse of that 

discretion resulting in prejudice to the accused. Bowles v. State, 737 N.E.2d 1150, 1154 

(Ind. 2000).

The transcript shows that during voir dire, Washington read a statement to the 

panelists about eyewitness identification. Tr. p. 427. He reread the statement to the jury 

during closing argument. Id. at 429-30. The trial court barred Washington from citing to 

the source of the statement. Id. at 427-28. Washington claims he was prejudiced by the 

court’s decision because “the jury was left to fend for itself about the law on 

misidentification because the trial court refused to allow argument or instructions on the 

law.” Appellant’s Br. p. 14. He fails to cite to any authority to establish that he should 

have been allowed to tell the jury the source of the statement on eyewitness testimony.

Further, the record fails to show any prejudice. As noted above, the trial court’s 

instruction on witness credibility was sufficient to inform the jury how to weigh 

eyewitness testimony. In addition, the trial court permitted Washington to address the 
9

jury about issues involving eyewitness identification. Washington has not demonstrated 

that the trial court abused its discretion by preventing him from citing to the source of his 

comments on witness identification.

IV. SUFFICIENCY OF THE EVIDENCE

When reviewing a challenge to the sufficiency of the evidence underlying a 

criminal conviction, we neither reweigh the evidence nor assess the credibility of 

witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. Ct. App. 2012). The evidence and 

all reasonable inferences are viewed in a light most favorable to the conviction. Id. We 

affirm 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. Elements of offenses and identity may be established entirely by 

circumstantial evidence and the logical inferences drawn therefrom. Holloway v. State, 

983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013).

In order to obtain a conviction for burglary, the State was required to prove 

beyond a reasonable doubt that Washington (1) broke and entered into (2) Jama Luttrell’s 

building (3) with the intent to commit theft in the building. Ind. Code § 35-43-2-1.

Washington argues there is insufficient evidence that he intended to commit theft 

in Luttrell’s house. The evidentiary inference pointing to the defendant’s intent must be 

separate from the evidentiary inference of the defendant’s breaking and entering. Baker 

v. State, 968 N.E.2d 227, 230 (Ind. 2012).

In this case, the damage to the house’s back door supports a reasonable inference 

of breaking and entering. Regarding the intent to commit theft, Briggs and an officer 
10

found that a copper pipe had been ripped away from fixtures in the basement, broken 

down into smaller pieces, and bagged for transport. In addition, Washington was in the 

house when Briggs arrived. This is sufficient evidence of intent to commit theft separate 

and distinct from the breaking and entering. See id. at 231 (sufficient evidence of intent 

to commit theft where the defendant opened cupboards and drawers after breaking into a 

structure).

Washington claims that Briggs and the officers did not find any tools for cutting 

pipe and that the pipe pieces could have been cut months prior to Briggs’ discovery. 

These claims are requests to reweigh the evidence, which our standard of review forbids.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

NAJAM, J., and BAILEY, concur.