Cherise L. Kelsaw v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 03 2015, 9:43 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 Michelle F. Kraus Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General

IN THE COURT OF APPEALS OF INDIANA

Cherise L. Kelsaw, December 3, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1504-CR-142 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1409-FC-208

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 1 of 6 [1] Cherise L. Kelsaw appeals her convictions for class C felony Battery 1 and class

D felony Criminal Recklessness.2 Kelsaw claims the evidence was insufficient

to establish that she was the perpetrator of these crimes. [2] We affirm.

Facts & Procedural History [3] The facts most favorable to the convictions follow. Before midnight on May

17, 2014, Vanessa Trigg went to a bar in Fort Wayne with her mother, Equella

Morris, and Morris’s friend, Katie Aspy. While the three were inside the bar,

Kelsaw and Jasmine Vasquez entered. Trigg noticed Kelsaw, with whom she

was not on friendly terms. The two groups ignored each other inside the bar.

As Trigg, Morris, and Aspy were leaving around 3:00 a.m., however, Vasquez

grabbed Trigg in the parking lot and the two began to fight. Shortly thereafter,

Kelsaw drew a small black and pink handgun and fired several shots in an

apparent effort to keep others from intervening. She then hit Trigg across the

back of the head and the left side of the face with the gun, causing injuries.

Several witnesses called 911 during the incident. Kelsaw and Vasquez then ran

to a car and fled the scene.

1 Ind. Code § 35-42-2-1. Effective July 1, 2014, this statute was revised and the offense of battery with a deadly weapon was reclassified as a Level 5 felony. Because Kelsaw committed this offense prior to that date, it retains its prior classification as a class C felony. 2 I.C. § 35-42-2-2. Effective July 1, 2014, this statute was revised and the offense of criminal recklessness while armed with a deadly weapon was reclassified as a Level 6 felony. Because Kelsaw committed this offense prior to that date, it retains its prior classification as a class D felony.

Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 2 of 6 [4] Trigg, Morris, and Aspy remained at the scene and spoke with the responding

officers. Witnesses provided Officer David Tinsley with Kelsaw’s and

Vasquez’s names, as well as a description and partial plate number of the

getaway vehicle. Officer Tinsley also recovered two spent shell casings from

the scene. Although officers went to several addresses associated with Kelsaw

and/or Vasquez, they were unable to locate the vehicle in question shortly after

the incident. Later that month, Morris provided police with a Facebook picture

of Kelsaw holding a black and pink handgun at a shooting range. [5] After the incident, Detective Robin Pfeiffer reviewed BMV records and

discovered that Kelsaw owned a vehicle matching the description of the

getaway vehicle. Detective Pfeiffer found the vehicle in question parked in

front of Kelsaw’s residence on or about June 26, 2014. Thereafter, she sought

and obtained a search warrant for Kelsaw’s Fort Wayne residence. [6] On July 9, 2014, officers executed the search warrant, finding Kelsaw inside.

During the search, they recovered a loaded black and pink Beretta from inside a

purse. The Indiana State Police Lab subsequently determined that the spent

shell casings recovered from the scene were fired from this handgun. [7] On September 12, 2014, the State charged Kelsaw with class C felony battery

with a deadly weapon and class D felony criminal recklessness. A jury found

Kelsaw guilty as charged. The trial court sentenced her to four years in prison

for the battery conviction, with two of those years suspended to probation, and

Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 3 of 6

to a concurrent sentence of one year executed for the criminal recklessness

conviction.

Discussion & Decision [8] Kelsaw does not dispute that Trigg was battered by a woman who had just

committed criminal recklessness by firing a black and pink handgun. Kelsaw

claims only that the State failed to establish that she was the one who

committed these crimes. [9] The standard of review for a sufficiency of the evidence claim is well settled.

We will reverse a conviction on this ground only where “reasonable persons

would not be able to form inferences as to each material element of the

offense.” McCaskill v. State, 3 N.E.3d 1047, 1049 (Ind. Ct. App. 2014). On

review, we do not reweigh evidence or judge the credibility of witnesses. Id. In

addition, we consider only the evidence most favorable to the conviction and

the reasonable inferences stemming from that evidence. Id. [10] Morris testified that during the altercation between Vasquez and Trigg, Kelsaw

drew a black and pink handgun and fired multiple times. Thereafter, Kelsaw

struck Trigg in the back of the head and side of the face with the gun. Morris

called 911 as Vasquez and Kelsaw sped away, according to various witness

accounts, in a maroon or burgundy Pontiac Grand Prix. During her 911 call,

Morris frantically indicated that they had been jumped and that a woman fired

shots and then hit her daughter with a gun. Morris also repeated the name

Cherise to the 911 dispatcher multiple times.

Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 4 of 6 [11] Other 911 callers gave consistent descriptions of the vehicle in which the

attackers fled. Two callers provided partial license plate numbers, and one

caller added that the driver’s side mirror of the getaway car was broken. A

caller also indicated that the shooter was a black female with a pink gun.

Several of these witnesses also testified at trial. [12] Wendy Robinson, who witnessed the fight from her nearby residence, testified

that although there were about five women present, only two were initially

fighting. She indicated that another woman pulled a black and pink Beretta

from her purse and started shooting. Robinson believed this was intended to

keep another from intervening in the fight. Robinson then observed the woman

with the gun “pistol whipping” the victim. Transcript at 164. [13] A vehicle matching the description of the getaway car, including the broken

mirror, was later discovered by police outside Kelsaw’s residence. Kelsaw was

the owner of this maroon/burgundy Pontiac Grand Prix. A subsequent search

of the residence resulted in the recovery of the black and pink handgun used

during the shooting.

On appeal, Kelsaw directs us to minor inconsistencies among witness testimony

and argues that Trigg and Morris were not credible and reliable witnesses. She

also notes that she presented an alibi defense through the testimony of her

brother. We reject the invitation to reweigh the evidence and judge witness

credibility. The State presented ample evidence in support of the crimes

charged, and the alibi defense was markedly weak.

Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 5 of 6 Judgment affirmed. Riley, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-142 | December 3, 2015 Page 6 of 6