The trial court didn’t err in allowing a victim’s pre-trial identification of his attacker, the Indiana Court of Appeals ruled today in a matter of first impression.

Anthony Neukam attacked his former girlfriend’s new boyfriend, Carlos Aquino, putting Aquino in the hospital. The two have never met but Aquino recognized Neukam from photos in the girlfriend’s home and on the girlfriend’s MySpace page. Aquino told police it was Neukam who attacked him. Police got a print of Neukam’s photo from the Bureau of Motor Vehicles and showed the photo to Aquino; he confirmed that was the man who attacked him.

Before his trial for battery and criminal mischief started, Neukam filed a motion to suppress the out-of-court identification, which the trial court denied. He was convicted of both charges.

In Anthony E. Neukam v. State of Indiana, No. 16A01-1002-CR-50, Neukam argues the identification process was unduly suggestive because the police officer showed Aquino only one photo that had Neukam’s name on it. Even though he failed to object at trial to the identification evidence and waived his claim on appeal, the Court of Appeals addressed it and found he wouldn’t have prevailed.

Aquino wasn’t identifying an unknown assailant and told police who his attacker was right after he was attacked. Only after Aquino said who his attacker was did police show him Neukam’s photo, wrote Judge Paul Mathias.

There isn’t any other Indiana case on this point, but using a case out of Kansas, State v. Franklin, 121 P.3d 447, 453 (Kan. 2005), they found the identification evidence to be properly admitted.

“The police showed Aquino Neukam’s BMV photograph, not so that Aquino could identify an unknown assailant, but simply to confirm that the Anthony Neukam Aquino identified was the same person as the defendant. Under these circumstances, we cannot say that this identification was impermissibly suggestive,” wrote the judge.

The appellate court also found sufficient evidence to support Neukam’s convictions.