MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Dec 23 2015, 10:02 am
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
T. Edward Page                                          Gregory F. Zoeller
Merrillville, Indiana                                   Attorney General of Indiana
                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony Edward Stewart,                                 December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1506-CR-558
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Clarence D.
Appellee-Plaintiff                                      Murray, Judge
                                                        Trial Court Cause No.
                                                        45G02-1402-FA-7



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015   Page 1 of 6
[1]   Anthony Stewart appeals his conviction for Class A Felony Attempted

      Murder,1 arguing that the evidence was insufficient to support the verdict.

      Finding the evidence sufficient, we affirm.


                                                      Facts
[2]   On February 1, 2014, Brian Boyd, Dewayne Millender, and Terrill Fenderson

      were driving around East Chicago, Indiana. Someone began firing a gun at

      their vehicle. Boyd was hit, but Millender and Fenderson fled for cover. A

      passerby took Boyd to the hospital, where doctors discovered that the bullet had

      struck Boyd’s kidney.


[3]   Boyd refused to give any information to police investigators. Likewise,

      Fenderson denied ever being in the car and did not provide any information.

      The passerby arrived too late to see who had done the shooting—the only

      potential witness left was Millender. Eleven days after the incident, Millender

      spoke with Investigator Isaac Washington and identified Stewart out of a photo

      array.


[4]   On February 25, 2014, the State charged Stewart with class A felony attempted

      murder, class B felony aggravated battery, class C felony battery by means of a

      deadly weapon, and class C felony battery resulting in bodily injury. The State

      later amended the charge to also allege Stewart to be an habitual offender.




      1
          Ind. Code §§ 35-42-1-1, 35-41-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015   Page 2 of 6
[5]   At trial, Millender told a different tale. He disclaimed any knowledge of the

      shooter’s identity and claimed that he only picked Stewart’s picture because it

      was a familiar face of someone he knew. The State responded by offering the

      video recording of Millender’s previous statement—the State said it was for

      “impeachment” purposes, and Stewart did not object so long as the recording

      was played in its entirety. Tr. 66. The State then examined Investigator

      Washington, who testified without objection that Millender had identified

      Stewart as the shooter. Finally, the jury heard three recorded phone calls in

      which Stewart tried to convince Millender not to come to court, and in which

      Stewart stated that he had a feud with Fenderson.2


[6]   Stewart was found to be guilty as charged and an habitual offender. The trial

      court merged the three battery offenses into the conviction for attempted

      murder and sentenced Stewart to twenty-five years, with an additional thirty

      years owing to his habitual offender status. Stewart now appeals.


                                     Discussion and Decision
[7]   Stewart has one argument on appeal: he argues that after Millender denied

      identifying him as the shooter, there was not sufficient substantive evidence

      from which the jury could have found beyond a reasonable doubt that Stewart

      committed the shooting.




      2
        The State’s theory of the case was that Stewart was attempting to hit Fenderson, but could be charged with
      the attempted murder of Boyd based on the doctrine of transferred intent.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015           Page 3 of 6
[8]    When reviewing sufficiency of the evidence claims, we neither reweigh the

       evidence nor reassess witness credibility. Woods v. State, 768 N.E.2d 1024, 1028

       (Ind. Ct. App. 2002). Rather, we look to the evidence most favorable to the

       verdict and reasonable inferences drawn therefrom. Id. We will affirm the

       conviction unless no rational fact-finder could have found the defendant guilty

       beyond a reasonable doubt. Id. It is not necessary that the evidence overcome

       every reasonable hypothesis of innocence. Gray v. State, 957 N.E.2d 171, 174

       (Ind. 2011).


[9]    Stewart correctly points out that evidence admitted only for impeachment may

       not be used as substantive evidence. Gaby v. State, 949 N.E.2d 870 (Ind. Ct.

       App. 2011). Stewart is incorrect, however, in his contention that Millender’s

       identification came into evidence only for impeachment purposes.


[10]   Indiana Evidence Rule 802 generally prohibits the use of hearsay statements in

       court. Hearsay is generally defined as “a statement that is not made by the

       declarant while testifying at the trial or hearing; and is offered in evidence to

       prove the truth of the matter asserted.” Ind. Evid. Rule 801. That rule goes on

       to clarify:

               a statement is not hearsay if . . . [t]he declarant testifies and is
               subject to cross-examination about a prior statement, and the
               statement (A) is inconsistent with the declarant’s testimony and
               was given under penalty of perjury at a trial, hearing, or other
               proceeding or in a deposition . . . [or] (C) is an identification of a
               person shortly after perceiving the person.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015   Page 4 of 6
       Evid. R. 801(d). Our Supreme Court has explained the nature of such

       evidence: “a prior statement is admissible as substantive evidence only if the

       declarant testifies at trial and is subject to cross-examination concerning the

       statement. . . .” Modesitt v. State, 578 N.E.2d 649, 653-54 (Ind. 1991).


[11]   Turning to the instant case, we first note that Investigator Washington’s

       testimony that Millender identified Stewart as the shooter was properly before

       the jury as substantive evidence.3 That out-of-court statement was an

       “identification of a person shortly after perceiving the person,” and the

       declarant, Millender, testified at trial and was subject to cross-examination—

       therefore, the evidence met the requirements of both Rule 801(d) and Modesitt.

       Investigator Washington’s testimony that Millender identified Stewart is itself

       sufficient evidence from which a rational jury could have found Stewart guilty

       beyond a reasonable doubt. And since we neither reweigh nor reassess witness

       credibility, that testimony alone would be grounds to affirm.


[12]   We also find, however, that the videotape testimony properly came into

       evidence as both impeachment evidence and substantive evidence. Although

       the State referenced the word “impeachment” when offering the tape, nowhere

       did it say that it was only for impeachment purposes, nor did Stewart request the

       judge to instruct the jury to consider the tape only for impeachment purposes.

       It is well settled that evidence can be offered as both impeachment and




       3
           Stewart does not challenge the propriety of this evidence in his appeal brief.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015   Page 5 of 6
       substantive evidence. Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App.

       2012). Moreover, since Stewart did not request an admonishment or jury

       instruction limiting the use of the tape to impeachment purposes only, his

       challenge to the use of those statements as substantive evidence is waived.

       Humphrey v. State, 680 N.E.2d 836, 839 (Ind. 1997).


[13]   It was up to the jury whether to believe Millender’s statement to Investigator

       Washington or his testimony offered at trial. Clearly, the jury thought

       Millender was being more truthful in the former statement than the latter, and

       we cannot second-guess that finding.


[14]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-558 | December 23, 2015   Page 6 of 6
