FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Nov 30 2012, 8:46 am
before any court except for the purpose
of establishing the defense of res
CLERK
judicata, collateral estoppel, or the law of the supreme court,
court of appeals and
tax court
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
Duerring Law Offices Attorney General of Indiana
South Bend, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN HOOK, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1204-CR-192
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D01-1109-FC-206
November 30, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Steven Hook, Jr., appeals his conviction for Class C felony battery with a deadly
weapon. We affirm.
Issue
Hook, Jr., raises one issue, which we restate as whether there is sufficient evidence
to support his conviction.
Facts
On September 4, 2011, Hook, Jr., was at Murphy’s Bar in South Bend with his
father, Steven Hook, Sr., and Kayla Kerr. Brian Putz and Chris Jakubowicz were also at
the bar that evening. At some point, Kerr began talking to Putz and Jakubowicz and
asked them to give her a ride home, and Putz and Jakubowicz agreed to do so.
After leaving the bar, Jakubowicz drove Putz and Kerr in Putz’s truck to a nearby
7-Eleven convenience store to buy some snack foods. Hook, Jr., and Hook, Sr., also
drove to the 7-Eleven in their truck. Hook, Jr., followed Jakubowicz into the store and
yelled obscenities at him. Jakubowicz said he did not want any trouble, made his
purchases, and returned to Putz’s truck. Hook, Jr., approached the truck and reached
through its windows, attempting to punch Putz and Jakubowicz. Kerr, meanwhile, had
left the vehicle. During the exchange, Hook, Jr., took off his shirt.
Finally, Jakubowicz started to drive away from the 7-Eleven. However, he and
Putz noticed that their cell phones, which had been placed in the truck’s open center
console, were missing. Suspecting that Hook, Jr., had taken them, Jakubowicz returned
to the 7-Eleven, where they saw Hook, Jr., holding up a cell phone and saying, “I got
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your phone.” Tr. p. 57. Putz got out of the truck, asked for his and Jakubowicz’s phones
back, and Hook, Jr., immediately approached Putz and punched him in the face. The two
men began wrestling in the 7-Eleven parking lot, during which Hook, Sr., went to his
truck, retrieved a baseball bat, and gave it to Hook, Jr. Hook, Jr., then repeatedly struck
Putz with the bat. As the fight was ending, a nearby onlooker managed to flag down a
passing police officer.
The State charged Hook, Jr., with Class C felony battery with a deadly weapon.
After a jury trial on March 5-6, 2012, Hook, Jr., was convicted as charged. Hook, Jr.,
now appeals.
Analysis
Hook, Jr., claims that the evidence is insufficient to support his conviction because
Putz’s trial testimony was incredibly dubious. In reviewing a sufficiency of the evidence
claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Love
v. State, 761 N.E.2d 806, 810 (Ind. 2002). We look to the evidence most favorable to the
verdict and reasonable inferences drawn therefrom and will affirm the conviction if there
is probative evidence from which a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. Id.
Within the narrow limits of the “incredible dubiosity” rule, we may impinge upon
a jury’s function to judge the credibility of a witness. Id. “If a sole witness presents
inherently improbable testimony and there is a complete lack of circumstantial evidence,
a defendant’s conviction may be reversed.” Id. This is appropriate only where we are
confronted with inherently improbable testimony or coerced, equivocal, wholly
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uncorroborated testimony of incredible dubiosity. Id. “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.” Id.
According to Hook, Jr., Putz’s trial testimony about having been beaten with a
baseball bat is incredibly dubious because a photograph of Putz taken after the incident
does not show “anything one would expect to see after being struck over and over by a
metal baseball bat.” Appellant’s Br. p. 5. Hook also points out that Putz did not seek
medical treatment, that Jakubowicz did not attempt to call the police during the incident,
and that, because surveillance video shows that Putz never left the truck, it is highly
improbable that Hook, Jr., took the cell phones from the truck. Hook also asserts that the
testimony of two bystanders is highly suspect.
Contrary to his assertions, however, the incredible dubiousity rule does not apply
here because this is not a case in which a sole witness presented inherently improbable
testimony and there is a complete lack of circumstantial evidence. In fact, Putz testified
unequivocally that Hook, Jr., struck him with a baseball bat. In addition to Putz’s
testimony, Jakubowicz testified that Hook, Jr., hit Putz with a bat. Another witness, who
saw the incident from across the street, testified that he saw a man without a shirt hit
someone with a bat. This is consistent with the testimony of yet another witness who saw
the fight from across the street and who identified Hook, Jr., as the person who hit the
victim with a baseball bat. In addition to this testimony, the State also introduced
pictures of Putz indicating he had injuries to his forehead and arms.
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Because the incredible dubiousity rule does not apply, we may not reweigh the
evidence or judge witness credibility. The evidence is sufficient to support the conviction
for Class C felony battery with a deadly weapon.
Conclusion
There is sufficient evidence to support the conviction for Class C felony battery
with a deadly weapon. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
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