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Davis v. State

Court of Appeals of Indiana

August 6, 2014

KEVIN DAVIS, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Kurt M. Eisgruber, Judge. Cause No. 49G01-1108-FA-61283.

ATTORNEYS FOR APPELLANT: RUTH JOHNSON, Marion County Public Defender Agency, Indianapolis, Indiana; KAREN CELESTINO-HORSEMAN, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ERIC P. BABBS, Deputy Attorney General, Indianapolis, Indiana.

KIRSCH, Judge. MAY, J., and BAILEY, J., concur.

OPINION

Page 940

KIRSCH, Judge

Following a bench trial, Kevin Davis was convicted of Class A felony robbery resulting in serious bodily injury.[1] He appeals and raises the following three restated issues:

I. Whether the trial court abused its discretion by admitting a witness's out-of-court prior statements to police identifying Davis as one of two persons involved in the beating and robbery of victim Kevin Taylor (" Taylor" );
II. Whether the trial court abused its discretion when it admitted the depositions of two witnesses on the basis that they were unavailable to testify at trial; and
III. Whether the evidence was sufficient to support Davis's conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the early hours of August 28, 2011, Taylor, then forty-eight years old, was riding his bicycle from a liquor store to his house, which was on 42nd Street in Indianapolis, Indiana. He was carrying a bottle of gin, and he had about one hundred dollars in cash with him, as well as some marijuana. As he pedaled home, he was stopped by a male juvenile, later identified as Tajh Johnson (" Johnson" ), who asked Taylor if he had " a light." Tr . at 41. A second male juvenile, later identified as Davis, also approached. The youths stopped Taylor in front of Davis's residence. Taylor recognized Davis, having seen him at that residence before because Taylor biked past there on a regular basis when he rode his bicycle to work. Initially, a female juvenile was with Davis and Johnson as they spoke to Taylor, but during the conversation, she walked away and went into the residence.

Johnson and Davis offered to sell marijuana to Taylor, and Davis showed him a baggie containing a green leafy substance. Taylor believed that the substance was fake, and he declined the marijuana. During this time, Taylor grew uncomfortable with the conversation. As he started to ride away, Davis grabbed Taylor's pocket and, as Taylor looked down, either Davis or Johnson struck Taylor in the back of the head with a very hard object, and he fell to the ground. He tried to get up, but he was repeatedly kicked in the face. Taylor could hear people laughing while he fell in and out of consciousness as he was " getting beat." Tr . at 50. When he regained consciousness, he found that he had been moved across the street, and his black and white Nike shoes were gone, as well as his bottle of Seagram's gin, the marijuana, the one hundred dollars in cash, and his blue and silver bicycle.

Page 941

Taylor managed to walk about a block and a half home, and upon seeing his injuries, his wife called the police. Police arrived and called for an ambulance, and Taylor was transported to a hospital. He suffered a fractured skull, fractured nose, a crushed jaw, injuries to his eye, and extensive bleeding.

In August 2011, when this incident occurred, Davis was residing with his mother, Dorothy Davis (" Dorothy" ).[2] Dorothy's fourteen-year-old daughter, A.D., who was Davis's biological cousin and adoptive sister, also lived at the residence. On the afternoon of August 28, 2011, police received a call from Dorothy. She said she had information about a robbery that had occurred in front of her house the night before. Indianapolis Metropolitan Police Department (" IMPD" ) Officer Jason Rauch responded. Dorothy and A.D. were at the residence, along with fourteen-year-old L.H., who was another female cousin to Davis. L.H. had been at Dorothy's home at the time of the incident, and she identified Davis to Officer Rauch as one of the two individuals who robbed and beat Taylor. While he was there, Officer Rauch received a radio dispatch that the blue and silver stolen bicycle had been located outside a nearby restaurant.[3] Officer Rauch left Dorothy's residence and responded to the call. At the restaurant, officers found Davis and Johnson inside; they were detained and later transported to the IMPD robbery office at the City-County Building for questioning.

Shortly thereafter, police also transported Dorothy, A.D., and L.H. to the IMPD robbery office for questioning. L.H. gave a recorded statement to Detective John Green and identified Davis and Johnson as the two males involved in the beating of Taylor. A.D. had taken photographs of the scene on her cell phone, which she showed to Detective Green and forwarded to him by email. The pictures included images of the bloody sidewalk in front of her ...


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