MEMORANDUM DECISION
Mar 10 2015, 8:10 am
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 the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.C., March 10, 2015
Appellant-Respondent, Court of Appeals Cause No.
02A03-1408-JV-279
v. Appeal from the Allen Superior
Court.
State of Indiana, The Honorable Daniel G. Heath,
Judge.
Appellee-Petitioner.
The Honorable Daniel G. Pappas,
Magistrate.
Cause No. 02D07-1303-JD-433
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, C.C., appeals his delinquency adjudication for battery,
which would be a Class A misdemeanor if committed by an adult, Ind. Code §
35-42-2-1 (2013).
[2] We affirm.
ISSUE
[3] C.C. raises one issue on appeal, which we restate as follows: Whether the State
presented sufficient evidence to establish his adjudication of delinquency
beyond a reasonable doubt.
FACTS AND PROCEDURAL HISTORY
[4] On March 7, 2013, D.B. was riding home from middle school on the school
bus. While on the bus, D.B. and C.C. got into an argument about the jacket
D.B. was wearing. At the drop-off location, D.B., C.C., and other children
exited the school bus and D.B. started walking home with a friend. Suddenly,
D.B. heard a noise and felt something hit him in the back. He quickly turned
around and noticed C.C. “trying to [] tuck the gun back away and run through
some houses.” (Transcript p. 15). The gun was “probably a little pistol,” five
or six inches long, “all black and probably had a little bit of silver on the
bottom.” (Tr. pp. 15, 16). D.B. incurred an injury on his back, which hurt and
bled.
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[5] On May 1, 2013, the State filed a petition to adjudge delinquency against C.C.
for battery, which would be a Class A misdemeanor if committed by an adult.
On May 19, 2014, the juvenile court conducted a fact finding hearing, at the
close of which the juvenile court adjudicated C.C. to be a delinquent child. On
July 10, 2014, the court held a dispositional hearing, placing C.C. “under the
operational supervision of the [] Probation Department[.]” (Appellant’s App.
p. 21).
[6] C.C. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] C.C. contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his adjudication for battery which, if committed by
an adult, would be a Class A misdemeanor. Generally, in addressing a claim of
insufficient evidence, an appellate court must consider only the probative
evidence and reasonable inferences supporting the judgment, without weighing
evidence or assessing witness credibility, and determine therefrom whether a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008),
trans. denied.
[8] While C.C. does not contest the statutory elements of the true finding of
battery, C.C. asserts that his conviction should be set aside because D.B.’s
testimony was incredibly dubious and inherently improbable. Within the
narrow confines of the incredible dubiosity rule, a court may impinge upon a
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jury’s prerogative to judge the credibility of a witness. White v. State, 706
N.E.2d 1078, 1079 (Ind. 1999). 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 the court has
confronted inherently improbable testimony or coerced, equivocal, wholly
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.
Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001).
[9] During the hearing, D.B. described the gun used by C.C. as a little handgun,
“all black” with “a little bit of silver on the bottom.” (Tr. p. 16). This
statement appeared to contradict statements given to three police officers on the
day of the incident. Officer Cameron Norris with the City of Fort Wayne
Police Department testified that D.B. told him that he never saw the gun but
still “thought this weapon sounded like it had a silencer on it.” (Tr. p. 40).
Officer Mark Bell informed the juvenile court that D.B. never told him a gun
was involved. And lastly, Officer Stephen Ealing reported that D.B. “believed
that he was shot with a long gun.” (Tr. p. 53). The officer added that the
situation and D.B.’s statements were “confusing me.” (Tr. p. 57). Although
D.B.’s pre-trial statements appear to contradict his trial testimony, these
discrepancies do not make his testimony incredibly dubious. We have
previously held that the rule only applies when a witness contradicts himself in
a single statement or while testifying; the rule finds no application with respect
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to conflicts between multiple statements. See, e.g., Buckner v. State, 857 N.E.2d
1011, 1018 (Ind. Ct. App. 2006) (“The incredible dubiosity rule applies to
conflicts in trial testimony rather than conflicts that exist between trial
testimony and statements made to the police before trial.”). Reviewing D.B.’s
trial testimony, we cannot find any inherent contradictions that would propel
his testimony to the realm of incredibly dubious.
[10] Moreover, it is well established that the testimony of a single eye-witness is
sufficient to sustain a conviction. Brasher v. State, 746 N.E.2d 71, 72 (Ind.
2001). D.B. testified that he was shot by C.C. while walking home. He turned
around and saw C.C. put the gun away and flee.
[11] To be sure, while D.B.’s statements evolved over time, the juvenile court was
made aware of these inaccuracies through either direct or cross examination
and had the opportunity to determine the veracity of each witness. Based on
the facts before us, there is no basis to apply the incredible dubiosity rule. See
Cowan v. State, 783 N.E.2d 1270, 1278 (Ind. Ct. App. 2003) (A defendant
cannot appeal to this rule by merely showing some inconsistency or irregularity
in a witness’s testimony.), trans. denied.
CONCLUSION
[12] Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to support a true finding of delinquency.
[13] Affirmed.
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[14] Vaidik, C.J. and Baker, J. concur
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