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.
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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
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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
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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
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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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