MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        May 18 2017, 9:44 am

court except for the purpose of establishing                                          CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr.                                     Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana

                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Deundre Rashad Kearney,                                 May 18, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1611-CR-2657
        v.                                              Appeal from the Superior Court of
                                                        Lake County
State of Indiana,                                       The Honorable Diane Ross
Appellee-Plaintiff                                      Boswell, Judge
                                                        Trial Court Cause No.
                                                        45G03-1601-F3-5



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017             Page 1 of 4
[1]   Deundre R. Kearney appeals his conviction for Level 3 felony armed robbery.

      He challenges the sufficiency of the evidence.


[2]   We affirm.


                                        Facts & Procedural History


[3]   On the evening of January 11, 2016, Olivia Exum was working alone at Gift

      Cards for Cash when a young, black male kicked in the door to her office. The

      man had a scarf covering the area below his nose, but his eyes, nose, and hair

      were showing. Armed with a handgun, he directed Exum to give him

      everything. As Exum fumbled while trying to open the register, the man told

      her to hurry. He took her purse and cellphone, the store’s iPad, and the cash in

      the register. The incident was caught on the store’s surveillance cameras.


[4]   When a police officer arrived on the scene shortly thereafter, Exum described

      the suspect as a skinny, dark-skinned black male, approximately six feet and

      two inches tall, with hair styled in short dreads. Thereafter, on January 21,

      Detective Gregory Wolf, a violent crimes investigator, interviewed Exum and

      presented her with a photo array.1 Exum positively identified Kearney.


[5]   Exum testified at Kearney’s bench trial on September 22, 2016. She recounted

      the robbery, identified Kearney, and testified that she was “absolutely positive”




      1
        Detective Wolf included Kearney’s picture in the array because Kearney was a suspect in two other recent
      robberies in the area and fit the physical description provided by Exum.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017              Page 2 of 4
      in her identification even though the robber wore a scarf partially covering his

      face. Trial Transcript at 45. The surveillance videos were submitted at trial, as

      well as a mug shot taken of Kearney six days after the robbery. Kearney

      matched the physical description provided by Exum on the night in question.


[6]   The trial court found Kearney guilty as charged of Level 3 felony armed

      robbery. In doing so, the court expressly rejected Kearney’s lack-of-

      identification defense as follows:


              I’ve reviewed the evidence, gone over the photographs, I saw the
              video. It is clear in the video that the witness, Ms. Exum, had a
              clear view of what she testified to from the nose - - from the nose
              up - - from the top of the lip up.


      Id. at 80. Kearney now appeals.


                                          Discussion & Decision


[7]   As he did below, Kearney challenges the evidence regarding identification. He

      argues that a significant portion of the robber’s face was shielded by a scarf and

      therefore Exum’s identification of Kearney as the person who robbed her is

      “based on a certain degree of speculation.” Appellant’s Brief at 7. Accordingly,

      Kearney claims that the evidence was insufficient.


[8]   We reject Kearney’s blatant invitation to reweigh the evidence. See McHenry v.

      State, 820 N.E.2d 124, 126 (Ind. 2005). The unequivocal identification by a

      witness is sufficient to support a conviction. Gorman v. State, 968 N.E.2d 845,

      848 (Ind. Ct. App. 2012), trans. denied. Further, “[t]he identity of the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017   Page 3 of 4
       perpetrator of a crime is a question of fact, not law, and the weight given to

       identification evidence and any determination of whether it is satisfactory or

       trustworthy is a function of the trier of fact.” Watkins v. State, 551 N.E.2d 1145,

       1147 (Ind. 1990).


[9]    Here, Exum positively identified Kearney both in a photo array ten days after

       the robbery and at trial. When cross examined regarding her identification of

       Kearney, Exum did not sway. Additionally, Kearney fit the physical

       description Exum provided of the suspect immediately following the robbery.

       The evidence sufficiently established that Kearney committed the robbery.


[10]   Judgment affirmed.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2657 | May 18, 2017   Page 4 of 4
