Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Feb 07 2014, 5:56 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG GREGORY F. ZOELLER
Nashville, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CYNTHIA M. ALVEY, )
)
Appellant-Defendant, )
)
vs. ) No. 07A01-1307-CR-328
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-1207-CM-250
February 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Cynthia M. Alvey challenges the sufficiency of the evidence supporting her conviction
for class C misdemeanor operating while intoxicated (“OWI”). In so doing, she invokes the
“incredible dubiosity” rule – which has customarily been used to dispute the veracity of other
witnesses – in order to dispute the veracity of her own statements to police officers. Alvey’s
approach, while unorthodox, is ultimately unavailing, and therefore we affirm her OWI
conviction.
The relevant facts most favorable to the jury’s verdict are that around 11:30 p.m. on
July 13, 2012, Brown County Reserve Deputy Sheriff Mark Stargell responded to a dispatch
and found a car with its lights off parked on the side of State Road 135 near a wooded area.
Alvey was unconscious in the front passenger seat, and the keys were in the ignition. Deputy
Stargell reached through the open window and shook Alvey, who was unresponsive. He
checked Alvey’s pulse and shone his flashlight on the woods to see if anyone was “maybe
out of the car using the restroom or [] something like that.” Tr. at 71. He saw no one and
again attempted to awaken Alvey. After several minutes, she woke up. Her eyes were red,
her speech was slurred, and she smelled of an alcoholic beverage. Deputy Stargell did not
see any alcoholic beverage containers in or around the car. Alvey gave Deputy Stargell her
driver’s license. He checked the license, which was suspended, and the car, which was
registered to Alvey, and turned the investigation over to Deputy Chad Williams, who had
since arrived at the scene.
Deputy Williams asked Alvey what she was doing there. She said that she had fought
with her boyfriend and then gone to her property on Lake Lemon “to try to cool off.” Id. at
2
126. Alvey’s property was slightly over a twelve-minute drive from where her car was
parked. According to Alvey, she was returning home to Indianapolis when she was pulled
over by two female officers wearing uniforms like the one Deputy Williams was wearing,
who told her that she could park on the side of the road and “sleep it off” and “sober up.” Id.
at 127. No female Brown County sheriff’s deputies were working that evening. Deputy
Williams asked Alvey how her car got there, and she replied, “I drove it.” Id. She said that
she had not had anything to drink since she parked there and that her last drink was about
four hours ago. Deputy Williams recorded this conversation on a digital audio recorder. He
then administered three field sobriety tests, which were recorded on video, and Alvey failed
them all. She agreed to submit to a chemical breath test, which indicated an alcohol
concentration of .26.
The State charged Alvey with class A misdemeanor operating with an alcohol
concentration equivalent of .15 or greater, class C misdemeanor OWI, and class A
misdemeanor driving while suspended. The trial court entered a directed verdict on the first
count, and the jury found Alvey guilty of the other two counts.
On appeal, Alvey challenges the sufficiency of the evidence supporting her OWI
conviction. In reviewing a sufficiency claim, we do not reweigh evidence or judge witness
credibility. Lay v. State, 933 N.E.2d 38, 41 (Ind. Ct. App. 2010), trans. denied. We consider
only the evidence most favorable to the verdict and all reasonable inferences therefrom and
will affirm if the evidence and inferences constitute substantial evidence of probative value
to support the verdict. Id. “It is not necessary that the evidence overcome every reasonable
3
hypothesis of innocence.” Id. at 41-42. “We will affirm if evidence of probative value exists
from which a jury could find the defendant guilty beyond a reasonable doubt.” Id. at 42.
Alvey invokes the “incredible dubiosity” rule, which our supreme court explained as
follows:
Within the narrow limits of the “incredible dubiosity” rule, a court may
impinge upon a jury’s function to judge the credibility of a witness. If a sole
witness presents inherently improbable testimony and there is a complete lack
of circumstantial evidence, a defendant’s conviction may be reversed. This is
appropriate only where the court has confronted inherently improbable
testimony or coerced, equivocal, wholly uncorroborated testimony of
incredible dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).
The statute under which Alvey was prosecuted, Indiana Code Section 9-30-5-2, states
that “a person who operates a vehicle while intoxicated commits a Class C misdemeanor.”
“Intoxicated” means under the influence of alcohol “so that there is an impaired condition of
thought and action and the loss of normal control of a person’s faculties.” Ind. Code § 9-13-
2-86. Alvey notes that the issue at trial was whether she was intoxicated when she operated
her vehicle, and she argues that her “statements concerning driving and timing were those of
a highly intoxicated individual, whose other statements had been disregarded as untrue or
impossible. Her statements were inherently improbable and wholly uncorroborated and, had
they been proffered as testimony, would clearly constitute testimony of incredible dubiosity.”
Appellant’s Br. at 8.
4
On the contrary, Alvey’s statements regarding “driving and timing” were corroborated
by other evidence. Alvey was found unconscious and unresponsive in her car on the side of
the road approximately twelve minutes from her Lake Lemon property, and no other persons
or alcoholic beverage containers were found in the vicinity. Her eyes were red, her speech
was slurred, she smelled of an alcoholic beverage, she failed three field sobriety tests, and her
alcohol concentration was .26. In light of this evidence, a juror reasonably could infer that
Alvey consumed a large amount of alcohol before she started driving, that she operated her
vehicle while intoxicated, and that she pulled over to the side of the road to “sleep it off” and
“sober up.” Tr. at 127. Moreover, other than her apparent lie about the female officers, the
rest of Alvey’s statements are neither incredibly dubious nor inherently improbable. As such,
we conclude that the “incredible dubiosity” rule is inapplicable, and we must reject her
invitation to reweigh evidence and judge witness credibility in her favor. Therefore, we
affirm her OWI conviction.
Affirmed.
BAKER, J., and NAJAM, J., concur.
5