Erica L. Jackson v. State of Indiana , 2015 Ind. App. LEXIS 408 ( 2015 )

May 20 2015, 6:51 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix LLP Attorney General of Indiana
Huntington, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erica L. Jackson, May 20, 2015
Appellant-Defendant, Court of Appeals Case No.
35A02-1410-CR-770
v. Appeal from the Huntington Superior
Court
The Honorable Jeffrey R.
State of Indiana, Heffelfinger, Judge
Appellee-Plaintiff Cause No. 35D01-1309-FD-195,
35D01-1310-CM-654
Bailey, Judge.
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Case Summary
[1] Erica L. Jackson (“Jackson”) appeals her convictions for two counts of Theft,
as Class D felonies,1and six counts of Check Deception, as Class A
misdemeanors.2 We affirm.
Issues
[2] Jackson presents two issues for review:
I. Whether the trial court abused its discretion by refusing a
tendered instruction on Check Deception as a lesser-included
offense of Theft; and
II. Whether the trial court abused its discretion by admitting
evidence obtained in an unduly suggestive photo lineup.
Facts and Procedural History
[3] On July 31, 2012, Jackson’s checking account had a balance of negative
$1,836.51. During the following month, at various locations in Huntington
County, Jackson presented seven checks drawn on that checking account. In
October of 2012, Jackson presented an eighth check. The majority of these
checks included a hand-written driver’s license number with two numbers
1
Ind. Code § 35-43-4-2(a). This statute has been revised, effective July 1, 2014, to provide that Theft may be
a misdemeanor or a Level 5 or 6 felony. We refer to the version of the statute in effect at the time of
Jackson’s offenses.
2
I.C. § 35-43-5-5.
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transposed. All the checks were dishonored and certified mail notifications
were returned to senders.
[4] The State charged Jackson with six counts of Check Deception, corresponding
with small checks presented at convenience stores. The State charged Jackson
with two counts of Theft, as a result of checks presented to SS Peter and Paul
Church, whereby Jackson purchased Bingo cards and received hundreds of
dollars of cash in excess of the purchases.
[5] On September 5, 2014, Jackson was brought to trial before a jury. She was
convicted on all counts. On September 30, 2014, the trial court imposed
concurrent three-year sentences for the Theft counts, with one year suspended
to probation. For the Check Deception counts, the trial court sentenced
Jackson to concurrent one-year sentences, all suspended to probation. Jackson
now appeals.
Discussion and Decision
Instruction on Lesser-Included Offense
[6] Without elaboration, the trial court refused the following instruction proffered
by the defense:
The law permits the jury to determine whether the Accused is guilty of
certain charges which are not explicitly included in the indictment/
information. These additional charges which the jury may consider
are called included offenses. They are called included offenses because
they are offenses which are very similar to the charged offense.
Usually the only difference between the charged offense and the
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included offense is that the charged offense contains an element that is
not required to be proven in the included offense, or that the charged
offense requires a higher level of culpability than the included offense.
If the State proves each of the essential elements of the charged
offense, then you need not consider the included offense(s), however if
you find the State failed to prove each of the essential elements of the
charged offense, you must find the accused not guilty of the charged
offense.
If you do find the Accused not guilty of the charged offense then you
may consider whether the Accused is guilty of the included offense(s).
You must not find the accused guilty of more than one crime for each
count.
In this case, the accused is charged with Theft. For the offense of
Theft, the State of Indiana is required to prove the following:
Erika [sic] Jackson, in Huntington County, Indiana, knowingly and
intentionally exerted unauthorized control over the property of another
person with the intent to deprive the person of the value or use of the
property. If the State failed to prove each of these elements beyond a
reasonable doubt, you must find the accused not guilty of Theft, a
Class D Felony, as charged in Count 1 and Count 2.
You may then consider any lesser included crime. The crime of check
deception is included in the charged crime of Theft. For the offense of
check deception, the State of Indiana is required to prove the
following: A person who knowingly or intentionally issues or delivers
a check, a draft, or an order on a credit institution for the payment of
or to acquire money or other property, knowing that it will not be paid
or honored by the credit institution upon presentment in the usual
course of business, commits check deception, a Class A misdemeanor.
If the State failed to prove each of these elements beyond a reasonable
doubt, you must find the accused not guilty of Check Deception.
If the State did prove each of the elements of the crime of check
deception beyond a reasonable doubt, you may find the accused guilty
of check deception a Class A misdemeanor.
(App. 149.) The trial court has broad discretion in instructing the jury and we
generally review its instructional determinations only for an abuse of discretion.
McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). Jackson contends that the
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refusal of her tendered instruction constitutes an abuse of discretion because she
was entitled to have the jury instructed on a factually lesser-included offense.
[7] In Wright v. State, 658 N.E.2d 563 (Ind. 1995), our Indiana Supreme Court set
forth the proper analysis to determine when a trial court should, upon request,
instruct the jury on a lesser included offense of the crime charged. The analysis
of the charging information and the elements contains three steps: (1) a
determination of whether the lesser included offense is inherently included in
the crime charged; if not, (2) a determination of whether the lesser included
offense is factually included in the crime charged; and, if either, (3) a
determination of whether a serious evidentiary dispute exists whereby the jury
could conclude the lesser offense was committed but not the greater. Id. at 566-
67. If the third step is reached and answered in the affirmative, the requested
instruction should be given on the inherently or factually included lesser
offense. Horan v. State, 682 N.E.2d 502, 506 (Ind. 1997).
[8] An offense is inherently included if the alleged lesser included offense “may be
established by proof of the same material elements or less than all the material
elements defining the crime charged or … the only feature distinguishing the
alleged lesser included offense from the crime charged is that a lesser culpability
is required…” Wright, 658 N.E.2d at 566. “If the charging instrument alleges
that the means used to commit the crime charged include all of the elements of
the alleged lesser included offense, then the alleged lesser included offense is
factually included in the crime charged.” Id. at 567.
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[9] Pursuant to Indiana Code Section 35-43-4-2, a person “who knowingly or
intentionally exerts unauthorized control over property of another person, with
intent to deprive the other person of any part of its value or use, commits theft.”
Pursuant to Indiana Code Section 35-43-5-5, a person “who knowingly or
intentionally issues or delivers a check, a draft, or an order on a credit
institution for the payment of or to acquire money or other property, knowing
that it will not be paid or honored by the credit institution upon presentment in
the usual course of business, commits check deception.” Here, the information
did not specify the means by which Jackson allegedly exerted unauthorized
control over cash belonging to SS Peter and Paul Church. However, it was
readily apparent in the presentation of argument and evidence that the State
contended Jackson obtained the cash by presenting checks she knew would be
dishonored.
[10] As such, the State does not disagree with Jackson that Check Deception was a
factually lesser-included offense of Theft as charged. Rather, the State contends
that the decision to give or refuse the instruction on the factually included offense
would turn upon the presence or absence of a serious evidentiary dispute as to
whether the lesser offense was committed while the greater was not. According
to the State, there was no serious evidentiary dispute.
[11] A serious evidentiary dispute exists where the jury can conclude that the lesser
offense was committed and the greater offense was not. Chanley v. State, 583
N.E.2d 126, 130 (Ind. 1991). In determining whether there is a serious
evidentiary dispute, Wright and its progeny dictate that the evidence presented by
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both the State and the defense must be taken into account. Webb v. State, 963
N.E.2d 1103, 1107 (Ind. 2012).
[12] The State elicited testimony that an employee of Fabulous 105, an entertainment
venue that SS Peter and Paul Church rented for Bingo games, received checks in
August of 2012 drawn on Jackson’s checking account. At that time, the account
was already significantly overdrawn. On each occasion, Bingo cards costing
approximately $35 to $40 were purchased with $250 checks; excess cash was
tendered to the person presenting the checks. Jackson testified that she was not
the individual who presented those checks. She asserted that her checks had been
stolen and used by another person. More specifically, Jackson claimed that she
was a victim of identity theft.
[13] In other words, Jackson did not deny that the acts charged by the State were
committed. She claimed that another individual was the perpetrator. As there
was no controversy regarding whether a lesser offense was committed while a
greater offense was not, the trial court did not abuse its discretion by refusing the
instruction.3
3
We also note that the proffered instruction, purportedly based upon a pattern jury instruction, was
erroneous with reference to relevant statutory language, stating that the mens rea for Theft was “knowingly
and intentionally” as opposed to “knowingly or intentionally.” App. 149; I.C. § 35-43-4-2 (emphasis added.)
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Photo Array
[14] Prior to trial, Jackson moved to suppress evidence that Sherry Metz (“Metz”),
the owner of Fabulous 105, and Taumara MacDonald (“MacDonald”), an
employee who sold Bingo cards, had each identified Jackson from a photo
array. The photo array included jail intake photographs of five women and a
Bureau of Motor Vehicles photograph of Jackson.
[15] After a hearing, the motion to suppress was denied. At trial, Metz and
MacDonald each made an in-court identification of Jackson. Each also
acknowledged having signed beneath Jackson’s photograph in an array.
Jackson unsuccessfully objected to the admission of State’s Exhibits 5 and 6, the
signed photo arrays, on grounds that the arrays were “unduly suggestive.” (Tr.
131, 148.)
[16] The admission of evidence is within the trial court’s discretion and the decision
is reviewable for an abuse of discretion. Allen v. State, 813 N.E.2d 349, 360
(Ind. Ct. App. 2004). However, the identification of a defendant must comport
with the standards of due process. Id. If an out-of-court identification
procedure was unduly suggestive, testimony relating to it is inadmissible. Id.The task of this Court is to determine whether, under the totality of the
circumstances, the identification process was conducted in such a manner that
it created a substantial likelihood of irreparable misidentification. Id. Our
Indiana Supreme Court has held that a photo array is impermissibly suggestive
only where the array is accompanied by verbal communications or the
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photographs in the display include graphic characteristics that distinguish and
emphasize the defendant’s photograph in an unusually suggestive manner. Id.(citing Bell v. State, 622 N.E.2d 450, 455 (Ind. 1993) overruled on other grounds by
Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005)).
[17] Even when an unnecessarily suggestive pretrial confrontation has occurred, an
in-court identification is permissible if the State has satisfied its burden to
establish by clear and convincing evidence that, independent of the
unconstitutional confrontation, an independent basis for the witness’s in-court
identification exists. Heiman v. State, 511 N.E.2d 458, 460 (Ind. 1987). The
factors to be considered include the witnesses’ opportunity to view the criminal
when the crime was committed, their degree of attention at the time, the
accuracy of their prior descriptions, their level of certainty in the pre-trial
identification and the length of time between the crime and the identification.
Id.[18] Jackson claims that the trial court abused its discretion by admitting State’s
Exhibits 5 and 6 and related testimony because Jackson’s photograph was a
higher quality close-up causing her features to be more distinguishable than
those of the women in jail intake photographs. We acknowledge that law
enforcement officers compiling a photo array are not required to “perform the
improbable if not impossible task of finding four or five other people who are
virtual twins to the defendant.” Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d
617, 620 (1977). Here, our examination of the photo array does not lead to the
conclusion that the distinction identified by Jackson is critical such as to likely
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lead to misidentification. Each of the photographs is of sufficient clarity to
allow an examination of facial features.
[19] Moreover, Metz and MacDonald each had an independent basis for in-court
identification of Jackson, having encountered Jackson at Fabulous 105 during
business hours. MacDonald testified that she was “fairly certain” Jackson was
the woman to whom she gave Bingo cards and cash. (Tr. 130.) According to
MacDonald, Jackson’s eyes and neck tattoo were distinguishing features. Metz
was “100% certain” that Jackson was the woman in Fabulous 105 who had
presented checks. (Tr. 148.) According to Metz, Jackson was at Fabulous 105
on at least three occasions in August of 2012, typically with her boyfriend,
described as a thin black man “always” wearing a baseball cap. (Tr. 145.)
Metz considered Jackson’s hairstyle, which she called a “poof” style, to be
distinguishing. (Tr. 145.) Further, Metz had “prior dealings with” Jackson six
years earlier. (Tr. 146.)
[20] Under the totality of the circumstances, the trial court did not abuse its
discretion in admitting pretrial identification evidence.
Conclusion
[21] Jackson did not establish that the trial court abused its discretion by refusing her
proffered instruction, nor did Jackson establish that the trial court abused its
discretion in the admission of evidence.
[22] Affirmed.
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Riley, J., and Barnes, J., concur.
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