MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Dec 03 2015, 9:43 am
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
Michelle F. Kraus                                       Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General




                                          IN THE
    COURT OF APPEALS OF INDIANA

Cherise L. Kelsaw,                                      December 3, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1504-CR-142
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D04-1409-FC-208



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015     Page 1 of 6
[1]   Cherise L. Kelsaw appeals her convictions for class C felony Battery 1 and class

      D felony Criminal Recklessness.2 Kelsaw claims the evidence was insufficient

      to establish that she was the perpetrator of these crimes.


[2]   We affirm.


                                          Facts & Procedural History


[3]   The facts most favorable to the convictions follow. Before midnight on May

      17, 2014, Vanessa Trigg went to a bar in Fort Wayne with her mother, Equella

      Morris, and Morris’s friend, Katie Aspy. While the three were inside the bar,

      Kelsaw and Jasmine Vasquez entered. Trigg noticed Kelsaw, with whom she

      was not on friendly terms. The two groups ignored each other inside the bar.

      As Trigg, Morris, and Aspy were leaving around 3:00 a.m., however, Vasquez

      grabbed Trigg in the parking lot and the two began to fight. Shortly thereafter,

      Kelsaw drew a small black and pink handgun and fired several shots in an

      apparent effort to keep others from intervening. She then hit Trigg across the

      back of the head and the left side of the face with the gun, causing injuries.

      Several witnesses called 911 during the incident. Kelsaw and Vasquez then ran

      to a car and fled the scene.




      1
       Ind. Code § 35-42-2-1. Effective July 1, 2014, this statute was revised and the offense of battery with a
      deadly weapon was reclassified as a Level 5 felony. Because Kelsaw committed this offense prior to that
      date, it retains its prior classification as a class C felony.
      2
       I.C. § 35-42-2-2. Effective July 1, 2014, this statute was revised and the offense of criminal recklessness
      while armed with a deadly weapon was reclassified as a Level 6 felony. Because Kelsaw committed this
      offense prior to that date, it retains its prior classification as a class D felony.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015               Page 2 of 6
[4]   Trigg, Morris, and Aspy remained at the scene and spoke with the responding

      officers. Witnesses provided Officer David Tinsley with Kelsaw’s and

      Vasquez’s names, as well as a description and partial plate number of the

      getaway vehicle. Officer Tinsley also recovered two spent shell casings from

      the scene. Although officers went to several addresses associated with Kelsaw

      and/or Vasquez, they were unable to locate the vehicle in question shortly after

      the incident. Later that month, Morris provided police with a Facebook picture

      of Kelsaw holding a black and pink handgun at a shooting range.


[5]   After the incident, Detective Robin Pfeiffer reviewed BMV records and

      discovered that Kelsaw owned a vehicle matching the description of the

      getaway vehicle. Detective Pfeiffer found the vehicle in question parked in

      front of Kelsaw’s residence on or about June 26, 2014. Thereafter, she sought

      and obtained a search warrant for Kelsaw’s Fort Wayne residence.


[6]   On July 9, 2014, officers executed the search warrant, finding Kelsaw inside.

      During the search, they recovered a loaded black and pink Beretta from inside a

      purse. The Indiana State Police Lab subsequently determined that the spent

      shell casings recovered from the scene were fired from this handgun.


[7]   On September 12, 2014, the State charged Kelsaw with class C felony battery

      with a deadly weapon and class D felony criminal recklessness. A jury found

      Kelsaw guilty as charged. The trial court sentenced her to four years in prison

      for the battery conviction, with two of those years suspended to probation, and




      Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015   Page 3 of 6
       to a concurrent sentence of one year executed for the criminal recklessness

       conviction.


                                           Discussion & Decision


[8]    Kelsaw does not dispute that Trigg was battered by a woman who had just

       committed criminal recklessness by firing a black and pink handgun. Kelsaw

       claims only that the State failed to establish that she was the one who

       committed these crimes.


[9]    The standard of review for a sufficiency of the evidence claim is well settled.

       We will reverse a conviction on this ground only where “reasonable persons

       would not be able to form inferences as to each material element of the

       offense.” McCaskill v. State, 3 N.E.3d 1047, 1049 (Ind. Ct. App. 2014). On

       review, we do not reweigh evidence or judge the credibility of witnesses. Id. In

       addition, we consider only the evidence most favorable to the conviction and

       the reasonable inferences stemming from that evidence. Id.


[10]   Morris testified that during the altercation between Vasquez and Trigg, Kelsaw

       drew a black and pink handgun and fired multiple times. Thereafter, Kelsaw

       struck Trigg in the back of the head and side of the face with the gun. Morris

       called 911 as Vasquez and Kelsaw sped away, according to various witness

       accounts, in a maroon or burgundy Pontiac Grand Prix. During her 911 call,

       Morris frantically indicated that they had been jumped and that a woman fired

       shots and then hit her daughter with a gun. Morris also repeated the name

       Cherise to the 911 dispatcher multiple times.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015   Page 4 of 6
[11]   Other 911 callers gave consistent descriptions of the vehicle in which the

       attackers fled. Two callers provided partial license plate numbers, and one

       caller added that the driver’s side mirror of the getaway car was broken. A

       caller also indicated that the shooter was a black female with a pink gun.

       Several of these witnesses also testified at trial.


[12]   Wendy Robinson, who witnessed the fight from her nearby residence, testified

       that although there were about five women present, only two were initially

       fighting. She indicated that another woman pulled a black and pink Beretta

       from her purse and started shooting. Robinson believed this was intended to

       keep another from intervening in the fight. Robinson then observed the woman

       with the gun “pistol whipping” the victim. Transcript at 164.


[13]   A vehicle matching the description of the getaway car, including the broken

       mirror, was later discovered by police outside Kelsaw’s residence. Kelsaw was

       the owner of this maroon/burgundy Pontiac Grand Prix. A subsequent search

       of the residence resulted in the recovery of the black and pink handgun used

       during the shooting.


       On appeal, Kelsaw directs us to minor inconsistencies among witness testimony

       and argues that Trigg and Morris were not credible and reliable witnesses. She

       also notes that she presented an alibi defense through the testimony of her

       brother. We reject the invitation to reweigh the evidence and judge witness

       credibility. The State presented ample evidence in support of the crimes

       charged, and the alibi defense was markedly weak.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015   Page 5 of 6
Judgment affirmed.


Riley, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015   Page 6 of 6
