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.
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[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).
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[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.
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[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.
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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.
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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.
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