MEMORANDUM DECISION
                                                                  Aug 26 2015, 9:32 am
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

                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Patrick Kene Talley,                                    August 26, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1412-CR-456
        v.                                              Appeal from the St. Joseph Superior
                                                        Court
State of Indiana,                                       The Honorable J. Jerome Frese,
Appellee-Plaintiff                                      Judge

                                                        Cause No. 71D03-1406-FA-10




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-456 | August 26, 2015    Page 1 of 5
                                    Statement of the Case
[1]   Patrick Kene Talley appeals his conviction for attempted murder, a Class A

      Felony, and battery, as a Class C Felony, following a jury trial. Talley raises a

      single issue for our review, namely, whether the State presented sufficient

      identification evidence to support his conviction. We affirm.


                                 Facts and Procedural History
[2]   In the early morning hours of June 8, 2014, a group of people, which included

      Talley, Damario Lane, and Dashun Taylor, were at Club Sky, a nightclub in

      Mishawaka. Around 3:00 a.m., Tally engaged in conversation with Lane in the

      club’s parking lot. Talley then fired multiple shots from a gun at Lane and

      Taylor, resulting in multiple gunshot wounds to Lane and a single gunshot

      wound to Taylor. Taylor and Jeremy Mack saw Talley shoot Lane and Taylor.


[3]   A crowd of people gathered around the victims. Some from the crowd pointed

      toward a tan Chrysler Sebring that was driving away and shouted “he’s getting

      away.” Tr. at 43-44, 145. Officers Bruce Faltynski and Joseph Kasznia heard

      those statements, saw a tan Chrysler Sebring drive away from the scene of the

      shootings, and relayed that information to dispatch. Officers Jason Barthel and

      Jonathan Bogart heard that information on dispatch and followed the tan

      Chrysler Sebring from the scene of the shootings to a place approximately two

      miles away where the vehicle crashed. After the crash, Officers Barthel and

      Bogart saw Talley jump out of the driver’s seat of the vehicle and run away.

      Officer Bogart saw a gun in Talley’s hand as Talley ran away from the car and


      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-456 | August 26, 2015   Page 2 of 5
      tried to jump a fence. Officer Bogart drove his police vehicle into the fence

      Talley was attempting to scale and apprehended Talley. The police then found

      the gun used in the shootings laying on the ground within throwing distance

      (approximately thirteen feet) from the fence Talley had attempted to climb. No

      one other than Talley and police officers were around the fence area.


[4]   On June 9, 2015, the State charged Talley with attempted murder, a Class A

      felony, and battery, as a Class C felony. Talley was tried, and a jury found him

      guilty as charged. The trial court entered judgment of conviction and sentenced

      him accordingly. This appeal ensued.


                                     Discussion and Decision
[5]   Talley asserts that the State presented insufficient identification evidence to

      support his convictions for attempted murder and battery. When reviewing a

      claim of sufficiency of the evidence, we do not reweigh the evidence or judge

      the credibility of the witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind.

      2010). We look only to the probative evidence supporting the judgment and the

      reasonable inferences that may be drawn from that evidence to determine

      whether a reasonable trier of fact could conclude the defendant was guilty

      beyond a reasonable doubt. Id. If there is substantial evidence of probative

      value to support the conviction, it will not be set aside. Id.


[6]   Pursuant to Indiana Code Sections 35-42-1-1 and 35-41-5-1, to prove Talley

      attempted to murder Lane, the State was required to show that Talley, with

      intent to commit the crime of murder, did act in a way that constituted a

      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-456 | August 26, 2015   Page 3 of 5
      substantial step toward the commission of murder. Intent to kill may be

      inferred from the deliberate use of a deadly weapon in a manner likely to cause

      death or serious injury. Mendenhall v. State, 963 N.E.2d 553, 568 (Ind. Ct. App.

      2012), trans. denied. Pursuant to Indiana Code Section 35-42-2-1(a)(3) (now I.C.

      § 35-42-2-1(b)(1) and (f)(2), effective July 1, 2014), to prove Talley committed

      battery, as a Class C felony, against Taylor, the State was required to show that

      Talley knowingly touched Taylor in a rude, insolent or angry manner using a

      deadly weapon. On appeal, Talley alleges only that the State failed to provide

      sufficient evidence of his identity as the perpetrator of these crimes. We cannot

      agree.


[7]   Long-standing precedent from our supreme court holds that, where a

      defendant’s conviction is based upon his or her identification as the perpetrator

      by even a sole eyewitness, such identification is sufficient to sustain a

      conviction if the identification was unequivocal. Richardson v. State, 270 Ind.

      566, 569, 388 N.E.2d 488, 491 (1979). Here, at Talley’s trial, both Taylor and

      Mack testified that Talley was the person who they saw fire multiple shots at

      Lane and Taylor, and that testimony was unequivocal. Thus, the State

      provided sufficient evidence of Talley’s identity as the perpetrator of the

      attempted murder of Lane and the battery against Taylor.


[8]   Still, Talley suggests that Mack and Taylor’s testimony could be unreliable. But

      that is simply a request that the court reweigh the testimonial evidence




      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-456 | August 26, 2015   Page 4 of 5
       presented to the jury.1 That we will not do. It is for the fact-finder to determine

       a witness’s reliability. Gorman v. State, 968 N.E.2d 845, 849 (Ind. Ct. App.

       2012) (citing Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716 (2012)). As

       we noted in Gorman, we will not second-guess a fact-finder’s assessment of an

       eyewitness’s testimony. Id.


[9]    Moreover, while we will not require proof in addition to eye-witness testimony,

       Id., the record also contains circumstantial evidence to corroborate that

       testimony. For example, Officer Bogart saw a gun in Talley’s hand as Talley

       fled from the crashed vehicle to the fence; the police found the gun used in the

       shootings within throwing distance of the fence where Talley was finally

       apprehended; and no one other than Talley and the police were in the area

       around the fence in the moments leading up to discovery of the gun.


[10]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       1
         Talley suggests that we take into consideration the witness reliability factors discussed in State v. Henderson,
       27 A.3d 872 (N.J. 2011). However, we already refused to do so in Gorman v. State, 968 N.E.2d 845, 849
       (Ind. Ct. App. 2012), where we noted that the Henderson factors offer a “process of weighing evidence and
       judging witness credibility, in which appellate courts should not engage.”

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