Case Information
*1 MEMORANDUM DECISION
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.
A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Marce Gonzalez, Jr. Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana I N T H E
COURT OF APPEALS OF INDIANA May 18, 2017 Deundre Rashad Kearney, Court of Appeals Case No. Appellant-Defendant,
45A03-1611-CR-2657 v. Appeal from the Superior Court of Lake County State of Indiana, The Honorable Diane Ross Boswell, Judge Appellee-Plaintiff
Trial Court Cause No. 45G03-1601-F3-5
Altice, Judge.
Case Summary
[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 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 caug ht on the store’s surveillance cameras. 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. Exum testified at Kearney’s bench trial on September 22, 2016. She recounted the robbery, identified Kearney, and testified that she was “absolutely positive” *3 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. The trial court found Kearney guilty as charged of Level 3 felony armed robbery. In doing so, the court expressly reje cted 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 As he did below, Kearney challenges the evidence regarding identification. He
argues that a significant portion of the robber’s face was shie lded 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. 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 848 (Ind. Ct. App. 2012), trans. denied . Fur ther, “[t] he identity of the *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 1147 (Ind. 1990). 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. Judgment affirmed. Kirsch, J. and Mathias, J., concur.
[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.