Jacob M. Nodine v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 20 2020, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John M. Haecker Curtis T. Hill, Jr.
Squiller & Hamilton, LLP Attorney General of Indiana
Auburn, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob M. Nodine, August 20, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-290
v. Appeal from the DeKalb Superior
Court
State of Indiana, The Honorable Kevin P. Wallace,
Appellee-Plaintiff. Judge
Trial Court Cause No.
17D01-1910-F6-381
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jacob Nodine (Nodine), appeals his conviction for theft,
a Level 6 felony, Ind. Code § 35-43-4-2(a).
[2] We affirm.
ISSUES
[3] Nodine raises two issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by admitting certain
evidence; and
(2) Whether the State presented sufficient evidence beyond a reasonable
doubt to convict Nodine of theft.
FACTS AND PROCEDURAL HISTORY
[4] On September 5, 2019, Kenneth Jenkins (Jenkins) arrived at approximately
9:45 p.m. at the Wal-Mart in Auburn, Indiana, to work his shift that began at
10:00 p.m. and lasted until 7:00 a.m. the following morning. Because he was
running late, he accidently left his car keys in his 1998 Pontiac Grand Prix.
[5] At 12:08 a.m. on September 6, 2019, about a quarter of a mile from the Wal-
Mart at which Jenkins worked, Officer Justin Nawrocki (Officer Nawrocki) of
the Auburn Police Department conducted a traffic stop of a silver Dodge
Durango which had a broken headlight. The person in the passenger seat
identified himself as Nodine. Shortly after that traffic stop, the Wal-Mart
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surveillance cameras captured the same silver Dodge Durango coming from
“the general area” where Officer Nawrocki had made the traffic stop and enter
the Wal-Mart’s parking lot. (Transcript Vol. II, p. 121). The surveillance video
further showed one of the occupants exit the silver Dodge Durango, enter
Jenkins’ Pontiac Grand Prix and drive away with the vehicle. At the end of his
shift the following morning, Jenkins walked to the parking lot, but his vehicle
was gone. Jenkins reported the incident to the police.
[6] On September 10, 2019, Allen Tink (Tink) was at his car repair shop when two
men walked into his shop. One of the men, who identified himself as “Jake,”
stated that his car had broken down and he wanted to know whether he could
park it on Tink’s property. (Tr. Vol. II, p. 91). When Tink checked, there were
two cars on the side of the road: a Pontiac Grand Prix and a Dodge Durango.
Tink agreed and told the men to leave the keys inside the vehicle. The two men
thereafter pushed the Pontiac Grand Prix into Tink’s driveway.
[7] During their investigation, the police discovered that the Dodge Durango was
registered to a car dealership in Ohio. After the police contacted the dealership,
the dealership supplied information which directed the officers to Nodine’s
address. Also, as part of their investigation, the police began checking areas in
the county where officers had “been recovering stolen vehicles through a rash of
car thefts.” (Tr. Vol. II, p. 175). On September 12, 2019, when the police
visited Tink’s car repair shop, they found Jenkins’ Pontiac Grand Prix.
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[8] When the police spoke to Tink, he reported that “a kid by the name of Jake
stated that [his] car had broke[n] down outside [and] asked if he could leave the
vehicle there.” (Tr. Vol. II, p. 177). Tink indicated that although he did not
know Jake’s last name, he had “seen him around town a few times.” (Tr. Vol.
II, p. 177).
[9] The day after Jenkins’ vehicle was recovered, Detective Mark Heffelfinger
(Detective Heffelfinger) processed the vehicle and he found a cigarette butt, a
cup, and a straw. DNA analysis showed that Nodine contributed to the DNA
sample found on the straw. Detective Heffelfinger later visited Tink’s shop and
he showed Tink a photograph of Nodine to determine if Nodine was the person
Tink knew as Jake. Tink confirmed that Nodine was Jake and that it was
Nodine, who, with the help of another male, pushed Jenkins’ vehicle into his
shop’s driveway.
[10] On October 4, 2019, the State filed an Information, charging Nodine with two
Counts of theft, Level 6 felonies, one Count of criminal mischief, a Class A
misdemeanor, and one Count of driving while suspended, a Class A
misdemeanor. Prior to his jury trial, the State dismissed all the charges but for
the one theft charge relating to Jenkins’ vehicle. At trial, Nodine moved to
suppress Tink’s prior identification of him based on the photograph supplied by
Detective Heffelfinger, but his motion was denied. During Tink’s testimony
and outside the presence of the jury, Nodine made an offer of proof about
Tink’s prior identification of him from the one photograph supplied by
Detective Heffelfinger. When Tink was questioned as to whether he
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remembered identifying Nodine from the photograph, Tink stated that he could
not remember ever seeing the photograph. Later in the trial, Detective
Heffelfinger testified, over Nodine’s objection, that Tink had identified Nodine
from the photograph he had supplied as the man who identified himself as Jake
and as the same man who had pushed Jenkins’ vehicle into Tink’s shop. At the
close of the evidence, the jury found Nodine guilty as charged. On January 16,
2020, the trial court conducted a sentencing hearing and sentenced Nodine to
an executed two-year sentence in the Indiana Department of Correction.
[11] Nodine now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of the Evidence
[12] When ruling on the admissibility of evidence, the trial court is afforded broad
discretion, and we will only reverse the ruling upon a showing of abuse of
discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse
of discretion involves a decision that is clearly against the logic and effect of the
facts and circumstances before the court. Id. We consider the evidence most
favorable to the trial court’s ruling and any uncontradicted evidence to the
contrary to determine whether there is sufficient evidence to support the ruling.
Id.
[13] Nodine argues that Detective Heffelfinger’s procedure of identifying him from a
single photograph was unduly suggestive. Nodine claims that the
circumstances around the identification procedure indicate that it likely
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produced a mistaken identification, and Detective Heffelfinger’s testimony that
Tink identified Nodine as Jake from a single photograph should not have been
admitted into evidence.
[14] “The Due Process Clause of the Fourteenth Amendment requires suppression
of testimony concerning a pre-trial identification when the procedure employed
is impermissibly suggestive.” Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001).
A pre-trial identification may occur in a manner so suggestive and conducive to
mistaken identification that permitting a witness to identify a defendant at trial
would violate due process. Id. A pre-trial photographic identification is
impermissibly suggestive “if it raises a substantial likelihood of misidentification
given the totality of the circumstances.” Id. An argument that an identification
is unduly suggestive is weakened when the witness is not identifying an
unknown defendant but is instead used “simply to confirm that the [suspect that
the witness] identified was the same person as the defendant.” Neukam v. State,
934 N.E.2d 198, 201 (Ind. Ct. App. 2010).
[15] In Neukam, Neukam fathered a child with his ex-girlfriend Jamie Dolan
(Dolan), but Dolan had started dating Carlos Aquino (Aquino). Id. at 199.
Sometime thereafter, Neukam sent Aquino a text message telling him not to
talk to Dolan. Id. In response, Aquino telephoned Neukam, who told Aquino
to watch his back. Id. One day, Neukam went to Dolan’s house and began
hitting Aquino’s car with a flashlight. Id. Aquino was able to drive away to
work but was followed by Neukam. Id. When Aquino eventually parked and
exited his vehicle, Neukam began battering Aquino with the flashlight,
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rendering him unconscious. Id. At the hospital, an officer interviewed Aquino,
and Aquino gave the officer Neukam’s name as his attacker. Id. Later, Aquino
went to the police station where he was shown a single photograph, a BMV
photograph of Neukam, and Aquino identified the person in the photo as
Neukam. Id. The State charged Neukam with battery and criminal mischief.
Id. Neukam subsequently filed a motion to suppress Aquino’s pre-trial
identification of him arguing that the identification process was unduly
suggestive because the police only showed Aquino one photo of him that had
his name. Id. The trial court denied his motion, and at the conclusion of his
jury trial, Neukam was found guilty as charged. Id. On appeal, Neukam
argued that the trial court committed reversible error by overruling his motion
to suppress Aquino’s pre-trial identification. Id. We disagreed and found that
the identification procedure where Aquino confirmed to the police that
Neukam was the same person from the BMV photograph, was not
impermissibly suggestive. Id. at 201. A key part of that holding was that
although the police showed Aquino a single photograph of Neukam, it was not
so that Aquino could identify an unknown assailant, but simply to confirm that
Neukam was the same person as the defendant. Id.
[16] The State argues that we should reach a similar result as our holding in Neukam.
Turning to the facts of this case, when the police spoke with Tink, Tink
reported that a kid named Jake had told him that his car had broken down
outside his shop, and asked Tink to store the vehicle at his shop. Tink
additionally stated that although he did not know Jake’s last name, “he’d seen
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him around town a few times.” (Tr. Vol. II, p. 177). Like the holding in
Neukam, Nodine was not stranger to Tink. Tink had met Nodine/Jake or at
least seen him in person before Nodine/Jake brought him the stolen vehicle.
As in Neukam, Tink already knew the suspect and he simply confirmed that the
perpetrator he knew matched the picture shown to him by Detective
Heffelfinger. Thus, like in Neukam, we hold that Detective Heffelfinger’s
procedure of having Tink confirm that the person who introduced himself as
Jake was Nodine, was not unduly suggestive. Accordingly, we hold that the
trial court did not abuse its discretion in admitting the pretrial identification of
Nodine.
II. Sufficiency of the Evidence
[17] When reviewing a claim of insufficient evidence, it is well-established that our
court does not reweigh evidence or assess the credibility of witnesses. Walker v.
State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,
and any reasonable inferences that may be drawn therefrom, in a light most
favorable to the verdict. Id. We will uphold the conviction “‘if there is
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178
(Ind. 2004)). Circumstantial evidence alone is sufficient to support a
conviction. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). Circumstantial
evidence need not overcome every reasonable hypothesis of innocence. Clemons
v. State, 987 N.E.2d 92, 95 (Ind. Ct. App. 2013). Reversal is appropriate only
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when reasonable persons would not be able to form inferences as to each
material element of the offense. Id.
[18] Pursuant to Indiana Code section 35-43-4-2(a), the State was required to prove
that Nodine “knowingly or intentionally exert[ed] unauthorized control over
property of another person, with intent to deprive the other person of any part
of its value or use[.]” Nodine contends that no evidence was presented that he
operated Jenkins’ vehicle, thus, he maintains that the State provided no
evidence that he stole Jenkins’ vehicle.
[19] The record shows that on the night Jenkins’ vehicle was stolen, Nodine was one
of the male occupants in the Dodge Durango that Officer Nawrocki stopped
shortly before the theft. Further, the Wal-Mart surveillance cameras showed
one of the male occupants exit the Dodge Durango, enter Jenkins’ vehicle, and
drive away with Jenkins’ vehicle. In addition, a few days after Jenkins’ vehicle
was stolen, two men arrived at Tink’s auto repair shop and one of the men who
identified himself as Jake, pushed Jenkins’ vehicle into Tink’s auto shop
driveway. Further, from a photo, Tink confirmed to Detective Heffelfinger that
Nodine and Jake were one and the same person. Lastly, the DNA evidence
confirmed that Nodine’s DNA was inside Jenkins’ vehicle. Based on all the
evidence presented and reasonable inferences, we conclude that the State
presented sufficient evidence beyond a reasonable doubt that Nodine knowingly
or intentionally exerted unauthorized control over Jenkins’ vehicle with the
intent to deprive Jenkins of the value or use of his vehicle.
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CONCLUSION
[20] Based on the foregoing, we conclude that the pre-trial identification of Nodine
as the perpetrator was not impermissibly suggestive and the State presented
sufficient evidence beyond a reasonable doubt to support Nodine’s theft
conviction.
[21] Affirmed.
[22] May, J. and Altice, J. concur
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