Gary S. Kirkwood v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 8, 2017
• Docket: 20A04-1612-CR-2779
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 1 of 10 [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).

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 2 of 10 [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

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 3 of 10 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

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 4 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 5 of 10 [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).

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 6 of 10 [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

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 7 of 10 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

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 8 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 9 of 10 [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.

Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017 Page 10 of 10