Alicia Patrice Cleveland v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 19, 2017
• Docket: 71A03-1610-CR-2389
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 19 2017, 10:31 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alicia Patrice Cleveland, April 19, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1610-CR-2389 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Julie Verheye, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D08-1507-CM-2460

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2389| April 19, 2017 Page 1 of 5 Case Summary [1] Alicia Cleveland (“Cleveland”) was convicted after a bench trial of Criminal

Mischief, as a Class B misdemeanor,1 and Pointing a Firearm, as a Class A

misdemeanor.2 She now appeals, raising a single issue for our review: whether

the testimony introduced against her at trial was incredibly dubious.

[2] We affirm.

Facts and Procedural History [3] Cleveland and another woman, Latifa Gillam (“Gillam”), had a long-running

dispute with one another. Cleveland was known to members of Gillam’s

extended family, some of whom had once been friendly with Cleveland.

[4] On the afternoon of May 21, 2015, Gillam’s car was parked outside the South

Bend home of her godmother, Kathy Newcomb (“Newcomb”). Newcomb was

at home that afternoon, looked out her window, and saw Cleveland and an

unidentified man get out of a charcoal-gray Chrysler 200 automobile.

Cleveland and her companion were holding baseball bats. The two approached

Gillam’s car and began to smash its windows with the baseball bats. Cleveland

and her companion shattered the front and rear windshields; put holes in

windows in three of the four doors of Gillam’s car; and struck the car’s roof,

1 Ind. Code § 35-43-1-2(a). 2 I.C. § 35-47-4-3(b).

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2389| April 19, 2017 Page 2 of 5 creating dents above the driver’s side of the vehicle. Cleveland and her

companion then drove away. Newcomb contacted police, and identified

Cleveland as having been involved in damaging Gillam’s car.

[5] Later that day, around 11:00 p.m., Gillam was a passenger in a car driven by

her cousin, Andrea Evans (“Evans”), as the two were headed to Gillam’s

mother’s home in South Bend. Gillam and Evans observed a charcoal-gray

Chrysler 200 following them, and Gillam recognized Cleveland as the vehicle’s

driver. Gillam and Evans proceeded to Gillam’s mother’s home, and arrived

there at about the same time as Gillam’s sister, Charda Davis (“Davis”).

[6] Gillam, Evans, and Davis were standing outside of Gillam’s and Davis’s

mother’s home and saw the Chrysler 200 driven by Cleveland pull into the

intersection nearest the home. The car stopped. Cleveland got out of the car,

walked to the trunk, and pulled a black pistol out of the trunk. Cleveland then

pointed the gun toward the area where Gillam, Evans, and Davis were

standing. The three women heard several shots and ran inside.

[7] Cleveland had been accompanied by an unidentified male, who moved into the

driver’s seat of the vehicle. Cleveland got back into the car, which drove away.

Police were contacted, and Cleveland was identified as the shooter.

[8] On July 15, 2015, Cleveland was charged with Criminal Mischief and Pointing

a Firearm. A bench trial was conducted on August 18, 2016. At the trial’s

conclusion, the court found Cleveland guilty as charged. On September 23,

2016, the court sentenced Cleveland to 180 days imprisonment for Criminal

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2389| April 19, 2017 Page 3 of 5 Mischief and 365 days of imprisonment for Pointing a Firearm. The sentences

were run concurrent with one another, and all but four days were suspended to

probation.

[9] This appeal ensued.

Discussion and Decision [10] Cleveland challenges her convictions with the sole claim that the testimony

supporting the judgment was so contradictory as to be incredibly dubious. Our

supreme court has recently defined and clarified the scope of the incredible

dubiosity rule in Moore v. State, 27 N.E.3d 749 (Ind. 2015). The Indiana

Supreme Court stated: “Under this rule, a court will impinge on the jury’s

responsibility to judge the credibility of the witnesses only when it has

confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly

uncorroborated testimony of ‘incredible dubiosity.’” Id. at 755 (quoting Tillman

v. State, 642 N.E.2d 221, 223 (Ind. 1994)). The incredible dubiosity rule applies

only “‘where a sole witness presents inherently contradictory testimony which is

equivocal or the result of coercion and there is a complete lack of circumstantial

evidence of the appellant’s guilty.’” Id. (quoting Tillman, 642 N.E.2d at 223)

(emphasis in original).

[11] To convict Cleveland of Criminal Mischief, as charged, the State was required

to prove beyond a reasonable doubt that Cleveland recklessly or knowingly

damaged or defaced Gillam’s property without her permission. See I.C. § 35-

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2389| April 19, 2017 Page 4 of 5 43-1-2(a); App’x Vol. 2 at 6. To convict Cleveland of Pointing a Firearm, as

charged, the State was required to prove beyond a reasonable doubt that

Cleveland knowingly pointed an unloaded firearm at Gillam. See I.C. § 35-47-

4-3(b); App’x Vol. 2 at 7.

[12] Our review of the record makes it clear that the incredible dubiosity rule has no

application in this case. Here, four different witnesses testified at trial:

Newcomb, Gillam, Evans, and Davis. Gillam, Evans, and Davis each testified

concerning the events surrounding the Pointing a Firearm charge, making the

rule inapplicable as to that conviction. To the extent that Cleveland suggests

that there are inconsistencies among the witnesses’ individual testimonies, we

note that the incredible dubiosity rule has no bearing in such cases.

[13] Newcomb testified as the only direct witness of Cleveland’s damaging of

Gillam’s car, but Newcomb’s testimony includes no inherently contradictory or

equivocal statements as to Cleveland’s identity or conduct, and Cleveland

makes no claim that Newcomb’s testimony was coerced. Thus, the incredible

dubiosity rule does not apply to Cleveland’s conviction for Criminal Mischief.

[14] Cleveland raises no other argument on appeal. We accordingly affirm her

convictions.

[15] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2389| April 19, 2017 Page 5 of 5