MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 08 2017, 9:00 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Michael Gene Worden
Caryn Nieman-Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary S. Kirkwood, June 8, 2017
Appellant-Defendant, Court of Appeals Case No.
20A04-1612-CR-2779
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D04-1603-F5-84
May, Judge.
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[1] Gary S. Kirkwood appeals his convictions of Level 5 felony operating a vehicle
while a habitual traffic violator (“HTV”) 1 and Class A misdemeanor battery. 2
Kirkwood argues the State did not present sufficient evidence he committed
either of the crimes. We affirm.
Facts and Procedural History
[2] On March 27, 2016, Jamie Dunfee and Kirkwood were in Elkhart County,
Indiana, at the home of Dunfee’s father. The pair had been “bickering back
and forth,” (Tr. at 56), about their relationship when Kirkwood grabbed his
belongings and walked away from the house. Kirkwood returned shortly
thereafter, and Dunfee told him she would take him home in her car. She
handed Kirkwood her keys for him to drive. At the time, Dunfee had a valid
driver’s license, but Kirkwood did not have a valid license as he had forfeited
his driving privileges for life after being found to be an HTV.
[3] On the way home, Dunfee was not paying attention to the route Kirkwood was
taking. Kirkwood abruptly slammed on the brakes causing the car to come to a
stop facing south in a yard on the shoulder of State Road 15. Dunfee and her
two small dogs, which were sitting on her lap, hit the dashboard.
1
Ind. Code § 9-30-10-17(a) (2015).
2
Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c) (2014).
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[4] Jeremy Troyer was in his backyard when he heard brakes screeching. Within
thirty to forty-five seconds he went to his front yard and observed Kirkwood
outside of the car on the driver’s side arguing with Dunfee, who was standing
outside the passenger’s side. Kirkwood threw the car keys into a nearby yard.
Dunfee retrieved her keys, and then Kirkwood pushed her down. Troyer saw
Dunfee lying on the ground in front of the car with Kirkwood standing over
her.
[5] Jeffery Norton was traveling north along State Road 15 and saw Dunfee’s car
parked on the shoulder. Norton stopped his truck when “it appeared that
[Kirkwood] was hitting [Dunfee].” (Id. at 83.) According to Norton, it
appeared Kirkwood was dragging Dunfee toward the front of the car. Norton
yelled at Kirkwood to stop hitting Dunfee. Kirkwood responded that Norton
should “mind [his] own business,” (id. at 86), went across the road to Norton,
and hit Norton on the right eye area knocking Norton’s glasses off. The two
men had a short “schoolyard brawl.” (Id. at 87.) Then Kirkwood retrieved his
belongings out of Dunfee’s car and ran away.
[6] Norton called 911 and Officer Jennifer Smith with the Elkhart County Sheriff’s
Department responded to the scene. Officer Smith saw Dunfee was upset. She
also observed redness and swelling on Norton’s face. Officer Smith took
pictures of Norton’s injuries.
[7] Corporal Milovich with the Elkhart County Sheriff’s Department was also
dispatched to the area to look for a suspect described as “a white male wearing
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a yellow shirt, carrying a backpack, bald, no hair.” (Id. at 124.) Cpl. Milovich
detained Kirkwood, who matched the description, while he was walking
through a yard. Kirkwood was handcuffed, placed in the back of Cpl.
Milovich’s patrol car, and driven back to the scene. Cpl. Milovich ran
Kirkwood’s information through the Indiana BMV database and saw
Kirkwood’s driving privileges were forfeited for life. Cpl. Milovich transported
Kirkwood to the Elkhart County Correctional Facility.
[8] The State charged Kirkwood with one count of Level 5 felony operating a
vehicle while an HTV, one count of Class A misdemeanor battery for hitting
Norton, and one count of Class B misdemeanor battery for hitting Dunfee. The
jury found Kirkwood not guilty of Class B misdemeanor battery, but guilty of
Level 5 felony operating a vehicle while an HTV and Class A misdemeanor
battery. He was sentenced to six years for the felony conviction, with two years
suspended to reporting probation, and 365 days for the Class A misdemeanor
conviction to run concurrent to the felony sentence.
Discussion and Decision
[9] When reviewing sufficiency of the evidence to support a conviction, we must
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 reweigh
evidence or assess the credibility of witnesses, as that is the role of the fact-
finder. Id. When confronted with conflicting evidence, we must consider it
most favorably to the verdict. Id. We affirm a “conviction unless no reasonable
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fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id. It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence, but rather the evidence is sufficient if an
inference reasonably may be drawn from it to support the verdict. Id. at 147.
1. Operating a Vehicle while an HTV
[10] To prove Kirkwood committed Level 5 felony operating a vehicle while an
HTV, the State was required to prove beyond a reasonable doubt that (1)
Kirkwood, (2) operated a motor vehicle, (3) after his driving privileges were
forfeited for life. See Ind. Code § 9-30-10-17. Kirkwood argues this conviction
should be reversed because Dunfee’s incredibly dubious testimony was
insufficient to prove he drove Dunfee’s vehicle.
[11] The incredible dubiosity rule is limited to situations in which there was: “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). The rule is applied in narrow
circumstances and should be applied here only if “testimony is so incredibly
dubious or inherently improbable that no reasonable person could believe it.”
Rose v. State, 36 N.E.3d 1055, 1061 (Ind. Ct. App. 2015). Further, the testimony
from the witness must run “counter to human experience.” Campbell v. State,
732 N.E.2d 197, 207 (Ind. Ct. App. 2000). Kirkwood argues Dunfee’s
testimony was incredibly dubious because Dunfee’s version of events was
inconsistent and improbable. We disagree.
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[12] Kirkwood asserts incredible dubiosity applies because Dunfee was the only
witness to testify he was driving, Dunfee had Kirkwood drive her vehicle even
though Kirkwood did not have a valid license, Dunfee does not remember
much of the car ride, and Dunfee was drinking that day.
[13] However, Kirkwood’s arguments fail to satisfy the elements of incredible
dubiosity. Dunfee testified there was no other reason she wanted Kirkwood to
drive her car that day than “to make sure he was secure enough that he was
going to get home . . . on his own.” (Tr. at 58.) Dunfee testified she did not
remember much of the car ride not because she was intoxicated “to the point of
blacking out,” (id. at 62), but because she was “daydreaming.” (Id.) It is not
inherently impossible, so that no reasonable person could believe it, that a
passenger would be daydreaming during a car ride and not remember the route
taken or that Dunfee desired Kirkwood to drive himself home. See Lewis v.
State, 726 N.E.2d 836, 842-43 (Ind. Ct. App 2000) (victim’s testimony was not
incredibly dubious though she was unclear on some details of the incident),
trans. denied. Further, Dunfee never contradicted herself during trial testimony,
and the jury chose to believe her version of events. 3
3
Kirkwood argues that the jury did not believe Dunfee’s testimony, as it did not convict Kirkwood of Class B
misdemeanor battery. However, Kirkwood does not explain why the jury’s failure to find him guilty of one
crime means the jury could not have believed a witness’s testimony regarding another crime. We decline to
hold Dunfee’s testimony was incredibly dubious simply because the jury did not convict Kirkwood of all
charges. See, e.g., Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002) (defendant was not convicted of all
charges and, nevertheless, the witness’s testimony was not incredibly dubious).
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[14] There was also circumstantial evidence presented at trial. Troyer testified that
when he first witnessed the pair fighting, about thirty to forty-five seconds after
hearing the vehicle screech to a halt, they were outside of the car with
Kirkwood on the driver’s side and Dunfee on the passenger’s side. Troyer and
Dunfee both testified that Kirkwood was holding the car keys, which he then
threw into a nearby yard.
[15] Kirkwood’s arguments are requests for us to reweigh evidence and judge the
credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146
(appellate court does not reweigh evidence or judge the credibility of witnesses).
As the trial testimony was not “incredibly dubious or inherently improbable,”
we hold the evidence was sufficient for the jury to find Kirkwood guilty of
Level 5 felony operating while an HTV. See, e.g., Fonner v. State, 876 N.E.2d
340, 343 (Ind. Ct. App. 2007) (sufficient evidence to uphold defendant’s
conviction of operating a motor vehicle while privileges are forfeited for life
when arresting officer’s testimony not found to be incredibly dubious).
2. Class A Misdemeanor Battery
[16] Kirkwood also challenges his conviction for battery, arguing the State presented
insufficient evidence Kirkwood caused bodily injury to Norton.
[17] A Class A misdemeanor conviction of battery is justified when a person
knowingly or intentionally: (1) touches another person in a rude, insolent, or
angry manner, and (2) that conduct results in bodily injury to another person.
Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c). “Bodily injury” is defined as “any
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impairment of physical condition, including physical pain.” Ind. Code § 35-
31.5-2-29. The State alleged Kirkwood inflicted at least minimal “bodily
injury” on Norton as “human experience rationally dictates that when a person
is punched in the eye/cheek area, there is at least some level of pain involved.”
(Appellee’s Br. at 12). Kirkwood contends that because Norton testified he did
not feel pain from the blow and did not notice any swelling, the State did not
prove beyond a reasonable doubt that Kirkwood caused bodily injury to
Norton. We disagree.
[18] It is not necessary for the State to prove Norton suffered physical pain to satisfy
the element of bodily injury. See Tucker v. State, 725 N.E.2d 894, 897-98 (Ind.
Ct. App. 2000) (battery conviction upheld when victim testified being grabbed
did not hurt, but did leave a bruise, which the court held was a physical
impairment), trans. denied. Redness and bruises have been held sufficient proof
of bodily injury. Delahanty v. State, 658 N.E.2d 660, 662 (Ind. Ct. App. 1995)
(battery causing bodily injury affirmed when the victim testified she did not
suffer physical pain, but did sustain bruising and a red mark, which
demonstrated bodily injury).
[19] Norton testified he noticed redness to his face after the blow to his eye and
cheek area. 4 The red area was also in the exact area Kirkwood hit Norton.
4
Kirkwood also asserts Norton had been drinking that day and Norton’s redness could have been caused by
something other than Kirkwood’s hit. However, Norton testified that he did not notice any redness to his
face prior to the hit. Further, it is well established that “it is the fact-finder’s role, not that of the appellate
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Norton testified that he did not remember feeling any pain, as his “main
objective” was to stop Kirkwood from hitting Dunfee. (Tr. at 100.) In
addition, Officer Smith testified to seeing and taking photographs of the redness
and swelling on Norton’s face around his right cheekbone. It is reasonable to
infer from the evidence that Norton could have been too concerned with
Dunfee’s welfare to notice any pain, and that the redness on Norton’s right eye
and cheek was caused by Kirkwood’s blow to that area.
[20] As stated above, we cannot reweigh evidence or assess the credibility of
witnesses. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh
evidence or judge the credibility of witnesses). We conclude that Norton’s
injuries satisfy the definition of “bodily injury,” the State presented sufficient
evidence that Norton suffered bodily injury at Kirkwood’s hands, and the Class
A misdemeanor battery conviction was appropriate. See Delahanty, 658 N.E.2d
at 662 (sufficient evidence of physical impairment to uphold battery conviction
when victim sustained bruises and redness).
Conclusion
courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a
conviction.” See Drane, 867 N.E.2d at 146.
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[21] The State presented sufficient evidence Kirkwood committed Level 5 felony
operating a vehicle while an HTV and Class A misdemeanor battery.
Accordingly, we affirm.
[22] Affirmed.
Brown, J., and Pyle, J., concur.
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Gary S. Kirkwood v. State of Indiana (mem. dec.)
Combined Opinion