Sharhonda Gunn v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAY RODIA GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 25 2012, 9:11 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
SHARHONDA GUNN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1202-CR-157
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49G02-1105-FC-35474
October 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Sharhonda Gunn (“Gunn”) was convicted after a jury trial of battery1 as a Class D
felony. She appeals, raising the following restated issue: whether sufficient evidence
was presented to support her conviction because the evidence failed to clearly identify
her as one of the women who harmed the victim.
We affirm.
FACTS AND PROCEDURAL HISTORY
Tiffany Murell (“Murell”) has three young sons, the oldest of which is A.M., who
was seven years old in February 2011. Murell and her sons lived with her sister,
Shaneica Murell (“Shaneica”). A.M. and his brothers attended Little Dreamers Daycare
(“the Daycare”) in Indianapolis, Indiana, which was operated by Demetriese Gunn
(“Demetriese”).
A.M. spent the weekend of February 19, 2011 with his mother’s cousin, Vernita
Hunter (“Hunter”). During that weekend, Hunter was able to observe A.M. many times
with his shirt off, and when he left on Sunday, he did not have any marks on his back,
chest, or arms. When Murell saw A.M. again on Sunday and Monday evenings, she also
saw him with his shirt off and observed no injuries to his back, no scratches to his body,
and no bruises anywhere.
On Tuesday, February 22, 2011, Murell took A.M.’s brothers to the Daycare and
took A.M. to school. That morning, she did not see any injuries to A.M.’s back or any
scratches or bruises anywhere on his body. She only noticed a small red mark above his
eye that he had received from playing and wrestling with his brothers over the weekend.
1
See Ind. Code § 35-42-2-1.
2
Demetriese, who A.M. referred to as “Daycare Lady,” tr. at 177, would regularly
transport A.M. from school to the Daycare, and Shaneica would pick up A.M. and his
brothers later. A.M. wore a uniform to school, which included a braided belt.
On February 22, 2011, Demetriese picked up A.M. from school and asked him
whether he had kicked Hunter in her stomach several days before. A.M. told Demetriese
to “get out of my business,” and she responded that he did not have any business. Tr. at
178. Demetriese “snatched [A.M.] and threw [him] in the car” and “she ripped a piece of
meat out of [his] mouth.” Id. She pushed him, secured his seatbelt, and “kept scratching
the inside of [his] mouth” with her fingernail until a piece of skin came out. Id. at 179.
While driving back to the Daycare, Demetriese called her sister, Gunn, and asked her to
come out to help Demetriese “drag” A.M. inside. Id. When they arrived at the Daycare,
Demetriese dragged A.M. into the building by grabbing the back of A.M.’s shirt, which
choked him. He was crying and told Demetriese that he could not breathe, and she
responded that she did not care. When they got inside of the Daycare, Demetriese and
Gunn were “trying to snatch [A.M.’s] belt off,” and they broke it and hit A.M. with it. Id.
at 181. Both women took off A.M.’s shirt and started hitting him on the back.
Demetriese sent a text message to Murell, demanding that she immediately pick
up A.M. Murell was at work, so she asked Hunter to go pick up A.M. Hunter arrived at
the Daycare, and the door, which was usually unlocked, was locked. Hunter knocked on
the door and heard a “piercing scream” from A.M. Id. at 35. She began to knock louder,
and eventually, Demetriese came to the door. As soon as Hunter entered, A.M. ran out of
a room and grabbed onto Hunter’s leg and would not let go. A.M. was crying and
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holding the right side of his face. Hunter took him to her van, and A.M. told her that the
“Daycare Lady” held him down while her sister “whipped him.” Id. at 39. A.M. told
Hunter his back hurt. When she took off his shirt, Hunter saw injuries to his back, inside
his arms, and inside his mouth. A.M. had “big welts” on his back and scratches “up and
around his neck and bruises on his arms.” Id. at 45. His face was also red on one side.
Hunter called the police.
Indianapolis Metropolitan Police Department Detective Eli McAllister (“Detective
McAllister”) met with A.M. and his family on February 23, 2011. Detective McAllister
observed injuries to A.M. “all over his upper body” and took photographs of the injuries.
Id. at 97. The detective observed that A.M. had marks on the center of his back, just
between and below his shoulder blades, scratches at the base of his neck between his
shoulders, scratches across the front of his body, a large scratch near his sternum,
bruising on his left bicep, a scratch and abrasion on his right bicep, and scratches on his
neck. Detective McAllister presented A.M. with a photographic array to determine the
identity of the “daycare lady’s sister.” Id. at 103-04. A.M. selected a picture of Gunn,
told the detective that she was the “daycare lady’s sister,” and wrote his name under her
picture. Id. at 104.
On May 20, 2011, the State charged Gunn with battery as a Class D felony. A
jury trial was held, during which A.M. was not able to make an in-court identification of
Gunn. At the conclusion of the trial, the jury found Gunn guilty as charged. The trial
court sentenced her to 545 days with 365 days suspended and 180 days executed. Gunn
now appeals.
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DISCUSSION AND DECISION
“When reviewing the sufficiency of the evidence to support a conviction,
‘appellate courts must consider only the probative evidence and reasonable inferences
supporting the verdict.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)) (emphasis in original). It is the fact-
finder’s role, not that of appellate courts, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Wright v. State,
828 N.E.2d 904, 906 (Ind. 2005). “When appellate courts are confronted with conflicting
evidence, they must consider it ‘most favorably to the trial court’s ruling.’” Drane, 867
N.E.2d at 146. Appellate courts affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Id. It is
therefore not necessary that the evidence “overcome every reasonable hypothesis of
innocence.” Id. at 147. “‘[T]he evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict.’” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334
(Ind. Ct. App. 2001)).
Gunn argues that the State failed to present sufficient evidence to support her
conviction for battery as a Class D felony. She specifically contends that the evidence
failed to clearly identify her as one of the women who harmed A.M. This is because
although testimony was presented that A.M. identified Gunn from a photograph array as
one of the perpetrators of the crime, he was unable to identify her in court during his trial
testimony as the Daycare Lady’s sister. Gunn asserts that this evidence constituted
equivocal eyewitness identification, which was not sufficient to support her conviction.
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To convict Gunn of battery as a Class D felony, the State was required to prove
beyond a reasonable doubt that Gunn was at least eighteen years old and that she
knowingly or intentionally touched A.M., who was less than fourteen years old, in a rude,
insolent, or angry manner, resulting in bodily injury. Ind. Code § 35-42-2-1.
Here, A.M. sufficiently identified Gunn as one of the women who battered him.
He testified that the woman he called “Daycare Lady” called her sister to help “drag” him
into the Daycare. Tr. at 179. “Daycare Lady” was identified as Demetriese by many
witnesses, and Gunn was her sister. Id. at 41, 101, 126, 177. A.M. testified that
Demetriese and her sister removed his shirt and belt, scratched him, and hit him on the
back with his belt. Id. at 181-84. Less than three months after the crime occurred, A.M.
selected Gunn’s picture from a photograph array, identified her as the “daycare lady’s
sister,” and wrote his name under her picture. Id. at 103-04, 186-87; State’s Ex. 16. This
evidence was sufficient to identify Gunn as one of the women who committed battery on
A.M.
However, Gunn contends that A.M.’s inability to identify Gunn in court rendered
his testimony contradictory. Any inconsistencies in identification testimony go only to
the weight of that testimony, as it is the task of the fact-finder to weigh the evidence and
determine the credibility of the witnesses. Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct.
App. 2007). We do not weigh the evidence or resolve questions of credibility when
determining whether the identification evidence is sufficient to sustain a conviction. Id.A.M. identified Gunn as one of the women who battered him on February 22, 2011, and
he selected her picture from a photograph array less than three months after the crime.
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The trial did not occur until almost ten months after the battery occurred. There is
nothing contradictory about a seven-year-old child being able to indentify his attacker
three months after the attack but not being able to do so nearly ten months later as
appearances can change over time. A.M. consistently stated that the Demetriese and her
sister were the two women who battered him. As his testimony was not contradictory,
Gunn’s argument is merely an invitation for us to reweigh the evidence, which we cannot
do. Wright, 828 N.E.2d at 906. We conclude that sufficient evidence was presented to
support Gunn’s conviction for battery as a Class D felony.
Affirmed.
NAJAM, J., and MAY, J., concur.
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