Opinion
24A-CR-15
09-30-2024
Joseph Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge The Honorable Ross F. Anderson, Magistrate Trial Court Cause No. 49D27-2305-F5-14813
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Judges Kenworthy and Felix concur.
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Joseph Johnson ("Johnson") appeals, following a jury trial, his conviction for Level 3 felony armed robbery. Johnson argues that: (1) the trial court abused its discretion by admitting into evidence the surveillance videos from the grocery store that was robbed; and (2) there is insufficient evidence to support his robbery conviction. Concluding that the trial court did not abuse its discretion and that there is sufficient evidence to support Johnson's conviction, we affirm Johnson's conviction.
In Johnson's second issue, he argues that the trial court erred by denying his motion for a directed verdict and that the evidence is insufficient to support his conviction. Our Court has explained that our standard of review for a ruling on a directed verdict is "essentially the same" as our standard for reviewing a challenge to the sufficiency of the evidence. See Bass v. State, 947 N.E.2d 456, 459 (Ind.Ct.App. 2011), trans. denied. "If the evidence is sufficient to sustain a conviction on appeal, then a motion for a directed verdict is properly denied[.]" Id. Therefore, we will address Johnson's second issue as a challenge to the sufficiency of the evidence.
We held an oral argument in this case on September 10, 2024 at Arsenal Technical High School. We thank the parties for their able advocacy and thank Arsenal Technical High School for its hospitality.
Issues
1. Whether the trial court abused its discretion by admitting into evidence the surveillance videos from the grocery store that was robbed.
2. Whether there is sufficient evidence to support Johnson's robbery conviction.
Facts
[¶3] Around noon on May 17, 2023, Mefrin Sevilla ("Sevilla") and Edgar Lorenzo Artola ("Artola") were working at a neighborhood grocery store in Marion County. Sevilla, who was the manager, was stocking shelves and working the cash register, and Artola was working in the produce area, which was near the front door. The grocery store had security cameras that recorded videos both inside the store and outside in the parking lot. That day, Johnson parked his tan or gray-colored Kia in the grocery store parking lot, got out of his car, and went into the store. Johnson, who was wearing shorts, a blue t-shirt, and a black winter stocking cap, immediately approached the cash register area and asked Sevilla for some Advil that was behind the counter. Johnson then showed Sevilla that he had a gun in his pocket, and he told Sevilla to give him money from the register. Johnson put the money in a plastic bag, told Sevilla to stay quiet, exited the store, and drove away. Artola then called the police.
When Artola was called to the witness stand at trial, he stated that his name was Edgar Lorenzo Artola and specified that his last name was Artola. During the trial, the prosecutor and a police detective referred to Artola as Mr. Lorenzo. Because Artola specifically stated that his last name was Artola, we will refer to him by that name.
[¶4] Indianapolis Metropolitan Police Department ("IMPD") Detective Robert Lowe ("Detective Lowe") arrived at the grocery store around 12:35 p.m. and interviewed Sevilla and Artola about the robbery and the robbery suspect.
Sevilla and Artola do not speak English, so when Detective Lowe spoke to them, he used IMPD's language line to provide translation services. Detective Lowe had some difficulty communicating with Sevilla and Artola because the grocery store was "very noisy" at the time the detective was using the language line on his phone. (Tr. Vol. 3 at 12). Another grocery store employee ("the third employee"), who was bilingual, arrived at the store while the detective was on the scene, and he then assisted in translation for the detective.
[¶5] After Detective Lowe had interviewed Sevilla and Artola, he then retrieved the surveillance videos recorded by the grocery store. The third employee "knew how to work the DVR, the camera system[,] [s]o [Detective Lowe] asked him if he could help with finding the video in this incident." (Tr. Vol. 3 at 14). Detective Lowe watched the videos while in the store, and Sevilla watched them as well. The third employee "downloaded" the videos for Detective Lowe, and the detective then "reviewed them when [he] . . . got back to the office that day." (Tr. Vol. 3 at 15). When watching the videos, Detective Lowe noticed that the date and time stamps on the videos were incorrect. The videos showed a date of May 18 instead of May 17 and the time of 3:00 p.m. instead of 12:00 p.m. Upon watching the videos, Detective Lowe noted that the videos matched Sevilla's and Artola's description of what had happened during the robbery.
Detective Lowe also noted that, upon seeing the robbery suspect in the video, Sevilla's and Artola's physical description of the robbery suspect was "[p]artially" accurate. (Tr. Vol. 3 at 15). Specifically, their description of the suspect as a person was "pretty close" while that their description of the suspect's clothing was "way off[.]" (Tr. Vol. 3 at 15).
[¶6] One of the videos from the security cameras showed the robbery suspect's vehicle, including the license plate. Detective Lowe noted that the vehicle was a "grayish-tan colored Kia" and that the license plate had a "somewhat curled up" corner. (Tr. Vol. 3 at 18). The detective took a freeze frame from the video, zoomed in on the license plate, and was able to see all the digits of the license plate except the last one. Detective Lowe entered the vehicle make, color, and partial license plate number into the IMPD's Flock system, which is a "license plate reader system that's stationed throughout the entire city" and "take[s] pictures of license plates all day long." (Tr. Vol. 3 at 20). Based on the input filters that Detective Lowe used, there was one vehicle in the system that was a match, and the photograph of that vehicle's license plate also had a curled corner on the license plate.
[¶7] The following morning, on May 18, Detective Lowe sent a department-wide email to IMPD officers to notify them that he was working on a robbery case, and he included a photograph of the robbery suspect's Kia vehicle and license plate and also a photograph of the robbery suspect taken from the surveillance video. Detective Lowe also "flagged" the vehicle in the Flock system so that it would automatically notify officers when the vehicle drove past one of the system's cameras. (Tr. Vol. 3 at 21).
[¶8] That same day, two IMPD officers, who had received Detective Lowe's email, were on patrol when they received a notification from the Flock system that the robbery suspect's vehicle was nearby their location. The officers observed the Kia vehicle and then initiated a traffic stop. Johnson, who was driving the Kia, got out of the car and fled the scene. The officers ran after Johnson, who jumped over a fence and ran down an alley. While Johnson was running, he dropped a gun to the ground. One of the officers was eventually able to apprehend Johnson and arrested him. The officers then took photographs of Johnson and his car and license plate. Johnson was wearing the same shorts and the same blue t-shirt that he had been wearing the previous day. The officers took Johnson to the hospital for a medical check because he had complained of pain. The officers also notified Detective Lowe to inform him that they had apprehended the robbery suspect.
The gun was shaped like a handgun but was a "pellet" or "a CO2 type gun." (Tr. Vol. 2 at 213).
Johnson was wearing two other t-shirts on top of his blue t-shirt.
[¶9] When Detective Lowe arrived at the hospital, he saw that Johnson had been wearing the same clothing as the robbery suspect in the surveillance videos. Detective Lowe saw Johnson in person, "looked at his face, and . . . recognized [him as] the male from the [surveillance] video." (Tr. Vol. 3 at 18). Additionally, Detective Lowe compared a photograph from the robbery video to a photograph that the officers had taken of Johnson upon his arrest. Detective Lowe "compared those side by side" and "determined it was an exact match." (Tr. Vol. 3 at 18). Specifically, Detective Lowe noted that "[t]he skin tone, the build, the facial hair was exactly the same" and that Johnson had "very distinctive frown lines . . . [t]hat w[ere] apparent in the photos as well as the image from the store." (Tr. Vol. 3 at 24-25).
[¶10] The State charged Johnson with Level 5 felony robbery and Level 3 felony armed robbery. The trial court held a two-day jury trial, commencing on October 30, 2023. Johnson's theory of defense was to challenge identification and argue that the State would not be able to identify Johnson as the perpetrator of the robbery.
[¶11] The State presented testimony from Sevilla, Artola, Detective Lowe, and the two officers that had arrested Johnson. The two officers identified Johnson in court as the person who they had arrested on May 18. Detective Lowe also identified Johnson in court as being the person who was arrested and being the person who had robbed the grocery store.
[¶12] During Sevilla's testimony, he testified about how he had been robbed at the grocery store. The State then asked Sevilla if the surveillance videos from the grocery store (State's Exhibits 1-6) provided a true and accurate depiction of how the grocery store looked on the day of the robbery, and Sevilla affirmed that they did. The State then moved to admit the State's Exhibits 1 through 6 into evidence.
[¶13] Johnson objected, arguing that there was a lack of foundation for the admission of the videos. Specifically, Johnson asserted that there had been no evidence that Sevilla had "operated the system, knew how it worked, [or] . . . c[ould] verify its accuracy." (Tr. Vol. 2 at 171). During a sidebar, the trial court asked the State whether it would be providing "further foundational linkage . . . as to how the video was obtained[.]" (Tr. Vol. 2 at 171). The State responded that Detective Lowe, who had been with the third employee when the employee had collected the videos from the grocery store system, would provide the foundational information. (Tr. Vol. 2 at 171). Johnson then argued that, "[u]nder the silent witness theory[,]" the State was required to have a witness who was "able to testify as to the reliability, the accuracy of the video, how it operates, how it is maintained, . . . whether it was working properly on that day, and we don't have that." (Tr. Vol. 2 at 171-72). Johnson asked if the employee who had pulled the videos was going to testify, and the State responded that he was not. The trial court initially overruled Johnson's objection and "conditionally" admitted the exhibits based on the expected "foundation being established by the detective who pulled the video[s] with the assistance of . . . an employee[.]" (Tr. Vol. 2 at 172).
[¶14] Thereafter, the State started to publish the exhibits. The State played Exhibit 1, which was a video that was recorded from a camera that showed the area of the store by the cash register. The video showed Sevilla and Johnson by the cash register when Johnson took money from Sevilla, placed the money in a plastic bag, and walked away from the register.
Exhibit 1 is labeled "Register."
[¶15] The State then started to play Exhibit 2, which was a video that was recorded from a camera that showed part of the grocery store parking lot. Sevilla testified that he recognized the parking lot as the grocery store parking lot. The State played approximately forty-five seconds of the video in Exhibit 2, paused it, and asked Sevilla if he had seen the robbery suspect enter or exit the store. Sevilla replied that he had not and that he had seen the suspect only when he and the suspect were at the cash register.
[¶16] The trial court then called the parties to the bench and told the State that it had not "laid the foundation if he's not in this video and [Sevilla] didn't see this person coming or going[.]" (Tr. Vol. 2 at 176). The trial court then asked the State if "there [were] any other videos that d[id] not contain this particular witness that he cannot authenticate[.]" (Tr. Vol. 2 at 177). The State responded that Exhibits 2 through 6 would "have to be admitted through the other witness[.]" (Tr. Vol. 2 at 177). The trial court then ruled that State's Exhibit 1 was admitted but that Exhibits 2 through 6 were not admitted at that time until "further foundational establishment by the State on those particular exhibits." (Tr. Vol. 2 at 177).
[¶17] During Artola's testimony, he testified that he had seen the robbery suspect drive into the grocery store parking lot, get out of his car, enter the store, exit the store, and drive away. Artola also testified that the robbery suspect had been driving a "small car" that was gray. (Tr. Vol. 2 at 185). Additionally, Artola testified that the robbery suspect was wearing shorts and a "black hat for cold weather." (Tr. Vol. 2 at 186).
[¶18] Before the State offered State's Exhibits 2 through 6 into evidence again, the State had Artola confirm that the surveillance videos showed the "same things that [he had] s[een] on May 17th, 2023[,]" that he "recognize[d] [the video footage] as a true and accurate depiction of [the] store on that day[,]" that he "recognize[d] the car in the video as the car that [he] saw pull up to [the] store on that day[,]" and that he "recognize[d] the person getting out of that car as the person [who] robbed [the store] that day[.]" (Tr. Vol. 2 at 186-87). The State also had Artola confirm that he recognized the video exhibit discs and that the videos showed what he had seen of the robbery suspect and the parking lot on May 17. The State moved to admit Exhibits 2 through 6, and Johnson objected based on a lack of foundation. The trial court sustained Johnson's objection because Artola had not "identif[ied] what even [Exhibits] 2 through 6 [we]re." (Tr. Vol. 2 at 190). The trial court further noted that Artola had "just sa[id] it's a video but not specifically where, what angle." (Tr. Vol. 2 at 190).
[¶19] The State continued questioning Artola to identify Exhibits 2 through 6. Artola testified that the videos in Exhibits 2, 3, 5, and 6 depicted the parking lot, the robbery suspect's car, the suspect entering and exiting the front door of the grocery store, and the suspect driving out of the parking lot. Artola also testified that the videos showed the same robbery suspect and suspect's vehicle that he had seen on May 17. Additionally, Artola identified the titles of Exhibits 2, 3, 5, and 6, which was an explanation of the camera angle.
Artola initially testified that he did not "remember exactly" what Exhibit 4 showed. (Tr. Vol. 2 at 192). He then testified that Exhibit 4 showed the suspect's car sitting in the parking lot.
Exhibit 2 is labeled "Northeast Parking Lot." Exhibit 3 is labeled "Parking Lot - Pulling In." Exhibit 5 is labeled "Parking Lot - Leaving." Exhibit 6 is labeled "Front Door."
[¶20] The State again moved to admit State's Exhibits 2 through 6, and Johnson objected based on a lack of foundation. Specifically, Johnson argued that Artola was "not present in the video[s]" and that he had not testified to the videos' "accuracy." (Tr. Vol. 2 at 194). The trial court admitted Exhibits 2, 3, 5, and 6 but not Exhibit 4. The State played Exhibits 2, 3, 5, and 6 for the jury.
[¶21] The State then offered State's Exhibits 7, 8, and 10 into evidence, which were photographs taken from the surveillance videos. Specifically, Exhibit 7 depicted Johnson's car in the parking lot and Johnson pulling open the grocery store front door, Exhibit 8 was a photograph of Johnson inside the store at the front door, and Exhibit 10 was a photograph of Johnson's car leaving the parking lot and showed his license plate. The State moved to admit these three exhibits, and Johnson said that he had "[n]o objection." (Tr. Vol. 2 at 199).
[¶22] Thereafter, Detective Lowe testified that State's Exhibits 1, 2, 3, 5, and 6 were the surveillance videos that he had obtained from the grocery store on the day of the robbery. Detective Lowe testified that he had arrived on the scene within thirty to forty minutes after the robbery. The detective also explained that the third employee, who had known how to work the DVR and camera system, had assisted him in retrieving and downloading the surveillance videos in these exhibits. Additionally, Detective Lowe testified that the incorrect date and time on the surveillance videos was "extremely common[,]" and he explained how the time stamp was off by one day and three hours. (Tr. Vol. 3 at 26).
[¶23] Detective Lowe testified that he does not assemble a photo array in every case and that he did not do so in this case because the videos were "very good, surprisingly good." (Tr. Vol. 3 at 18). He further testified that Johnson had been arrested the day after the robbery and had been wearing the same blue t-shirt and shorts as seen in the surveillance videos. Detective Lowe also explained how he had compared a photograph from the robbery video to a photograph that the officers had taken of Johnson upon his arrest, "compared those side by side[,]" and had "determined it was an exact match." (Tr. Vol. 3 at 18). The detective further testified that because "the video was so good in this incident[,]" he had been able to identify Johnson as the robbery suspect. (Tr. Vol. 3 at 27). Detective Lowe explained that he was able to do so after seeing Johnson in person at the hospital and the photographs of Johnson upon his arrest and comparing those viewings with the photograph of Johnson walking into the grocery store. Detective Lowe also explained that his identification of Johnson as the robbery suspect was based on the fact that Johnson had been wearing the same clothing the next day, had been driving the same car, and had a handgun.
[¶24] After the State had rested its case, and outside the presence of the jury, Johnson moved for a directed verdict and argued that the State had failed to prove the element of identity. The State argued that identity was a question of fact for the jury and that the State had presented evidence to link Johnson to the crime and crime scene. The trial court denied Johnson's motion, noting that the State had presented evidence such as "the closeness of time" that Johnson had been "located in a particular vehicle that could be a match to the suspect vehicle from the day of the robbery" and "a clothing similarity between the individual depicted in the robbery and the individual that was ultimately apprehended" by police the following day. (Tr. Vol. 3 at 39).
[¶25] The trial court, however, noted that it was "a little uncomfortable" with Detective Lowe's testimony that he had found "a match" when he had viewed the video and photo of the individual at the grocery store and when he observed Johnson at the hospital. (Tr. Vol. 3 at 39). The trial court stated that "it is the province of the jury to make that determination" and that it would give the jury an oral admonishment when the jury returned to the courtroom. (Tr. Vol. 3 at 39). Thereafter, when the jury returned, the trial court admonished the jury as follows:
Ladies and gentlemen of the jury, Detective Lowe did testify that he reviewed video from the robbery at the grocery store. He also stated that he saw Joseph Johnson in person on May 18th of
2023, and that in reviewing the video and comparing what he saw, that it was a match. This is the detective's opinion. Jurors, it is your duty to review the evidence and determine if the State has proven identification in this case. You may consider the detective's testimony, but you should also conduct your own evaluation of the evidence in arriving at your final decision.(Tr. Vol. 3 at 43).
[¶26] During closing arguments, both the State and Johnson made arguments regarding Johnson's identification as the person who had robbed the grocery store. During the jury's deliberations, they requested to view the surveillance videos in State's Exhibits 1, 2, 3, 5, and 6. The trial court had the bailiff play the videos for the jury in the courtroom outside the presence of the parties. The jury found Johnson guilty as charged.
[¶27] During Johnson's sentencing hearing, the trial court vacated the Level 5 felony robbery conviction due to double jeopardy concerns. The trial court sentenced Johnson on his Level 3 felony armed robbery conviction to twelve (12) years executed in the Indiana Department of Correction.
[¶28] Johnson now appeals. Decision
[¶29] Johnson argues that: (1) the trial court abused its discretion by admitting into evidence the surveillance videos from the grocery store that was robbed; and (2) there is insufficient evidence to support his conviction. We will review each argument in turn.
1. Admission of Evidence
[¶30] Johnson first argues that the trial court abused its discretion by admitting into evidence the surveillance videos. Specifically, Johnson challenges the admission of State's Exhibits 1, 2, 3, 5, and 6.
[¶31] The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh'g denied. We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh'g denied.
[¶32] Johnson argues on appeal, as he did at trial, that the surveillance videos should not have been admitted into evidence due to a lack of foundation. Specifically, Johnson contends that the State failed to authenticate the video exhibits under Evidence Rule 901. On the other hand, the State argues that Johnson waived his challenge to the admission of the video exhibits because he makes no cogent argument and further asserts that the trial court properly admitted the surveillance videos under the silent witness theory.
[¶33] We decline the State's request to find waiver, and we will address the evidentiary issue. Additionally, we agree that the trial court did not abuse its discretion by admitting the surveillance videos into evidence; however, we conclude that the videos were properly admitted as demonstrative evidence.
[¶34] Indiana Evidence Rule 901(a) provides that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Our Court has explained that "[p]hotographs and videos can be authenticated through either a witness's testimony or, in instances in which no witness observed what a photograph or video portrays, the silent-witness theory." McFall v. State, 71 N.E.3d 383, 388 (Ind.Ct.App. 2017) (citing 13 Robert L. Miller, Jr., Indiana Practice Series: Evidence § 901.209 (4th ed. 2016)) (emphases added). See also Evid. R. 901(b)(1) (providing that the authentication requirement can be satisfied by "[t]estimony that an item is what it is claimed to be, by a witness with knowledge"); Evid. R. 901(b)(9) (providing that the authentication requirement can be satisfied by presenting "[e]vidence describing a process or system and showing that it produces an accurate result").
[¶35] Here, the surveillance videos at issue were admitted through witnesses with knowledge and who testified that the videos were what they claimed them to be. Specifically, Sevilla and Artola testified that they had been in the grocery store at the time of the robbery and that they had personally observed what the videos portrayed. Sevilla and Artola provided testimony regarding what the robbery suspect had done while at the grocery store on the day of the robbery and confirmed that the surveillance videos truly and accurately depicted what they had seen of the suspect and his vehicle. Sevilla testified the robbery suspect had approached the cash register area, asked Sevilla for some Advil that was behind the counter, showed Sevilla that he had a gun in his pocket, and told Sevilla to give him money from the register. Sevilla confirmed that State's Exhibit 1 accurately depicted what had occurred at the cash register. Artola testified that he had seen the robbery suspect drive into the parking lot, get out of his vehicle, walk into the store, exit the store, and then drive away. Artola confirmed that State's Exhibits 2, 3, 5, and 6 accurately depicted the same person and the same vehicle that he had seen on the day of the robbery.
[¶36] The surveillance videos were demonstrative evidence of Sevilla's and Artola's testimony. "Videos and photographs are often offered as demonstrative evidence[.]" Irwin v. State, 229 N.E.3d 567, 571 (Ind.Ct.App. 2024), trans. denied. "Demonstrative evidence is evidence offered for purposes of illustration and clarification." Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Videos or photographs may be admitted as demonstrative evidence if they illustrate a matter about which a witness has been permitted to testify and if they are authenticated by a witness. Timberlake v. State, 679 N.E.2d 1337, 1340-41 (Ind.Ct.App. 1997). "The foundation for videos or photographs as demonstrative evidence requires testimony that the evidence accurately depict[s] the scene or occurrence as it appeared at the time in question." Irwin, 229 N.E.3d at 571 (cleaned up). Additionally, "[t]he admissibility of demonstrative evidence, like all evidence, is also subject to the balancing of probative value against the danger of unfair prejudice." Wise, 719 N.E.2d at 1196.
[¶37] Here, Sevilla and Artola were present at and observed the scene that was recorded by the surveillance videos. These videos illustrated the activity and matters about which Sevilla and Artola had experienced and were permitted to testify. Sevilla and Artola testified that the videos accurately depicted the scene and occurrences at the time of the robbery, and they were both subject to cross-examination. Moreover, the videos were relevant because they depicted the scene that Sevilla and Artola had described. Accordingly, we conclude that the trial court properly admitted the videos as demonstrative evidence. See, e.g., Edwards v. State, 762 N.E.2d 128, 137 (Ind.Ct.App. 2002) (explaining that the silent witness theory did not apply to the challenged store's surveillance video and holding that the video was properly admitted as demonstrative evidence where the store clerk, who was present at the store during the offense, testified at trial about the activities in the video and was available for cross-examination), aff'd on reh'g, trans. denied.
[¶38] Moreover, assuming without deciding that the surveillance videos were erroneously admitted as substantive evidence under the silent witness theory, we conclude that any such error was harmless. See Ind.App. R. 66(A) (explaining that an error is harmless where it is "sufficiently minor so as not to affect the substantial rights of the parties"). Our Indiana Supreme Court has explained that when conducting a harmless error review under Appellate Rule 66(A), our Court is to "consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case." Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. "Ultimately, the error's probable impact is sufficiently minor when- considering the entire record-our confidence in the outcome is not undermined." Id. See also Hunter v. State, 72 N.E.3d 928, 932 (Ind.Ct.App. 2017) (explaining that "[t]he improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact"), trans. denied.
[¶39] The surveillance videos were cumulative of Sevilla's and Artola's testimony explaining how a man, who was wearing shorts and a black winter hat, had driven up to the grocery store in a gray car, entered the grocery store, spoken to and robbed Sevilla, exited the store, and then driven away. While Johnson attempts to challenge the admission of the surveillance videos, he fails to acknowledge that he had no objection to the State's admission of photographs from the video recordings (State's Exhibits 7, 8, and 10). Furthermore, Johnson did not object to Detective Lowe's testimony about viewing the videos and his explanation of how the police had apprehended Johnson and confirmed that he was the person who had committed the robbery. Detective Lowe arrived on the scene within thirty to forty minutes after the robbery and watched the surveillance videos while at the store. From those videos, Detective Lowe was able to see the make and color of the robbery suspect's vehicle as well as the license plate. Additionally, Detective Lowe was able to see the robbery suspect, including his clothing, face, facial hair, build, and frown lines. Detective Lowe entered the suspect's license plate and vehicle information into the IMPD's Flock system and discovered that only one vehicle in Marion County matched the entered description. The day after the robbery, two police officers received a Flock system alert that the suspect's vehicle was nearby their location. The officers initiated a traffic stop of that vehicle, and Johnson, who was driving the car, fled the scene. The officers apprehended Johnson, and he was wearing the same clothes as the robbery suspect had worn the prior day. Detective Lowe saw Johnson in person and in arrest photographs, and the detective determined that Johnson's clothing, skin tone, build, facial hair, and frown lines were a match to the robbery suspect he had seen in the surveillance videos.
Additionally, Detective Lowe made an in-court identification of Johnson. We conclude that the probable impact of any possible error in admitting the challenged surveillance videos, in light of all the evidence in this case, is sufficiently minor so as not to undermine our confidence in the outcome of this case. Accordingly, we conclude that any potential error in the admission of the evidence would have been harmless error.
2. Sufficiency
[¶40] Johnson contends that there is insufficient evidence to support his Level 3 felony armed robbery conviction. Our standard of review for sufficiency of the evidence claims is well settled. We "consider only the probative evidence and reasonable inferences supporting the verdict." Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (emphasis in original). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. at 146-47. The evidence is sufficient if an inference may be reasonably drawn from it to support the verdict. Id. at 147.
[¶41] The robbery statute, INDIANA CODE § 35-42-5-1, provides that a person who knowingly or intentionally takes property from another person or from the presence of another person by using or threatening the use of force on any person and while armed with a deadly weapon commits robbery as a Level 3 felony. I.C. § 35-42-5-1(a). Thus, to convict Johnson of Level 3 felony robbery, the State was required to prove beyond a reasonable doubt that Johnson, while armed with a deadly weapon, knowingly or intentionally took money from Sevilla by using or threatening the use of force.
[¶42] Johnson challenges the sufficiency of the element of identification. Specifically, Johnson asserts that "[t]he State presented no evidence [that] Johnson robbed Sevilla at the store." (Johnson's Br. 9-10). We disagree.
[¶43] "The identity of the perpetrator of a crime is a question of fact, not law, and the weight given to identification evidence and any determination of whether it is satisfactory or trustworthy is a function of the trier of fact." Watkins v. State, 551 N.E.2d 1145, 1147 (Ind. 1990). The evidence, as set forth in detail in the issue above, reveals that the State presented sufficient evidence to identify Johnson as the perpetrator of the robbery at the grocery store, and we will not repeat that evidence here. Johnson's argument challenging the sufficiency of the evidence regarding his identification is nothing more than a request to reweigh the evidence and the jury's credibility determination, which we will not do. See Drane, 867 N.E.2d at 146. The evidence presented during the trial supports the jury's determination that Johnson, while armed with a deadly weapon, knowingly or intentionally took money from Sevilla by using or threatening the use of force. Accordingly, we affirm Johnson's conviction.
At the end of Johnson's identification argument, he makes a mere assertion, without further argument, as to whether the State had proven that "Johnson forcibly took property from Sevilla." (Johnson's Br. 16). Because Johnson has not supported his assertion with cogent reasoning or supporting caselaw, we will not address the merits of this assertion. See Ind. Appellate Rule 46(A)(8)(a).
[¶44] Affirmed.
Kenworthy, J., and Felix, J., concur.