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                MEMORANDUM DECISION - NOT FOR PUBLICATION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

                                            3
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.

                                            4
                                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.

                                             5
       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.

                                             6
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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