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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JOEL M. SCHUMM Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
N.W.W., Appellant-Respondent, vs. STATE OF INDIANA, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 49A02-0706-JV-475

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Scott Stowers, Magistrate Cause No. 49D09-0702-JD-635

December 31, 2008

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary N.W.W. challenges the juvenile court's true finding that he committed robbery, a class B felony if committed by an adult. We affirm. Issue Did N.W.W. preserve any claim of error regarding the constitutionality of a show-up identification? Facts and Procedural History The facts most favorable to the true finding are that on the night of December 14, 2006, Tella Wright had just parked her car and was walking toward her Indianapolis apartment when she heard someone say, "[G]ive me your money." Tr. at 19. She turned around and saw a young male holding a handgun. The area was well lit, and Wright got a good look at the face of the gunman, who was only a foot away from her. Wright told the gunman not to shoot her and gave him her purse. The gunman and another person fled. Wright entered her apartment, told family members about the incident, and called the police. Wright's nephews ran to see if they could catch the robbers. Officer Courtney Harris arrived and spoke with Wright, who described the gunman as a slender black male in his mid to late teens, approximately five feet eight inches tall, wearing dark clothing and blue-andwhite tennis shoes. One of Wright's nephews told Officer Harris that he had overheard a conversation coming from an upstairs window in another apartment about a robbery that had just occurred in the area. Officer Harris and another officer went to that apartment and knocked on the door for several minutes. N.W.W.'s brother H.W. answered the door. Officer Harris asked H.W. if
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anyone else was in the apartment. H.W. replied that N.W.W. was upstairs asleep. Officer Harris asked if H.W. would call his mother. H.W. refused. Officer Harris asked H.W. to get his brother. H.W. tried to close the door, but Officer Harris instructed him to leave it open for officer safety.1 Eventually, H.W. signaled to someone behind the door, and N.W.W. appeared. Fourteen-year-old N.W.W. was nervous and sweating and matched Wright's description of the gunman. Through the doorway, Officer Harris saw two pairs of tennis shoes that appeared to have fresh mud on them. N.W.W. identified the blue-and-white pair as his. Officer Harris asked H.W. and N.W.W. to step outside, and they complied. Another officer brought Wright over. She identified N.W.W. as the person who had robbed her but could not identify H.W. as the second person involved. The officers allowed H.W. and N.W.W. to return to their apartment and transported Wright to her apartment. Approximately forty-five minutes later, the officers saw H.W. and N.W.W. outside walking back toward their apartment. The officers detained them and contacted their mother, who came home from work and consented to a search of the apartment. The officers were unable to find Wright's property or the handgun used in the robbery. The State filed a delinquency petition alleging that N.W.W. had committed acts that would be class B felony robbery and class A misdemeanor carrying a handgun without a license if committed by an adult. At the denial hearing, Wright unequivocally identified
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Officer Harris explained,

[W]e knocked on the door for several minutes before it was actually answered and um, [H.W.] was being so allusive [sic] uh, we didn't know for officer's safety reasons that since a firearm was involved if they were going to shoot the door or a window or, something of that nature.

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N.W.W. as the person who had robbed her.2 Defense counsel objected to the in-court identification, stating, I believe it's hopelessly tainted by a two person line up um, in additionally um, uh, quite some more on that when the police officers testify we'll get that far but you can't drag two kids out of their house without a parent there and make them stand in front of somebody in a police car. Tr. at 17. The court replied, "Well, [the] ultimate question was for [Wright] to identify [N.W.W.] in court and she did that. Whether or not uh, they're able to link that up with something else down the road I guess we'll wait and see." Id. at 18. Defense counsel made no further objections to evidence regarding the show-up identification. After both sides rested, however, defense counsel made an oral motion to suppress the show-up identification evidence on the basis that N.W.W. was illegally seized when Officer Harris asked him to step outside for the show-up. The prosecutor objected, stating, I believe this is an untimely motion this is a pre-trial motion it's not appropriate for him to wait and see. Um, go through his whole trial put all of his witnesses on hear all of our evidence and then decide am I going to win am I going to lose and then decide to put on a suppression hearing. I don't think that this is timely [or] appropriate. I think that this is something that should have been at the beginning of the trial not after all of the evidence[.] Id. at 140. The court replied, "[C]onstitutional issues can be raised at any [time] so there's absolutely nothing wrong with raising it now." Id. The court took the motion under advisement, allowed the parties to file written briefs, and ultimately denied the motion. The

Tr. at 54. Wright confirmed that she was "absolutely one hundred percent sure" that N.W.W. was "the man that pointed a gun at [her] and robbed [her] and took [her] purse[.]" Tr. at 28.
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court entered a true finding on the robbery allegation and a not true finding on the handgun allegation.3 This appeal ensued. Discussion and Decision On appeal, N.W.W. raises several arguments regarding the constitutionality of the show-up identification and the admissibility of that evidence. We need not address those arguments, however, because "it is well settled that where a witness had an opportunity to observe the perpetrator during the crime, a basis for in-court identification exists, independent of the propriety of pre-trial identification." Adkins v. State, 703 N.E.2d 182, 185 (Ind. Ct. App. 1998). N.W.W. does not challenge the sufficiency of the basis for Wright's unequivocal in-court identification of him as the person who robbed her. The evidence regarding the show-up identification was merely cumulative of the in-court identification. "The erroneous admission of evidence that is merely cumulative of other evidence in the record is not reversible error." Beach v. State, 816 N.E.2d 57, 59 (Ind. Ct. App. 2004). Moreover, we conclude that N.W.W. waived any objection to the admissibility of the show-up identification evidence by failing to make timely and specific objections at the denial hearing. See Lewis v. State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001) ("Failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of

The court stated, "Count two carrying a handgun without a license based on the testimony of [Wright] uh I'm not sure she's qualified to determine whether or not that was a firearm under the statute of a handgun so I must enter a not true finding as to count two." Tr. at 174-75; see Ind. Code

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