MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any
                                                                Apr 05 2017, 6:46 am
court except for the purpose of establishing
the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Conn,                                             April 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1606-CR-1268
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1506-F1-22973



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017     Page 1 of 8
                                           Case Summary
[1]   Joshua Conn (“Conn”) appeals his conviction for Attempted Murder, a Level 1

      felony.1 We affirm.



                                                    Issues
[2]   Conn presents two issues for review:


              I.       Whether sufficient identification evidence supports the
                       conviction; and


              II.      Whether the trial court abused its discretion by admitting
                       into evidence a photographic array and permitting related
                       testimony.


                            Facts and Procedural History
[3]   In June of 2015, Curtisha Patterson (“Patterson”) lived with her girlfriend,

      Tiara Taylor (“Taylor”), and Taylor’s children in an Indianapolis apartment.

      Tiara Davis (“Davis”) and her child had been staying there temporarily. On the

      evening of June 25, 2015, KayCie Glenn (“Glenn”) knocked on the apartment

      door. She was accompanied by Conn.


[4]   Recognizing Glenn as Taylor’s former co-worker, Patterson opened the door.

      Glenn began to confront Taylor as to why her telephone number would be



      1
       Ind. Code §§ 35-42-1-1, 35-41-5-1. He does not challenge his conviction for Carrying a Handgun Without a
      License, as a Class A misdemeanor, I.C. § 35-47-2-1.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017          Page 2 of 8
      programmed into Conn’s telephone. Taylor denied involvement with Conn.

      When Davis asked Taylor if she knew Glenn and Conn, Conn interjected

      “what the f--- is it to you?” (Tr. at 109). This angered Patterson, and Conn and

      Patterson began to argue and trade insults.


[5]   Glenn persuaded Conn to go outside, away from the children. Eventually, all

      the adults moved outside and the argument and mutual insults continued.

      Patterson swung a pocket knife at Conn, but Davis and Taylor held her back,

      and the knife did not touch Conn. Conn repeatedly instructed the women

      “don’t hold her back.” (Tr. at 111.) As Glenn and Conn prepared to leave in

      Glenn’s vehicle, Conn said “I’ll be back.” (Tr. at 111.) With Glenn driving

      away, Conn screamed “F--- that bitch. I’m coming to kill that bitch.” (Tr. at

      190).


[6]   Patterson called her cousin, Avante Collier (“Collier”), and reported the

      encounter. Collier soon arrived at the apartment complex parking lot,

      accompanied by a friend. They stayed in the parking lot to talk with Patterson.

      Meanwhile, Taylor and Davis had decided to take their children and leave.

      They placed the three children in their vehicle and Davis got behind the wheel.


[7]   Approximately ten minutes after their argument, Patterson saw Conn in the

      parking lot. She and Collier approached him. When Patterson and Conn were

      two or three cars lengths apart, Conn raised a gun and began firing at Patterson.

      Two bullets struck her, one in the stomach and one in the leg. As Patterson




      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 3 of 8
       crawled away, she continued to hear shots. Collier saw the shooter take off

       running.


[8]    Hearing shots fired, Davis began to drive away. She immediately saw Conn

       running toward Emerson Avenue. Taylor also observed Conn running toward

       Emerson Avenue. The women decided to drive back and look for Patterson,

       and they found her collapsed in the parking lot. With assistance from Collier,

       Taylor and Davis loaded Patterson into their vehicle and took her to a nearby

       hospital. Patterson survived her extensive injuries, but endured five surgeries.


[9]    Conn was charged with, and a jury found him guilty of, Attempted Murder and

       Carrying a Handgun Without a License. He received an aggregate sentence of

       thirty-five years. This appeal ensued.



                                   Discussion and Decision
                                  Sufficiency of the Evidence
[10]   Conn argues that “the evidence is insufficient to sustain the verdict of guilt[y]

       on the attempted murder count, since the evidence fails to reliably identify

       Conn, beyond a reasonable doubt, as the person who shot Patterson.”

       Appellant’s Brief at 14.


[11]   When we review a claim of insufficient evidence, “we consider only the

       evidence and reasonable inferences most favorable to the convictions, neither

       reweighing evidence nor reassessing witness credibility.” Griffith v. State, 59



       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 4 of 8
       N.E.3d 947, 958 (Ind. 2016). “We affirm the judgment unless no reasonable

       factfinder could find the defendant guilty.” Id.


[12]   At trial, Patterson testified that she saw Conn point his gun “straight at” her

       and shoot it. (Tr. at 52.) She saw flashes from the gun and was struck by the

       first two shots. Conn argues, however, that Patterson’s testimony lacks

       reliability because the parking lot was not well-lit and Patterson could have

       identified Conn as revenge for the earlier argument. His argument presents a

       blatant request to reweigh evidence, which we cannot do. Griffith, 59 N.E.3d at

       958.


[13]   Conn also points to evidence that shell casings were recovered from two

       different guns, and claims that the jury was invited to merely “assume” that

       Conn as opposed to a second shooter fired the bullets that struck Patterson.

       Appellant’s Brief at 19. We reject Conn’s argument. First, Patterson testified

       that she observed Conn fire the shots that struck her stomach and leg. Second,

       the State was not required to prove that Conn acted alone. Rather, the State

       was required to prove that he, with requisite intent, took a substantial step

       toward committing murder. See I.C. § 35-41-5-1.


                                      Admission of Evidence
[14]   Conn next contends that the trial court should have excluded copies of a

       photographic array with Conn’s photograph marked by Taylor and Davis, as

       well as related testimony. We review a trial court’s decision to admit or

       exclude evidence for an abuse of discretion. Baker v. State, 997 N.E.2d 67, 70

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 5 of 8
       (Ind. Ct. App. 2013). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Id.


[15]   Detective Robert Robinson (“Detective Robinson”) testified that he presented a

       photographic array to Patterson, Taylor, and Davis, telling each woman that

       the shooter “may or may not be in these photos.” (Tr. at 369.) Detective

       Robinson instructed each woman that, if she could make an identification or

       someone looked familiar, she was to mark the photograph with an X. Before

       Detective Robinson testified to the response from Taylor and Davis, Conn

       asked some preliminary questions of Detective Robinson. This foundational

       testimony clarified that Davis and Taylor saw the photographic array after

       having advised Detective Robinson that they had seen Conn running as

       opposed to Conn shooting. Conn then objected that the signed copies of the

       photographic array and related testimony would be irrelevant and misleading.

       They were admitted over Conn’s objection.


[16]   On appeal, Conn argues that the challenged evidence improperly bolstered

       Patterson’s identification testimony and deprived him of the opportunity for

       effective cross-examination. He directs our attention to Modesitt v. State, 578

       N.E.2d 649, 652 (Ind. 1991), wherein our Indiana Supreme Court determined

       that the “drumbeat repetition” of a victim’s statements prior to the victim’s

       testimony precluded direct, immediate cross examination of the statements and

       was reversible error.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 6 of 8
[17]   Conn did not lodge a trial objection on bolstering grounds; accordingly, his new

       argument is waived for review. See Norris v. State, 53 N.E.3d 512, 522 (Ind. Ct.

       App. 2016). Moreover, notwithstanding such waiver, Conn has not shown

       how the circumstances of his trial were akin to those in Modesitt. In Modesitt,

       the victim’s charges were repeated at trial with numerous hearsay statements

       made through the mother, the caseworker, and the psychologist before the

       victim testified and corroborated some of the hearsay statements. See id. at 650.

       Here, Patterson testified that Conn shot her before Detective Robinson, Taylor,

       or Davis testified. Conn has not explained how his cross-examination was

       curtailed.


[18]   Additionally, Taylor and Davis were not asked to relate hearsay statements

       made to them by Patterson. Rather, they each testified to their own

       observations. These included Conn’s flight but not an act of shooting. Taylor

       and Davis each clarified the basis for her signature on the photographic array.

       Conn has not demonstrated that the trial court’s decision to admit the

       photographic array and related testimony was clearly against the logic and

       effect of the facts and circumstances before the court.



                                               Conclusion
[19]   Sufficient evidence supports Conn’s conviction for Attempted Murder. He has

       demonstrated no abuse of discretion in the admission of evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 7 of 8
[20]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1268 | April 5, 2017   Page 8 of 8
