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

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
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[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
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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
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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.
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[8] Judgment affirmed.
[9] Bradford, J. and Pyle, J., concur.
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