Deundre Rashad Kearney v. State of Indiana (mem.dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 18 2017, 9:44 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marce Gonzalez, Jr. Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deundre Rashad Kearney, May 18, 2017 Appellant-Defendant, Court of Appeals Case No. 45A03-1611-CR-2657 v. Appeal from the Superior Court of Lake County State of Indiana, The Honorable Diane Ross Appellee-Plaintiff Boswell, Judge Trial Court Cause No. 45G03-1601-F3-5

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 1 of 4 [1] Deundre R. Kearney appeals his conviction for Level 3 felony armed robbery.

He challenges the sufficiency of the evidence.

[2] We affirm.

Facts & Procedural History

[3] On the evening of January 11, 2016, Olivia Exum was working alone at Gift

Cards for Cash when a young, black male kicked in the door to her office. The

man had a scarf covering the area below his nose, but his eyes, nose, and hair

were showing. Armed with a handgun, he directed Exum to give him

everything. As Exum fumbled while trying to open the register, the man told

her to hurry. He took her purse and cellphone, the store’s iPad, and the cash in

the register. The incident was caught on the store’s surveillance cameras.

[4] When a police officer arrived on the scene shortly thereafter, Exum described

the suspect as a skinny, dark-skinned black male, approximately six feet and

two inches tall, with hair styled in short dreads. Thereafter, on January 21,

Detective Gregory Wolf, a violent crimes investigator, interviewed Exum and

presented her with a photo array.1 Exum positively identified Kearney.

[5] Exum testified at Kearney’s bench trial on September 22, 2016. She recounted

the robbery, identified Kearney, and testified that she was “absolutely positive”

1 Detective Wolf included Kearney’s picture in the array because Kearney was a suspect in two other recent robberies in the area and fit the physical description provided by Exum.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 2 of 4 in her identification even though the robber wore a scarf partially covering his

face. Trial Transcript at 45. The surveillance videos were submitted at trial, as

well as a mug shot taken of Kearney six days after the robbery. Kearney

matched the physical description provided by Exum on the night in question.

[6] The trial court found Kearney guilty as charged of Level 3 felony armed

robbery. In doing so, the court expressly rejected Kearney’s lack-of-

identification defense as follows:

I’ve reviewed the evidence, gone over the photographs, I saw the video. It is clear in the video that the witness, Ms. Exum, had a clear view of what she testified to from the nose - - from the nose up - - from the top of the lip up.

Id. at 80. Kearney now appeals.

Discussion & Decision

[7] As he did below, Kearney challenges the evidence regarding identification. He

argues that a significant portion of the robber’s face was shielded by a scarf and

therefore Exum’s identification of Kearney as the person who robbed her is

“based on a certain degree of speculation.” Appellant’s Brief at 7. Accordingly,

Kearney claims that the evidence was insufficient.

[8] We reject Kearney’s blatant invitation to reweigh the evidence. See McHenry v.

State, 820 N.E.2d 124, 126 (Ind. 2005). The unequivocal identification by a

witness is sufficient to support a conviction. Gorman v. State, 968 N.E.2d 845,

848 (Ind. Ct. App. 2012), trans. denied. Further, “[t]he identity of the

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 3 of 4 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).

[9] Here, Exum positively identified Kearney both in a photo array ten days after

the robbery and at trial. When cross examined regarding her identification of

Kearney, Exum did not sway. Additionally, Kearney fit the physical

description Exum provided of the suspect immediately following the robbery.

The evidence sufficiently established that Kearney committed the robbery.

[10] Judgment affirmed.

Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 4 of 4