MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2020, 11:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mond Davidson Kelley, October 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-835 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Kathleen Tighe Appellee-Plaintiff. Coriden, Judge Trial Court Cause No. 03D02-1811-F6-6491
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 1 of 7 Case Summary [1] Mond Davidson Kelley appeals his convictions for Count I, operating a vehicle
after being an habitual traffic offender, a Level 6 felony; Count II, resisting law
enforcement, a Level 6 felony; Count III, possession of marijuana, a Class B
misdemeanor; and Count IV, possession of paraphernalia, a Class C
misdemeanor. We affirm.
Issue [2] Kelley raises a single issue, which we restate as whether the evidence is
sufficient to sustain his convictions.
Facts [3] The facts most favorable to the convictions follow. Shortly before midnight on
October 27, 2018, Officer Drake Maddix of the Columbus Police Department
was driving in a marked patrol unit eastbound on McKinley Avenue in
Columbus. As Officer Maddix approached an intersection known as Five
Points, he passed a gray Honda vehicle travelling westbound on McKinley
Avenue. According to Officer Maddix, he passed within a “couple of feet” of
the gray Honda and observed the driver, whom he identified as Kelley. Tr. Vol.
II p. 71. Officer Maddix was aware that Kelley was an habitual traffic violator
and, therefore, was legally prohibited from operating a motor vehicle. Officer
Maddix described the driver as wearing a flat-billed hat, gray sweatshirt, and
black vest.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 2 of 7 [4] Officer Maddix turned his vehicle around to pursue the Honda. After his initial
identification, Officer Maddix was unable to observe the driver of the Honda.
As Officer Maddix pursued, the Honda turned northbound on Pleasant Grove
and subsequently picked up speed before turning into an alley without
signaling. Officer Maddix activated his siren and emergency lights in order to
initiate a traffic stop.
[5] The Honda turned into a second alleyway, causing Officer Maddix to lose
visual contact. Officer Maddix searched the surrounding area and relocated the
Honda several minutes later, after receiving a call that a vehicle had collided
with the nearby Fast Break Taxi building. When Officer Maddix reached the
collision site, the driver of the Honda had already left the scene. Officer
Maddix spoke with Teresa Allman, who was sitting in her taxi at the scene.
Allman heard the collision, but she did not see who was driving; nor did she see
the driver exit the vehicle. Upon searching the Honda, Officer Maddix located
a silver pipe containing what appeared to be burnt marijuana residue in the
driver’s side door handle, as well as a digital scale and a Swisher Sweets
“Banana Smash” cigar packet containing a substance that Officer Maddix
believed to be marijuana. Finally, Officer Maddix located a cellular phone on
the driver’s side floorboard. 1
1 At trial, the State attempted to definitively establish that the phone belonged to Kelley but withdrew the attempt after a successful objection to admitting the evidence thereof. Tr. Vol. II p. 86.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 3 of 7 [6] While Officer Maddix was still at the Fast Break Taxi building, a records check
determined that the Honda was registered to Amanda Johnson, Kelley’s former
girlfriend. Officer Maddix proceeded to Johnson’s home, where Kelley was
located wearing a flat-billed hat, a gray sweatshirt, and a black vest.
[7] Kelley was arrested, and the State charged Kelley with Count I, operating a
vehicle after being a habitual traffic offender, a Level 6 felony; Count II,
resisting law enforcement, a Level 6 felony; Count III, possession of marijuana,
a Class B misdemeanor; and Count IV, possession of paraphernalia, a Class C
misdemeanor. After a jury trial on October 24, 2019, Kelley was convicted on
all counts. Kelley now appeals.
Analysis [8] Kelley challenges the sufficiency of the evidence to sustain his convictions.
Kelley argues that his convictions all rest on Officer Maddix’s identification of
Kelley as the driver of the Honda, and that the identification was insufficient to
establish Kelley’s guilt beyond a reasonable doubt. We review sufficiency of
the evidence claims in accordance with “a deferential standard, [by] which we
neither reweigh the evidence nor judge witness credibility.” Powell v. State, 151
N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind.
1994)). We must consider only the evidence supporting the judgment and any
reasonable inferences drawn from that evidence. Id. (citing Brantley v. State, 91
N.E.3d 566, 570 (Ind. 2018)). We will affirm a conviction if there is substantial
evidence of probative value that would lead a reasonable trier of fact to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 4 of 7 conclude that the defendant was guilty beyond a reasonable doubt. Id. at 263.
While we seldom reverse for insufficient evidence, we have an affirmative duty
to make certain that the proof at trial is sufficient to support the verdict. Bean v.
State, 818 N.E.2d 148, 150 (Ind. Ct. App. 2004) (citing Bunting v. State, 731
N.E.2d 31, 35 (Ind. Ct. App. 2000), trans. denied).
[9] The lynchpin of this case and the convictions is Officer Maddix’s identification
of the driver of Johnson’s car as Kelley. Our standard of our review requires
that we accept that Officer Maddix believed the driver to be Kelley, and that we
consider the reasonable inferences from that evidence: that the driver was, in
fact, Kelley. Kelley claims that Officer Maddix’s identification was insufficient
to sustain the convictions and raises questions about whether there was
sufficient lighting or time for Officer Maddix to have made an accurate
identification. Kelley argues that the lack of eyewitness testimony to
corroborate Officer Maddix’s identification and the lack of corroborating DNA
evidence or fingerprint evidence affect the credibility of the identification.
Kelley is asking us to reweigh the evidence, which we cannot do. See, e.g.,
Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014) (citing Lock v. State, 971
N.E.2d 71, 74 (Ind. 2012)).
[10] Kelley also argues that the audio from the body camera video footage suggests
that Officer Maddix only thought that the driver was Kelley, whereas Officer
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2020, 11:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mond Davidson Kelley, October 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-835 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Kathleen Tighe Appellee-Plaintiff. Coriden, Judge Trial Court Cause No. 03D02-1811-F6-6491
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 1 of 7 Case Summary [1] Mond Davidson Kelley appeals his convictions for Count I, operating a vehicle
after being an habitual traffic offender, a Level 6 felony; Count II, resisting law
enforcement, a Level 6 felony; Count III, possession of marijuana, a Class B
misdemeanor; and Count IV, possession of paraphernalia, a Class C
misdemeanor. We affirm.
Issue [2] Kelley raises a single issue, which we restate as whether the evidence is
sufficient to sustain his convictions.
Facts [3] The facts most favorable to the convictions follow. Shortly before midnight on
October 27, 2018, Officer Drake Maddix of the Columbus Police Department
was driving in a marked patrol unit eastbound on McKinley Avenue in
Columbus. As Officer Maddix approached an intersection known as Five
Points, he passed a gray Honda vehicle travelling westbound on McKinley
Avenue. According to Officer Maddix, he passed within a “couple of feet” of
the gray Honda and observed the driver, whom he identified as Kelley. Tr. Vol.
II p. 71. Officer Maddix was aware that Kelley was an habitual traffic violator
and, therefore, was legally prohibited from operating a motor vehicle. Officer
Maddix described the driver as wearing a flat-billed hat, gray sweatshirt, and
black vest.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 2 of 7 [4] Officer Maddix turned his vehicle around to pursue the Honda. After his initial
identification, Officer Maddix was unable to observe the driver of the Honda.
As Officer Maddix pursued, the Honda turned northbound on Pleasant Grove
and subsequently picked up speed before turning into an alley without
signaling. Officer Maddix activated his siren and emergency lights in order to
initiate a traffic stop.
[5] The Honda turned into a second alleyway, causing Officer Maddix to lose
visual contact. Officer Maddix searched the surrounding area and relocated the
Honda several minutes later, after receiving a call that a vehicle had collided
with the nearby Fast Break Taxi building. When Officer Maddix reached the
collision site, the driver of the Honda had already left the scene. Officer
Maddix spoke with Teresa Allman, who was sitting in her taxi at the scene.
Allman heard the collision, but she did not see who was driving; nor did she see
the driver exit the vehicle. Upon searching the Honda, Officer Maddix located
a silver pipe containing what appeared to be burnt marijuana residue in the
driver’s side door handle, as well as a digital scale and a Swisher Sweets
“Banana Smash” cigar packet containing a substance that Officer Maddix
believed to be marijuana. Finally, Officer Maddix located a cellular phone on
the driver’s side floorboard. 1
1 At trial, the State attempted to definitively establish that the phone belonged to Kelley but withdrew the attempt after a successful objection to admitting the evidence thereof. Tr. Vol. II p. 86.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 3 of 7 [6] While Officer Maddix was still at the Fast Break Taxi building, a records check
determined that the Honda was registered to Amanda Johnson, Kelley’s former
girlfriend. Officer Maddix proceeded to Johnson’s home, where Kelley was
located wearing a flat-billed hat, a gray sweatshirt, and a black vest.
[7] Kelley was arrested, and the State charged Kelley with Count I, operating a
vehicle after being a habitual traffic offender, a Level 6 felony; Count II,
resisting law enforcement, a Level 6 felony; Count III, possession of marijuana,
a Class B misdemeanor; and Count IV, possession of paraphernalia, a Class C
misdemeanor. After a jury trial on October 24, 2019, Kelley was convicted on
all counts. Kelley now appeals.
Analysis [8] Kelley challenges the sufficiency of the evidence to sustain his convictions.
Kelley argues that his convictions all rest on Officer Maddix’s identification of
Kelley as the driver of the Honda, and that the identification was insufficient to
establish Kelley’s guilt beyond a reasonable doubt. We review sufficiency of
the evidence claims in accordance with “a deferential standard, [by] which we
neither reweigh the evidence nor judge witness credibility.” Powell v. State, 151
N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind.
1994)). We must consider only the evidence supporting the judgment and any
reasonable inferences drawn from that evidence. Id. (citing Brantley v. State, 91
N.E.3d 566, 570 (Ind. 2018)). We will affirm a conviction if there is substantial
evidence of probative value that would lead a reasonable trier of fact to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 4 of 7 conclude that the defendant was guilty beyond a reasonable doubt. Id. at 263.
While we seldom reverse for insufficient evidence, we have an affirmative duty
to make certain that the proof at trial is sufficient to support the verdict. Bean v.
State, 818 N.E.2d 148, 150 (Ind. Ct. App. 2004) (citing Bunting v. State, 731
N.E.2d 31, 35 (Ind. Ct. App. 2000), trans. denied).
[9] The lynchpin of this case and the convictions is Officer Maddix’s identification
of the driver of Johnson’s car as Kelley. Our standard of our review requires
that we accept that Officer Maddix believed the driver to be Kelley, and that we
consider the reasonable inferences from that evidence: that the driver was, in
fact, Kelley. Kelley claims that Officer Maddix’s identification was insufficient
to sustain the convictions and raises questions about whether there was
sufficient lighting or time for Officer Maddix to have made an accurate
identification. Kelley argues that the lack of eyewitness testimony to
corroborate Officer Maddix’s identification and the lack of corroborating DNA
evidence or fingerprint evidence affect the credibility of the identification.
Kelley is asking us to reweigh the evidence, which we cannot do. See, e.g.,
Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014) (citing Lock v. State, 971
N.E.2d 71, 74 (Ind. 2012)).
[10] Kelley also argues that the audio from the body camera video footage suggests
that Officer Maddix only thought that the driver was Kelley, whereas Officer
Maddix testified at trial that he was certain. We do not, however, venture into
“the jury’s exclusive province to weigh conflicting evidence.” McHenry v. State,
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 5 of 7 820 N.E.2d 124, 126 (Ind. 2005) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627
(Ind. 2001)). 2
[11] Kelley points us to our recent decision, Webb v. State, 147 N.E.3d 378 (Ind. Ct.
App. 2020), trans. denied. Kelley argues that we “reversed Webb’s convictions
because of discrepancies in the evidence and lack of physical evidence
connecting Webb to the offenses charged.” Appellant’s Br. p. 12. In Webb, the
State did not introduce a witness providing an identification of the person
alleged to be the shooter as Webb; nor did the State introduce any physical
evidence tying Webb to the crime. Several witnesses gave varying inconsistent
physical descriptions of the person alleged to be Webb, most of which
conflicted with the uncontested proof that Webb had short hair at the time of
the crime. In the absence of any physical evidence or testimony tying Webb to
the crime, the trier of fact in that case was left with insufficient evidence to
reasonably sustain a guilty verdict. We held:
Given the discrepancies in the evidence about Webb’s car and hair, the lack of physical evidence connecting Webb to the offenses, the fact that Speck never identified Webb as the shooter, the vague text messages, and the fact that the location information does not establish that Webb was the shooter, we find that the proof at trial is not sufficient to support the verdicts beyond a reasonable doubt.
2 The same is true for Kelley’s arguments with respect to the credibility of the uncorroborated identification of the marijuana and the matter of whether the recovered cell phone belonged to Kelley.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 6 of 7 Webb, 147 N.E.2d at 387.
[12] In the instant case, however, Officer Maddix identified the driver as Kelley. “A
conviction may be sustained on the uncorroborated testimony of a single
witness.” Jewell v. State, 539 N.E.2d 959, 964 (Ind. 1989) (citing Slaughter v.
State, 531 N.E.2d 185, 186 (Ind. 1988)). How much weight to assign Officer
Maddix’s identification is a matter we are bound to leave up to the jury; and,
except where there is a complete absence of “substantial evidence of probative
value that would lead a reasonable trier of fact to conclude that the defendant
was guilty beyond a reasonable doubt,” we will not second-guess the jury’s
decision. Powell, 151 N.E.3d at 263. Accordingly, the evidence is sufficient to
sustain Kelley’s convictions.
Conclusion [13] The evidence is sufficient to sustain Kelley’s convictions. We affirm.
[14] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-835 | October 30, 2020 Page 7 of 7