Neil C. Albee, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Tippecanoe Superior Court The Honorable Sean M.
Persin, Judge Trial Court Cause No. 79D05-1511-F6-502
Attorney for Appellant Christopher P. Phillips Phillips Law
Office, P.C. Monticello, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
Neil Albee appeals his convictions for Level 6 felony
voyeurism and Class B misdemeanor residential entry. We
Albee raises two issues, which we restate as:
I. whether the trial court abused its discretion by admitting
into evidence the victim's pre-trial and in-court
identifications of Albee; and
II whether the evidence as a whole is sufficient to support
Albee's convictions, thereby permitting his retrial.
On October 31, 2015, Margaret Schuerger was at home in her
sorority house on Purdue University's campus in
Tippecanoe County. At approximately 10:30 p.m., she took a
shower. While she was in the shower, Schuerger noticed
someone standing outside the obscure-glass shower door.
Although Schuerger could not see the person in detail, she
could tell the figure was tall and dressed in dark clothing.
Schuerger waited for a minute, and the shower door, which
stays fastened with a magnetic closure, opened approximately
one inch. Schuerger pulled the door closed again, and the
figure moved away.
Schuerger finished her shower and returned to her bedroom.
She was sitting on her bed texting a friend when she heard
her bedroom door open. Schuerger looked up and saw the
reflection of a man in the full-length mirror that connects
the two rooms of her suite. Schuerger and the man "made
eye contact" in the mirror for a few seconds. Tr. p.
216. The man left, and, after summoning a housemate,
Schuerger called the police. Schuerger described the man she
saw in the mirror as approximately forty years old and
wearing a hooded navy blue sweatshirt and jeans. She also
said he had dark, curly hair that was "very distinctly
matted down on his forehead." Id. at 217. The
man was not wearing a hat.
Officers from the Purdue University Police Department
("PUPD") arrived and searched the area around the
sorority house. At 12:19 a.m. on November 1, 2015, the PUPD
observed Albee in the parking lot adjacent to Schuerger's
sorority house and detained him. Officers then accompanied
Schuerger to the parking lot and asked her if she could
identify "the suspect, " Albee, as the man she saw
in her house. Id. at 73.
Schuerger observed Albee from approximately thirty yards
away. Albee was wearing a hat. He was handcuffed, and there
were at least six police officers around him. Schuerger could
see three police cars. Albee was illuminated by the spotlight
from one of the police cruisers. In addition to Schuerger
viewing Albee from a distance, a police officer also took a
picture of him with a digital camera and took it to Schuerger
to view. Schuerger was not completely sure Albee was the man
she saw in her house, though she testified, "I thought
about where we live on college campus back in our
neighborhood it's all Greek houses so most people are
under the age of twenty-three. And so, it made sense that
this could - this is the only person who matched the
identification one hundred percent spot on."
Id. at 238. In order to help facilitate a more
certain identification, the officers asked Schuerger to go to
the police station to view Albee in better lighting.
When Albee arrived-in custody-at the police station, an
officer escorted him to an interview room. The officer then
took Schuerger into another area of the police station where
she was able to watch Albee via a closed-circuit television.
The officers took photographs of Albee-with and without his
hat-with a digital camera and asked Schuerger to identify him
from the digital image on the camera's screen. The
officers did not compile a photo array or organize a lineup.
Schuerger identified the image of Albee on the camera as the
man she saw in her house.
The State charged Albee with voyeurism, a Class B
misdemeanor; voyeurism, a Level 6 felony; residential entry,
a Level 6 felony; and with an habitual offender enhancement.
Albee filed a motion to suppress Schuerger's
identification of him, and the trial court denied that
motion. In March 2016, Albee was tried by a jury, but that
jury was unable to reach a verdict. On April 28, 2016, a
second jury found Albee guilty of Class B misdemeanor
voyeurism and Level 6 felony residential entry. During the
trial, Albee objected when the State offered evidence related
to Schuerger's pretrial viewings and identification of
Albee and her in-court identification. Albee waived his right
to a jury trial with regard to the Level 6 felony enhancement
to his voyeurism ...