Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                            FILED
                                                              Jul 06 2012, 9:26 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

BRIAN J. MAY                                         GREGORY F. ZOELLER
South Bend, Indiana                                  Attorney General of Indiana

                                                     RICHARD C. WEBSTER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SANTOS C. LOPEZ,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 71A03-1109-CR-480
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable J. Jerome Frese, Judge
                               Cause No. 71D03-1004-FC-69



                                           July 6, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Santos Lopez appeals his conviction for Class B felony

Unlawful Possession of a Firearm by a Serious Violent Felon.1 Specifically, Lopez contends

that the evidence is insufficient to support his conviction. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       At some point during the afternoon on April 4, 2010, Suzetta Tucker and her mother

were returning to Tucker’s apartment in the West Jefferson Apartments in Mishawaka. A

blue vehicle pulled into the entrance of the apartment complex just in front of Tucker. The

blue vehicle stopped, not leaving Tucker with enough room to pull around it. Tucker

“tapped” her car horn but the blue vehicle did not move. Tr. p. 18. A few moments later,

Tucker honked her car horn for a longer period. The blue vehicle did not move.

       After Tucker honked her car horn, she noticed Lopez get out of the back-passenger

seat of the blue vehicle. Lopez faced Tucker’s vehicle, pulled up his shirt, pulled a firearm

from his pants, and pointed the firearm at Tucker’s vehicle. Tucker observed that the firearm

was, at least in part, silver, but did not know what type of firearm it was. At this same time,

Christon Watson, a resident of the apartment complex, observed a man pointing a dark,

semiautomatic handgun at a vehicle and notified police. Tucker stayed in her vehicle, called

the police, and provided them with the blue vehicle’s license plate number. Lopez eventually

got back into the blue vehicle, and the blue vehicle pulled forward into the parking area.

       Tucker stayed on the phone with police as she pulled forward into the parking area.

Tucker watched as Lopez again exited the blue vehicle and began to chase another vehicle.


       1
           Ind. Code § 35-47-4-5 (2009).
                                              2
Tucker saw Lopez brandishing the firearm at the other vehicle before he re-entered the blue

vehicle, which then drove off. Tucker initially described the perpetrator as a black male, but

subsequently identified Lopez, who is Hispanic, as the perpetrator. Tucker picked Lopez out

of a photo array shown to her by police on April 5, 2010, and then again at trial.

        Mishawaka Police Officer Bruce Faltynski responded to the calls about the

disturbance at the West Jefferson Apartments. As he approached the entrance to the

apartment complex, Officer Faltynski observed a blue vehicle matching the description

provided by Tucker and Watson leaving the complex. Officer Faltynski activated his

emergency lights and sirens. The blue vehicle, however, did not stop.2 Officer Faltynski

followed the blue vehicle, sometimes at speeds nearing eighty to ninety miles per hour, until

the blue vehicle crashed. Both the driver and Lopez were taken into custody.3

        On April 6, 2010, the State charged Lopez with Class D felony intimidation, Class A

misdemeanor carrying a handgun without a license, and Class C felony unlawful possession

of a handgun by a serious violent felon. On April 15, 2010, the State amended the charging

information to include a charge of Class B felony possession of a firearm by a serious violent

felon. On April 21, 2011, Lopez waived his right to a jury trial. On August 8, 2011, the

State withdrew the Class C felony unlawful possession of a handgun by a serious violent

felon charge.


        2
         At some point after Officer Faltynski activated his emergency lights and sirens, the blue vehicle
stopped momentarily while an unidentified female passenger exited the vehicle.
        3
          No firearm was recovered from the vehicle. The State’s theory is that Lopez threw the firearm from
the vehicle before Lopez and the driver were apprehended. A firearm was recovered from along the route
driven by the blue vehicle during the flight from the apartment complex.
                                                     3
       Following a bench trial, the trial court found Lopez not guilty of Class D felony

intimidation, and guilty of Class A misdemeanor carrying a handgun without a license and

Class B felony unlawful possession of a firearm by a serious violent felon. The trial court

merged the misdemeanor carrying a handgun without a license conviction into the unlawful

possession of a firearm by a serious violent felon conviction. On August 31, 2011, the trial

court imposed a twelve-year term of incarceration with five years suspended and three years

on supervised probation. This appeal follows.

                            DISCUSSION AND DECISION

       Lopez contends that the evidence is insufficient to support his conviction for Class B

felony unlawful possession of a firearm by a serious violent felon.

       When reviewing the sufficiency of the evidence to support a conviction,
       appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict. It is the fact-finder’s role, not that of
       appellate courts, to assess witness credibility and weigh the evidence to
       determine whether it is sufficient to support a conviction.… The evidence is
       sufficient if an inference may reasonably be drawn from it to support the
       verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). Inconsistencies in witness testimony go to the weight and credibility of the

testimony, “the resolution of which is within the province of the trier of fact.” Jordan v.

State, 656 N.E.2d 816, 818 (Ind. 1995). Upon review, appellate courts do not reweigh the

evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435

(Ind. 2002).

       In order to convict Lopez of Class B felony unlawful possession of a firearm by a

                                             4
serious violent felon, the State was required to prove that Lopez was a serious violent felon

who knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c). A “serious

violent felon” is a person who has been convicted of committing a serious violent felony or

attempting to commit or conspiring to commit a serious violent felony. Ind. Code § 35-47-4-

5(a). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is

his conscious objective to do so.” Indiana Code § 35-41-2-2(a) (2009). “A person engages

in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability

that he is doing so.” Indiana Code § 35-41-2-2(b).

       Pursuant to Indiana Code section 35-47-4-5(b), the class of felonies referred to as

serious violent felonies includes dealing in or manufacturing cocaine or a narcotic drug. In

the instant matter, Lopez stipulated to the fact that he had prior convictions for Class B

felony dealing in a narcotic drug and Class B felony dealing in cocaine, and that as a result of

these convictions, qualified as a serious violent felon for the purposes of Indiana Code

section 35-47-4-5. Thus, the remaining question is whether Lopez knowingly or intentionally

possessed a firearm.

       Lopez claims that the evidence is insufficient to prove that he possessed a firearm

because Tucker initially provided an inconsistent identification of Lopez.                Lopez

acknowledges that he stipulated to the fact that Tucker identified him out of a photo array the

day after the alleged incident occurred and concedes that Tucker identified him as the

perpetrator at trial. Lopez, however, argues that these identifications are insufficient to prove

that he possessed a firearm because the identifications are inconsistent with Tucker’s initial

                                               5
statement to police in which she described the individual who pointed a gun at her as a black

man.

              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.

Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007); see also Lee v. State, 735

N.E.2d 1112, 1115 (Ind. 2000).

       Here, the evidence demonstrates that although Tucker initially told the investigating

officers that the person who possessed, pointed, and brandished the firearm was a black male,

she consistently identified Lopez as the individual who possessed, pointed, and brandished

the firearm on April 4, 2010. Tucker identified Lopez from a photo array provided by police

on April 5, 2010, and again identified Lopez as the perpetrator at trial. The trial court, acting

as the fact-finder, weighed the inconsistencies between Tucker’s initial statement and

subsequent identifications and determined that Tucker’s identification of Lopez was credible.

Lopez’s claim to the contrary amounts to an invitation for this court to reweigh the evidence

and to re-evaluate issues of credibility, which, again, we will not do. See Rutherford, 866

N.E.2d at 871.

       At trial, Tucker positively identified Lopez as the person who emerged from the blue

vehicle that had stopped immediately in front on her own vehicle, pulled the firearm from his

pants, and pointed the firearm at her. Tucker further identified Lopez as the person who

                                               6
brandished the firearm after he approached another vehicle. The trial court determined that

this testimony was sufficient to prove that Lopez knowingly or intentionally possessed a

firearm. We agree.

      The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




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