Deundre Rashad Kearney v. State of Indiana (mem.dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 18 2017, 9:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr. Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deundre Rashad Kearney, May 18, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1611-CR-2657
v. Appeal from the Superior Court of
Lake County
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff Boswell, Judge
Trial Court Cause No.
45G03-1601-F3-5
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 1 of 4
[1] Deundre R. Kearney appeals his conviction for Level 3 felony armed robbery.
He challenges the sufficiency of the evidence.
[2] We affirm.
Facts & Procedural History
[3] On the evening of January 11, 2016, Olivia Exum was working alone at Gift
Cards for Cash when a young, black male kicked in the door to her office. The
man had a scarf covering the area below his nose, but his eyes, nose, and hair
were showing. Armed with a handgun, he directed Exum to give him
everything. As Exum fumbled while trying to open the register, the man told
her to hurry. He took her purse and cellphone, the store’s iPad, and the cash in
the register. The incident was caught on the store’s surveillance cameras.
[4] When a police officer arrived on the scene shortly thereafter, Exum described
the suspect as a skinny, dark-skinned black male, approximately six feet and
two inches tall, with hair styled in short dreads. Thereafter, on January 21,
Detective Gregory Wolf, a violent crimes investigator, interviewed Exum and
presented her with a photo array.1 Exum positively identified Kearney.
[5] Exum testified at Kearney’s bench trial on September 22, 2016. She recounted
the robbery, identified Kearney, and testified that she was “absolutely positive”
1
Detective Wolf included Kearney’s picture in the array because Kearney was a suspect in two other recent
robberies in the area and fit the physical description provided by Exum.
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 2 of 4
in her identification even though the robber wore a scarf partially covering his
face. Trial Transcript at 45. The surveillance videos were submitted at trial, as
well as a mug shot taken of Kearney six days after the robbery. Kearney
matched the physical description provided by Exum on the night in question.
[6] The trial court found Kearney guilty as charged of Level 3 felony armed
robbery. In doing so, the court expressly rejected Kearney’s lack-of-
identification defense as follows:
I’ve reviewed the evidence, gone over the photographs, I saw the
video. It is clear in the video that the witness, Ms. Exum, had a
clear view of what she testified to from the nose - - from the nose
up - - from the top of the lip up.
Id. at 80. Kearney now appeals.
Discussion & Decision
[7] As he did below, Kearney challenges the evidence regarding identification. He
argues that a significant portion of the robber’s face was shielded by a scarf and
therefore Exum’s identification of Kearney as the person who robbed her is
“based on a certain degree of speculation.” Appellant’s Brief at 7. Accordingly,
Kearney claims that the evidence was insufficient.
[8] We reject Kearney’s blatant invitation to reweigh the evidence. See McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). The unequivocal identification by a
witness is sufficient to support a conviction. Gorman v. State, 968 N.E.2d 845,
848 (Ind. Ct. App. 2012), trans. denied. Further, “[t]he identity of the
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 3 of 4
perpetrator of a crime is a question of fact, not law, and the weight given to
identification evidence and any determination of whether it is satisfactory or
trustworthy is a function of the trier of fact.” Watkins v. State, 551 N.E.2d 1145,
1147 (Ind. 1990).
[9] Here, Exum positively identified Kearney both in a photo array ten days after
the robbery and at trial. When cross examined regarding her identification of
Kearney, Exum did not sway. Additionally, Kearney fit the physical
description Exum provided of the suspect immediately following the robbery.
The evidence sufficiently established that Kearney committed the robbery.
[10] Judgment affirmed.
Kirsch, J. and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017 Page 4 of 4