Gary Sistrunk v. State of Indiana

FOR PUBLICATION

May 19 2014, 9:10 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR GREGORY F. ZOELLER
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

GARY SISTRUNK, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1211-CR-567
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
The Honorable Christina R. Klineman, Master Commissioner
Cause No. 49G05-1202-FB-10112

May 19, 2014

OPINION - FOR PUBLICATION

BROWN, Judge
 Gary Sistrunk appeals his convictions for robbery and criminal confinement as

class B felonies.1 Sistrunk raises two issues, which we revise and restate as follows:

I. Whether his convictions for robbery and criminal confinement
violate Indiana’s prohibition against double jeopardy; and

II. Whether the trial court erred in denying his request for an order for
public funds to pay for an expert witness.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

At approximately 7:00 p.m. on February 5, 2012, Sistrunk entered a gas station in

Marion County, Indiana, where Christina Busch was working alone in the store. Sistrunk

asked Busch for “a black [inaudible] cigar,” and Busch handed him the cigar. Transcript

at 25. Sistrunk placed a one-dollar bill on the counter, Busch told him that the cigar was

$1.17, and he “threw out a quarter out of his pocket.” Id. Busch opened the cash register

and placed the cash in the drawer, looked up before handing the change back to Sistrunk,

and observed that “he had a gun sitting at me.” Id. Sistrunk leaned over the counter

closer to Busch, pointed the gun at her, and ordered her to give him all of the money in

the drawer. Busch asked “are you serious,” and Sistrunk said “I’m not playing with you.”

Id. Busch handed all of the money in the cash drawer to him. He ordered her to give him

the money out of the safe, and Busch told him that she was unable to open the safe, that

she “had 2 safe drops sitting there that he could have,” that “[i]f he wanted to come back

there he could look,” and that she “didn’t want him shooting [her].” Id. Sistrunk took the

1
This appeal was taken from cause number 49G05-1202-FB-010112 (“Cause No. 112”). We
also issue an opinion in Sistrunk v. State, No. 49A04-1210-CR-527 (Ind. Ct. App. May 19, 2014), an
appeal taken from Sistrunk’s convictions for robbery and criminal confinement under cause number
49G05-1202-FB-10061 (“Cause No. 61”).
2
two safe drops. As Busch was giving Sistrunk the money, he “kept telling [her] not to

press the button,” which she took to mean the emergency button for the store. Id. at 26.

Sistrunk “told [Busch] to sit on the ground and [she] sat on the ground, he stood there for

a minute and then [] walked out the door,” and she “waited for about 2 minutes to call the

police.” Id. Beech Grove Police Detective Jill Lieter responded to the robbery and spoke

with Busch at the police station. Detective Lieter obtained a copy of a video surveillance

recording2 of the suspect from the general manager of the gas station and, through Crime

Stoppers, obtained the name of Sistrunk as the person in the recording. On February 9,

2012, Detective Lieter presented a photo array to Busch, informed her that the suspect’s

photograph may or may not be included in the array and that she should not identify any

photograph if she was unsure, and Busch identified Sistrunk as the person who

committed the robbery.

On February 14, 2012, the State charged Sistrunk with robbery and criminal

confinement as class B felonies. On March 9 and March 23, 2012, represented by private

counsel, Sistrunk filed motions which requested the court to order the County Public

Defender’s Office to pay for the reasonable expenses of an expert witness on the issue of

eyewitness identification.3 At a pretrial conference on July 23, 2012, the Marion County

Public Defender (“MCPD”) indicated to the trial court that it did not support Sistrunk’s

request for public funds, and the court denied Sistrunk’s application. On October 4,

2012, the court conducted a bench trial at which Busch and Detective Lieter testified and

2
There were approximately seven video cameras in the gas station.
3
These motions were filed and the July 23, 2012 hearing was held under Cause Nos. 112, 61, 62,
and 63.

3
the State presented the video recording of the robbery.4 In closing arguments, Sistrunk’s

defense counsel argued: “I think this is kind of a classic eyewitness ID case. The person

is told, I picked the right person and at that point their confidence goes to 100 percent.”

Id. at 64. The court stated:

[T]here is no doubt that the identification alone and the video alone are not
proof beyond a reasonable doubt. However, in conjuction [sic] when I
watched the video – the reason I went back and watched it is because the
second scene of Mr. Sistrunk walking into the shop is nearly the identical
angle that I have right here, it’s transposed, but nearly identical. And I
found it to be very good evidence that Mr. Sistrunk is in fact the person that
Christina Busch pointed out. So while I agree that there are all sorts of ID
issues, if it was just her or if it was just the video – together the State has
proven their case beyond a reasonable doubt . . . .

Id. at 65. The court found Sistrunk guilty of robbery and criminal confinement as

charged and later sentenced Sistrunk to six years for each conviction to be served

concurrently with each other and consecutive to his sentence under Cause No. 61.

DISCUSSION

I.

The first issue is whether Sistrunk’s convictions for robbery and criminal

confinement as class B felonies violate Indiana’s prohibition against double jeopardy.

The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the

same offense.” IND. CONST. art. 1, § 14. The Indiana Supreme Court has held that “two

or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana

Constitution, if, with respect to either the statutory elements of the challenged crimes or

the actual evidence used to convict, the essential elements of one challenged offense also

4
A video recording of the robbery was admitted as State’s Exhibit 2 and a slow-motion version
of the recording was admitted as State’s Exhibit 2A.
4
establish the essential elements of another challenged offense.” Richardson v. State, 717

N.E.2d 32, 49 (Ind. 1999).

Sistrunk argues that his convictions for robbery and criminal confinement violate

Indiana’s prohibition against double jeopardy based upon the actual evidence test.5

Under the actual evidence test, the evidence presented at trial is examined to determine

whether each challenged offense was established by separate and distinct facts. Lee v.

State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that two challenged offenses

constitute the “same offense” in a claim of double jeopardy, a defendant must

demonstrate a reasonable possibility that the evidentiary facts used by the fact finder to

establish the essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense. Id. The Indiana Supreme Court has

determined the possibility to be remote and speculative and therefore not reasonable

when finding no sufficiently substantial likelihood that the trier of fact used the same

evidentiary facts to establish the essential elements of two offenses. Hopkins v. State,

759 N.E.2d 633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001);

Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)).

Application of this test requires the court to identify the essential elements of each

of the challenged crimes and to evaluate the evidence from the fact-finder’s perspective.

Lee, 892 N.E.2d at 1234. “[U]nder the . . . actual evidence test, the Indiana Double

Jeopardy Clause is not violated when the evidentiary facts establishing the essential

elements of one offense also establish only one or even several, but not all, of the

5
This court has noted that “[s]imultaneous convictions of robbery and confinement charges do
not violate Indiana’s statutory elements test.” Merriweather v. State, 778 N.E.2d 449, 454 (Ind. Ct. App.
2002) (citation omitted).
5
essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 832-833 (Ind.

2002). In determining the facts used by the fact-finder to establish the elements of each

offense, it is appropriate to consider the charging information, jury instructions, and

arguments of counsel. Lee, 892 N.E.2d at 1234; Spivey, 761 N.E.2d at 832. Generally,

double jeopardy does not prohibit convictions of confinement and robbery when the facts

indicate that the confinement was more extensive than that necessary to commit the

robbery. Merriweather v. State, 778 N.E.2d 449, 454 (Ind. Ct. App. 2002) (citing

Hopkins, 759 N.E.2d at 639; Thy Ho v. State, 725 N.E.2d 988, 993 (Ind. Ct. App. 2000)).

Sistrunk specifically argues that he ordered an employee to sit on the floor, paused

for a moment, and then walked out the door, that every act of robbery will, of necessity,

involve some amount of confinement, and that there was a reasonable possibility that the

trial judge used the same evidence to convict him of both robbery and criminal

confinement. The State argues that Sistrunk did not give the order for Busch to sit down

on the floor until he had committed all the elements of robbery by taking the safe drops

from Busch’s presence, that the confinement charge was drafted to ensure that only

interference with Busch’s liberty occurring independently of the robbery could be used to

convict Sistrunk of confinement, and thus that Sistrunk’s convictions do not violate

Indiana’s prohibition against double jeopardy.

Robbery consists of taking property “by using or threatening the use of force” or

“by putting any person in fear.” Ind. Code § 35-42-5-1. Criminal confinement consists

of confining a person or removing them by force or threat of force from one place to

another. Ind. Code § 35-42-3-3. The Indiana Supreme Court has stated that “where the

6
confinement of a victim is greater than that which is inherently necessary to rob them, the

confinement, while part of the robbery, is also a separate criminal transgression.”

Hopkins, 759 N.E.2d at 639. The State’s charging information for robbery alleged that

Sistrunk “on or about February 5, 2012, did knowingly, while armed with a deadly

weapon, that is: a handgun, take from the person or presence of Christina Busch property,

that is: United States currency, by putting Christina Busch in fear or by using or

threatening the use of force on Christina Busch.” Appellant’s Appendix at 34. The

charging information for criminal confinement alleged that Sistrunk “on or about

February 5, 2012, did knowingly, while armed with a deadly weapon, that is: a handgun,

confine Christina Busch, without the consent of Christina Busch, by ordering her to sit

down on the floor.” Id.

The evidence presented at trial shows that Sistrunk’s confinement of Busch

extended beyond what was necessary to rob her. The evidence shows that Sistrunk held a

gun to Busch and ordered her to hand over all the money in the cash drawer, that he

ordered her to retrieve the money from the safe, and that, after she explained that she

could not access the safe but that he could take the safe drops, Sistrunk took the safe

drops. As Busch was giving Sistrunk the money, he “kept telling [her] not to press the

button.” Transcript at 26. After he had taken the safe drops, Sistrunk “told [Busch] to sit

on the ground,” she “sat on the ground,” Sistrunk “stood there for a minute,” and then he

walked out the door. Id. In light of Sistrunk’s actions of threatening Busch by pointing a

handgun at her, of taking the cash from the register drawer and the safe drops, and by

instructing her not to press the emergency button, it was not necessary for Sistrunk to

7
further require Busch to sit down on the floor in order to rob her. His actions to

effectuate the robbery and that of ordering Busch to sit on the floor were separate

criminal transgressions.

Under the circumstances, we find no sufficient substantial likelihood, and thus

cannot say that Sistrunk has demonstrated a reasonable possibility, that the trial court

based its determination of guilt on the criminal confinement count upon the evidence

used to find him guilty of robbery. Accordingly, Sistrunk’s convictions do not violate his

right against double jeopardy. See Hopkins, 759 N.E.2d at 640 (holding that the

defendant’s confinement of his victims extended beyond what was necessary to rob them

and noting that it was not necessary to force the victims into the basement or later to stay

in the basement to rob them and that the confinement was a separate criminal

transgression from the robberies themselves).6

However, we also note that the same evidence, namely, Sistrunk’s act of being

armed with a deadly weapon, was used to enhance both his robbery conviction and his

criminal confinement conviction to class B felonies. See Ind. Code § 35-42-5-1

(governing the offense of robbery and noting the offense is a class C felony except that

“the offense is a Class B felony if it is committed while armed with a deadly weapon”);

Ind. Code § 35-42-3-3 (governing the offense of criminal confinement and noting that the

6
In support of his argument, Sistrunk points to Vanzandt v. State, in which this court concluded
that the defendant’s convictions for robbery and criminal confinement violated double jeopardy as there
was “an absence of evidence to establish the essential elements of confinement of [the victim]
independent of the robbery of [the victim]” and that “[t]he force or threat of force exerted by Vanzandt
against [the victim] was that exerted to accomplish the robbery.” 731 N.E.2d 450, 455 (Ind. Ct. App.
2000), trans. denied. “The evidence adduced at trial disclosed that Vanzandt, armed with a handgun,
ordered [the two victims] to lie down on the floor while he effected his robbery and obtained access to the
getaway vehicle.” Id. There is no indication that the confinement in Vanzandt went beyond that
necessary to effectuate the robbery. Sistrunk ordered Busch to the floor after the robbery was complete.
We find Vanzandt distinguishable.
8
offense is a class D felony except as provided in subsection (b) and that, under subsection

(b), the offense is “a Class B felony if it [] is committed while armed with a deadly

weapon”).

In Miller v. State, the defendant placed a knife to the victim’s throat and then later

pressed the knife on her back while he committed various offenses. 790 N.E.2d 437,

438 (Ind. 2003). The defendant was convicted of burglary as a class A felony, two

counts of criminal deviate conduct as class A felonies, criminal confinement as a class B

felony, robbery as a class B felony, resisting law enforcement as a class A misdemeanor,

and battery as a class A misdemeanor. Id. On appeal, the defendant claimed a violation

of the double jeopardy provision of the Indiana Constitution because his use of a single

weapon was used to elevate the sentencing classification of several of his convictions. Id.

The Indiana Supreme Court observed that “[a]lthough not raised by the parties, we have

recognized a series of rules of statutory construction and common law that supplements

the constitutional protections afforded by the Indiana Double Jeopardy Clause,” id. at 439

(citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); Spivey, 761 N.E.2d at 834), that

“Pierce applied the rule that two crimes may not be enhanced by the same bodily injury,”

and that “[t]his was an application of the broader rule previously expressed by Justice

Sullivan prohibiting conviction and punishment ‘for an enhancement of a crime where

the enhancement is imposed for the very same behavior or harm as another crime for

which the defendant has been convicted and punished.’” Id. (citing Richardson, 717

N.E.2d at 56 (Sullivan, J., concurring)). The Court held that “[t]he repeated use of a

weapon to commit multiple separate crimes is not ‘the very same behavior’ precluding its

9
use to separately enhance the resulting convictions” and that “[r]ather, the use of a ‘single

deadly weapon during the commission of separate offenses may enhance the level of each

offense.’” Id. (citing Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001)). The Court

thus declined to find error in the defendant’s enhanced sentences. Id.

In his concurring opinion, Justice Sullivan noted that “[w]hat justifies the multiple

enhancements here is the repeated use of the knife by the defendant in committing crimes

for which he was convicted,” that “[h]ad the defendant merely been armed with the

weapon while committing multiple crimes, and not actually used it (or used it only once),

I think it would be improper to impose more than one enhancement,” and that, “[i]n such

a circumstance, the multiple enhancements would be for the ‘very same behavior’ and

thus violate the rule against multiple enhancements to which this Court subscribed in

Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (citing Pierce[], 761 N.E.2d [at] 830

[], citing in turn Richardson[], 717 N.E.2d [at] 55 [] (Sullivan, J., concurring); id. at 57

(Boehm, J., concurring in result)).” Id. (Sullivan, J., concurring).

In this case, Sistrunk did not repeatedly use the handgun or use it more than once

in committing the offenses for which he was convicted. Busch testified that Sistrunk

pointed the gun at her and ordered her to give him the money from the register drawer.

Busch also testified that, after Sistrunk had taken the safe drops, he told her to sit on the

ground, but she did not testify that he used the weapon a second time. While Sistrunk

was still armed with the weapon, the evidence does not show that he used it repeatedly or

more than once, and thus, in light of Miller, it is improper here to impose more than one

enhancement based on the “very same behavior” of pointing the gun once and then

10
remaining armed throughout the incident. See id. at 438-439. Accordingly, we remand

with instructions to enter Sistrunk’s conviction for criminal confinement as a class D

felony and to impose a sentence consistent therewith, to be served concurrent with his

sentence for the robbery conviction, resulting in no impact on his aggregate sentence.

II.

The next issue is whether the trial court abused its discretion in denying Sistrunk’s

request for funds for an expert witness. Sistrunk’s March 23, 2012 motion states that, in

each of the four cases against him, the State’s evidence would rest largely on eyewitness

testimony, that none of the witnesses recognized the robber from previous interactions,

that it was defense counsel’s understanding that nothing that was found during the search

of Sistrunk’s house had been linked to any of the crimes, and that some of the witnesses

stated that they were close to one hundred percent certain that the picture of Sistrunk is of

the same man that robbed them. The motion states:

If an expert witness were allowed to testify, defense counsel expects the
expert witness would testify as follows: When people are under extreme
stress, adrenaline interferes with the ability to form accurate long term
memories. As a result, the ability to make an accurate eyewitness
identification is reduced. When a gun is involved, the ability to make an
accurate eyewitness identification is further reduced, because people have a
tendency to focus on the gun rather than the face of the person holding the
gun. When an individual is shown a photo lineup of individuals, the
individual often picks the person that looks most like the robber. The
individual then, because they are not under extreme stress, forms a new
memory based on the photograph in the photo array. When asked to make
an in court identification, the person uses their memory of the photo-array
to make the in court identification rather than their memory of the actual
robbery. Most importantly, there is little to no correlation between a
testifying witnesses [sic] confidence and accuracy. In other words, a
witness who testifies that they are 100% certain about ID is no more
accurate than a witness who says that they are 50% certain about ID.
Additionally, the testifying witness appears extremely credible. The

11
 witness is not being dishonest. The witness is merely unaware of the
psychological process that has occurred in their own mind.

Appellant’s Appendix at 61-62. The motion further stated that eyewitness testimony will

be the only real substantive evidence of guilt, that according to the Department of

Correction (“DOC”) it costs $20,000 to incarcerate a person for a period of one year, and

that if he were sentenced to the absolute minimum and received good credit time the cost

of incarceration would be $60,000. The motion also stated that the hourly rate of Dr.

Roger Terry, Sistrunk’s proposed expert witness, was $100 and that, if a flat fee were

preferred and the cases were not joined for trial, he would charge $5,000 to review all of

the evidence and to give an opinion on what factors might have affected the witnesses’

ability to make an accurate identification, and if he were asked to begin preparing for

testimony at trial this would cost an additional $10,000. The motion stated that security

footage existed and that, depending on the quality of the footage, expert testimony

regarding eyewitness testimony could become more or less helpful.

At the pretrial conference on July 23, 2012, the court noted that Sistrunk requested

the court to order the MCPD to expend budgeted funds on his behalf and that it was the

understanding of the court that there was a protocol or process that the MCPD followed

in determining whether such a request would be granted. The court asked the MCPD,

represented by Robert Hill, to help with the record. Hill testified that the MCPD requires

a defendant to show a legitimate need for the requested service and that budgeted funds

must be available. Hill further testified that the MCPD did not have any funds remaining

in its budget for the request and that he did not believe there had been an adequate

showing of need and a demonstration that the requested funds would in fact be beneficial

12
to the case. Hill indicated that an eyewitness expert is a legitimate area of inquiry in the

right case but that he did not think this was the right case. The court then stated a

familiarity with some literature that experts in this area “will not say the witness is right

or wrong” and “[t]hey’ll simply highlight the possibility of mistake.” Supplemental

Transcript at 70. Sistrunk’s counsel agreed that the expert “raises his answers in terms of

these are potential problems because he can’t offer an opinion on whether or not a

witness has testified truthfully.” Id. The court denied Sistrunk’s request for public funds.

Sistrunk contends that the court abused its discretion and violated his right to a

fundamentally fair trial in denying his application for public funds. He submits that the

only contested issue was the identity of the perpetrator of the robbery, that the court

concluded it was only the combination of the video and eyewitness identification that

allowed the finding of guilt, that had he been provided the benefit of an expert to

discredit the eyewitness’s identification, the only remaining evidence of identity would

have been the recording, which by the court’s admission would not have been sufficient

to support his conviction. Sistrunk asserts that he demonstrated an expert was necessary

pursuant to the factors set forth in Scott v. State, 593 N.E.2d 198, 199 (Ind. 1992), that

the expert’s services would be directed to a substantial question, and that the expert’s

testimony would be admissible at trial. He argues that the severity of the possible penalty

militates in favor of an expert, which suggests that a defendant with means facing the

possibility of lengthy incarceration would be willing to spend a great deal on an expert.

He notes that his proposed expert would have charged an hourly fee of $100 or a single

flat fee of $10,000 to prepare for and testify at trials in all four cases, that neither the trial

13
court nor the MCPD suggested that those fees were excessive, and that the amount is a

fraction of what it would cost to incarcerate him for one year. He also argues that,

without an identification expert, it was virtually impossible for him to attack the

testimony of Busch and that “[t]he help of an expert who could have illuminated what is

counterintuitive but true – that eyewitnesses, even when they report being ‘certain,’ are

often mistaken – would have been invaluable in this case.” Appellant’s Brief at 19. He

contends that the procedure used by the trial court was fundamentally unfair and an abuse

of discretion, that the MCPD’s involvement in the decision on his request is troubling

because the agency was, at least nominally, his lawyer, that the MCPD took an

adversarial position against him, that a public defender is fundamentally an advocate not

the court’s investigator or advisor, and that the procedure which pitted him against the

MCPD was fundamentally unfair.

The State maintains that the court did not abuse its discretion and argues that

Sistrunk misunderstands a number of the factors in Scott “by conflating all of them into a

hypothetical discussion of the significance of an issue to a defendant’s case.” Appellee’s

Brief at 10-11. The State argues that an application for an expert identification witness

raises particular concerns under Scott’s criteria regarding “whether the requested expert

services could nonetheless be performed by counsel” through cross-examination. Id. at

11-12 (citation omitted). The State further argues that, when records such as photographs

or video recordings “are present, the utility of opinion testimony regarding other

eyewitness identification is greatly lessened, or even eliminated.” Id. at 13. The State

additionally contends that Sistrunk’s proposed expert did not appear to be qualified to

14
testify to the matters identified by his motion, that the proposed expert’s résumé

“contains virtually no indication that he was qualified to offer expert evidence on the

issue of eyewitness identification,” and that the résumé did not identify any scholarly

work or publications in the areas of identification, memory processes, or stress or

adrenalin reactions. Id. at 17. The State argues that it did not rely on an expert and this

fact does not favor Sistrunk’s request. The State further contends that Sistrunk argues

only that no one claimed the proposed expert’s fee was excessive, but that his burden was

to affirmatively show the fee was reasonable and that he did not do so by comparing the

fee to the costs of incarceration. The State notes that defense counsel cross-examined

Busch as to aspects of the robbery which could be used to impeach her identification of

him and that the record does not support his assertion that an expert witness would have

made an error in Busch’s identification more or less likely. The State also argues that

Sistrunk’s claims regarding the practice of involving the public defender in the

appointment of experts for indigent defendants are waived because Sistrunk and his

private counsel never objected or presented arguments against the procedure to the trial

court and that, even if not waived, there is no basis for Sistrunk’s claim that the MCPD

did not review his request for an expert witness under the relevant standard.

Indiana Evidence Rule 702 permits expert witness testimony “[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue.” The appointment of experts for indigent

defendants is left to the trial court’s sound discretion. McConniel v. State, 974 N.E.2d

543, 558 (Ind. Ct. App. 2012) (citing Beauchamp v. State, 788 N.E.2d 881, 888 (Ind. Ct.

15
App. 2003) (citing Jones v. State, 524 N.E.2d 1284, 1286 (Ind. 1988))), trans. denied. It

is within the trial court’s discretion to determine whether the requested service would be

needless, wasteful or extravagant. Id. The trial court is not required to appoint at public

expense any expert that the defendant might find helpful. Id. The defendant requesting

the appointment of an expert bears the burden of demonstrating the need for the

appointment. Id.

The central inquiries in deciding this issue are whether the services are necessary

to assure an adequate defense and whether the defendant specifies precisely how he

would benefit from the requested expert services. Id. (citing Scott v. State, 593 N.E.2d

198, 200 (Ind. 1992)). A defendant cannot simply make a blanket statement that he needs

an expert absent some specific showing of the benefits that the expert would provide. Id.

“The trial court may consider whether the proposed expert’s services would bear on an

issue for which expert opinion would be necessary or the request for an expert appears to

be exploratory only, whether the expert services will go toward answering a substantial

question or simply an ancillary one, the severity of the possible penalty the defendant

faces, the cost of the expert services, and the complexity of the case.” Id. at 557-558

(citing Scott, 593 N.E.2d at 200-202). The circumstances under which expert testimony

regarding eyewitness identification is permitted are fact sensitive and must be assessed on

a case-by-case basis. Cook v. State, 734 N.E.2d 563, 570 (Ind. 2000), reh’g denied.

In Reed v. State, the defendant wished to present expert testimony on the subject

of the reliability of eyewitness identification, and the trial court refused. 687 N.E.2d 209,

16
211 (Ind. Ct. App. 1997), reh’g denied. On appeal, the court noted that the defendant was

convicted solely upon the testimony of one witness. Id. at 212. The court then stated:

In Hopkins[ v. State, 582 N.E.2d 345, 353 (Ind. 1991)], the Indiana
Supreme Court recognized the trend of cases recognizing the “built-in
potential for error in eyewitness cases.” [] The court also noted that the
admissibility of such expert testimony is favored by the weight of authority.
Judge Posner, in Krist v. Eli Lilly & Co. (1990) 7th Cir., 897 F.2d 293
pointed out some problems inherent in witness testimony. “An important
body of psychological research undermines the lay intuition that confident
memories of salient experiences . . . are accurate and do not fade with time
unless a person’s memory has some pathological impairment.” Id. at 296.

Although not taking issue with the contention that eyewitness
accounts are less reliable than once thought, the Seventh Circuit, perhaps
too sweepingly, noted in United States v. Larkin (1992) 7th Cir., 978 F.2d
964, 971, cert. denied (1993) 507 U.S. 935, 113 S.Ct. 1323, 122 L.Ed.2d
709:

“[E]xpert testimony regarding the potential hazards of
eyewitness identification-regardless of its reliability-‘will not
aid the jury because it addresses an issue of which the jury
already generally is aware, and it will not contribute to their
understanding’ of the particular factual issues posed.
(citations omitted). These hazards are well within the ken of
most lay jurors, and [defendant’s] counsel was granted ample
opportunity to discuss those hazards and cast doubt upon the
witnesses’ eyewitness identification of his client.”

The holding indicates the view that “experts” do nothing more than
highlight the fact that witnesses often misidentify individuals, a concept
well within the realm of understanding of the average juror.

Id. at 212-213. After reviewing several opinions in other states, the court held that “we

suggest that trial courts might be well advised to permit such expert testimony in order to

assist the jury in its evaluation of the evidence,” that “[n]evertheless we are reminded

that, at least with regard to experts paid from public funds, [the] defendant has the burden

of demonstrating that ‘the services [requested] are necessary to assure an adequate

17
defense,’” that “[w]hile expert testimony is surely helpful in many cases, it will be truly

necessary in far fewer instances,” and that “[t]he concept that eyewitness identification is

flawed or subject to serious question in a particular instance may be placed within the

jury’s realm of understanding by careful cross-examination and by counsel’s argument to

the jury.” Id. at 213-214 (quoting Scott, 593 N.E.2d at 200).

In Cook, the defendant wished to present the testimony of Dr. Terry as an expert

on the subject of the reliability of eyewitness identification, and the trial court did not

permit Dr. Terry to testify before the jury. 734 N.E.2d at 569. The Court noted that none

of the witnesses who identified the defendant was equivocal in his or her testimony and

held that the trial court did not abuse its discretion in refusing to allow the expert

testimony. Id. at 571.

In Farris v. State, the defendant sought to present the testimony of Dr. Terry as an

expert on the subject of the reliability of eyewitness identification, and the trial court

refused. 818 N.E.2d 63, 67 (Ind. Ct. App. 2004), trans. denied. The Court initially noted

that Indiana Evidence Rule 704(b) provides that “[w]itnesses may not testify to opinions

concerning . . . whether a witness has testified truthfully . . . .” Id. The Court then held

that the trial court had found that, based on the evidence presented and Farris’s cross-

examination of the witnesses, Dr. Terry’s testimony was not necessary to place the

concept of eyewitness misidentification within the jury’s realm of understanding and that

“[t]his was a valid ground for excluding Dr. Terry from testifying.” Id. at 68. The Court

found that there were two eyewitnesses and that “[t]heir accounts of the robbery were

18
consistent and supported by the gas station’s surveillance video” and held the trial court

did not abuse its discretion by excluding Dr. Terry from testifying. Id.

In this case, as noted by Sistrunk, Busch was the sole eyewitness to the armed

robbery. However, the record reveals that Sistrunk’s counsel was able to thoroughly

cross-examine Busch regarding her memory of the robbery and her identification of

Sistrunk as the robber. Specifically, Sistrunk’s counsel questioned her regarding her

vision, the fact that she felt scared and was worried she would be shot at the time of the

robbery, the trauma of experiencing the robbery and the fact that she quit her job a few

days afterwards, the jacket and hat worn by the person who robbed her, the eyebrows of

the person, the reason she picked the photograph of Sistrunk from the array, the fact that

she looked at the photographs closely, that at that time she was seventy or eighty percent

sure that Sistrunk was the person who robbed her, that after she signed the array and the

detective had stated she picked the right guy she became one hundred percent sure, and

that Sistrunk had a scar above his right eyebrow and Busch did not remember seeing the

scar at the time of the robbery. Busch also indicated that she was in shock when the

robbery happened, and when asked if “[i]t’s hard to remember exactly what you saw

during the robbery,” she replied “[i]t’s hard, it is, yes.” Transcript at 47. In addition, the

State admitted two versions of a video recording taken from a camera at the gas station

showing the robbery, which at a minimum favors a finding that the trial court did not

abuse its discretion in determining that Dr. Terry’s testimony was not necessary under the

circumstances. See Farris, 818 N.E.2d at 68 (noting that the eyewitness accounts of the

robbery were supported by the gas station’s surveillance video). In closing arguments,

19
Sistrunk’s defense counsel argued that the video recording did not show Sistrunk’s mark

above the eyebrow or the tattoo on his hand and that, although the video does not exclude

Sistrunk as a possible suspect, it is not enough to make an identification of him. Defense

counsel also argued that Busch was in shock, did not have a good look at the person who

robbed her, picked the person in the photo array because he had the darkest skin, and she

was seventy to eighty percent sure that she had picked the right person. We also note that

the State did not rely upon an expert and the relative cost of the proposed expert

testimony at trial.

We also note that this case was tried to the court as the trier of fact, that judges are

presumed to know the law, that the concept that eyewitness identifications may be

mistaken or questionable in certain circumstances is within the realm of understanding of

the court, and that additional testimony related to that concept in certain circumstances,

such as here where the court was able to assess Busch’s testimony and the video

recording, may be of limited utility.

Based upon the record, Sistrunk failed to meet his burden of demonstrating that

the testimony of his proposed expert was necessary to assure an adequate defense, and we

cannot say the trial court abused its discretion in denying his request for public funds to

pay for the fees of the proposed expert. See Reed, 687 N.E.2d at 211-214 (noting the

defendant was convicted solely upon the testimony of one witness and holding that the

defendant did not meet his burden of demonstrating that the expert testimony regarding

the subject of the reliability of eyewitness identification was necessary to assure an

adequate defense and that the concept that eyewitness identification is flawed or subject

20
to serious question in a particular instance may be placed within the jury’s realm of

understanding by careful cross-examination and by counsel’s argument to the jury).

To the extent that Sistrunk asserts the court erred in involving the MCPD or Hill in

the process of determining whether to grant his request for funds for an expert, Sistrunk,

who was represented by private counsel, did not raise the issue before the trial court and

thus waived the issue. See In re Larry L. Thompson Revocable Trust, 954 N.E.2d 1056,

1061 (Ind. Ct. App. 2011) (“A party must show that it gave the trial court a bona fide

opportunity to pass upon the merits of a claim before seeking an opinion on appeal.”).

Waiver notwithstanding, Sistrunk does not demonstrate that the recommendation of the

MCPD was based solely on budgetary grounds, that the trial court relied exclusively on

the MCPD’s statement and failed to evaluate the necessity of the requested expert, or that

he was prejudiced by the court taking into consideration the statements made by Hill.

Sistrunk is not entitled to reversal of his convictions on this basis.

CONCLUSION

For the foregoing reasons, we remand with instructions to enter Sistrunk’s

conviction for criminal confinement as a class D felony and to impose a sentence

consistent therewith to be served concurrent with his sentence for robbery, and in all

other respects we affirm.

Affirmed in part, reversed in part, and remanded.

ROBB, J., concurs.

BARNES, J., concurs in part and dissents in part with separate opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

GARY SISTRUNK, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1211-CR-567
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

BARNES, Judge, concurring in part and dissenting in part with separate opinion

Although I agree with the majority’s conclusion that the trial court did not abuse

its discretion in denying Sistrunk’s request for expert witness funds, I respectfully dissent

from its conclusion that the robbery and confinement were separate criminal

transgressions. Ordering Busch to sit on the floor after Sistrunk took the money was

inherently part of the robbery because it effectuated his getaway. This is not to say I

view all actions that effectuate a getaway as inherently part of a robbery. But here, where

Sistrunk did not order Busch to another location or otherwise restrain her and only

ordered her to sit behind the counter while he left the store, does not, in my view, rise to

the level of a separate crime. This was something that simply was needed to carry out the

original robbery. Sistrunk has demonstrated that the confinement was not greater than

22
what was needed to carry out the robbery. Accordingly, I would vacate the confinement

conviction entirely.

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