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CMU ISR 08732 - FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

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Home Practice Areas Jurisdictions Cases & Codes News CLE Market Center Research a LawyerFindLaw | For Legal Professionals | For Corporate Counsel | For Law StudentsRegister/login to My FindLawMy current location: city | Change LocationFederal Law | State Law | Case Summaries Search | U.S. Code | NewslettersFindLaw> State Resources> Indiana> Primary Materials> Indiana Court OpinionsFOR PUBLICATIONATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:A. FRANK GLEAVES III STEVE CARTERIndianapolis, Indiana Attorney General of IndianaZACHARY J. STOCKDeputy Attorney GeneralIndianapolis, IndianaIN THE COURT OF APPEALS OF INDIANACYRUS SUTHERLIN, ))Appellant-Defendant, ))vs. ) No. 49A02-0208-CR-638)STATE OF INDIANA, ))Appellee-Plaintiff. )APPEAL FROM THE MARION SUPERIOR COURTThe Honorable Jane Magnus-Stinson, JudgeCause No. 49G06-0110-CF-203845February 26, 2003OPINION - FOR PUBLICATIONBROOK, Chief JudgeCase SummaryCyrus Sutherlin (“Sutherlin”) appeals his conviction for Class B felony robbery. See footnote We affirm.IssuesSutherlin raises three issues for our review, which we restate as follows:I. whether the trial court abused its discretion in admitting two photo arrays;II. whether the trial court abused its discretion in denying his motion for mistrial; andPage1of3FindLaw for Legal Professionals-Case Law, Federal and State Resources, Forms, and Code9/13/2007mhtml:file://C:\CMU\LawCourse2007\readings\Evidence\reviewed\SutherlinVIndiana.mhtIII. whether there is sufficient evidence to support his conviction.Facts and Procedural HistoryAt approximately 9:05 a.m. on October 15, 2001, Steven Price (“Price”) traveled to a bank at 3711 North Georgetown Road inIndianapolis. Sutherlin approached Price in the parking lot and asked him a question. After Price told Sutherlin that he had tomake a deposit and did not have time to talk, Sutherlin told him, “give me your money or I’ll blow your mother fucking brainsout.” Tr. at 23. Price refused to give Sutherlin the money, but Sutherlin “just kept on insisting” that he do so. Id. Sutherlinagain demanded the money and pulled a revolver partially out of his pocket. Price grabbed Sutherlin’s arm, and the twostruggled. Ronald Brissey (“Brissey”) exited the bank and witnessed the last ten to fifteen seconds of the struggle. Eventually,Price released Sutherlin’s arm and allowed him to escape with the bag.Later that day, Indianapolis Police Department Sergeant Columbus Ricks (“Ricks”) showed Price a computer-generated photoarray that contained approximately 500 photographs, including Sutherlin’s. Price identified Sutherlin’s photograph as that ofthe robber with 70% to 80% certainty. Ricks later showed Brissey a computer-generated array containing six photographs, alsoincluding Sutherlin’s. Brissey identified Sutherlin’s photograph as that of the robber.On October 18, 2001, the State charged Sutherlin with Class B felony robbery, Class A misdemeanor carrying a handgunwithout a license, See footnote and Class C felony carrying a handgun without a license. See footnote On June 21, 2002, a juryfound Sutherlin guilty of Class B felony robbery and Class A misdemeanor carrying a handgun without a license. The trialcourt then found him guilty of Class C felony carrying a handgun without a license. At Sutherlin’s sentencing hearing on July11, 2002, the trial court granted the State’s motion to dismiss the count of carrying a handgun without a license. Sutherlin nowappeals.Discussion and DecisionI. Admission of Photo ArraysSutherlin contends that the trial court abused its discretion in admitting the photo arrays Ricks showed to Price and Brissey. Asfor the array Ricks showed to Price, Sutherlin failed to object when the State offered it into evidence and has therefore waivedthis issue for review. See Woods v. State, 677 N.E.2d 499, 504 (Ind. 1997) (“Failure to object at trial to the admission ofevidence results in waiver of that issue on appeal.”).At trial, the State could not produce the actual array that Ricks showed to Brissey, and instead offered a second computer-generated array containing the same six photographs. Sutherlin contends that the second array was not the “original” array andwas therefore inadmissible. See Ind. Evidence Rule 1002 (providing in relevant part that “[t]o prove the content of a writing,recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rulesor by statute.”). Indiana Evidence Rule 1001(3) provides in relevant part, however, that “[i]f data are stored in a computer orsimilar device, any printout or other output readable by sight, shown to reflect the data accurately is an ‘original.’” Sutherlindoes not contend that the second array does not accurately reflect the data stored in the computer. The trial court did not abuseits discretion in admitting the second array.II. Motion for MistrialThe trial court granted Sutherlin’s pre-trial motion in limine to bar use of the term “mug shots[.]” Tr. at 7. At trial, Rickstestified that he “[m]ade arrangements [with Price and Brissey] to come to headquarters and view photo arrays or mug shots.”Tr. at 87. Sutherlin contends that the trial court abused its discretion in denying his subsequent motion for mistrial.[T]he question whether to grant a mistrial is largely within the discretion of the trial court, and this decision is extendedsignificant deference because the trial court is deemed to be in the best position to assess the impact of a particular event uponthe jury. To prevail upon appeal from the denial of a motion for mistrial, the defendant must show that the conduct in questionwas so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected.The defendant must also demonstrate that no lesser curative measure would have remedied the perilous situation in which hewas placed.Agnew v. State, 677 N.E.2d 582, 583 (Ind. Ct. App. 1997) (citations omitted), trans. denied.Sutherlin fails to argue either that Ricks’s testimony was so prejudicial and inflammatory that he was placed in a position ofgrave peril or that no lesser measure would have remedied the situation. See Agnew, 677 N.E.2d at 583. As such, Sutherlin hasfailed to carry his burden. We cannot conclude that the trial court abused its discretion in denying his motion for mistrial.III. Sufficiency of the EvidenceSutherlin contends that there is


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CMU ISR 08732 - FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

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