Adkins v. State, 49A05-9803-CR-135

Decision Date22 December 1998
Docket NumberNo. 49A05-9803-CR-135,49A05-9803-CR-135
Citation703 N.E.2d 182
PartiesPhillip ADKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

HOFFMAN, Senior Judge.

Appellant-defendant Phillip Adkins appeals from his convictions for robbery, a Class B felony, and criminal confinement, a Class B felony. The facts most favorable to the judgment are as follows:

On the morning of January 25, 1997, Jackie Bullard, the manager of a Wendy's restaurant, and five other employees were working at the restaurant to prepare it for opening. The defendant, holding a .38 caliber gun, entered the restaurant through the unlocked back door. He pointed the gun at the employees and made them crawl into the restaurant office. At some point during the robbery the defendant fired a shot into the restaurant's ceiling; he also threatened to shoot two employees in the head if they did not cooperate.

The defendant told Ms. Bullard to open the safe, which she informed him she could not do because of its time lock. She could open only the part of the safe containing coins. So upon the defendant's order she handed him a nearby white plastic money bag and filled it with the rolls of coins from the safe. During this encounter, Ms. Bullard had time to observe that the defendant was wearing black sweatpants and a sweatshirt, gloves, Nike shoes with red accents on them, and a black ski mask that exposed his eyes.

After ordering all of the employees to crawl into the rear office, the defendant backed out the door. Ms. Bullard immediately dialed 911 and reported the incident.

The defendant was apprehended a short time later. Police officers recovered a handgun from his person, a pair of gloves and a black ski mask from his car, and a white plastic money bag containing rolled coins totaling $243.10, almost exactly the amount that was missing from the restaurant. Forty minutes after the crime occurred, Bullard was taken by police officers to where the arresting officers were holding the defendant. Bullard unequivocally identified him by his eyes and shoes as the robber. At trial, all of the store's employees also identified the defendant's shoes as the ones the robber had worn. A jury convicted the defendant of Robbery and Criminal Confinement, both Class B felonies. The trial court sentenced the defendant to two consecutive twenty-year terms at the Department of Correction, finding no statutory mitigating factors, and citing as aggravating factors, "a history of criminal delinquent activity ... there have been four prior adult arrests, two of which were for robberies, one conviction which was an A-misdemeanor, all the rest included, except for one included handgun violation alleged," "a need for correctional rehabilitative treatment that can best be provided by commitment to a penal facility," and "that the imposition of a reduced sentence would depreciate the seriousness of the crime." (R. 381).

On appeal, the defendant raises four (4) issues:

(1) whether the trial court abused its discretion by admitting Ms. Bullard's identification of the defendant (2) whether the trial court abused its discretion by admitting into evidence a handgun proffered by the State, over the defendant's objection alleging a defective chain of custody;

(3) whether the jury's verdicts are contradictory, and thus defective; and

(4) whether the trial court abused its discretion in sentencing the defendant to two (2) consecutive twenty-year terms.

(1) The defendant first argues that the one-on-one identification procedure used by the arresting officers approximately forty minutes after the robbery was impermissibly suggestive, and thus both Ms. Bullard's pre-trial identification of the defendant as the robber, as well as her identification of him in court, should have been suppressed during the trial. When Ms. Bullard was taken to the site where, the officers informed her, they "thought they maybe" had a suspect, the defendant was the only individual present who was not a police officer. Because he was the only suspect present, he was in handcuffs, and next to a police car, defendant maintains, the identification procedure was impermissibly suggestive.

The defendant concedes a pretrial confrontation occurring immediately after the commission of the crime is not per se unduly suggestive even though the accused is the only suspect present. Cook v. State, 403 N.E.2d 860, 864 (Ind.Ct.App.1980), trans. denied. A one-on-one, or "show-up" confrontation is proper when reliable under the totality of the circumstances, including (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Stroud v. State, 587 N.E.2d 1335, 1338-39 (Ind.Ct.App.1992), trans. denied. The courts have found "the value of the witness' observations ... while the image of the offender is fresh in his mind" to overcome the inherently suggestive nature of the circumstances. Lewis v. State, 554 N.E.2d 1133, 1135 (Ind.1990), reh'g denied. Finally, even if a show-up identification were to be found "unnecessarily suggestive," that alone would not require exclusion of the evidence. Stroud, 587 N.E.2d at 1338-39.

Ms. Bullard had ample time to view the defendant at the time of the crime. She identified with specificity the clothes, shoes, gloves and ski mask he was wearing, as well as having seen his eyes as she was forced at gunpoint to put the coins into the money bag. She accurately described these attributes and her description matched that of the defendant. She unequivocally identified the defendant as the robber, merely forty minutes after he committed the crime.

The police did not use unduly suggestive procedures, only informing Ms. Bullard that they "thought they maybe" had a suspect. Nothing in the record suggests that any individual told Ms. Bullard to identify defendant as the robber.

In addition to challenging the one-on-one procedure, defendant raises the issue of whether the trial court abused its discretion in refusing to suppress Ms. Bullard's in-court identification of the defendant. The record reflects that defendant did not object to the identification at trial, so it is clearly not preserved for appeal. Furthermore, it is well settled that where a witness had an opportunity to observe the perpetrator during the crime, a basis for in-court identification exists, independent of the propriety of pre-trial identification. See Brown v. State, 577 N.E.2d 221, 225 (Ind.1991), reh'g denied, 583 N.E.2d 125 (Ind.1991), cert. denied 506 U.S. 1015, 113 S.Ct. 639, 121 L.Ed.2d 569 (1992); Wethington v. State, 560 N.E.2d 496, 502-03 (Ind.1990). As Ms. Bullard's in-court identification of the defendant had such an independent basis, it was neither abuse of discretion nor fundamental error for the trial court not to suppress it.

(2) Defendant next contends that the trial court abused its discretion by admitting into evidence a handgun proffered by the State, over the defendant's objection alleging a defective chain of custody. Although Ms. Bullard testified that the gun was the same one the defendant had used in the robbery, and an officer from the crime lab testified at trial that the gun was the same one taken from the trunk of the officer who took possession of the gun from the defendant, the alleged defect arises from the fact that the officer who took possession of the gun could not definitively identify the gun in court.

The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Kelley v. Watson, 677 N.E.2d 1053, 1059 (Ind.App.1997). We will reverse a trial court's decision only for an abuse of discretion, that is, only when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id. Furthermore, the fact that evidence only inconclusively connects the defendant to a crime affects the weight to be accorded that evidence by the fact-finder, rather than affecting its admissibility. Hunter v. State, 578 N.E.2d 353, 357 (Ind.1991), reh'g denied; see also, Johnson v. Indiana, 272 Ind. 547, 400 N.E.2d 132, 133 (1980) ("That the connection with the crime is inconclusive affects the weight of the evidence but does not render it inadmissible.").

In spite of one officer's inability to identify the gun as that of which he took possession at the scene, the defendant has failed to establish a defect in the chain of custody sufficient to render the gun's admission clearly erroneous. The officer testified that he took the weapon from the defendant and immediately secured it in his trunk until turning it over to the crime lab. The crime lab technician identified that gun by its serial number and testified that its condition from the property room until trial was unchanged. We find no error or abuse of discretion in the trial court's admission of the gun.

(3) Defendant's third contention, that the jury's verdicts are defective for being contradictory, appears to be grounded in a claim that insufficient evidence supports the verdict. As such, it is tantamount to a request of this court that it substitute its judgment for that of the jury. We decline to do so. "When the sufficiency of the evidence is challenged, we consider only the probative evidence and reasonable inferences therefrom which support the verdict, without reweighing the evidence or assessing credibility, to determine whether a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt." Moore v. State, 515 N.E.2d 1099,...

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