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:

JEFFREY L. SANFORD                                  GREGORY F. ZOELLER
South Bend, Indiana                                 Attorney General of Indiana

                                                    GARY R. ROM
                                                    Deputy Attorney General

                                                                                     FILED
                                                    Indianapolis, Indiana

                                                                                  Apr 11 2012, 9:21 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                          CLERK
                                                                                        of the supreme court,
                                                                                        court of appeals and
                                                                                               tax court




PATRICK DEWAYNE CARR, JR.,                          )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 71A05-1105-CR-261
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable R.W. Chamblee, Jr., Judge
                              Cause No. 71D08-0910-FB-127



                                          April 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Patrick Dewayne Carr, Jr. (“Carr”) appeals after a jury trial from his convictions for

one count of robbery1 as a Class B felony, one count of burglary2 as a Class B felony, and one

count of attempted murder3 as a Class A felony. Carr presents the following issue for our

review: whether there is sufficient evidence to support his convictions.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On October 28, 2009, Shelby Taylor (“Shelby”) made plans with Paige Shields

(“Paige”) to spend some time at Rowland “Roy” Mwaungulu’s (“Roy”) apartment in the

Regency Royal (“Regency”) apartment complex in Mishawaka, Indiana. Paige, who was

seventeen years old, had recently met Roy, who was twenty-six years old but Shelby, who

was eighteen years old, had never met him. Later in the evening, Paige picked up Shelby at

her house. Two men were in the car. One of the men was Martel “Threat” Washington

(“Threat”), who also went by the name Martel Coleman, and who was Paige’s boyfriend.

The other man was known as City. Paige dropped off the two men at another apartment

complex before continuing to drive with Shelby to Roy’s apartment.

       When Paige and Shelby arrived at the Regency, Roy buzzed them in. Paige was in

and out of Roy’s apartment while on the phone with Threat because of “baby daddy drama.”

Tr. at 21. Paige left the main door, where Roy had buzzed in the two girls, ajar. Between



       1
           See Ind. Code § 35-42-5-1.
       2
           See Ind. Code § 35-43-2-1.
       3
           See Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-1-1 (murder).

                                                     2
8:44 p.m. and midnight, Paige made fourteen outgoing texts or phone calls to Threat. At

9:34 p.m. and 10:04 p.m., she placed phone calls to Carr.

       Paige left the apartment, but returned approximately fifteen minutes later. When she

returned, she left the door to Roy’s apartment cracked open, stating that she did that because

she was waiting for a phone call. Three men wearing all black and armed with guns suddenly

kicked in the door to Roy’s apartment. The men started screaming “get on the ground,

m*th*r f*ck*r.” Tr. at 24. Shelby started to go to the floor, but Roy stood up and tried to run

from the intruders. Roy saw Carr holding a gun. The men started shooting at Roy. Shelby

saw Paige run out of the apartment and followed her. Roy ran down a hallway in his

apartment to his bedroom and called 911. He hid in a closet there until police officers

arrived.

       Roy discovered that his keys to his apartment and car were missing. Police found

spent .25 caliber and 9mm casings outside and inside Roy’s apartment and saw bullet holes

in the wall and in the door to the apartment. Approximately five minutes after running out of

Roy’s apartment, Shelby and Paige returned to Roy’s apartment. Paige told the officers that

she, too, was missing her car keys to her burgundy Oldsmobile. Based on that information,

officers watched the vehicle to see if anyone would come and pick it up. Vanessa Leal

(“Vanessa”), who was storing her belongings at the apartment of Threat’s sister, Danielle,

saw Threat earlier in the day at Danielle’s apartment with a gun “tucked into his pants.” Id.

at 141. Vanessa left the apartment and returned later in the day. At that time, she saw Threat

there and two of his friends. Vanessa identified Carr as one of the individuals she saw. She


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said that each of them was wearing dark clothing and described their behavior as being in a

hurry “looking out the window, whispering among themselves, just jittery.” Id. at 144.

       After the crimes had occurred, Vanessa gave Carr, Threat, and the other man, a ride

to the Regency to find the keys to Threat’s burgundy Oldsmobile. While at the Regency,

Threat and Carr unsuccessfully searched for the car keys in the parking lot, while the third

man remained in the car. Vanessa then drove the three men back to Danielle’s apartment.

Vanessa offered to walk to the Regency to search for the missing keys. She did so and

successfully found the keys. Vanessa then started to drive Threat’s car back to Danielle’s

apartment when officers pulled the vehicle over. She told the officers that she was driving

Threat’s car, that he and two other men were at Danielle’s apartment, and gave them their

location.

       After obtaining a search warrant for Danielle’s apartment, the SWAT team entered

and found Carr in the bedroom and Threat and the other man in the bedroom closet. Officers

recovered .38 caliber bullets and a loaded .25 caliber handgun. Roy’s keys were found in a

bush just outside the apartment.

       Later that same evening, Roy identified Threat as one of the intruders from six in

loose photographs. Threat was the only person involved in the break-in whose photograph

was included in that array. Police officers also transported Paige and Shelby to the police

station for questioning. The next day, Roy identified Carr from a set of two photo arrays.

       The State charged Carr with one count of robbery as a Class B felony, one count of

burglary as a Class B felony, and one count of attempted murder as a Class A felony. After a


                                             4
jury trial, Carr was found guilty as charged. The trial court sentenced Carr to terms of ten

years executed for each of the Class B felony convictions and to a term of thirty years, with

twenty years executed and ten years suspended for the Class A felony conviction, each to be

served concurrently, followed by a period of probation. Carr now appeals.

                              DISCUSSION AND DECISION

                                Sufficiency of the Evidence

       Carr challenges the sufficiency of the evidence supporting his convictions. When

reviewing the sufficiency of the evidence, we consider only the probative evidence and

reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct.

App. 2009). We do not reweigh the evidence or reassess witness credibility. Id. We

consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm

the conviction unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. Carr’s attack on the sufficiency of the evidence for each of

his convictions involves the identification testimony.         He argues that without the

identification component of each offense, there is insufficient evidence to support his

convictions for each crime.

       In particular, Carr challenges Roy’s identification of him as one of the three men who

broke into his apartment, took his keys, and fired shots at him. At trial, Roy testified that

after he heard the sound from the door being kicked in, he looked up and saw three men. He

identified Carr as the one he took a good look at, that Carr was standing by the door, and that

Roy remembered what Carr’s eyes looked like. Roy gave the police detailed information


                                              5
about the crimes. He also selected Carr’s photograph from a photo array and identified him

in court as one of the intruders. At trial, Roy was questioned extensively about his ability to

see the intruders, the length of time he saw them, and about his initial statements to police

officers that he could not identify the intruders.

       Vanessa testified that Carr was among the men who were at Danielle’s apartment on

the night of the crimes and to whom she gave a ride to the Regency in order to look for

missing keys. Officers found Carr in Danielle’s apartment in a bedroom, and Threat and

another male were found hiding in the bedroom closet.

       Carr had an expert witness testify about problems with eyewitness identification. That

witness also testified about Department of Justice guidelines regarding the collection of

eyewitness identification. Corporal Michael Dube (“Corporal Dube”) of the Mishawaka

Police Department had testified during the State’s case that he transported Vanessa to the

police station after he and another officer pulled her over while driving Threat’s car.

Vanessa told Corporal Dube that she was returning Threat’s car to him and that he was at

Danielle’s apartment. The name she provided was Threat’s given name, Martel. Corporal

Dube relayed that information to another officer investigating the crimes, and that officer

provided him with several photos, including Threat’s photo, to show to Roy. Corporal Dube

further testified that he had never conducted a photo lineup before, and that he was

unfamiliar with Department of Justice Guidelines for such. He presented the photographs to

Roy as a stack of photographs. Roy selected Threat’s photograph from the stack of photos he

was shown.


                                               6
       While the officer’s lack of familiarity with Department of Justice Guidelines for

conducting photo lineups is worrisome, we conclude that the identification evidence was

sufficient nonetheless. Carr’s attorney vigorously cross-examined the witnesses who

identified Carr as one of the intruders and challenged their accounts of the crimes. Further,

Carr’s attorney presented expert testimony about the reliability of eyewitness identification

and the testimony of an officer who asked Roy, Paige, and Shelby if they recognized any of

the suspects. That officer testified that they indicated they did not recognize anyone. Carr

presented evidence to the jury challenging the credibility of the witnesses and the accuracy of

their identification of Carr as one of the intruders. Any challenges to the identification

evidence would be a consideration for the jury in their assessment of the weight to be given

to that testimony. On review, we do not reweigh the evidence or reassess witness credibility.

Mork , 912 N.E.2d at 411. Here, the identification evidence, while not overwhelming, is

sufficient to support the convictions.

       Although Carr does not challenge the sufficiency of the evidence in any other regard

than with respect to identification, we nonetheless address the sufficiency of the evidence

supporting Carr’s convictions. The State charged Carr as an accomplice. “Under the theory

of accomplice liability, one who aids or assists in a crime is equally as culpable as the one

who commits the actual crime.” Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App. 2011).

Accomplice liability is a separate basis of liability for the crime charged, but there is no

distinction between the criminal responsibility of a principal and an accomplice. Id.




                                              7
       In order to establish beyond a reasonable doubt that Carr committed the offense of

robbery as a Class B felony, the State was required to prove that Carr, while armed with a

deadly weapon, knowingly or intentionally took property from Roy by using or threatening

the use of force, or by putting Roy in fear. Ind. Code § 35-42-5-1. In order to establish

beyond a reasonable doubt that Carr committed the offense of burglary as a Class B felony,

the State was required to prove that Carr, while armed with a deadly weapon, broke and

entered Roy’s apartment with the intent to commit a felony therein. Ind. Code § 35-43-2-1.

In order to establish beyond a reasonable doubt that Carr committed the offense of attempted

murder, the State was required to prove that Carr, while armed with a deadly weapon,

intentionally fired the weapon in a manner likely to cause death or serious injury. Ind. Code

§§ 35-41-5-1; 35-42-1-1.

       Here, the evidence most favorable to the jury’s verdict established that Carr, City, and

Threat, while armed with weapons, kicked in the door of Roy’s apartment, fired shots at Roy,

and took the keys to his car and his apartment. Therefore, there was sufficient evidence from

which the jury could convict Carr of these offenses.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                              8
