MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 08 2020, 8:47 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 Talisha Griffin Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andriosha M. Brown, July 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3069 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton Graham, Appellee-Plaintiff. Judge Trial Court Cause No. 49G07-1907-CM-27477
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 1 of 7 Summary [1] Andriosha Brown appeals her conviction for criminal mischief, a Class B
misdemeanor. We affirm.
Issue [2] Brown presents one issue for our review, which we restate as whether the
evidence is sufficient to convict Brown for criminal mischief, a Class B
misdemeanor.
Facts [3] Brown and Deondre 1 have four children together and have been in an open
relationship for eight or nine years. Tr. Vol. II p. 31. On June 2, 2019, Brandi
Ingram (“Ingram”) was visiting Deondre at another friend’s apartment in
Marion County. During the visit, Ingram heard a noise outside the apartment.
Ingram then went to the window of the apartment where she witnessed Brown
repeatedly striking the windows of Ingram’s 2014 Mazda with a short pole.
Ingram recognized Brown because Ingram and Brown went to high school
together and grew up in the same neighborhood.
[4] According to Ingram, the incident lasted approximately five minutes; Brown
first broke the front windshield and subsequently broke the passenger side and
driver side windows. Ingram also witnessed Brown attempt to unsuccessfully
1 Deondre’s last name was not provided in the court record.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 2 of 7 break the back window. After Brown left, Ingram called her mother, Sarah
Fitzgerald (“Fitzgerald”), and her cousin. Ingram observed Brown leave the
scene, but Brown kept returning. Ingram’s cousin arrived approximately fifteen
minutes later and followed Ingram to Fitzgerald’s house. While at Fitzgerald’s
home, Ingram called the police. According to Fitzgerald: (1) the windshield
and the back window of the 2014 Mazda were both broken; and (2) the back
window, located behind her grandson’s car seat in the back seat, was broken
and the car seat was covered with broken glass fragments.
[5] Officer Turner 2 with the Indianapolis Metropolitan Police Department arrived
at Fitzgerald’s residence. Officer Turner took photographs and spoke with
Ingram. Ingram later spoke to Detective Richard Eldridge and emailed him a
video 3 depicting Brown by Ingram’s car.
[6] The State charged Brown with criminal mischief, a Class A misdemeanor. A
bench trial was held in December 2019. At the close of the presentation of the
State’s evidence, Brown moved to dismiss under Indiana Trial Rule 41(B),
which the trial court denied.
[7] Brown testified that, in the afternoon on June 2, 2019, she took her children to
a waterpark. Brown denied that she damaged Ingram’s car windows. At the
2 Officer Turner’s first name was not provided in the record. 3 Ingram testified she attempted to record the incident but testified she “recorded [Brown] moments after she bust (sic) the last window”. Tr. Vol. II p. 17.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 3 of 7 bench trial, the State did not introduce the police report, photographs, or
Ingram’s video into evidence. During closing arguments, the State contended
the police report did not “add any merit to the case . . .” Id. at 35-36.
[8] The trial court entered judgment on the lesser-included offense of criminal
mischief, a Class B misdemeanor, and stated: “. . . it was not made clear to the
Court through the testimony at trial that [the damage] was at least $750.” Id. at
37. The trial court sentenced Brown to 180 days, with 174 days suspended to
probation. Brown now appeals her conviction.
Analysis [9] Brown argues the evidence is insufficient to support her conviction. When
there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh
evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210
(Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),
cert. denied. Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558
(Ind. 2018) (holding that, even though there was conflicting evidence, it was
“beside the point” because that argument “misapprehend[s] our limited role as
a reviewing court”). “We will affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 4 of 7 Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007)).
[10] Brown was found guilty of criminal mischief, a Class B misdemeanor, pursuant
to Indiana Code Section 35-43-1-2(a), which provides 4: “A person who
recklessly, knowingly, or intentionally damages or defaces property of another
person without the other person’s consent commits criminal mischief . . . .”
Brown’s specific argument is that the evidence is insufficient to prove Brown
damaged or defaced Ingram’s 2014 Mazda because: (1) there is a lack of
evidence presented to prove the damage was caused by Brown; and (2)
Ingram’s testimony is incredibly dubious.
[11] The incredible dubiosity rule “allows an appellate court to impinge upon the
fact-finder’s assessment of witness credibility when the testimony at trial was so
‘unbelievable, incredible, or improbable that no reasonable person could ever
reach a guilty verdict based upon that evidence alone.’” Carter v. State, 44
N.E.3d 47, 52 (Ind. Ct. App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751
(Ind. 2015)). “Incredible dubiosity is a difficult standard to meet, requiring
ambiguous, inconsistent testimony that ‘runs counter to human experience.’”
Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In Moore, our
Supreme Court held that “the appropriate scope of the incredible dubiosity rule
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 08 2020, 8:47 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 Talisha Griffin Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andriosha M. Brown, July 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3069 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton Graham, Appellee-Plaintiff. Judge Trial Court Cause No. 49G07-1907-CM-27477
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 1 of 7 Summary [1] Andriosha Brown appeals her conviction for criminal mischief, a Class B
misdemeanor. We affirm.
Issue [2] Brown presents one issue for our review, which we restate as whether the
evidence is sufficient to convict Brown for criminal mischief, a Class B
misdemeanor.
Facts [3] Brown and Deondre 1 have four children together and have been in an open
relationship for eight or nine years. Tr. Vol. II p. 31. On June 2, 2019, Brandi
Ingram (“Ingram”) was visiting Deondre at another friend’s apartment in
Marion County. During the visit, Ingram heard a noise outside the apartment.
Ingram then went to the window of the apartment where she witnessed Brown
repeatedly striking the windows of Ingram’s 2014 Mazda with a short pole.
Ingram recognized Brown because Ingram and Brown went to high school
together and grew up in the same neighborhood.
[4] According to Ingram, the incident lasted approximately five minutes; Brown
first broke the front windshield and subsequently broke the passenger side and
driver side windows. Ingram also witnessed Brown attempt to unsuccessfully
1 Deondre’s last name was not provided in the court record.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 2 of 7 break the back window. After Brown left, Ingram called her mother, Sarah
Fitzgerald (“Fitzgerald”), and her cousin. Ingram observed Brown leave the
scene, but Brown kept returning. Ingram’s cousin arrived approximately fifteen
minutes later and followed Ingram to Fitzgerald’s house. While at Fitzgerald’s
home, Ingram called the police. According to Fitzgerald: (1) the windshield
and the back window of the 2014 Mazda were both broken; and (2) the back
window, located behind her grandson’s car seat in the back seat, was broken
and the car seat was covered with broken glass fragments.
[5] Officer Turner 2 with the Indianapolis Metropolitan Police Department arrived
at Fitzgerald’s residence. Officer Turner took photographs and spoke with
Ingram. Ingram later spoke to Detective Richard Eldridge and emailed him a
video 3 depicting Brown by Ingram’s car.
[6] The State charged Brown with criminal mischief, a Class A misdemeanor. A
bench trial was held in December 2019. At the close of the presentation of the
State’s evidence, Brown moved to dismiss under Indiana Trial Rule 41(B),
which the trial court denied.
[7] Brown testified that, in the afternoon on June 2, 2019, she took her children to
a waterpark. Brown denied that she damaged Ingram’s car windows. At the
2 Officer Turner’s first name was not provided in the record. 3 Ingram testified she attempted to record the incident but testified she “recorded [Brown] moments after she bust (sic) the last window”. Tr. Vol. II p. 17.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 3 of 7 bench trial, the State did not introduce the police report, photographs, or
Ingram’s video into evidence. During closing arguments, the State contended
the police report did not “add any merit to the case . . .” Id. at 35-36.
[8] The trial court entered judgment on the lesser-included offense of criminal
mischief, a Class B misdemeanor, and stated: “. . . it was not made clear to the
Court through the testimony at trial that [the damage] was at least $750.” Id. at
37. The trial court sentenced Brown to 180 days, with 174 days suspended to
probation. Brown now appeals her conviction.
Analysis [9] Brown argues the evidence is insufficient to support her conviction. When
there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh
evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210
(Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),
cert. denied. Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558
(Ind. 2018) (holding that, even though there was conflicting evidence, it was
“beside the point” because that argument “misapprehend[s] our limited role as
a reviewing court”). “We will affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 4 of 7 Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007)).
[10] Brown was found guilty of criminal mischief, a Class B misdemeanor, pursuant
to Indiana Code Section 35-43-1-2(a), which provides 4: “A person who
recklessly, knowingly, or intentionally damages or defaces property of another
person without the other person’s consent commits criminal mischief . . . .”
Brown’s specific argument is that the evidence is insufficient to prove Brown
damaged or defaced Ingram’s 2014 Mazda because: (1) there is a lack of
evidence presented to prove the damage was caused by Brown; and (2)
Ingram’s testimony is incredibly dubious.
[11] The incredible dubiosity rule “allows an appellate court to impinge upon the
fact-finder’s assessment of witness credibility when the testimony at trial was so
‘unbelievable, incredible, or improbable that no reasonable person could ever
reach a guilty verdict based upon that evidence alone.’” Carter v. State, 44
N.E.3d 47, 52 (Ind. Ct. App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751
(Ind. 2015)). “Incredible dubiosity is a difficult standard to meet, requiring
ambiguous, inconsistent testimony that ‘runs counter to human experience.’”
Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In Moore, our
Supreme Court held that “the appropriate scope of the incredible dubiosity rule
4 The Class A misdemeanor statute has a pecuniary loss requirement of “at least seven hundred fifty dollars ($750) but less than fifty thousand dollars ($50,000).” Ind. Code § 35-43-1-2. Although Brown was charged with a Class A misdemeanor, the trial court convicted her of a Class B misdemeanor. Accordingly, we will not discuss the pecuniary loss requirement.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 5 of 7 as utilized in Indiana and other jurisdictions 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, 27 N.E.3d at 756.
[12] Brown’s reliance on the incredible dubiosity rule is misplaced. Importantly,
Ingram’s testimony was consistent throughout. Ingram claimed Brown was
present at the scene and broke the windows of the 2014 Mazda. The fact that
Ingram testified that Brown and Deondre also had an altercation that day does
not render the incredible dubiosity rule applicable. See Berry v. State, 703 N.E.2d
154, 160 (Ind. 1998) (declining to apply the incredible dubiosity rule to
defendant’s argument that the testimony of the State’s witnesses conflicted,
because no witness contradicted himself).
[13] Brown also argues that Ingram’s testimony regarding the extent of the damage
conflicted with Fitzgerald’s testimony. Ingram testified she could clearly see
Brown striking the Mazda windows with a short pole. Ingram then testified
that, after Brown broke the front, driver-side, and passenger windows, Brown
attempted to break the rear window of the vehicle. Similarly, although she was
not present when the damage occurred, Fitzgerald testified that when she saw
the vehicle, the front windshield, driver-side and passenger-side windows, and
the rear window of the Mazda were broken. Brown contends there is an
inconsistency between Ingram’s and Fitzgerald’s testimony concerning the
damage incurred to the rear window.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 6 of 7 [14] This difference in Ingram’s and Fitzgerald’s testimony presents a mere
credibility question for the trial court, and the incredible dubiosity doctrine does
not apply. Ingram’s testimony was not inherently contradictory, equivocal, or
the result of coercion; accordingly, Brown fails to satisfy the second prong of
the incredible dubiosity rule. Brown’s argument that Ingram’s testimony is
insufficient because it conflicts with Fitzgerald’s testimony is simply a request
for us to reweigh the evidence, which we cannot do. See Gibson, 51 N.E.3d at
210.
[15] Ultimately, Ingram testified that she saw Brown strike the Mazda with a short
pole, and the trial court found Ingram to be a credible witness. The State
presented evidence that Brown recklessly, knowingly, or intentionally damaged
the vehicle without the owner’s consent. Accordingly, the State introduced
sufficient evidence to convict Brown of criminal mischief, a Class B
Conclusion [16] The evidence is sufficient to support Brown’s conviction. We affirm.
[17] Affirmed.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020 Page 7 of 7