Jermaine Newsome, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 17 2020, 9:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Berger Curtis T. Hill, Jr. Law Office of Donald J. Berger Attorney General of Indiana South Bend, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jermaine Newsome, Jr., July 17, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-7 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D01-1907-F2-12

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 1 of 7 [1] Jermaine Newsome, Jr., appeals his convictions for burglary as a level 3 felony,

criminal recklessness as a level 5 felony, and battery as a level 5 felony. He

claims the evidence is insufficient to sustain his convictions. We affirm.

Facts and Procedural History [2] On June 29, 2019, Alijah Perry visited Keyoshia Minnis and her boyfriend,

DeAngelo Martin, at their residence which contained marijuana and a bong in

the kitchen. Six children were present at the residence, and Perry played video

games with Martin. Martin and Newsome had four telephone conversations

beginning at 4:31 p.m. and ending with a phone call at 5:03:21 p.m., which

lasted thirty-two seconds. At some point, Minnis left and was walking back to

her residence when she saw two people whom she did not know walking back

and forth in front of the residence. She entered her house, and her niece asked

if they could go to the park. “[S]ome people ran in” and started shooting. 1

Transcript Volume I at 107. Minnis grabbed her niece and her daughter, went

upstairs, and called 911. Perry heard commotion and gunshots coming from

the front of the residence, suffered gunshot wounds to his back, chest, and arm

while he was on the couch, dropped to the floor, and exited the residence.

1 Minnis testified “my oldest niece is going to follow me out the front door, I was going to leave out, and as I open the door some people ran in.” Transcript Volume I at 107. She also stated: “when I opened the door the person was opening the door.” Id. at 108. She answered affirmatively when asked: “You saw one person open the door?” Id. She also stated: “When I was opening the door, someone was coming in and when they came in, they started shooting.” Id. at 109.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 2 of 7 [3] South Bend Police Officer Joseph Stitsworth was dispatched to the residence

around 5:05 p.m. He spoke to Minnis, and she gave him a cell phone which

she said was dropped by one of the suspects when they were running out of the

residence and she found just outside the front door. Police discovered shell

casings at the scene including Federal brand .45 caliber casings and USA brand

9 mm casings. [4] South Bend Police Detective John Comeau obtained a search warrant for the

phone, searched the contents of the phone, and determined it belonged to

Newsome. 2 Detective Comeau assembled a photo array on June 29, 2019,

which included a BMV photo of Newsome and five other individuals with

similar physical descriptors. That same day, South Bend Police Officer Javier

Bourne showed the photo array to Minnis, and she placed her initials and the

date on Newsome’s photograph. [5] On July 12, 2019, Detective Comeau executed a search warrant on Newsome’s

residence and discovered a box of Federal brand .45 caliber ammunition with

twelve or thirteen bullets missing on a dresser with a trophy bearing Newsome’s

name and a learner’s permit belonging to Newsome.

2 Detective Comeau testified that most of the photographs on the phone depicted Newsome, he “saw the g- mail account logged in for the” phone, “[h]is Facebook account was logged into the phone,” and “[t]he text messages occasionally referred to him by name.” Transcript Volume II at 33. Mitchel Kajzer, the Director of the Cyber Crimes Unit at the St. Joseph’s County Prosecutor’s Office, conducted a forensic analysis of the phone and determined that the email address associated with the phone contained Newsome’s name.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 3 of 7 [6] The State charged Newsome, as amended, with: Count I, burglary as a level 3

felony; Count II, criminal recklessness as a level 5 felony; and Count III, battery

as a level 5 felony. [7] At the jury trial, Officer Stitsworth testified that Minnis gave him a cell phone

which she said was dropped by one of the suspects when they were running out

of the apartment and which she found just outside the front door of the

apartment. Detective Comeau testified that he assembled a photo array on

June 29, 2019, which included a BMV photo of Newsome and five other

individuals with similar physical descriptors. He testified that State’s Exhibit

26A was a photo of Newsome which he had in the photo array. The court

admitted State’s Exhibit 26A showing Minnis’s initials on the photo. Officer

Bourne testified that he showed the photo array to Minnis on June 29, 2019, the

day of the shooting, and that she placed her initials and the date on the exhibit.

During cross-examination of Minnis, when asked if she saw Newsome that day,

she answered: “I can’t remember, sir.” Id. at 112. When asked if she recalled

whether the police gave her an array of photos to choose from and whether she

picked one, she answered: “I don’t remember anything. I don’t. I was trying to

forget that day. I don’t remember nothing. It’s messing up my life.” Id. When

the court asked a question from the jury regarding whether she found a cell

phone and gave it to the police, she answered: “No, sir. I mean, no, ma’am.

When I opened – when the police was knocking at the door, I stepped out and

when I stepped out, I stepped on the phone and he asked me if it was mine and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 4 of 7

I said, ‘No.’” Id. at 115. She testified the phone was “right there at the front

door.” Id. [8] Newsome’s counsel called Martin as a witness, and he testified that he had

between two and four telephone conversations with Newsome. When asked if

he saw Newsome that day, he answered: “Not at all.” Id. at 122. He indicated

he was in the living room with Perry when the shooting occurred and that he

did not see anyone and ran straight out the back door. The court read a

question from the jury asking if he was expecting Newsome to come over that

day, and he answered: “No. I mean, well, I mean, I’m sorry. Yeah, we had a

conversation, but we was suppose to like holler at each other, like, just talk,

have a conversation about some stuff, but there wasn’t really no, like, no, feud,

like, an argument, nothing like that.” Id. at 134-135. The court then stated:

“Were you, I’m not sure if I got this one out? ‘Were you expecting the

defendant that day to come over?’” Id. Martin answered: “Yes, but not at that

time.” Id. [9] The jury found Newsome guilty as charged. The court sentenced Newsome to

eleven years on Count I, two years on Count II, and two years on Count III,

and ordered that the sentences be served consecutive to each other.

Discussion [10] Newsome argues, without citation to the record, that the evidence was

insufficient because Minnis failed to identify him at trial and Martin made no

Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 5 of 7 arrangement to meet him and did not expect him to come over. 3 When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. Elements of offenses and identity may be established entirely by circumstantial evidence and the logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990). On appellate review of circumstantial evidence of guilt, this Court need not determine whether the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence, but rather whether inferences may be reasonably drawn from that evidence which support the verdict beyond a reasonable doubt. See id. at 1318. Identification testimony need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996). Also, a conviction may be sustained on the uncorroborated testimony of a single witness or victim. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied. We will affirm if there

3 Newsome does not cite to the record in the argument section of his brief. Ind. Appellate Rule 46(A)(8) provides that the argument of an appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning,” and that “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.” Ind. Appellate Rule 22(C) governs references to the record on appeal and provides that “[a]ny factual statement shall be supported by a citation to the volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and page it appears in the Transcript or exhibits, e.g., Appellant’s App. Vol. II p.5; Tr. Vol. I, pp. 231-32.”

Court of Appeals of Indiana | Memorandum Decision 20A-CR-7 | July 17, 2020 Page 6 of 7

exists evidence of probative value from which a reasonable jury could find the

defendant guilty beyond a reasonable doubt. Jordan, 656 N.E.2d at 817. [11] The record reveals that Martin was at Minnis’s residence on June 29, 2019, and

had four telephone conversations with Newsome within thirty minutes of the

shooting including one call which was placed at 5:03:21 p.m. which was a

minute or so before the shooting. Officer Stitsworth testified that he was

dispatched to the residence at around 5:05 p.m., and Minnis gave him a cell

phone which she said was dropped by one of the suspects when they were

running out and which she found just outside the front door. Detective

Comeau determined the phone belonged to Newsome. Minnis was presented

with a photo array on the day of the shooting and placed her initials and the

date on Newsome’s photograph. Police discovered shell casings at the scene

including Federal brand .45 caliber casings, and Detective Comeau discovered

a box of Federal brand .45 caliber ammunition with twelve or thirteen bullets

missing in Newsome’s residence. [12] Based upon the record, we conclude the State presented evidence of probative

value from which the jury could have found Newsome guilty beyond a

reasonable doubt of the charged offenses. [13] For the foregoing reasons, we affirm Newsome’s convictions. [14] Affirmed.

Najam, J., and Kirsch, J., concur.

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