JY v. State

816 N.E.2d 909, 2004 WL 2397385
CourtIndiana Court of Appeals
DecidedOctober 27, 2004
Docket71A03-0403-JV-103
StatusPublished
Cited by2 cases

This text of 816 N.E.2d 909 (JY v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JY v. State, 816 N.E.2d 909, 2004 WL 2397385 (Ind. Ct. App. 2004).

Opinion

816 N.E.2d 909 (2004)

J.Y., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 71A03-0403-JV-103.

Court of Appeals of Indiana.

October 27, 2004.

*911 Jill Ulrich, St. Joseph County Public Defender, South Bend, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Daniel Jason Kopp, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

J.Y. appeals from his adjudication as a delinquent child for committing Attempted Child Molesting, as a Class B felony, and Child Molesting, as a Class C felony, when committed by an adult. He presents the following issues for our review:

1. Whether the juvenile court abused its discretion when it admitted into evidence testimony regarding the victim's out-of-court identification of J.Y.
2. Whether the State presented sufficient evidence to support his adjudication as a delinquent child.

We reverse.[1]

FACTS AND PROCEDURAL HISTORY

On April 22, 2003, in the early evening, then eight-year-old A.B., an African-American girl, was riding her bike in the alley behind her house in South Bend when she encountered two Caucasian, teenaged boys who are brothers. One or both of the boys forced A.B. into a van parked off of the alley, shoving or dragging her through a large, broken-out window. Inside the van, the rear seat cushions were folded flat, creating a large, mattress-like area. The younger brother removed A.B.'s clothes, began to rub his penis on the outside of A.B.'s vagina, and ejaculated onto her abdomen and the van's seat cushion. During that time, the older brother was standing right outside the van. Then the younger brother exited the van, and the older brother entered the van and began rubbing his penis on the outside of A.B.'s vagina. A.B. shouted out "No!" and the boy stopped without ejaculating. A.B. then exited the van and went home.

A.B. did not tell her grandmother, her legal guardian, about the incident. But the next day at school, A.B. told her teacher what had happened. Accordingly, A.B.'s teacher took her to the principal's office, and the principal telephoned A.B.'s grandmother, Freddie Blake. A social worker assigned to the school drove A.B. home and then accompanied A.B. and Blake to the hospital for a physical examination. The physician who examined A.B. did not find any signs of sexual assault.

On April 25, 2003, A.B. underwent a videotaped interview with Angie Scott, a social worker with the CASIE Center. During that interview, A.B. reluctantly described the encounter and stated that the assailants were two Caucasian, teenaged brothers, one of whom is named Michael. A.B. did not provide either Scott or police with any additional physical characteristics to describe the boys.

Detective Cynthia Eastman of the South Bend Police Department began her investigation into the alleged sexual assault and learned that the van was owned by Tom Fairres, a Caucasian man living in a house across the alley from A.B.'s house and *912 whose three Caucasian, teenaged sons were living with him. Detective Eastman obtained photographs of Fairres' sons T.Y., J.Y., and C.Y. to include in a photo array for A.B.'s consideration. In addition to those three photos, which had been copied from the boys' school identification cards, Detective Eastman chose three additional photos of boys who were roughly the same ages as the suspects and who shared some of the same basic physical characteristics. In the photo array, Fairres' three sons are wearing white t-shirts, and the other three boys are wearing collared shirts and ties. Two of the other boys are also wearing blazers.

Detective Eastman showed the photo array to A.B. in the principal's office at her school. Also present were Blake and A.B.'s teacher. Detective Eastman advised A.B. that her assailants' photographs might not be in the array. After looking at the array for less than one minute, A.B. began shaking and pointed at the photographs numbered 2 and 5. Those photographs depicted J.Y. and C.Y., respectively.

The State filed a petition against J.Y. alleging his delinquency for two counts of child molesting, one as a Class B felony and one as a Class C felony when committed by an adult. At the hearing, J.Y. moved to suppress Detective Eastman's testimony regarding A.B.'s out-of-court identification of him alleging that the photo array was impermissibly suggestive. The juvenile court denied that motion. When A.B. testified, she could not identify either J.Y. or his brother, who were both sitting in the courtroom. A.B. referred to the older assailant as "Plain Old Boy," but there was no evidence showing that that was J.Y.'s nickname. A.B. used J.Y.'s first name to identify the older assailant, but did not indicate when or where she had heard his name. And, instead of pointing to J.Y. in making the identification, she pointed to someone else sitting in the back row of the gallery in the courtroom. J.Y. was sitting toward the front of the courtroom at his counsel's table. A.B. subsequently testified that neither of the assailants was present in the courtroom. At the conclusion of the hearing, the juvenile court adjudicated J.Y. a delinquent child. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Photo Array

J.Y. first contends that the juvenile court abused its discretion when it admitted into evidence Detective Eastman's testimony regarding A.B.'s out-of-court identification of him after looking at a photo array. Specifically, J.Y. maintains that the photo array was impermissibly suggestive and, as such, that the identification violated his right to due process. We must agree.

Due process of law under the Fourteenth Amendment to the United States Constitution requires suppression of testimony about a pre-trial identification when the procedure employed is unnecessarily suggestive. Parker v. State, 698 N.E.2d 737, 740 (Ind.1998). Otherwise, the defendant is subjected to the unacceptable risk that the identification process was conducted in such a way that it created a substantial likelihood of irreparable misidentification. Id. Whether the procedure employed was unnecessarily suggestive in a particular case is to be determined under the totality of the circumstances. Id. Our supreme court has held that a photo array is not impermissibly suggestive if the defendant "does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features." Farrell v. State, 622 N.E.2d 488, 494 (Ind.1993).

*913 Factors to be considered in evaluating the likelihood of a misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; and (4) the level of certainty demonstrated by the witness. Parker, 698 N.E.2d at 740. Among other factors the court may consider are: (1) the manner and form in which the police asked the witness to identify the suspect and the witness's interpretation of their directives; and (2) whether the police focused on the defendant as the prime suspect, either by their attitude or the makeup of the photo array. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

C.L.Y. v. State
816 N.E.2d 894 (Indiana Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
816 N.E.2d 909, 2004 WL 2397385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jy-v-state-indctapp-2004.