MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 14 2015, 8:26 am 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 ATTORNEYS FOR APPELLEE Robert J. Little Gregory F. Zoeller Brookston, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darney R. Karim, October 14, 2015 Appellant-Defendant, Court of Appeals Case No. 91A02-1502-CR-122 v. Appeal from the White Superior Court State of Indiana, The Honorable Jeffrey R. Smith, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 91D01-1407-CM-355
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 1 of 7 [1] Following a bench trial, Darney R. Karim was convicted of Class A
misdemeanor battery resulting in bodily injury.1 He presents the following
restated issue on appeal: whether the evidence was sufficient to convict him
because the victim’s testimony was incredibly dubious.
[2] We affirm.
Facts and Procedural History [3] From approximately March 2014 to early May 2014, Dawn Dillon (“Dillon”)
and Karim were in a dating relationship. Around noon on Monday, July 28,
2014, Dillon got in her car in her driveway. She intended to run a quick errand
to the store, as she was expecting her parents and children to arrive soon, and
she wanted to make lunch for them. Dillon realized she could not find her cell
phone, so she parked the car, stepped out, and looked back inside it for the
phone, which she found and held in her right hand. At that time, Karim
suddenly grabbed Dillon’s right wrist. Dillon had not known Karim was there. 2
[4] Karim demanded that Dillon allow him into her house to retrieve belongings
that he had left there. Dillon refused. Karim turned Dillon around to face him,
and he grabbed her left upper arm. The car door was open, and Dillon’s back
was to the car. She struggled to extricate herself from Karim’s grasp, moving
1 See Ind. Code § 35-42-2-1(b)(1), (c). 2 Dillon lived in a home in the country, along gravel roads. The end of her driveway was near an intersection with a stop sign. She frequently heard the sounds of gravel and stopping cars, and, therefore, she did not notice or hear when Karim and another individual arrived and parked at the end of her driveway.
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 2 of 7 her arms and kicking at him. Dillon told Karim to let her go before someone
passing by on the nearby road saw him and called the police. The incident
lasted about a minute, and Karim released her and left.
[5] At that time, Dillon saw red marks on her arms and legs from the encounter,
but did not believe that what she saw was enough to report the incident to the
police. She went to work the next day, and she began to notice bruising. One
or more of Dillon’s friends encouraged her to report the incident to law
enforcement. Dillon’s July 29 work shift ended at 10:00 p.m. She went to a
friend’s home, and that friend convinced Dillon to contact law enforcement. At
approximately 2:45 a.m. on July 30, Dillon went to the White County Sheriff’s
Department to make a police report.
[6] Dillon met with Deputy Aaron Page and told him what had occurred on July
28. Deputy Page photographed bruises on Dillon’s right wrist, left arm, and
right leg. Thereafter, Deputy Page attempted to locate Karim, but was unable
to find him. On July 30, 2014, the State charged Karim with Class A
misdemeanor battery resulting in bodily injury. In November 2014, Karim filed
a notice of alibi defense.
[7] Karim waived trial by jury, and at the February 2015 bench trial, Dillon
testified to the above course of events. Deputy Page also testified, describing
that, in the early morning hours of July 30, he met with Dillon at the Sheriff’s
Department offices regarding the encounter with Karim that occurred in the
driveway of Dillon’s home on the afternoon of July 28. The photographs that
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 3 of 7 Deputy Page had taken of Dillon’s injuries were admitted into evidence without
objection. Upon questioning, Deputy Page opined that the bruising on Dillon’s
wrist and arm were consistent with being grabbed, and with regard to the
bruising on her shin, Deputy Page recalled that Dillon thought she may have
struck the car’s open driver’s side door while she was kicking at Karim.
[8] Karim testified at trial, acknowledging that he had been in a prior relationship
with Dillon, but stating that he had not seen her since sometime in June 2014.
He expressly denied that he came to her home on Monday, July 28, testifying
that on that date he was out of town at a lake house. He did not know who
owned the lake house, and said he was there at the invitation of another friend,
named Devin, who did not testify at trial. Karim did not know where Devin
was living at the time of trial or how to contact him. The trial court took the
matter under advisement, and the following day, the trial court issued an order
finding Karim guilty as charged. Karim now appeals.
Discussion and Decision [9] Karim’s sole claim on appeal is that the evidence presented was insufficient to
convict him. When we review a challenge to the sufficiency of the evidence, we
neither reweigh the evidence, nor judge the credibility of witnesses. McClellan v.
State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Rather, we
consider only the probative evidence and reasonable inferences supporting the
conviction. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, then the verdict will not Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 4 of 7 be disturbed. Id. We affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Boyd v.
State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied.
[10] Indiana Code section 35-42-2-1(b)(1) provides in relevant part that “[a] person
who knowingly or intentionally touches another person in a rude, insolent, or
angry manner . . . commits battery, a Class B misdemeanor.” However, the
offense is a Class A misdemeanor “if it results in bodily injury to any other
person.” Ind. Code § 35-42-2-1(c). Indiana Code section 35-31.5-2-29 defines
bodily injury as “any impairment of physical condition, including physical
pain,” and scratches, bruises, and red marks are sufficient to establish bodily
injury. See Bailey v. State, 979 N.E.2d 133, 138 n.11 (Ind. 2012) (citing to Hanic
v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 14 2015, 8:26 am 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 ATTORNEYS FOR APPELLEE Robert J. Little Gregory F. Zoeller Brookston, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darney R. Karim, October 14, 2015 Appellant-Defendant, Court of Appeals Case No. 91A02-1502-CR-122 v. Appeal from the White Superior Court State of Indiana, The Honorable Jeffrey R. Smith, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 91D01-1407-CM-355
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 1 of 7 [1] Following a bench trial, Darney R. Karim was convicted of Class A
misdemeanor battery resulting in bodily injury.1 He presents the following
restated issue on appeal: whether the evidence was sufficient to convict him
because the victim’s testimony was incredibly dubious.
[2] We affirm.
Facts and Procedural History [3] From approximately March 2014 to early May 2014, Dawn Dillon (“Dillon”)
and Karim were in a dating relationship. Around noon on Monday, July 28,
2014, Dillon got in her car in her driveway. She intended to run a quick errand
to the store, as she was expecting her parents and children to arrive soon, and
she wanted to make lunch for them. Dillon realized she could not find her cell
phone, so she parked the car, stepped out, and looked back inside it for the
phone, which she found and held in her right hand. At that time, Karim
suddenly grabbed Dillon’s right wrist. Dillon had not known Karim was there. 2
[4] Karim demanded that Dillon allow him into her house to retrieve belongings
that he had left there. Dillon refused. Karim turned Dillon around to face him,
and he grabbed her left upper arm. The car door was open, and Dillon’s back
was to the car. She struggled to extricate herself from Karim’s grasp, moving
1 See Ind. Code § 35-42-2-1(b)(1), (c). 2 Dillon lived in a home in the country, along gravel roads. The end of her driveway was near an intersection with a stop sign. She frequently heard the sounds of gravel and stopping cars, and, therefore, she did not notice or hear when Karim and another individual arrived and parked at the end of her driveway.
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 2 of 7 her arms and kicking at him. Dillon told Karim to let her go before someone
passing by on the nearby road saw him and called the police. The incident
lasted about a minute, and Karim released her and left.
[5] At that time, Dillon saw red marks on her arms and legs from the encounter,
but did not believe that what she saw was enough to report the incident to the
police. She went to work the next day, and she began to notice bruising. One
or more of Dillon’s friends encouraged her to report the incident to law
enforcement. Dillon’s July 29 work shift ended at 10:00 p.m. She went to a
friend’s home, and that friend convinced Dillon to contact law enforcement. At
approximately 2:45 a.m. on July 30, Dillon went to the White County Sheriff’s
Department to make a police report.
[6] Dillon met with Deputy Aaron Page and told him what had occurred on July
28. Deputy Page photographed bruises on Dillon’s right wrist, left arm, and
right leg. Thereafter, Deputy Page attempted to locate Karim, but was unable
to find him. On July 30, 2014, the State charged Karim with Class A
misdemeanor battery resulting in bodily injury. In November 2014, Karim filed
a notice of alibi defense.
[7] Karim waived trial by jury, and at the February 2015 bench trial, Dillon
testified to the above course of events. Deputy Page also testified, describing
that, in the early morning hours of July 30, he met with Dillon at the Sheriff’s
Department offices regarding the encounter with Karim that occurred in the
driveway of Dillon’s home on the afternoon of July 28. The photographs that
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 3 of 7 Deputy Page had taken of Dillon’s injuries were admitted into evidence without
objection. Upon questioning, Deputy Page opined that the bruising on Dillon’s
wrist and arm were consistent with being grabbed, and with regard to the
bruising on her shin, Deputy Page recalled that Dillon thought she may have
struck the car’s open driver’s side door while she was kicking at Karim.
[8] Karim testified at trial, acknowledging that he had been in a prior relationship
with Dillon, but stating that he had not seen her since sometime in June 2014.
He expressly denied that he came to her home on Monday, July 28, testifying
that on that date he was out of town at a lake house. He did not know who
owned the lake house, and said he was there at the invitation of another friend,
named Devin, who did not testify at trial. Karim did not know where Devin
was living at the time of trial or how to contact him. The trial court took the
matter under advisement, and the following day, the trial court issued an order
finding Karim guilty as charged. Karim now appeals.
Discussion and Decision [9] Karim’s sole claim on appeal is that the evidence presented was insufficient to
convict him. When we review a challenge to the sufficiency of the evidence, we
neither reweigh the evidence, nor judge the credibility of witnesses. McClellan v.
State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Rather, we
consider only the probative evidence and reasonable inferences supporting the
conviction. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, then the verdict will not Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 4 of 7 be disturbed. Id. We affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Boyd v.
State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied.
[10] Indiana Code section 35-42-2-1(b)(1) provides in relevant part that “[a] person
who knowingly or intentionally touches another person in a rude, insolent, or
angry manner . . . commits battery, a Class B misdemeanor.” However, the
offense is a Class A misdemeanor “if it results in bodily injury to any other
person.” Ind. Code § 35-42-2-1(c). Indiana Code section 35-31.5-2-29 defines
bodily injury as “any impairment of physical condition, including physical
pain,” and scratches, bruises, and red marks are sufficient to establish bodily
injury. See Bailey v. State, 979 N.E.2d 133, 138 n.11 (Ind. 2012) (citing to Hanic
v. State, 406 N.E.2d 335, 337-38 (Ind. Ct. App. 1980), where evidence of red
marks, bruises, and minor scratches was sufficient to support a finding of bodily
injury). Thus, in order to prove that Karim committed Class A misdemeanor
battery, the State was required to prove that he knowingly or intentionally
touched Dillon in a rude, insolent, or angry manner, and that such touching
resulted in bodily injury to her.
[11] Here, Karim argues that the evidence was insufficient because Dillon’s
testimony was incredibly dubious. In general, the uncorroborated testimony of
one victim is sufficient to sustain a conviction. Holeton v. State, 853 N.E.2d 539,
540 (Ind. Ct. App. 2006). However, the “incredible dubiosity rule” provides
that “a court may ‘impinge on the jury’s responsibility to judge the credibility of
witnesses only when confronted with inherently improbable testimony or
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 5 of 7 coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.’”
Govan v. State, 913 N.E.2d 237, 243 n.6 (Ind. Ct. App. 2009) (quoting Murray v.
State, 761 N.E.2d 406, 408 (Ind. 2002)), trans. denied. The application of this
rule is rare and is limited to situations in which a sole witness presents
inherently improbable testimony such that no reasonable person could believe it
and there is a complete lack of circumstantial evidence of a defendant’s guilt.
Id. The standard to be applied is “‘whether the testimony is so incredibly
dubious or inherently improbable that no reasonable person could believe it.’”
Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010) (quoting Fajardo v.
State, 859 N.E.2d 1201, 1208 (Ind. 2007)). While the incredible dubiosity
standard is not impossible to meet, it requires great ambiguity and inconsistency
in the evidence. Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015).
[12] In support of his claim, Karim mentions some minor inconsistencies in Dillon’s
testimony regarding which of two Zippo-brand Detroit Lions lighters Karim
appeared to be holding in his hand when he grabbed Dillon’s wrist. He claims
that her testimony about the lighter was not consistent, and, furthermore, it
“runs counter to human experience” that he could have been holding a lighter
in his hand as he grabbed her. Appellant’s Br. at 6. He also asserts that it “defies
logic” that if, as Dillon claims, Karim went to her home “intent on retrieving
his personal belongings,” he would thereafter simply leave the premises without
the desired items. Id. at 7. Karim has failed to persuade us that any perceived
inconsistencies in Dillon’s testimony rise to the level of incredible dubiosity.
Her testimony was not inherently improbable or equivocal, and there was
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 6 of 7 circumstantial evidence, namely bruising, that was consistent with her
description of the encounter. Deputy Page also confirmed that the injuries to
her wrist and arm appeared consistent with being grabbed.
[13] To the extent that Karim’s argument is that Dillon’s testimony was incredibly
dubious because her testimony contradicted his, i.e., Dillon said Karim was at
her house on July 28, and he said he was at a lake house on July 28, the
incredible dubiosity rule is not applicable in that context. See Morell, 933
N.E.2d at 492 (standard for dubious testimony is inherent contradiction, not
contradiction between testimony of witnesses). Karim’s actual claim is one
asking us to believe his testimony over hers. That is merely an invitation to
reweigh evidence, which we cannot do on appeal. McClellan, 13 N.E.3d at 548.
The State presented sufficient evidence to convict Karim of Class A
misdemeanor battery resulting in bodily injury.
[14] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015 Page 7 of 7