Stewart v. State
| Decision Date | 25 May 2007 |
| Docket Number | No. 4904-0608-CR-465.,4904-0608-CR-465. |
| Citation | 866 N.E.2d 858 |
| Parties | Jovan STEWART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
General, Indianapolis, IN, Attorneys for Appellee.
Jovan Stewart appeals his convictions and six-year sentence for one count of Class C felony attempted battery, one count of Class D felony criminal recklessness, one count of Class A misdemeanor possession of a handgun without a license, and one count of Class A misdemeanor dangerous possession of a firearm by a child. We affirm in part, reverse in part, and remand.
The issues before us are:
I. whether there is sufficient evidence to support Stewart's convictions;
II. whether double jeopardy concerns preclude him from being convicted of both attempted battery and criminal recklessness; and
III. whether his sentence is appropriate.
On September 21, 2005, Annie Dancy drove her niece, Claudette Sanders-Brown, to her apartment in the Colonial Square complex in Indianapolis so she could pick up some items and spend the night with Dancy. Accompanying Dancy and Sanders-Brown were Dancy's two daughters, Bianca and Briana, her infant granddaughter, and her ex-husband, Michael Wilson, Sr. Dancy's son, Michael Wilson, Jr., was accused of having recently murdered Demetrius Nance, who had several friends who either lived or gathered at the Colonial Square apartment complex. When Dancy arrived at the complex, several people were congregated outside on the steps of Sanders-Brown's apartment and the one next door.
Bianca, Briana, and Sanders-Brown collected some items from Sanders-Brown's apartment and put them in the car. Bianca and Briana got back into the car, and Bianca told Dancy to start the car because she was feeling nervous about being at the complex. Sanders-Brown had to return to her apartment for one more thing, however. Before she did so, Javon Cushenberry walked in front of Dancy's vehicle and after doing so said, "you better ride the f* * * out right now." Tr. p. 70. Soon thereafter, Cushenberry drew a handgun and fired a shot at Dancy's vehicle. Sanders-Brown then ran or crawled up the steps to her apartment while Dancy attempted to drive away quickly. While running or crawling up the steps, Sanders-Brown saw two other individuals to her left firing shots at Dancy's vehicle as it fled the apartment complex. She identified these men as Stewart and Michael Rutherford. Dancy's vehicle was struck by at least three bullets. One shot shattered the rear passenger window, cutting Briana. Another shot lodged in the back of the passenger seat directly behind the infant's car seat. A third penetrated the vehicle above the right rear tire. There is conflicting evidence as to how many shots in total were fired at the vehicle.
The State charged Stewart, along with Cushenberry and Rutherford, with one count of Class A felony attempted murder, two counts of Class D felony criminal recklessness, and one count of Class D felony intimidation. Stewart also was charged with Class A misdemeanor possession of a handgun without a license and Class A misdemeanor dangerous possession of a firearm by a child. The trial court conducted a bench trial on July 11, 2006. At the conclusion of the State's evidence, the trial court granted judgment on the evidence with respect to the intimidation charge and one of the criminal recklessness charges. The trial court also ruled that the defendants could not be convicted of attempted murder, but that it would proceed on that charge of the information as a lesser-included offense of Class C felony attempted battery.
After the defense rested, the trial court found Stewart guilty of Class C felony attempted battery, Class D felony criminal recklessness, Class A misdemeanor possession of a handgun without a license, and Class A misdemeanor dangerous possession of a firearm by a child. It also entered judgments of conviction for all counts. It sentenced Stewart to six years for the attempted battery conviction, with three years suspended and three years of probation; it also sentenced him to 547 days for the criminal recklessness conviction and one year for each handgun conviction, all to be served concurrently to the six-year Class C felony sentence. Stewart now appeals.1
Stewart first challenges the sufficiency of the evidence supporting all of his convictions, claiming there is insufficient evidence that he even possessed a firearm at the time in question, let alone fired one. When reviewing the sufficiency of evidence supporting a conviction, we will not reweigh the evidence or judge the credibility of witnesses. Staton v. State, 853 N.E.2d 470, 474 (Ind.2006). We must look to the evidence most favorable to the conviction together with all reasonable inferences to be drawn from that evidence. Id. We will affirm a conviction if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
Stewart specifically claims that the testimony of Briana and Sanders-Brown, who both identified him as a shooter, was unreliable. A single eyewitness's testimony is sufficient to sustain a conviction. Badelle v. State, 754 N.E.2d 510, 543 (Ind.Ct.App.2001), trans. denied. Any inconsistencies in identification testimony go only to the weight of that testimony, as it is the task of the fact-finder to weigh the evidence and determine the credibility of the witnesses. Id. We do not weigh the evidence or resolve questions of credibility when determining whether the identification evidence is sufficient to sustain a conviction. Id.
Briana knew Stewart from high school. It is true she was not an ideal witness for the State because in her testimony she initially stated that she could not remember what she saw at the time of the incident. However, upon further examination and being reminded that she had picked Stewart out of a police photo lineup, she did testify unequivocally that she saw Stewart shooting a gun. Stewart does not contend that the lineup was unduly suggestive or performed improperly. Furthermore, any weaknesses or inconsistencies in Briana's identification of Stewart as a shooter were for the fact-finder to weigh and consider.
Sanders-Brown also picked Stewart out of a police photo lineup; again, Stewart does not complain about the propriety of the lineup. She re-identified Stewart in court as one of the shooters and related that she had no doubt that he was shooting a gun that night. As with Briana, the trial court as fact-finder had the exclusive responsibility to decide whether to believe Sanders-Brown's identification testimony, after observing her first-hand and considering reasons to believe or not believe her. We will not interfere with the trial court's decision to believe her. There is sufficient evidence to support Stewart's convictions for attempted battery, criminal recklessness, and possession of a handgun without a license.
Stewart also makes a specific challenge to the sufficiency of the evidence supporting his conviction for dangerous possession of a firearm by a child, as Indiana Code Section 35-47-10-5 defines that crime. For purposes of this statute, a "child" is a person who is less than eighteen years of age. Ind.Code § 35-47-10-3. Stewart contends the State failed to prove he was under eighteen on September 21, 2005, as required to sustain his conviction under Section 35-47-10-5. Where the General Assembly has chosen to include the age of the defendant as an element of a crime, the Due Process Clause of the Fourteenth Amendment requires the State to prove the defendant's age beyond a reasonable doubt. See Staton, 853 N.E.2d at 473.
The only possible evidence regarding Stewart's age that the State presented was the testimony of Briana, who stated at trial on July 11, 2006, that she was seventeen years old and that at one point she had had one class with Stewart in high school. Briana did not state that she was in the same grade as Stewart, nor did she state what grade she thought Stewart was in or how old he might be. It is common knowledge that many high school students, seniors in particular, may be eighteen years old and that different grade level students may still take certain classes together. It also appears from Briana's testimony that Stewart was no longer attending school because she spoke in the past tense, saying, "he went to school with me." Tr. p. 137 (emphasis added).
This case is vastly different from Staton, where our supreme court held there was sufficient evidence the defendant was over eighteen years old so as to support his conviction for sexual misconduct with a minor. There, the victim, who was fifteen at the time of the crime, said she "imagined" and "understood" that the defendant was at least eighteen or at least four years older than she was at the time, and that he had graduated from high school at least one year before her eighteen-year-old sister. Staton, 853 N.E.2d at 474. While noting that it should have been easy for the State to present clearer documentary evidence of Staton's age, the court nevertheless held that the victim's testimony provided sufficient circumstantial evidence that he was over eighteen at the time he had sex with the victim. Id. at 475.
We cannot reach the same conclusion here. To conclude that Stewart was under eighteen on September 21, 2005, based on the evidence presented at trial, would require reliance on too many unsupported inferences arising from a sliver of evidence presented by Briana. Unlike in Staton, no witness even ventured a guess as to Stewart's age. We reverse, because of insufficient evidence, his conviction for dangerous possession of a...
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