Mario Kelly v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2016
• Docket: 49A05-1604-CR-853
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 14 2016, 9:00 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mario Kelly, November 14, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1604-CR-853 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G03-1510-F5-38133

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016 Page 1 of 5 [1] Following a jury trial, Mario Kelly was convicted of criminal recklessness as a

Level 5 felony and carrying a handgun without a license as a class A

misdemeanor. On appeal, Kelly argues that the State presented insufficient

evidence to support his convictions.

[2] We affirm.

Facts & Procedural History

[3] In July 2015, Kelly cheated on his girlfriend with Kristin Davis. On July 28,

2015, Davis told Kelly’s girlfriend about her sexual encounter with Kelly and

then informed Kelly that she had done so. Late that night or in the early

morning hours of July 29, 2015, Davis was alone in her apartment when she

heard someone outside. She tried to look through the peephole in her front

door, but it was obstructed. When she looked again, the obstruction had been

removed and she saw Kelly standing outside her front door. He did not knock

or say anything, and after a few moments, he turned and walked away. Davis

was frightened, so she called 911.

[4] While Davis was on the phone with the 911 operator, she saw Kelly standing at

her back patio door. Again, he did not knock or say anything to her, but he put

his hand up to his ear as if to communicate that he could not hear her. Davis

told Kelly that she was not going to let him in, and he then went back to his car.

Kelly sat in the car for a moment before pulling the car up to Davis’s patio

door. Kelly then began firing a gun into Davis’s apartment. Davis hid behind a

wall until the gunfire stopped, and she then climbed out a window and ran

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016 Page 2 of 5 down the street, where she found a police officer. Davis remained on the line

with the 911 operator throughout the entire incident, and when police

responded to the crime scene, they found three spent rounds and multiple bullet

holes throughout Davis’s apartment.

[5] As a result of these events, the State charged Kelly with Level 5 felony criminal

recklessness and class A misdemeanor carrying a handgun without a license.

The State also filed a separate information seeking an enhancement of the

misdemeanor charge to a Level 5 felony based on Kelly’s prior felony

conviction. A jury trial was held on March 17, 2016, at the conclusion of

which Kelly was found guilty of criminal recklessness and carrying a handgun

without a license as a class A misdemeanor. After the jury rendered its verdict,

the State dismissed the enhancement of the handgun charge. On April 1, 2016,

the trial court sentenced Kelly to four years, with three years executed in the

Indiana Department of Correction and one year served through community

corrections. This appeal ensued.

Discussion & Decision

[6] Kelly challenges the sufficiency of the evidence supporting his convictions.

Our standard of review for sufficiency of the evidence claims is well settled.

We consider only the probative evidence and reasonable inferences supporting

the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

assess the credibility of witnesses or reweigh evidence, and we will affirm unless

no reasonable fact-finder could find the elements of the crime proven beyond a

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016 Page 3 of 5 reasonable doubt. Id. It is not necessary that the evidence overcome every

reasonable hypothesis of innocence; rather, the evidence will be found sufficient

if an inference may reasonably be drawn from it to support the conviction. Id.

at 147. “The uncorroborated testimony of one witness, even if it is the victim,

is sufficient to sustain a conviction.” Whitener v. State, 982 N.E.2d 439, 444

(Ind. Ct. App. 2013), trans. denied.

[7] Kelly does not argue that he had a valid license to carry a handgun, nor does he

dispute that someone fired a handgun into Davis’s apartment on the night in

question. Instead, he challenges whether the State presented sufficient evidence

to establish that he was the individual who did so. Specifically, Kelly argues

that Davis “was absolutely incapable of making an identification of the shooter

at a significant distance, at night and under poor lighting conditions.”

Appellant’s Brief at 8. We will not indulge Kelly’s blatant request to reweigh the

evidence and judge the credibility of witnesses. Davis testified that she saw

Kelly standing outside her front door and then outside her back patio door. She

testified further that she saw Kelly leave her patio and get into his car, and that

he then pulled his car up to her back door. Davis then heard gunshots. Davis

testified that she could see the “flash” as the gun went off and that she saw

Kelly behind the flash. Transcript at 132, 159. Davis’s trial testimony was

supported by the recording of the 911 call that was submitted into evidence, and

one of the responding officers testified that the bullets had entered the

apartment through the back patio door. Kelly’s convictions were amply

supported by the evidence.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016 Page 4 of 5 [8] Judgment affirmed.

[9] Bradford, J. and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016 Page 5 of 5