Joshua Conn v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Apr 05 2017, 6:46 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Conn, April 5, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1606-CR-1268
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G03-1506-F1-22973
Bailey, Judge.
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Case Summary
[1] Joshua Conn (“Conn”) appeals his conviction for Attempted Murder, a Level 1
felony.1 We affirm.
Issues
[2] Conn presents two issues for review:
I. Whether sufficient identification evidence supports the
conviction; and
II. Whether the trial court abused its discretion by admitting
into evidence a photographic array and permitting related
testimony.
Facts and Procedural History
[3] In June of 2015, Curtisha Patterson (“Patterson”) lived with her girlfriend,
Tiara Taylor (“Taylor”), and Taylor’s children in an Indianapolis apartment.
Tiara Davis (“Davis”) and her child had been staying there temporarily. On the
evening of June 25, 2015, KayCie Glenn (“Glenn”) knocked on the apartment
door. She was accompanied by Conn.
[4] Recognizing Glenn as Taylor’s former co-worker, Patterson opened the door.
Glenn began to confront Taylor as to why her telephone number would be
1
Ind. Code §§ 35-42-1-1, 35-41-5-1. He does not challenge his conviction for Carrying a Handgun Without a
License, as a Class A misdemeanor, I.C. § 35-47-2-1.
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programmed into Conn’s telephone. Taylor denied involvement with Conn.
When Davis asked Taylor if she knew Glenn and Conn, Conn interjected
“what the f--- is it to you?” (Tr. at 109). This angered Patterson, and Conn and
Patterson began to argue and trade insults.
[5] Glenn persuaded Conn to go outside, away from the children. Eventually, all
the adults moved outside and the argument and mutual insults continued.
Patterson swung a pocket knife at Conn, but Davis and Taylor held her back,
and the knife did not touch Conn. Conn repeatedly instructed the women
“don’t hold her back.” (Tr. at 111.) As Glenn and Conn prepared to leave in
Glenn’s vehicle, Conn said “I’ll be back.” (Tr. at 111.) With Glenn driving
away, Conn screamed “F--- that bitch. I’m coming to kill that bitch.” (Tr. at
190).
[6] Patterson called her cousin, Avante Collier (“Collier”), and reported the
encounter. Collier soon arrived at the apartment complex parking lot,
accompanied by a friend. They stayed in the parking lot to talk with Patterson.
Meanwhile, Taylor and Davis had decided to take their children and leave.
They placed the three children in their vehicle and Davis got behind the wheel.
[7] Approximately ten minutes after their argument, Patterson saw Conn in the
parking lot. She and Collier approached him. When Patterson and Conn were
two or three cars lengths apart, Conn raised a gun and began firing at Patterson.
Two bullets struck her, one in the stomach and one in the leg. As Patterson
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crawled away, she continued to hear shots. Collier saw the shooter take off
running.
[8] Hearing shots fired, Davis began to drive away. She immediately saw Conn
running toward Emerson Avenue. Taylor also observed Conn running toward
Emerson Avenue. The women decided to drive back and look for Patterson,
and they found her collapsed in the parking lot. With assistance from Collier,
Taylor and Davis loaded Patterson into their vehicle and took her to a nearby
hospital. Patterson survived her extensive injuries, but endured five surgeries.
[9] Conn was charged with, and a jury found him guilty of, Attempted Murder and
Carrying a Handgun Without a License. He received an aggregate sentence of
thirty-five years. This appeal ensued.
Discussion and Decision
Sufficiency of the Evidence
[10] Conn argues that “the evidence is insufficient to sustain the verdict of guilt[y]
on the attempted murder count, since the evidence fails to reliably identify
Conn, beyond a reasonable doubt, as the person who shot Patterson.”
Appellant’s Brief at 14.
[11] When we review a claim of insufficient evidence, “we consider only the
evidence and reasonable inferences most favorable to the convictions, neither
reweighing evidence nor reassessing witness credibility.” Griffith v. State, 59
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N.E.3d 947, 958 (Ind. 2016). “We affirm the judgment unless no reasonable
factfinder could find the defendant guilty.” Id.
[12] At trial, Patterson testified that she saw Conn point his gun “straight at” her
and shoot it. (Tr. at 52.) She saw flashes from the gun and was struck by the
first two shots. Conn argues, however, that Patterson’s testimony lacks
reliability because the parking lot was not well-lit and Patterson could have
identified Conn as revenge for the earlier argument. His argument presents a
blatant request to reweigh evidence, which we cannot do. Griffith, 59 N.E.3d at
958.
[13] Conn also points to evidence that shell casings were recovered from two
different guns, and claims that the jury was invited to merely “assume” that
Conn as opposed to a second shooter fired the bullets that struck Patterson.
Appellant’s Brief at 19. We reject Conn’s argument. First, Patterson testified
that she observed Conn fire the shots that struck her stomach and leg. Second,
the State was not required to prove that Conn acted alone. Rather, the State
was required to prove that he, with requisite intent, took a substantial step
toward committing murder. See I.C. § 35-41-5-1.
Admission of Evidence
[14] Conn next contends that the trial court should have excluded copies of a
photographic array with Conn’s photograph marked by Taylor and Davis, as
well as related testimony. We review a trial court’s decision to admit or
exclude evidence for an abuse of discretion. Baker v. State, 997 N.E.2d 67, 70
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(Ind. Ct. App. 2013). An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.
[15] Detective Robert Robinson (“Detective Robinson”) testified that he presented a
photographic array to Patterson, Taylor, and Davis, telling each woman that
the shooter “may or may not be in these photos.” (Tr. at 369.) Detective
Robinson instructed each woman that, if she could make an identification or
someone looked familiar, she was to mark the photograph with an X. Before
Detective Robinson testified to the response from Taylor and Davis, Conn
asked some preliminary questions of Detective Robinson. This foundational
testimony clarified that Davis and Taylor saw the photographic array after
having advised Detective Robinson that they had seen Conn running as
opposed to Conn shooting. Conn then objected that the signed copies of the
photographic array and related testimony would be irrelevant and misleading.
They were admitted over Conn’s objection.
[16] On appeal, Conn argues that the challenged evidence improperly bolstered
Patterson’s identification testimony and deprived him of the opportunity for
effective cross-examination. He directs our attention to Modesitt v. State, 578
N.E.2d 649, 652 (Ind. 1991), wherein our Indiana Supreme Court determined
that the “drumbeat repetition” of a victim’s statements prior to the victim’s
testimony precluded direct, immediate cross examination of the statements and
was reversible error.
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[17] Conn did not lodge a trial objection on bolstering grounds; accordingly, his new
argument is waived for review. See Norris v. State, 53 N.E.3d 512, 522 (Ind. Ct.
App. 2016). Moreover, notwithstanding such waiver, Conn has not shown
how the circumstances of his trial were akin to those in Modesitt. In Modesitt,
the victim’s charges were repeated at trial with numerous hearsay statements
made through the mother, the caseworker, and the psychologist before the
victim testified and corroborated some of the hearsay statements. See id. at 650.
Here, Patterson testified that Conn shot her before Detective Robinson, Taylor,
or Davis testified. Conn has not explained how his cross-examination was
curtailed.
[18] Additionally, Taylor and Davis were not asked to relate hearsay statements
made to them by Patterson. Rather, they each testified to their own
observations. These included Conn’s flight but not an act of shooting. Taylor
and Davis each clarified the basis for her signature on the photographic array.
Conn has not demonstrated that the trial court’s decision to admit the
photographic array and related testimony was clearly against the logic and
effect of the facts and circumstances before the court.
Conclusion
[19] Sufficient evidence supports Conn’s conviction for Attempted Murder. He has
demonstrated no abuse of discretion in the admission of evidence.
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[20] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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