Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Aug 07 2013, 5:28 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHIRLEY JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1301-CR-4
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda Brown, Judge
Cause No. 49F10-1207-CM-048716
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Shirley Jones appeals her conviction for battery as a Class A misdemeanor. Jones
raises one issue on appeal: whether Jones’s conviction should be reversed for insufficient
evidence under the doctrine of incredible dubiosity. Concluding that the doctrine of
incredible dubiosity is inapplicable here, we affirm.
Facts and Procedural History
At some point before July 15, 2012, Bobbi Davis purchased a cell phone from
Jones for $100, paying her $50 at the time and agreeing to pay the other $50 at another
time. Once in possession of the phone, Davis noticed that the phone would not hold a
charge. Davis mentioned this to Ranika Jackson, who was Davis’s friend and Jones’s
niece. On July 15, 2012, Davis went with Jackson to Jones’s house to pick up Jackson’s
son. As they were leaving, Davis asked Jones whether they were going to talk about the
phone. Jones told her they could talk about it and to go back inside the house, and then
told Davis to sit down. Davis indicated that she did not want to sit down, and Jones
began yelling and calling Davis names. Jones told Davis that Davis should have come to
her directly about any problems with the phone. The two women moved toward a wall of
the room, and when they reached the wall, Jones began to choke Davis with two hands,
causing Davis pain. Jackson was able to stop Jones, and Davis went outside. Jackson
drove Davis home, and on the way home Davis called her mother to relay what had
happened. Davis’s mother told her to call the police, which she did. When Officer
Terence Fulner responded to the call, Davis was upset and crying, and Officer Fulner
took a report of the battery. Officer Fulner noted that Davis stated that she was in pain,
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and also noted that there were no visible injuries. Officer Fulner also spoke to Jackson,
whose statement matched Davis’s.
On July 20, 2012, Jones was charged with Class A misdemeanor battery. A bench
trial was held on December 11, 2012. Jones testified at trial that she never yelled at or
grabbed or choked Davis. Jones also testified that she uses oxygen for severe asthma,
and that she has arthritis and as a result of an accident cannot lift or grab anything with
her right arm. Following the trial, Jones was convicted of battery as charged and
sentenced to 365 days with two days credit and 363 days suspended to probation, during
which Jones would be required to attend an anger management course. This appeal
followed.
Discussion and Decision
I. Standard of Review
The standard for reviewing sufficiency of the evidence claims is well settled. We
do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755
N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences
drawn therefrom that support the verdict and will affirm the conviction if there is
probative evidence from which a reasonable trier-of-fact could have found the defendant
guilty beyond a reasonable doubt. Id.
In rare cases, we may reverse the decision of the trial court based on the incredible
dubiosity rule. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). Under this rule, we
will “impinge on the jury’s responsibility to judge the credibility of the witnesses only
when [we have] confronted inherently improbable testimony or coerced, equivocal,
wholly uncorroborated testimony of incredible dubiosity.” Id. (quotations and citation
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omitted). This rule is limited to cases where “a sole witness presents inherently
contradictory testimony which is equivocal or the result of coercion and there is a
complete lack of circumstantial evidence of the appellant’s guilt.” Id.
II. Incredible Dubiosity
Jones claims that Davis’s testimony meets the limited applicability of the
incredible dubiosity doctrine. We disagree. There was nothing inherently improbable
about Davis’s testimony that Jones grabbed her neck and choked her. As far as Jones’s
testimony that she has medical conditions that limit her, compared to Davis’s testimony
that Jones choked her, that goes to witness credibility and weighing the evidence, which
we will not do on appeal. There was nothing inherently contradictory about Davis’s
testimony, nor was it equivocal, and Jones does not allege that Davis’s testimony was
coerced. As the State points out, the incredible dubiosity rule applies only when a
witness contradicts herself in a single statement or while testifying. Glenn v. State, 884
N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied. Where there are inconsistencies
between the testimonies of multiple witnesses, the evidence is not per se incredible, but
rather those inconsistencies go to the credibility of the witnesses and the weight to be
given to the evidence. Morell v. State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010).
Additionally, Davis’s testimony is not wholly uncorroborated. Officer Fulner testified
that although he did not see physical marks on Davis, she was crying and upset when he
responded to her call. Jackson was present during the incident, and when Officer Fulner
responded to the call, she was present and corroborated Davis’s story. Jones makes no
other argument contesting the sufficiency of the evidence supporting her conviction, and
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we conclude that the evidence was sufficient to support her misdemeanor conviction for
battery.
Conclusion
Concluding that the incredible dubiosity rule is inapplicable and that Jones’s
conviction was supported by sufficient evidence, we affirm.
Affirmed.
RILEY, J., and KIRSCH, J., concur.
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