MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Dec 05 2016, 8:38 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry D. Thompson, December 5, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1602-CR-400
v. Appeal from the Marion Superior
Court.
The Honorable Christina R.
State of Indiana, Klineman, Judge.
Appellee-Plaintiff. Cause No. 49G17-1601-CM-48
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 1 of 5
[1] Jerry D. Thompson appeals his conviction of battery resulting in bodily injury,
1
a Class A misdemeanor. We affirm.
[2] The sole issue Thompson presents for our review is whether the State presented
sufficient evidence to support his conviction.
[3] On December 31, 2015, Thompson engaged in a verbal argument and physical
altercation with his former girlfriend, A.L. Based upon this incident,
2
Thompson was charged with domestic battery and battery resulting in bodily
injury, both as Class A misdemeanors. A bench trial was held on the charges,
and Thompson was found guilty of battery resulting in bodily injury. He was
sentenced to 365 days suspended to probation. This appeal followed.
[4] Thompson contends that the evidence is insufficient to support his conviction
because A.L.’s testimony is incredibly dubious. When we review a challenge to
the sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App.
2015), trans. denied. Instead, we consider only the evidence most favorable to
the verdict and any reasonable inferences drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable fact-finder
1
Ind. Code § 35-42-2-1(b)(1), (c) (2014).
2
Ind. Code § 35-42-2-1.3(a) (2014).
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could have found the defendant guilty beyond a reasonable doubt, the judgment
will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App. 2015).
[5] Yet, appellate courts may apply the incredible dubiosity rule to impinge upon a
jury’s function to judge the credibility of a witness when confronted with
inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276 (Ind. Ct.
App. 2009), trans. denied. Application of this rule is rare and is limited to cases
where a single witness presents inherently contradictory testimony which is
equivocal or the result of coercion and there is a complete lack of circumstantial
evidence of guilt. Id. The standard to be applied for this rule is whether the
testimony is so incredibly dubious or inherently improbable that no reasonable
person could believe it. Fancher v. State, 918 N.E.2d 16 (Ind. Ct. App. 2009).
[6] At trial, A.L. testified that she did not remember why Thompson was at her
apartment on December 31, 2015, but that she and Thompson engaged in a
verbal argument and physical altercation in which Thompson hit her in the
head and pulled her hair, causing her pain. She stated that bruising appeared
within a few days. A.L. summarized the event, stating, “I just know that he,
we, got into an altercation and he just, got to hitting me for, I don’t know why,
but that’s all I remember.” Tr. pp. 37-38.
[7] The responding police officer testified that when she arrived, A.L. was at the
door, and Thompson was located at the entrance to the apartment complex.
The officer noticed that A.L.’s hair “was messed up” but saw no physical
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injuries. Id. at 43. On cross-examination, defense counsel asked the officer
about the injuries A.L. reported to the officer the night of the incident. The
officer responded that A.L. reported being pushed in the chest and pulled by the
hair but that she did not mention being hit in the head.
[8] Under the umbrella of incredibly dubious testimony, Thompson asserts that
A.L.’s testimony is improbable, uncorroborated and inconsistent. We address
each contention in turn. First, Thompson claims that A.L.’s version of the
events is “highly questionable” and “implausible” because, as he stated at trial,
A.L. had previously called the police and/or his parole officer to report him
and that this time she was jealous about him possibly seeing another woman.
Appellant’s Br. pp. 12-13. A.L. testified unequivocally at trial that Thompson
hit her in the head and pulled her hair. This is merely an invitation by
Thompson for this Court to invade the province of the trier of fact by
reassessing witness credibility. It is within the factfinder’s province to judge the
credibility of the witnesses. Brasher v. State, 746 N.E.2d 71 (Ind. 2001). In
doing so, the trier of fact is entitled to determine which version of the incident
to credit. Schmid v. State, 804 N.E.2d 174 (Ind. Ct. App. 2004), trans. denied.
We decline Thompson’s invitation.
[9] Thompson also argues that A.L.’s testimony is incredibly dubious because it is
uncorroborated. A.L. testified unambiguously that Thompson hit her in the
head and pulled her hair, thereby causing her pain. She further testified that she
had bruises within a few days of the incident. Although the police officer
testified that she saw no physical injuries, she did notice that A.L.’s hair was
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 4 of 5
messed up. “A conviction may be sustained on the uncorroborated testimony
of a single witness or victim.” Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct.
App. 2007), trans. denied. Again, this argument is nothing more than a request
for this Court to re-evaluate witness credibility. The judge, as factfinder, heard
the testimony and made her credibility determinations which we will not
disturb. See Brasher, 746 N.E.2d 71.
[10] Finally, Thompson asserts that A.L.’s testimony is inconsistent with her
statement to the police officer the night of the incident. A.L. testified that
Thompson hit her in the head and pulled her hair. The police officer testified
that A.L. reported to her only that Thompson had pushed A.L. in the chest and
pulled her hair. The rule of incredible dubiosity concerns courtroom testimony,
not statements made outside of trial or the courtroom. Reyburn v. State, 737
N.E.2d 1169 (Ind. Ct. App. 2000); see also Holeton v. State, 853 N.E.2d 539 (Ind.
Ct. App. 2006) (holding that discrepancies between victim’s statements to
police and trial testimony go to weight of testimony and witness credibility and
do not render testimony inherently contradictory). Thus, we cannot say that
A.L.’s testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it.
[11] In light of the foregoing, we affirm the judgment of the trial court.
[12] Judgment affirmed.
Vaidik, C.J., and Mathias, J., concur.
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Jerry D. Thompson v. State of Indiana (mem. dec.)
Combined Opinion