MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 14 2016, 9:00 am
regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael R. Fisher                                       Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mario Kelly,                                            November 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1604-CR-853
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Stanley Kroh,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1510-F5-38133



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016   Page 1 of 5
[1]   Following a jury trial, Mario Kelly was convicted of criminal recklessness as a

      Level 5 felony and carrying a handgun without a license as a class A

      misdemeanor. On appeal, Kelly argues that the State presented insufficient

      evidence to support his convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In July 2015, Kelly cheated on his girlfriend with Kristin Davis. On July 28,

      2015, Davis told Kelly’s girlfriend about her sexual encounter with Kelly and

      then informed Kelly that she had done so. Late that night or in the early

      morning hours of July 29, 2015, Davis was alone in her apartment when she

      heard someone outside. She tried to look through the peephole in her front

      door, but it was obstructed. When she looked again, the obstruction had been

      removed and she saw Kelly standing outside her front door. He did not knock

      or say anything, and after a few moments, he turned and walked away. Davis

      was frightened, so she called 911.


[4]   While Davis was on the phone with the 911 operator, she saw Kelly standing at

      her back patio door. Again, he did not knock or say anything to her, but he put

      his hand up to his ear as if to communicate that he could not hear her. Davis

      told Kelly that she was not going to let him in, and he then went back to his car.

      Kelly sat in the car for a moment before pulling the car up to Davis’s patio

      door. Kelly then began firing a gun into Davis’s apartment. Davis hid behind a

      wall until the gunfire stopped, and she then climbed out a window and ran

      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016   Page 2 of 5
      down the street, where she found a police officer. Davis remained on the line

      with the 911 operator throughout the entire incident, and when police

      responded to the crime scene, they found three spent rounds and multiple bullet

      holes throughout Davis’s apartment.


[5]   As a result of these events, the State charged Kelly with Level 5 felony criminal

      recklessness and class A misdemeanor carrying a handgun without a license.

      The State also filed a separate information seeking an enhancement of the

      misdemeanor charge to a Level 5 felony based on Kelly’s prior felony

      conviction. A jury trial was held on March 17, 2016, at the conclusion of

      which Kelly was found guilty of criminal recklessness and carrying a handgun

      without a license as a class A misdemeanor. After the jury rendered its verdict,

      the State dismissed the enhancement of the handgun charge. On April 1, 2016,

      the trial court sentenced Kelly to four years, with three years executed in the

      Indiana Department of Correction and one year served through community

      corrections. This appeal ensued.


                                          Discussion & Decision


[6]   Kelly challenges the sufficiency of the evidence supporting his convictions.

      Our standard of review for sufficiency of the evidence claims is well settled.

      We consider only the probative evidence and reasonable inferences supporting

      the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

      assess the credibility of witnesses or reweigh evidence, and we will affirm unless

      no reasonable fact-finder could find the elements of the crime proven beyond a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016   Page 3 of 5
      reasonable doubt. Id. It is not necessary that the evidence overcome every

      reasonable hypothesis of innocence; rather, the evidence will be found sufficient

      if an inference may reasonably be drawn from it to support the conviction. Id.

      at 147. “The uncorroborated testimony of one witness, even if it is the victim,

      is sufficient to sustain a conviction.” Whitener v. State, 982 N.E.2d 439, 444

      (Ind. Ct. App. 2013), trans. denied.


[7]   Kelly does not argue that he had a valid license to carry a handgun, nor does he

      dispute that someone fired a handgun into Davis’s apartment on the night in

      question. Instead, he challenges whether the State presented sufficient evidence

      to establish that he was the individual who did so. Specifically, Kelly argues

      that Davis “was absolutely incapable of making an identification of the shooter

      at a significant distance, at night and under poor lighting conditions.”

      Appellant’s Brief at 8. We will not indulge Kelly’s blatant request to reweigh the

      evidence and judge the credibility of witnesses. Davis testified that she saw

      Kelly standing outside her front door and then outside her back patio door. She

      testified further that she saw Kelly leave her patio and get into his car, and that

      he then pulled his car up to her back door. Davis then heard gunshots. Davis

      testified that she could see the “flash” as the gun went off and that she saw

      Kelly behind the flash. Transcript at 132, 159. Davis’s trial testimony was

      supported by the recording of the 911 call that was submitted into evidence, and

      one of the responding officers testified that the bullets had entered the

      apartment through the back patio door. Kelly’s convictions were amply

      supported by the evidence.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016   Page 4 of 5
[8]   Judgment affirmed.


[9]   Bradford, J. and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-853 | November 14, 2016   Page 5 of 5
