Opinion
No. 45A04-9808-CR-426
August 9, 1999
APPEAL FROM THE LAKE SUPERIOR COURT CRIMINAL DIVISION The Honorable James E. Letsinger, Judge Cause No. 45G02-9710-CF-226
CHARLES E. STEWART, JR., Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant.
JEFFREY A. MODISETT, Attorney General of Indiana, BARBARA GASPER HINES, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Gustavo McQuay appeals his convictions of one count of voluntary manslaughter as a Class A felony and two counts of attempted voluntary manslaughter as Class A felonies. McQuay raises one issue on appeal which we restate as whether the evidence was sufficient to support his convictions. We affirm.
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted." Ind. Code § 35-41-5-1.
The facts most favorable to the judgment are that on October 10, 1997, McQuay arrived at the homecoming football game at Lew Wallace High School armed with a firearm. McQuay proceeded to the bleachers where he exchanged angry words with a group of boys from a rival gang whom McQuay did not like. McQuay called the other boys down into a tunnel that separated two sets of bleachers. McQuay cocked his handgun as he ran down the stairs toward the tunnel. The others followed.
A large group of middle school girls was performing cheerleading and dance routines in the area in front of the tunnel. A crowd including two Lew Wallace teachers, Lisa Mark and Yolanda Hall, watched the girls. Defendant and the other boys ran through the group of girls. Hall followed the boys and told them to stop what they were doing. McQuay turned and fired his gun over Hall's shoulder toward the other boys. McQuay fired three more shots. The panicked crowd fled the area knocking Hall to the ground.
A bullet from McQuay's gun struck 18-year-old Kellie Franklin in the head. Franklin, who was six months pregnant, died at the scene. McQuay also shot 15-year-old Mahogany Mead in the face and Andre Johnson, one of the boys chasing McQuay, in the arm. Mead and Johnson both survived.
The State charged McQuay with one count of murder and two counts of attempted murder. A jury convicted McQuay of one count of voluntary manslaughter and two counts of attempted voluntary manslaughter. McQuay received concurrent, 30-year sentences for each conviction. This appeal followed.
McQuay contends that the State failed to present sufficient evidence to prove his identity as the person who shot the victims. Specifically, McQuay argues that two witnesses, Johnson and Antwoine Young, who were in a rival gang and identified McQuay as the shooter, were not credible.
The standard for reviewing the sufficiency of evidence is well-settled. We neither weigh the evidence nor judge witness credibility. Roach v. State, 695 N.E.2d 934, 941 (Ind. 1998), reh'g granted on other grounds. Rather, we examine only the evidence most favorable to the State, along with all reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value from which a jury could find guilt beyond a reasonable doubt, then we will affirm. Id.
Both Johnson and Young testified that McQuay was the person who fired the gunshots in the tunnel. McQuay contends that Johnson's identification testimony was not credible because Johnson also testified that he did not like McQuay and would say anything to hurt him. McQuay provides no argument as to why Young's testimony "was equally suspect," but presumably it is also due to his involvement in a rival gang. However, at trial, Young testified that he was not associated with a gang and only knew Johnson by sight. Credibility determinations are left to the discretion of the jury. Haak v. State, 695 N.E.2d 944, 953 (Ind. 1998). The jury was fully informed of Johnson's and Young's possible bias against McQuay, but nevertheless may have reasonably chosen to find their identification testimony credible. Furthermore, the jury's decision to discount the testimony of McQuay's witnesses who stated that others and not McQuay did the shooting was within their discretion. We will not second guess the jury's decision.
Finally, even if the jury found the testimony of Johnson and Young to be unworthy of credence, sufficient evidence supported the convictions. Another State's witness, Kentyata Scott, testified that he was present in the tunnel during the shooting and positively identified McQuay as the shooter. Scott's testimony alone was sufficient to support the jury's determination that McQuay was the person who shot the victims.
Judgment affirmed.
BAKER, J., and BROOK, J., concur.