MEMORANDUM DECISION
Jun 02 2015, 9:57 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
Matthew D. Anglemeyer Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.S., June 2, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1403-JV-184
v.
Appeal from the Marion Superior
State of Indiana, Court
The Honorable Scott Stowers,
Appellee-Petitioner, Magistrate
Case No. 49D09-1312-JD-3744
Case No. 49D09-1305-JD-1513
Robb, Judge.
Case Summary and Issues
[1] Following a fact-finding hearing, M.S. was adjudicated a delinquent child for
committing robbery, a Class C felony if committed by an adult. He raises two
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issues for our review, which we restate as follows: 1) whether there was
sufficient evidence to support his adjudication; and 2) whether the State
committed a Brady violation by failing to disclose certain evidence. Concluding
the evidence was sufficient and there was no Brady violation, we affirm.
Facts and Procedural History
[2] In December of 2013, M.S., fifteen years old, and D.W., fourteen years old,
were both students at Northwest High School in Indianapolis. After school
hours on December 4, 2013, a group of students including both boys left the
school campus to go to a nearby gas station to purchase snacks. On the way,
they encountered L.D., a seventh grader, standing on the corner waiting to
cross the street. M.S. told L.D. to give him his money or M.S. would punch
him in the face. After some pushing and shoving, L.D. handed over his wallet
containing $28.
[3] Indianapolis Public Schools Police Department (“IPSPD”) Officer Dallas
Gaines saw M.S. and D.W. return to the school campus at the same time.
Subsequently, L.D. approached Officer Gaines and reported that two kids had
just taken his wallet. Officer Gaines recognized the kids L.D. described as M.S.
and D.W. The following day, IPSPD Officer Percy Johnson investigated the
incident.
[4] Based on that investigation, the State filed petitions alleging both M.S. and
D.W. were delinquent for committing robbery, a Class C felony if committed
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by an adult. M.S. denied the allegations of the petition and his case was set for
a fact-finding hearing in February 2014. D.W. entered into an admission
agreement with the State in January 2014. Pursuant to his admission
agreement, D.W. would admit to two added counts, battery and criminal
conversion, both Class A misdemeanors if committed by an adult, and the State
would dismiss the robbery count. D.W. also agreed to testify at M.S.’s fact-
finding hearing. During D.W.’s admission hearing, the following factual basis
was established:
[Defense counsel]: . . . [A]t that point uh another individual uh who
was who was [sic] there and you were with that individual and he
turned around he uh demanded from [L.D.] or from an individual who
was there, he demanded uh his money is that right? His money or his
wallet or whatever?
A: Yes, sir.
[Defense counsel]: And um, in the course, in fact then you did
nothing at that point to um stop that incident from happening. You
did nothing to extricate yourself from that situation and in fact there
were twenty-eight dollars that were taken is that right?
A: Yes.
[Defense counsel]: Okay which was split between the two of you
right?
A: No.
The Court: I didn’t hear your answer.
[Defense counsel]: His answer was no. But you knew that money was
taken is that right?
A: Yes.
[Defense counsel]: Uh and again you did nothing to remedy the
situation, keep the situation from happening, you knew what was
going down is that right?
A: No.
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[Defense counsel]: You didn’t know that the kid had just, that
someone had just demanded that?
A: Wait are you saying that . . .
[Defense counsel]: I am saying, okay let me rephrase that. When you
got to the corner you knew that [M.S.] . . . took the money from uh
this individual is that right?
A: Yes, sir.
***
[Defense counsel]: And you didn’t have the permission of the
individual to take that money, either you or [M.S.] . . . didn’t have that
permission is that right?
A: Yes, sir.
***
State: Okay and in the course of your interaction with [L.D.] was he
touched in a rude, insolent or angry manner?
A: Yes, cause there was like a lot of pushing and shoving and . . . it
like happened real fast so you couldn’t really tell but I saw like pushing
going on and stuff like that.
[Defense counsel]: And you were involved in that, is that right?
A: No.
[Defense counsel]: Well did you, I am just telling you what you told
me.
A: Yes.
State: You were involved in that.
A: Yes.
State: And it was reasonable to believe that [L.D.] experienced pain or
injury from that pushing?
[Defense counsel]: That you hit him hard enough that it would have
hurt him. If he said it hurt him that you were, that could have
happened, is that right?
A: Yes.
State: Yes. And did you receive any of the money that was taken?
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A: No.
State: Okay, but you were involved in the pushing when his money
was taken?
A: Yes.
State: Okay. And the other individual that you were with that was
[M.S.]?
***
A: Yes, ma’am.
State: Um, at that time did you hear [M.S.] say anything to the
individual who the money was taken from?
A: Yes, he was like give me your money or I am going to hit you in
the face.
Defense Exhibit A at 9-12.1 The juvenile court found a sufficient factual basis
for D.W.’s admission and entered a true finding of battery and criminal
conversion.
[5] At M.S.’s fact-finding hearing, held approximately three weeks after D.W.’s
admission hearing, D.W. testified that on the afternoon of December 4, 2013,
he had stayed after school for tutoring. His tutoring was cancelled, so he went
to the gym to watch basketball practice. With the permission of one of the
school police officers, he left the school to go across the street to a gas station to
buy a snack. He and several other students, including M.S., encountered L.D.
1
After filing his Notice of Appeal, M.S. requested this court temporarily stay the appeal to allow him “to go
back to the [juvenile] court to enter the transcript [of D.W.’s admission hearing] into evidence so that the
issues of D.W.’s incredibly dubious testimony and the State’s not disclosing D.W.’s prior contradicting
statement is part of the record and may be argued on appeal.” Supplemental Appellants Appendix at 10.
This court granted the motion and ordered the juvenile court to hold a hearing on M.S.’s request to enter
D.W.’s admission hearing transcript into evidence. Id. at 12. At the hearing, the juvenile court accepted the
transcript into evidence and it became part of the record of this appeal. Id. at 18.
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at the corner. M.S. told L.D. to “give me your stuff or I’ll punch you in your
mouth.” Transcript at 12. L.D., who appeared nervous, pulled out his wallet
and gave M.S. his money. D.W. testified he and M.S. then went their separate
ways – D.W. continued to the gas station and he did not see M.S. after he
returned to the school. D.W. acknowledged he had entered into an admission
agreement that required him to testify at M.S.’s hearing.
[6] On cross-examination, M.S.’s counsel inquired:
Q: [D.W.], so what did you do exactly to [L.D.]?
A: [L.D.]? I didn’t do nothing. They was like a lot of talking . . .
Q: So, so wait you are saying you didn’t do anything physically to
[L.D.]?
A. No.
Q: You didn’t do anything with his money?
A: No.
***
Q: Well that’s interesting because the Prosecutor here just mentioned,
reminded you of the Plea Agreement you did in this case, correct?
A: Yes, sir.
Q: And on January 16th you admitted to Battery against [L.D.]
correct?
A: Yes, sir.
Q: So what did you admit to doing against [L.D.]?
***
A: I aint [sic] touch him at all. It was just like I don’t know I just
wanted to take the plea so I could hurry up and get done with this. I
got things like to do. So I really didn’t try to . . .
Q: So you are saying that you didn’t admit to doing anything physical
to [L.D.]?
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A: I admit that I was there . . . and I was talking to him.
***
Q: Okay so on [January] 16th you are telling us that after taking an
oath and swearing to tell the truth you lied by saying that you
committed Battery and Conversion against [L.D.] when you really
didn’t? . . . Because you just wanted this to be over right?
A: Yes, sir.
Q: And part of that plea agreement was agreeing to testify against
[M.S.] saying that he did this to [L.D.] correct? . . . And did you also
agree to that because you just want this to be over?
A: No, he that’s what really happened.
Q: Okay. Well the thing is what you are saying today is different than
from what you admitted to in your own case . . . do you understand
that?
A: Yes, sir.
Tr. at 21-24.
[7] Defense counsel also pointed out that although D.W. testified he and M.S.
went their separate ways after the incident with L.D., video showed them re-
entering the school at the same time. With regard to that video, defense
counsel asked:
Q: [Y]ou said earlier that after this incident happened that you
described with [M.S.] doing this to [L.D.] that you and [M.S.] went
your separate ways correct?
A: Correct.
***
Q: Are you saying the video is wrong because you and [M.S.] split up?
A: The video ain’t wrong because it’s video. . . . When I got back
there I was like walking in like from the side door. I wasn’t paying
attention to nobody else.
***
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Q: Okay so you don’t, so you mentioned that the video doesn’t like
[sic] so you don’t so it shows you and [M.S.] walking in together so
that’s what happened, right?
A: Right. Right.
Q: Okay. So basically what you said . . .
(Phone Ringing)
[Defense counsel]: Sorry, Judge, I apologize.
Q: Just to make sure we are clear, what you said a couple weeks ago
as part of your admission on this case was not true?
A: No, sir.
Q: So what you said here under oath about what you did is not true
but what you are saying here today under oath about what [M.S.] did
and the Court should believe it, is that what you are saying?
A: Sort of.
Q: Sort of.
***
A: I don’t pay attention to other people. I pay attention to myself.
Because teachers are always telling me don’t worry about that person.
Worry about yourself.
Tr. at 25-28. On redirect, the State asked D.W.:
Q: You gave uh the statement, your pre-trial conference that [M.S.]
took the money from the kid right?
A: Yes, ma’am.
Q: Alright and that portion is entirely consistent with what you have
told us here today, is that correct?
A: Yes, ma’am.
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Tr. at 28. Two IPSPD officers also testified; L.D. did not.2 Neither IPSPD
officer witnessed the incident. Officer Gaines testified that he saw M.S. and
D.W. return to the school together on the afternoon of December 4 and that
L.D. later approached him and said two kids had taken his money. From
L.D.’s description, Officer Gaines recognized M.S. and D.W. Officer Percy
Johnson was involved in the school’s investigation the following day.
[8] At the close of the State’s evidence, M.S. moved for a Trial Rule 41(B)
dismissal arguing that the State had failed to prove its case beyond a reasonable
doubt, primarily because D.W. was not a credible witness. The juvenile court
denied the motion. M.S. then rested his case without presenting any evidence
and made a brief closing argument again alleging that D.W. was not a
believable witness and that a “not true finding is not only appropriate but
necessary here.” Tr. at 58. The juvenile court, having “reviewed the exhibit’s
[sic] and evaluated the credibility of the witnesses,” entered a true finding for
robbery and set the case for a dispositional hearing. Id.
[9] Prior to the dispositional hearing, M.S.’s counsel reviewed the audio from
D.W.’s admission hearing and then filed a Motion for Reconsideration of True
Finding. In that motion, M.S. again asserted that D.W.’s testimony was
inconsistent and therefore not credible, and further asserted that the State had
“failed to disclose the impeaching fact that [D.W.] had admitted to pushing
2
L.D.’s family had apparently moved out of state shortly after the incident.
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[L.D.] around during his factual basis for his plea” and “active[ly]
misrepresent[ed]” D.W.’s testimony at his admission hearing “by arguing that
there was no real inconsistency since [D.W.] had said during his plea that only
[M.S.] interacted with [L.D.].” Appellant’s Appendix at 54. At the
dispositional hearing, M.S.’s counsel noted that the same prosecutor had
represented the State in both D.W.’s and M.S.’s cases and
[t]here was no disclosure to myself who was not here for [D.W.’s] plea
hearing that hey he says something different in this Court under oath
when he did [the] plea. He said he did push the kid around. And you
know we need to know that as part of their duty to provide
exculpatory information.
Tr. at 64. The juvenile court denied the motion to reconsider and ordered M.S.
placed on probation with a suspended commitment to the Indiana Department
of Correction. M.S. now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
[10] Generally, when we review the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not “assess witness credibility and weigh the evidence to determine whether it is
sufficient to support a conviction.” Id. Rather, convictions should be affirmed
unless “no reasonable fact-finder could find the elements of the crime proven
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beyond a reasonable doubt.” Id. at 146-47 (quoting Jenkins v. State, 726 N.E.2d
268, 270 (Ind. 2000)).
[11] M.S. has raised a particular kind of insufficiency of evidence claim: he
contends that the testimony on which his conviction is based is incredibly
dubious. The incredible dubiosity rule allows a reviewing court to impinge on
the fact-finder’s responsibility to judge the credibility of the witnesses in limited
circumstances. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). Our supreme
court has recently re-examined the incredible dubiosity rule and set forth the
appropriate scope of the rule. Moore v. State, 27 N.E.3d 749 (Ind. 2015). In
order to apply the rule, there must be: “1) a sole testifying witness; 2) testimony
that is inherently contradictory, equivocal, or the result of coercion; and 3) a
complete absence of circumstantial evidence.” Id. at 756.
B. D.W.’s Testimony
[12] M.S. claims D.W.’s “incredibly dubious testimony is insufficient to prove M.S.
committed robbery beyond a reasonable doubt,” Brief of Appellant at 6, citing
D.W.’s inherently contradictory testimony at his own admission hearing, that
D.W.’s testimony at M.S.’s fact-finding hearing contradicted his testimony at
his admission hearing, and D.W.’s inherently contradictory testimony at M.S.’s
fact-finding hearing.
[13] The application of the rule requires trial testimony that is inherently improbable,
contradictory, or coerced. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct.
App. 2006); see also Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002) (noting that
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a witness’s trial testimony was not incredibly dubious even where it was
inconsistent with a pre-trial statement, because “it was not equivocal and [the
witness] did not contradict himself on the witness stand.”) (emphasis added). It is
true that D.W.’s testimony at his admission hearing was contradictory, as he
first testified he did not touch L.D. and then admitted that he did. It is also true
that some of D.W.’s testimony at his admission hearing contradicted his
testimony at M.S.’s fact-finding hearing, as he agreed he touched L.D. at his
admission hearing and denied that he touched L.D. at M.S.’s fact-finding
hearing. However, the incredible dubiosity rule does not apply to the extent
M.S.’s argument relies upon consideration of statements D.W. made outside of
M.S.’s fact-finding hearing.
[14] That leaves only consideration of whether D.W.’s testimony about M.S.’s
conduct at M.S.’s fact-finding hearing was inherently contradictory or
equivocal.3 M.S. asserts that it was, pointing to the following two exchanges on
cross-examination:
Q: And part of that plea agreement was agreeing to testify against
[M.S.] saying that he did this to [L.D.] correct? . . . And did you also
agree to that because you just want this to be over?
A: No, he that’s what really happened.
Tr. at 23-24.
3
Despite noting D.W.’s admission agreement was conditioned on his giving testimony at M.S.’s fact-finding
hearing, M.S. does not allege D.W.’s testimony was the result of coercion.
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Q: So what you said here under oath about what you did is not true
but what you are saying here today under oath about what [M.S.] did
and the Court should believe it, is that what you are saying?
A: Sort of. . . . I don’t pay attention to other people. I pay attention to
myself. Because teachers are always telling me don’t worry about that
person. Worry about yourself.
Id. at 27-28. M.S. interprets D.W.’s answer “sort of” to be equivocal testimony
about M.S.’s role in the robbery that contradicts his affirmative assertion that
“what really happened” was M.S. robbed L.D. However, from the context of
the entire second exchange, see ¶ 7, supra, the State’s interpretation is more
plausible: the question “[s]o what you said here under oath about what you did
is not true,” was referring to D.W.’s testimony about whether or not he
returned to the school with M.S., and D.W.’s answer “[s]ort of,” was
explaining that he did not know that he had re-entered the school at the same
time as M.S. because he was not paying attention to the other people around
him. We cannot say that D.W.’s testimony on this point was equivocal or
inherently contradictory.
[15] All three factors set forth in Moore must be present to warrant application of the
incredible dubiosity rule. Because at least one of them— testimony that is
inherently contradictory, equivocal, or the result of coercion—is not present
here, the rule is not applicable. Instead, this is a classic example of a simple
request for us to reweigh the evidence and find in M.S.’s favor. D.W.’s
inconsistent statements concern only his own conduct, and although they
certainly bear on his credibility and the weight to be accorded his testimony, the
juvenile court specifically found his testimony about M.S.’s conduct to be
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credible. Had we been the fact-finders, we might have reached a different
conclusion. But in accordance with our standard of reviewing sufficiency
claims, we must credit D.W.’s testimony that M.S. threatened L.D. and took
his wallet. We therefore hold there is sufficient evidence to prove beyond a
reasonable doubt that M.S. knowingly or intentionally took property from L.D.
by threatening the use of force. See Ind. Code § 35-42-5-1.
II. Brady Claim
A. Standard of Review
[16] In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held
that “the suppression by the prosecution of evidence favorable to the accused
upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Id. at 87. “To prevail on a Brady claim, a defendant must establish: (1) that the
prosecution suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at trial.” Minnick v.
State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady, 373 U.S. at 87), cert. denied,
528 U.S. 1006 (1999). “Favorable evidence” includes both exculpatory
evidence and impeachment evidence. See Prewitt v. State, 819 N.E.2d 393, 401
(Ind. Ct. App. 2004), trans. denied. Evidence is material under Brady “only if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985). The State will not be found to
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have suppressed material evidence if it was available to the defendant through
the exercise of reasonable diligence. Denney v. State, 695 N.E.2d 90, 95 (Ind.
1998). Suppression of Brady evidence is a constitutional error warranting a new
trial. Turney v. State, 759 N.E.2d 671, 675 (Ind. Ct. App. 2001), trans. denied.
B. Evidence of D.W.’s Admission Hearing
[17] M.S. contends the State violated its duty under Brady to disclose material
evidence when it “suppressed the fact of D.W.’s contradictory testimony from
his admission hearing during M.S.’s trial.” Brief of Appellant at 19.
[18] The same deputy prosecuting attorney represented the State at both D.W.’s
admission hearing and M.S.’s fact-finding hearing. M.S. contends that she
therefore knew of D.W.’s inconsistent testimony during his admission hearing
and knew that his admission hearing testimony contradicted some of the
testimony he gave at M.S.’s fact-finding hearing. Because she did not disclose
this to M.S., M.S. asserts the State suppressed evidence M.S. could have used
for impeachment of the only eyewitness to testify to the crime. However, going
in to the fact-finding hearing, M.S. knew the substance of D.W.’s admission
hearing testimony, if not the particulars. He knew D.W. had admitted to
committing battery and criminal conversion and that he contradicted that
admission by denying at the fact-finding hearing that he had touched L.D. or
taken his money. He vigorously cross-examined D.W. on these inconsistencies.
In addition, although M.S.’s counsel did not listen to the audio from D.W.’s
admission hearing until after his own fact-finding hearing, he has not shown
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that he was unable to do so prior to the fact-finding hearing. In fact, he
referenced a statement D.W. had given to the probation department, which
implies he had looked into D.W.’s case prior to M.S.’s fact-finding hearing.
Therefore, we cannot say the State suppressed any evidence that M.S. did not
already have or, in the exercise of reasonable diligence, could not have
discovered for himself.
[19] Even assuming, as M.S. argues, that the State failed to disclose the full extent of
D.W.’s inconsistent testimony, to prevail on a Brady claim, M.S. must show
that the evidence in question was material to an issue at trial such that there is a
reasonable probability the outcome would have been different had the evidence
been disclosed. McKnight v. State, 1 N.E.3d 193, 207 (Ind. Ct. App. 2013). As
the sole eyewitness, D.W.’s credibility was central to the State’s ability to prove
its case against M.S. However, M.S. highlighted the issues with D.W.’s
credibility in his cross-examination, specifically getting D.W. to admit that he
had previously lied under oath about his own conduct and challenging him as
to why the court should believe him about M.S.’s conduct. In light of all the
evidence at the fact-finding hearing, the impeaching value of additional
inconsistencies in D.W.’s testimony was negligible, at best, especially since
none of those inconsistencies regarded M.S.’s conduct. Rather, D.W.
consistently testified that M.S. had threatened L.D. and taken his money. The
issue of D.W.’s credibility was squarely before the juvenile court, and the
juvenile court resolved it in favor of believing D.W. Under these
circumstances, M.S. has not shown a reasonable probability that the outcome
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of his fact-finding hearing would have been different if his trial counsel had
known the full substance of D.W.’s admission hearing testimony and attempted
to impeach him with questions about additional inconsistencies. Accordingly,
we conclude there was no Brady violation.4
Conclusion
[20] The incredible dubiosity rule does not apply to this case, as a sole witness did
not provide inherently improbable testimony in the complete absence of
circumstantial evidence, and the evidence was otherwise sufficient to support
the true finding against M.S. M.S. also did not prove a Brady violation with
regard to evidence of D.W.’s admission hearing testimony. Accordingly, the
juvenile court’s adjudication of M.S. as a delinquent child for committing
robbery, a Class C felony if committed by an adult, is affirmed.
[21] Affirmed.
Bailey, J., and Brown, J., concur.
4
After briefing was complete in this case, M.S. filed a Notice of Additional Authority pointing out Smith v.
State, 22 N.E.3d 620 (Ind. Ct. App. 2014). Smith addressed the State’s knowing proffer of perjured
testimony, which is not a specific claim M.S. has made in this appeal and it is therefore not directly on point.
In addition, the Indiana Supreme Court has heard oral argument on the case and a transfer petition remains
pending.
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M.S. v. State of Indiana (mem. dec.)
Combined Opinion