MEMORANDUM DECISION
Jul 15 2015, 8:14 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 ATTORNEY FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ariel Kennedy, July 15, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1501-CR-003
v. Appeal from the Marion Superior
Court, Criminal Division 7
State of Indiana, Cause No. 49G07-1408-CM-038551
Appellee-Plaintiff
The Honorable David E. Cook,
Judge
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-003 | July 15, 2015 Page 1 of 4
[1] Ariel Kennedy appeals her conviction for Battery Resulting in Bodily Injury,1 a
class A misdemeanor. She presents the following issue for review: Did the
State present sufficient evidence to support the conviction?
[2] We affirm.
[3] On August 6, 2014, Courtney Walker was riding on a city bus when Kennedy
boarded and sat across the aisle about eight feet from him. Walker observed
what he believed to be unusual behavior by Kennedy while he continued
listening to his music. At some point during the ride, Walker stated out loud,
“this must be some-some lesbian stuff”. Transcript at 7. This statement upset
Kennedy, so she texted her mother.
[4] A few stops later, Kennedy’s mother, Audrita, boarded the bus and sat with
Kennedy. Audrita eventually told Walker to remove his headphones, and she
demanded to know what he had said to her daughter. After indicating that her
daughter was a lesbian, Audrita pushed Walker’s face toward the window and
started hitting him. Kennedy joined in on the attack, as Audrita pulled out a
metal spoon and began striking him on the head with it. Kennedy used her fists
to hit Walker on the head. The beating continued until the bus driver stopped
the bus and a passenger intervened. Walker sustained injuries and lacerations
to his head. Kennedy and Audrita were arrested as they exited the bus.
1
Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with all 2015 First Regular Session of the 119th General
Assembly legislation effective through June 28, 2015).
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[5] At the bench trial in this case, Walker testified to the events as set forth above.
Audrita then testified on Kennedy’s behalf. She admitted that after having a
verbal altercation with Walker, she (Audrita) punched and then struck him in
the head with a spoon.2 Audrita testified that Kennedy never touched Walker.
Kennedy also testified consistently with her mother.
[6] At the conclusion of the evidence, the trial court expressly found credible
Walker’s testimony that Kennedy struck him several times in the face.
Accordingly, the court found Kennedy guilty of battery.
[7] On appeal, Kennedy invokes the incredible dubiosity rule in arguing that the
State failed to present sufficient evidence. Kennedy directs us to the probable
cause affidavit in which Walker “stated the order of events differently.”
Appellant’s Brief at 6. We observe, however, both in his report to police and his
trial testimony, Walker consistently indicated that Kennedy punched him and
Audrita attacked him with a spoon.
[8] Our Supreme Court has recently reiterated the limited scope of the incredible
dubiosity rule, which requires that there 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.” Moore v. State, 27
N.E.3d 749, 756 (Ind. 2015). While the standard is not impossible to meet, it is
difficult and “one that requires great ambiguity and inconsistency in the
2
Audrita pleaded guilty prior to Kennedy’s trial.
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evidence.” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In
other words, the sole witness’s testimony “must be so convoluted and/or
contrary to human experience that no reasonable person could believe it.” Id.
(quoting Edwards v. State, 753 N.E.2d at 622)).
[9] Walker’s testimony in the instant case was unequivocal and not inherently
contradictory. He consistently testified that Kennedy and her mother physically
attacked him on the bus, and his account was not contrary to human
experience. Further, the minor inconsistencies between his trial testimony and
his statement to police did not render his trial testimony incredibly dubious. See
Stephenson v. State, 742 N.E.2d 463 (Ind. 2001). The incredible dubiosity rule is
not applicable here.
[10] The trial court was presented with conflicting accounts regarding Kennedy’s
involvement in the attack, and the court indicated it believed Walker. This was
the trial court’s prerogative, and we reject the invitation to reweigh the evidence
and judge witness credibility. See Maxwell v. State, 731 N.E.2d 459, 462 (Ind.
Ct. App. 2000) (“[i]t is the function of the trier of fact to resolve conflicts in
testimony, and to determine the weight of the evidence and the credibility of the
witnesses”), trans. denied. Kennedy’s conviction was supported by sufficient
evidence.
[11] Judgment affirmed.
Riley, J., and Brown, J., concur.
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