Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
May 19 2014, 9:10 am
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:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY SISTRUNK, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1210-CR-527
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth D. Reichard, Senior Judge
Cause No. 49G05-1202-FB-10061
May 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Gary Sistrunk appeals his convictions for robbery and criminal confinement as
class B felonies.1 Sistrunk raises four issues, which we revise and restate as follows:
I. Whether his convictions for robbery and criminal confinement
violate Indiana’s prohibition against double jeopardy;
II. Whether the trial court abused its discretion in admitting certain
testimony;
III. Whether the evidence is sufficient to support his convictions; and
IV. Whether the trial court abused its discretion 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 some point after 5:00 p.m. on December 29, 2011, Sistrunk entered a liquor
store in Marion County, Indiana, where Jackie Ellis and Cheryl McGuigan were working.
Sistrunk asked Ellis for a bottle of vodka, and Ellis showed the bottle to him. Sistrunk
was in the store for about fifteen minutes and left without making a purchase. At
approximately 9:30 p.m., he entered the store again. At that time, Ellis was helping a
customer at the lottery machine, and McGuigan was in the cooler located in the back of
the store. After the customer at the lottery machine left the store, Sistrunk “pulled out a
.38 revolver” and told Ellis to “give [him] the money out of both cash registers” and that
if Ellis “tried to hit a panic button that he would kill [him].” Transcript at 29. Sistrunk
“locked his elbow onto his hip” and pointed the gun “just like straight at [Ellis] from his
1
This appeal was taken from cause number 49G05-1202-FB-10061 (“Cause No. 61”). We also
issue an opinion in Sistrunk v. State, No. 49A05-1211-CR-567 (Ind. Ct. App. May 19, 2014), which is an
appeal from Sistrunk’s convictions for robbery and criminal confinement under cause number 49G05-
1202-FB-010112 (“Cause No. 112”).
2
hip.” Id. at 63. Ellis opened a brown paper bag and placed all the money from both cash
registers in the bag.
As Ellis was placing the money into the bag, McGuigan exited the store’s cooler,
and Sistrunk saw her and stated “come on out lady.” Id. at 70. At that time, McGuigan
did not know if Sistrunk was armed. Sistrunk ordered McGuigan to remove the money
from the store’s lottery machine drawer, and McGuigan did so. When Ellis finished
placing the money from the cash registers in the bag, McGuigan dropped the money from
the lottery machine drawer in the bag. Sistrunk took the bag of money from Ellis.
McGuigan “kind of glanced down and there was something in the pocket [of Sistrunk’s
sweatshirt] that was heavy.” Id. at 71. Sistrunk then ordered Ellis and McGuigan to
enter the store’s cooler and wait there for five minutes. Sistrunk stated that he did not
want to hurt anybody but just wanted the money. Ellis and McGuigan entered the cooler,
and McGuigan pressed a panic button. The length of time from when McGuigan exited
the cooler and entered the cooler again after the robbery was “[p]robably less than 2
minutes.” Id. at 71. After a minute, Ellis and McGuigan exited the cooler and dialed
911. Indianapolis Metropolitan Police Officer James Barrow and Detective Bradley
Millikan responded to the robbery and spoke with Ellis and McGuigan. Detective
Millikan later met separately with Ellis and McGuigan, obtained their recorded
statements, and presented each of them with a photo array, and both Ellis and McGuigan
identified Sistrunk as the person who committed the robbery. Police obtained video
surveillance recordings2 of the robbery.
2
There were nine video cameras in the store.
3
On February 14, 2012, the State charged Sistrunk with: Count I, robbery of Ellis
as a class B felony; Count II, criminal confinement of McGuigan (by removing her from
the cooler area to the lottery machine); Count III, robbery of McGuigan; Count IV,
criminal confinement of Ellis (by removing him from the register area to the cooler area);
and Count V, criminal confinement of McGuigan (by removing her from the lottery
machine area to the cooler area). On March 9 and March 23, 2012, Sistrunk, represented
by private counsel, filed motions which requested the court to order the Marion County
Public Defender (the “MCPD”) 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
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 August 30, 2012, the court
conducted a bench trial at which Ellis, McGuigan, Officer Barrow, and Detective
Millikan testified and the State presented the video recording of the robbery. During
trial, Sistrunk objected on hearsay grounds to certain testimony of Officer Barrow and
Detective Millikan related to the descriptions they received during their investigation
from the store employees of the person who robbed them, and the trial court overruled the
objections.
The court found Sistrunk guilty as charged on Counts I, III, IV, and V, and the
court entered judgment of the lesser included offense of criminal confinement as a class
D felony on Count II.4 The court sentenced Sistrunk to one and one-half years on the
3
These motions were filed and the July 23, 2012 hearing was held under Cause Nos. 112, 61, 62,
and 63.
4
The court reduced Sistrunk’s conviction under Count II to a class D felony because “McGuigan
4
class D felony and fourteen years on the class B felony convictions, with six years to be
served in the Department of Correction (the “DOC”), four years served in community
corrections, and four years suspended. The court ordered the sentences to be served
concurrently with each other.
DISCUSSION
I.
The first issue is whether Sistrunk’s convictions for robbery and criminal
confinement violate Indiana’s prohibition against double jeopardy.
A. Criminal Confinement
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 establish the essential elements of another challenged offense.” Richardson
v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Sistrunk essentially 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
did not see a weapon, a deadly weapon, of any kind.” Transcript at 139.
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
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
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
6
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 the “security video shows approximately 70
seconds elapsed from the time the robber first confronted Ellis until the time the robber
left the store” and that “[t]hat means the robber’s confinement of Ellis . . . [and]
McGuigan lasted less than 70 seconds . . . .” Appellant’s Brief at 19. Sistrunk argues
that “[t]he robber directed McGuigan and Ellis to move to the back room or cooler to
effect his escape during the robbery,” that “[t]o the extent the robber required the two to
move at any other time, it was to accomplish the gathering of the cash which was the
subject of the robbery,” and that “[t]hus, the confinement of Ellis and McGuigan was not
more than required to accomplish the robbery.” Id. at 20. The State contends in part that
the robberies did not require proof that Sistrunk removed McGuigan from the lottery
machine to the cooler or Ellis from the register area to the cooler and that, after he
obtained the store’s money, his goal of taking the money had been achieved.
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 fraud, enticement, 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 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 allegation in the charging
information for robbery under Count I was that Sistrunk “did knowingly, while armed
7
with a deadly weapon, that is: a handgun, take from the person or presence of Jackie Ellis
property, that is: United States currency, by putting Jackie Ellis in fear or by using or
threatening the use of force on Jackie Ellis” and under Count III that he “did knowingly,
while armed with a deadly weapon, that is: a handgun, take from the person or presence
of Cheryl McGuigan property, that is: United States currency, by putting Cheryl
McGuigan in fear or by using or threatening the use of force on Cheryl McGuigan.”
Appellant’s Appendix at 71-72. The allegation in the charging information for criminal
confinement under Count II was that Sistrunk, “while armed with a deadly weapon, that
is: a handgun, did knowingly, by force, or threat of force, remove Cheryl McGuigan from
one place to another, that is: from the cooler area of the business to the lottery machine.”
Id. at 72. The charging information for criminal confinement under Count IV alleged that
Sistrunk, “while armed with a deadly weapon, that is: a handgun, did knowingly, by
force, or threat of force, remove Jackie Ellis from one place to another, that is: from the
register area of the business into the cooler area.” Id. Count V alleged that Sistrunk,
“while armed with a deadly weapon, that is: a handgun, did knowingly, by force, or threat
of force, remove Cheryl McGuigan from one place to another, that is: from the lottery
machine area of the business into the cooler area.” Id.
The evidence reveals that Sistrunk waited for a customer to leave the store and
then pulled out his gun and told Ellis to give him the money in both cash registers and
that if Ellis tried to hit a panic button that he would kill him. When McGuigan exited the
cooler, Sistrunk stated “come on out lady” and ordered her to remove the money from the
store’s lottery machine drawer, and McGuigan complied. Transcript at 70. Sistrunk took
8
the bag containing the money from the register and lottery machine drawers and then
ordered Ellis and McGuigan to enter the store’s cooler and wait there for five minutes.
Sistrunk stated that he did not to hurt anybody but just wanted the money. Ellis and
McGuigan entered the cooler, McGuigan pressed a panic button, and stayed there for a
minute before exiting the cooler and dialing 911.
The evidence shows that the confinement of McGuigan as charged under Count II
did not extend beyond what was necessary to commit the robberies and was not a
separate criminal transgression from the robberies. Sistrunk’s confinement of McGuigan
as charged under Count II in ordering her to “come on out lady” occurred while Ellis was
placing money from the register drawers in the paper bag, was coextensive with the order
that she remove the money from the lottery machine drawer, and was taken to effectuate
the robbery of the money from the lottery machine drawer. This confinement was not a
separate criminal transgression from the robbery and did not extend beyond what was
necessary to commit it. See Polk v. State, 783 N.E.2d 1253, 1259 (Ind. Ct. App. 2003)
(finding that the evidence did not show that the confinement was greater than that
necessary to accomplish the robbery where the defendant knocked the victim to the floor,
held a gun in his hand, and demanded and took money from the victim’s pocket, holding
that viewing the actual evidence there existed a reasonable possibility that the robbery
and confinement convictions were supported by the same evidence, and vacating the
defendant’s conviction for criminal confinement), trans. denied. Accordingly, we vacate
Sistrunk’s criminal confinement conviction under Count II.6
6
We need not address Sistrunk’s additional contention that his conviction under Count II violates
the continuing crime doctrine.
9
The evidence presented at trial shows that Sistrunk’s confinement of Ellis and
McGuigan, as charged under Counts IV and V respectively, however, extended beyond
that necessary to rob them. In light of Sistrunk’s actions of ordering Ellis and McGuigan
to remove the money from the register and lottery machine drawers, of taking the money,
and of instructing Ellis not to press a panic button, it was not necessary for Sistrunk to
further require Ellis and McGuigan to enter the store’s cooler as the robberies were
completed. The actions taken by Sistrunk to effectuate the robberies and the actions of
ordering Ellis and McGuigan to enter the cooler 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 confinement counts under Counts IV and V upon the
evidence used to find him guilty of robbery under Counts I and III. The confinements of
Ellis and McGuigan under those counts were not coextensive with the robberies, but
instead went beyond that necessary to accomplish the robberies. Accordingly, the
criminal confinement convictions under Counts IV and V do not violate Sistrunk’s
double jeopardy rights. 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).7
7
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
10
B. Multiple Enhancements
Sistrunk also asserts that the same evidence, namely, that he was armed with a
gun, was used to elevate his robbery convictions and his criminal confinement
convictions which constitutes a double jeopardy violation. His act of threatening the use
of a deadly weapon was used to enhance his convictions under Counts I, III, IV, and V 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 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.
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 Ellis and McGuigan to enter the cooler and stay
there for five minutes after the robberies were complete. We find Vanzandt distinguishable.
11
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) (emphasis added)). The Court held that “[t]he
repeated use of a weapon to commit multiple separate crimes is not ‘the very same
behavior’ precluding its 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
12
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).
Here, Sistrunk did not repeatedly use the handgun or use it more than once in
committing the offenses for which he was convicted. He pointed the gun at Ellis and
ordered him to remove the money from the register drawers. At the time, McGuigan was
in the store’s cooler located in the back of the store. When McGuigan exited the cooler,
Sistrunk ordered her to remove the money from the store’s lottery machine drawer, and
McGuigan complied. McGuigan testified that, at that time, she did not know that
Sistrunk was armed and that she at no time saw a weapon. She also testified that she
thought Sistrunk had a weapon when he reached over to take the bag from Ellis because
he leaned forward and she “kind of glanced down and there was something in the pocket
[of Sistrunk’s sweatshirt] that was heavy.” Transcript at 71. Ellis and McGuigan
testified that, after Sistrunk took the money, he ordered them to enter the store’s cooler
and wait there for five minutes and stated he did not want to hurt anybody but just wanted
the money, but neither testified that Sistrunk used the weapon at that stage. 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 to enhance all of
his convictions based on the “very same behavior” of pointing the gun once and then
remaining armed throughout the incident. As a result, Sistrunk’s conviction under Count
III must be reduced to a class C felony and his convictions under Counts IV and V must
be reduced to class D felonies.
13
In sum, we remand with instructions to vacate Sistrunk’s conviction for criminal
confinement under Count II, to enter his conviction for robbery under Count III as a class
C felony rather than a class B felony, to enter his convictions for criminal confinement
under Counts IV and V as class D felonies rather than class B felonies, and to impose
sentences under those counts consistent with the sentencing parameters for the
appropriate class level for the felonies, to be served concurrent with the sentence imposed
for his robbery conviction under Count I, which does not impact his aggregate sentence.
II.
The next issue is whether the trial court abused its discretion in admitting certain
testimony of the police officers. Admission of evidence is within the sound discretion of
the trial court. Davis v. State, 907 N.E.2d 1043, 1053 (Ind. Ct. App. 2009). We will
reverse a trial court’s decision to admit evidence only if there is an abuse of discretion.
Id. An abuse of discretion occurs if the trial court’s decision is against the logic and
effect of the facts and circumstances before the court. Id. We will not reverse an error in
the admission of evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039,
1058 (Ind. 2011). Errors in the admission of evidence are to be disregarded unless they
affect the defendant’s substantial rights. Id. at 1059. In determining the effect of the
evidentiary ruling on a defendant’s substantial rights, we look to the probable effect on
the fact-finder. Id. The improper admission is harmless error if the conviction is
supported by substantial independent evidence of guilt satisfying the reviewing court that
there is no substantial likelihood the challenged evidence contributed to the conviction.
Id.
14
During trial, the prosecutor asked Officer Barrow to testify regarding the
description he received from the store employees of the person who robbed them.
Sistrunk’s counsel objected on hearsay grounds, the prosecutor stated that the testimony
would explain the officer’s next step in his investigation of gathering information, and the
court stated that it would allow the testimony just for that purpose and that if there was a
jury it would admonish them. The prosecutor later asked Detective Millikan to testify
regarding the description of the robber he received from the store employees, Sistrunk’s
counsel object on hearsay grounds, and the prosecutor stated the testimony was offered to
explain the steps in the investigation. The court admitted the detective’s testimony and
stated that it would not consider the testimony as substantive evidence.
On appeal, Sistrunk claims that the trial court abused its discretion in admitting
this testimony, that the statements were hearsay and no valid hearsay exception applies,
and thus that the statements were inadmissible. He contends that the testimony was
highly prejudicial and that it buttressed the employees’ in-court identifications upon
which the court relied heavily in finding him guilty. The State maintains the court
admitted the challenged testimony for a limited purpose, not for the truth of the matters
asserted, that Sistrunk was not prejudiced as Ellis and McGuigan testified to their
observations of the robber during the robberies and confinements, and that admission of
the evidence was cumulative of the employees’ testimony at trial.
The record reveals that Ellis and McGuigan testified at length and that they were
thoroughly cross-examined regarding their observations and perceptions of the events of
the robberies and confinements and the appearance and actions of the person who
15
committed the offenses. The case was tried to the court as the trier of fact, the trial judge
is presumed to know the law, and the record and the court’s comments reveal that it
carefully weighed the witnesses’ testimony and the evidence and did not rely on the
descriptions given to law enforcement during the investigation. The court specifically
stated that the challenged testimony was admitted for the sole purpose of explaining the
next step in the investigation and that it would not consider the testimony as substantive
evidence. Sistrunk has not demonstrated that the admission of the course-of-investigation
testimony buttressed the credibility of the other witnesses to the extent that it affected his
substantial rights or otherwise requires reversal. There is no substantial likelihood the
challenged evidence contributed to the convictions. See Craig v. State, 630 N.E.2d 207,
211-212 (Ind. 1994) (noting that the child victim testified in detail about the attack from
his firsthand knowledge and that there was little to undermine the credibility of the child,
and holding that the tendency of the challenged statements to bolster the child’s
credibility had only minor impact on the jury and accordingly that the error in the
admission of the statements was harmless and did not require reversal).
III.
The next issue is whether the evidence is sufficient to support Sistrunk’s
convictions. When reviewing the sufficiency of the evidence to support a conviction, we
must consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness
credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably
to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
16
could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is
sufficient if an inference may reasonably be drawn from it to support the verdict. Id.
Sistrunk contends that the identification evidence was highly conflicting, that
within minutes of the robberies Ellis and McGuigan described the robber as
approximately five feet seven inches tall and wearing a grey hoodie, sweatpants, and hat,
that Ellis later reported the robber was six feet four or six feet five inches tall, and that at
trial Ellis reported the robber as five feet seven inches tall and McGuigan described the
robber as approximately five feet seven or five feet eight inches tall. Sistrunk notes that
Ellis testified the robber had a goatee and very thin eyebrows and that, according to
McGuigan, the robber had no facial hair and full eyebrows with no gray and no scar.
Sistrunk argues that neither McGuigan nor Ellis recalled a scar on the robber’s face or a
tattoo on the robber’s hand, both of which he had, and the police did not find a weapon or
the robber’s clothing while searching Sistrunk’s home. He also asserts that Detective
Millikan told McGuigan that police had caught the robber before he showed her the
photographic array and that, after McGuigan identified Sistrunk’s photograph, the
detective told McGuigan to give him a high five.
The State maintains that Ellis and McGuigan unequivocally testified that Sistrunk
was the person who robbed and confined them, and that the effect of Ellis’s single
departure from his otherwise consistent perceptions of Sistrunk’s height and any
subjective differences between the characterization of the thickness of his eyebrows were
17
for the trial court to resolve. The State further notes that each of the witnesses identified
Sistrunk’s photograph in separate interviews with Detective Millikan, that they were not
shown the same array, that the other five photographs were of men who were similar in
appearance to Sistrunk, that the detective told McGuigan only that police thought they
caught the robber, and that Sistrunk does not explain how the exchange regarding the
high five would have retroactively affected McGuigan’s earlier selection of his
photograph.
We note that identity may be established entirely by circumstantial evidence and
the logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317
(Ind. 1990). The unequivocal identification of the defendant by a witness in court,
despite discrepancies between his description of the perpetrator and the appearance of the
defendant, is sufficient to support a conviction. Emerson v. State, 724 N.E.2d 605, 610
(Ind. 2000), reh’g denied. Inconsistencies in identification testimony impact only the
weight of that testimony, because it is the task of the trier of fact to weigh the evidence
and determine the credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770
(Ind. Ct. App. 2007). As with other sufficiency matters, we will not weigh the evidence
or resolve questions of credibility when determining whether the identification evidence
is sufficient to sustain a conviction. Id. Rather, we examine the evidence and the
reasonable inferences therefrom that support the conviction. Id.
The evidence reveals that both Ellis and McGuigan identified Sistrunk from a
photographic array as the person who committed the offenses. Ellis and McGuigan were
present at the robbery and had ample opportunity to view Sistrunk during the time he was
18
in the liquor store. Sistrunk’s defense counsel thoroughly cross-examined the witnesses
regarding their ability to identify him, the inconsistencies in their testimony, their abilities
to observe him, his physical features, and any irregularities with respect to the
presentation of the photographic arrays. The record does not show that any irregularity in
presenting the photographic arrays affected the witnesses’ identifications of Sistrunk’s
photograph. To the extent there were any internal inconsistencies in Ellis’s testimony or
his statements at different points after the robbery, that there were factual differences
between the testimony of Ellis and McGuigan regarding the robber’s appearance and
Sistrunk’s actual appearance, or that one or both of the witnesses noticed or failed to
notice certain physical features of the robber, it was the function of the trier of fact to
resolve any such possibly conflicting evidence. The court was able to consider the
testimony and all evidence presented by the State regarding Sistrunk’s identity.
Based upon the evidence most favorable to the convictions, we cannot say that it
was unreasonable for the trier of fact to believe the identification testimony and evidence
presented, and we conclude that sufficient evidence exists from which the court could
find Sistrunk guilty beyond a reasonable doubt of robbery under Counts I and III and
criminal confinement under Counts IV and V. See Wilder v. State, 716 N.E.2d 403, 405
(Ind. 1999) (noting that it is the duty of the fact-finder to assess the credibility of witness
testimony, that all of the witnesses who identified the defendant were present at the
robbery and had ample opportunity to view him, and that defense counsel thoroughly
cross-examined the witnesses, and finding that the State presented sufficient evidence
19
from which the trier of fact could have concluded the defendant was the perpetrator of the
charged offenses).
IV.
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 stated 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 found during the search of
Sistrunk’s house had been linked to any of the crimes, and that some of the witnesses
stated they were close to one hundred percent certain that the picture of Sistrunk was of
the same man that robbed them. The motion stated:
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
witness is not being dishonest. The witness is merely unaware of the
psychological process that has occurred in their own mind.
20
Appellant’s Appendix at 92-93. The motion further stated that eyewitness testimony
would be the only real substantive evidence of guilt, that according to the Department of
Corrections (“DOC”) it costs $20,000 to incarcerate a person for a period of one year,
and if Sistrunk 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 stated that Sistrunk requested
the court to order the MCPD to expend budgeted funds on his behalf, that it was the
court’s understanding there was a protocol or process that the MCPD followed in
determining whether such a request would be granted, and 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
to the case. Hill indicated that an eyewitness expert is a legitimate area of inquiry in the
21
right case but that he did not think this was the right case. The court then stated that he
had read some literature that experts in this area “will not say the witness is right or
wrong” and that “[t]hey’ll simply highlight the possibility of mistake,” and 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.”
Supplemental Transcript at 70. The court denied Sistrunk’s request for public funds.
Sistrunk contends on appeal that the court abused its discretion in denying his
application. He argues that MCPD assigned his appeal to one of its contract appellate
attorneys, that concerns over a conflict of interest may have prompted the assignment to
contract counsel, that the agency should not be allowed to advocate a position which is
adverse to the client, and that Hill, as chief public defender of a cash-strapped agency,
had a financial interest in direct opposition to Sistrunk’s interests. Sistrunk contends that,
by his own admission, Hill essentially was faced with curtailing the functions of his own
office or funding the expert witness request. He asserts that his inability to present expert
testimony challenging the reliability of the eyewitness testimony was highly prejudicial
as his convictions rested on eyewitness testimony and that, if he had been able to present
the expert testimony, he very likely could have been acquitted given that the trial court
apparently viewed this case as close.
The State maintains that Sistrunk has waived his claim by failing to present any
argument under applicable law and makes no effort to address the merits of his request
according to Scott v. State, 593 N.E.2d 198 (Ind. 1992). The State also argues in part that
Sistrunk’s claims regarding the trial court’s procedure is waived as he never objected or
22
made any arguments against the procedure to the trial court. The State contends that,
even if not waived, Sistrunk’s arguments are unavailing, that the trial court decided
whether to pay for Sistrunk’s proposed expert, and that Sistrunk’s claim that the MCPD
usurped the role of the trial court is without merit. The State further argues that the trial
court did not abuse its discretion in denying Sistrunk’s request under Scott, 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, and 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.” Appellant’s Brief at 35-36
(citations omitted). The State notes that defense counsel vigorously cross-examined Ellis
and McGuigan as to issues which could be used to impeach their identification of
Sistrunk and that nothing in the record supports his assertion that an expert witness would
have made a reasonable doubt about the eyewitnesses’ testimony more or less likely. In
his reply brief, Sistrunk argues that identification was a critical issue in this case given
the grainy security videos from which he could not be conclusively identified, that his
purpose in procuring the expert witness was not exploratory, that defense counsel’s cross-
examination was not an effective substitute for the expert testimony as counsel was not
able to convey during cross-examination the specialized information the expert would
have provided, and that the primary people subject to the cross-examination, Ellis and
McGuigan, were the very witnesses whose identifications were unknowingly impacted.
23
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.
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 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 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
24
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,
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.
25
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
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
that there was more than one eyewitness and held that the trial court did not abuse its
discretion in refusing to allow the expert testimony on the subject of the reliability of
eyewitness identification. 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
26
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 also noted that there were two eyewitnesses and that “[t]heir accounts of the
robbery were consistent and supported by the gas station’s surveillance video” and held
that the trial court did not abuse its discretion by excluding Dr. Terry from testifying. Id.
Here, Ellis and McGuigan were the sole eyewitnesses to the robberies. The record
reveals that Sistrunk’s defense counsel was able to thoroughly cross-examine them
regarding their memories of the robberies and their identifications of Sistrunk as the
robber. Specifically, Sistrunk’s counsel questioned Ellis regarding his emotional state
during the robberies and the fact that he was traumatized and “[s]cared to death.”
Transcript at 51. Sistrunk’s counsel elicited testimony from Ellis regarding his
observations at the time of the robbery of Sistrunk’s height and appearance, the fact that
Ellis wore glasses, the fact that Sistrunk had a goatee, that Sistrunk’s eyebrows were thin,
that Ellis did not remember seeing any scarring around Sistrunk’s eyebrow or any tattoos
on his right hand, and that Ellis at trial could see that Sistrunk had a scar above his
eyebrow and tattoo on his right hand. Sistrunk’s counsel questioned Ellis regarding his
selection of Sistrunk’s photograph from the array. Sistrunk’s counsel questioned
McGuigan regarding the emotional effect of the robberies, the fact that she was so shaken
at one point that she could not open a door for an officer, and the facts that she sometimes
wore glasses, that at the time Sistrunk did not have facial hair, that Sistrunk had full
27
eyebrows, and that McGuigan did not remember seeing any scarring around Sistrunk’s
eyebrows or any tattoos. Sistrunk’s counsel also questioned McGuigan regarding her
selection of Sistrunk’s photograph from the array and that the detective stated “we caught
the guy” and stated “give me a high five” after, but not directly after, she identified
Sistrunk’s photograph. Id. at 88, 92. In addition, the State admitted a recording taken
from cameras at the liquor store 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). We also note that there were two eyewitnesses who identified
Sistrunk both in court and by identifying his photograph from an array and who were
unequivocal. See Cook, 734 N.E.2d at 571 (noting that the witnesses were unequivocal
and there was more than one eyewitness); Farris, 818 N.E.2d at 67 (noting there were two
eyewitnesses and their accounts of the robbery were consistent). In closing arguments,
defense counsel argued that the witnesses were testifying to their memories of the photo
array and not their memories of the night of the robberies. Defense counsel noted the
discrepancies in the eyewitnesses’ testimony regarding Sistrunk’s appearance and the
events of the robberies and claimed that the witnesses’ ability to store memories was
impaired, and that at the photo lineups they were trying to pick the person who looked
most like the robber.
We also note that this case was tried before the court as the trier of fact, that
judges are presumed to know the law, that the court’s comments related to the
28
eyewitnesses’ testimony regarding the robberies, their observations of Sistrunk’s
appearance, and the process of identifying him using the photo arrays showed that it
carefully weighed the witnesses’ testimony and the evidence, 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 the
testimony of the eyewitnesses and the video recording, may be of limited utility.
Based upon the record, Sistrunk failed to meet his burden of demonstrating that his
proposed expert testimony 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 Cook, 734 N.E.2d at 569-571 (noting that none of
the witnesses who identified the defendant was equivocal in his or her testimony and
there was more than one eyewitness and holding that the trial court did not abuse its
discretion in refusing to allow the expert testimony on the subject of the reliability of
eyewitness identification); Reed, 687 N.E.2d at 211-214 (noting the 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).
To the extent 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 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
29
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 vacate Sistrunk’s
conviction for criminal confinement under Count II, to enter his conviction for robbery
under Count III as a class C felony rather than a class B felony, to enter his convictions
for criminal confinement under Counts IV and V as class D felonies rather than class B
felonies, and to impose sentences under those counts consistent with the sentencing
parameters for the appropriate class level for the felonies, to be served concurrent with
the sentence imposed for his robbery conviction under Count I. 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.
30
IN THE
COURT OF APPEALS OF INDIANA
GARY SISTRUNK, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1210-CR-527
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BARNES, Judge, concurring in part and dissenting in part with separate opinion
I agree with the majority’s conclusions about the admission of evidence, the
sufficiency of the evidence, and the expert witness funds. I also agree with the majority’s
conclusion that the confinement alleged in Count II was not a separate criminal
transgression from the robberies and that the conviction must be vacated. Further, I agree
that the confinements alleged in Counts IV and V went beyond that necessary to
effectuate the robbery because, after the robberies were completed, Sistrunk ordered Ellis
and McGuigan from the register area of the store into the cooler with instructions to wait
there for five minutes. I, however, respectfully dissent from the majority’s conclusion
that Counts III, IV, and V must be reduced because of its view that Sistrunk did not
repeatedly use the weapon during the commission of the crime.
31
“The repeated use of a weapon to commit multiple separate crimes is not ‘the
very same behavior’ precluding its use to separately enhance the resulting convictions.
Rather, the use of a ‘single deadly weapon during the commission of separate offenses
may enhance the level of each offense.’” Miller v. State, 790 N.E.2d 437, 439 (Ind.
2003) (quoting Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001)). As the majority
acknowledges, Sistrunk was armed with the weapon throughout the commission of these
offenses. Regardless of whether he continuously wielded it, I believe that Sistrunk’s
possession of the gun allowed him to effectuate crimes and that Miller clearly allows for
the enhancement of each offense. Although I do not dispute the majority’s reading of
Justice Sullivan’s concurring opinion in Miller, none of the other justices joined it. As a
concurring opinion, I do not believe that it is a basis for reducing Counts III, IV, and V.
Accordingly, I dissent.
32