MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 29 2018, 7:25 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Javier Garcia, November 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1286 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Judge Appellee-Plaintiff. Pro Tem Trial Court Cause Nos. 49G05-1706-F5-24176 49G05-1706-F6-20831
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 1 of 8 Case Summary and Issue [1] Following a bench trial, Javier Garcia was convicted of strangulation, a Level 6
felony; criminal confinement, a Level 5 felony; and domestic battery, a Class A
misdemeanor, and sentenced to three years. Garcia appeals his convictions,
raising the sole issue of whether the evidence was insufficient to support his
convictions because the testimony of the complaining witness was incredibly
dubious. Concluding the incredible dubiosity rule does not apply in this case,
we affirm.
Facts and Procedural History [2] Garcia and Amanda Ruiz met at work. Eventually their relationship turned
romantic and they moved in together. During their relationship, they started a
landscaping business together. For various reasons, they opened a business
banking account in Ruiz’s name alone, purchased the mobile home in which
they lived in Ruiz’s name alone, and bought a truck for the company in Ruiz’s
name alone, although she later signed the title over to Garcia.
[3] In November 2016, Garcia moved to “another house he had” but would
occasionally return to the trailer the two had shared. Transcript, Volume II at
27. On the morning of May 20, 2017, Ruiz was at the trailer and a friend came
over. Garcia arrived, uninvited, a few minutes later and began attacking Ruiz’s
friend. Ruiz tried to separate them, but Garcia pushed her to the side. Ruiz’s
friend was able to flee the trailer and Garcia then turned to Ruiz, pushed her to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 2 of 8 the bed, put his hand on her throat and exerted pressure, held a knife to her
throat, and smacked her on the leg, causing her pain. He then left the trailer
and Ruiz called 9-1-1. Photographs taken following the incident and later
admitted into evidence at trial show red marks on Ruiz’s throat and thigh.
[4] Two weeks later, on June 3, 2017, Ruiz was at the trailer cleaning when Garcia
again arrived uninvited and entered the house through the front door. Ruiz told
him to leave but instead he pushed her into the bedroom, pushed her onto the
bed, and took her shorts off as she kicked at him and asked him to leave her
alone. They heard a noise at the front door and Garcia got up and left the
trailer. Ruiz called 9-1-1. Officer Stuart Bishop of the Lawrence Police
Department responded and found Ruiz “visually upset” and “in a panicked
demeanor.” Tr., Vol. II at 162. Officer Bishop observed “a scratch or some
skin peeled off on [Ruiz’s] foot and then a scratch on her inner thigh.” Id.
Photographs admitted into evidence at trial from this incident show a scratch
on Ruiz’s leg and an injury to her foot.
[5] For the incident on May 20, 2017, the State charged Garcia with strangulation,
a Level 6 felony; residential entry, a Level 6 felony; domestic battery, a Class A
misdemeanor; and battery, a Class A misdemeanor. For the incident on June
3, 2017, the State charged Garcia with criminal confinement, a Level 5 felony,
and battery resulting in bodily injury, a Class A misdemeanor. Garcia waived
his right to a trial by jury and the two cases were tried together. At the close of
the State’s case-in-chief, Garcia moved for a directed verdict with respect to all
counts. The trial court granted a directed verdict and dismissed the residential
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 3 of 8 entry count but denied a directed verdict as to the remaining counts. Garcia
testified on his own behalf and denied the May 20 incident occurred at all. He
asserted the June 3 incident was actually between himself and Ruiz’s husband
who had recently returned. He also asserted that $2,000 in the business account
in Ruiz’s name disappeared after his arrest. At the conclusion of the evidence,
the trial court found Garcia guilty of all remaining counts, entering judgment of
conviction only as to strangulation, criminal confinement, and domestic
battery. The trial court sentenced Garcia to an aggregate of three years
executed.1 Garcia now appeals.
Discussion and Decision I. Standard of Review [6] Our standard of review for sufficiency of the evidence claims is well settled: we
do not reweigh the evidence or judge the credibility of the witnesses. Purvis v.
State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the
evidence most favorable to the verdict and the reasonable inferences drawn
therefrom. Id. We will affirm a defendant’s conviction “if there is substantial
evidence of probative value supporting each element of the crime from which a
1 The trial court sentenced Garcia to one year each for the strangulation and domestic battery convictions and three years for the criminal confinement conviction, all to be served concurrently.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 4 of 8 reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).
II. Sufficiency of the Evidence [7] Garcia does not specifically contend that Ruiz’s testimony did not prove the
elements of the charges against him. Instead, he argues Ruiz’s testimony is not
sufficient to support his convictions because Ruiz’s “statements to police and
her testimony were evasive, inherently contradictory, and demonstrate that she
was not a credible witness.” Appellant’s Brief at 14. In general, the
uncorroborated testimony of the victim is sufficient to sustain a conviction.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an exception,
however, when that testimony is incredibly dubious. The incredible dubiosity
rule allows the reviewing court to impinge upon a fact finder’s responsibility to
judge the credibility of the witnesses when confronted with evidence that is “so
unbelievable, incredible, or improbable that no reasonable person could ever
reach a guilty verdict based upon that evidence alone.” Moore v. State, 27
N.E.3d 749, 751 (Ind. 2015). The rule is applied in limited circumstances,
namely where there is “1) a sole testifying witness; 2) testimony that is
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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 Nov 29 2018, 7:25 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Javier Garcia, November 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1286 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Judge Appellee-Plaintiff. Pro Tem Trial Court Cause Nos. 49G05-1706-F5-24176 49G05-1706-F6-20831
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 1 of 8 Case Summary and Issue [1] Following a bench trial, Javier Garcia was convicted of strangulation, a Level 6
felony; criminal confinement, a Level 5 felony; and domestic battery, a Class A
misdemeanor, and sentenced to three years. Garcia appeals his convictions,
raising the sole issue of whether the evidence was insufficient to support his
convictions because the testimony of the complaining witness was incredibly
dubious. Concluding the incredible dubiosity rule does not apply in this case,
we affirm.
Facts and Procedural History [2] Garcia and Amanda Ruiz met at work. Eventually their relationship turned
romantic and they moved in together. During their relationship, they started a
landscaping business together. For various reasons, they opened a business
banking account in Ruiz’s name alone, purchased the mobile home in which
they lived in Ruiz’s name alone, and bought a truck for the company in Ruiz’s
name alone, although she later signed the title over to Garcia.
[3] In November 2016, Garcia moved to “another house he had” but would
occasionally return to the trailer the two had shared. Transcript, Volume II at
27. On the morning of May 20, 2017, Ruiz was at the trailer and a friend came
over. Garcia arrived, uninvited, a few minutes later and began attacking Ruiz’s
friend. Ruiz tried to separate them, but Garcia pushed her to the side. Ruiz’s
friend was able to flee the trailer and Garcia then turned to Ruiz, pushed her to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 2 of 8 the bed, put his hand on her throat and exerted pressure, held a knife to her
throat, and smacked her on the leg, causing her pain. He then left the trailer
and Ruiz called 9-1-1. Photographs taken following the incident and later
admitted into evidence at trial show red marks on Ruiz’s throat and thigh.
[4] Two weeks later, on June 3, 2017, Ruiz was at the trailer cleaning when Garcia
again arrived uninvited and entered the house through the front door. Ruiz told
him to leave but instead he pushed her into the bedroom, pushed her onto the
bed, and took her shorts off as she kicked at him and asked him to leave her
alone. They heard a noise at the front door and Garcia got up and left the
trailer. Ruiz called 9-1-1. Officer Stuart Bishop of the Lawrence Police
Department responded and found Ruiz “visually upset” and “in a panicked
demeanor.” Tr., Vol. II at 162. Officer Bishop observed “a scratch or some
skin peeled off on [Ruiz’s] foot and then a scratch on her inner thigh.” Id.
Photographs admitted into evidence at trial from this incident show a scratch
on Ruiz’s leg and an injury to her foot.
[5] For the incident on May 20, 2017, the State charged Garcia with strangulation,
a Level 6 felony; residential entry, a Level 6 felony; domestic battery, a Class A
misdemeanor; and battery, a Class A misdemeanor. For the incident on June
3, 2017, the State charged Garcia with criminal confinement, a Level 5 felony,
and battery resulting in bodily injury, a Class A misdemeanor. Garcia waived
his right to a trial by jury and the two cases were tried together. At the close of
the State’s case-in-chief, Garcia moved for a directed verdict with respect to all
counts. The trial court granted a directed verdict and dismissed the residential
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 3 of 8 entry count but denied a directed verdict as to the remaining counts. Garcia
testified on his own behalf and denied the May 20 incident occurred at all. He
asserted the June 3 incident was actually between himself and Ruiz’s husband
who had recently returned. He also asserted that $2,000 in the business account
in Ruiz’s name disappeared after his arrest. At the conclusion of the evidence,
the trial court found Garcia guilty of all remaining counts, entering judgment of
conviction only as to strangulation, criminal confinement, and domestic
battery. The trial court sentenced Garcia to an aggregate of three years
executed.1 Garcia now appeals.
Discussion and Decision I. Standard of Review [6] Our standard of review for sufficiency of the evidence claims is well settled: we
do not reweigh the evidence or judge the credibility of the witnesses. Purvis v.
State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the
evidence most favorable to the verdict and the reasonable inferences drawn
therefrom. Id. We will affirm a defendant’s conviction “if there is substantial
evidence of probative value supporting each element of the crime from which a
1 The trial court sentenced Garcia to one year each for the strangulation and domestic battery convictions and three years for the criminal confinement conviction, all to be served concurrently.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 4 of 8 reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).
II. Sufficiency of the Evidence [7] Garcia does not specifically contend that Ruiz’s testimony did not prove the
elements of the charges against him. Instead, he argues Ruiz’s testimony is not
sufficient to support his convictions because Ruiz’s “statements to police and
her testimony were evasive, inherently contradictory, and demonstrate that she
was not a credible witness.” Appellant’s Brief at 14. In general, the
uncorroborated testimony of the victim is sufficient to sustain a conviction.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an exception,
however, when that testimony is incredibly dubious. The incredible dubiosity
rule allows the reviewing court to impinge upon a fact finder’s responsibility to
judge the credibility of the witnesses when confronted with evidence that is “so
unbelievable, incredible, or improbable that no reasonable person could ever
reach a guilty verdict based upon that evidence alone.” Moore v. State, 27
N.E.3d 749, 751 (Ind. 2015). The rule is applied in limited circumstances,
namely where there is “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.” Id. at 756. Application of the incredible
dubiosity rule is “rare and the standard to be applied is whether the testimony is
so incredibly dubious or inherently improbable that no reasonable person could
believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). “[W]hile incredible
dubiosity provides a standard that is ‘not impossible’ to meet, it is a ‘difficult
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 5 of 8 standard to meet, [and] one that requires great ambiguity and inconsistency in
the evidence.’” Moore, 27 N.E.3d at 756 (quoting Edwards v. State 753 N.E.2d
618, 622 (Ind. 2001)).
[8] Garcia contends that Ruiz was “the sole witness to testify to the incidents she
claimed occurred,” discounting the testimony of two police officers because
they were not present for the alleged incidents. Appellant’s Br. at 15. He also
focuses on alleged inconsistencies between what Ruiz told police at the time of
the incidents and what she testified to in court. And finally, he alleges the
photographs are not corroborating evidence because “[a]ny marks on on [sic]
her she could have made herself.” Id. at 17.
[9] In applying the Moore factors, we conclude the incredible dubiosity rule is
inapplicable to the present case. With respect to the first factor, although there
were three testifying witnesses, the testimony of the two police officers alone
would likely have been insufficient to find Garcia guilty because they were not
eyewitnesses to the incidents, leaving only Ruiz’s testimony to prove the
elements of the crimes. See Smith v. State, 34 N.E.2d 1211, 1221-22 (Ind. 2015)
(noting that although three witnesses testified, without the allegedly incredibly
dubious testimony of one witness, the remaining witnesses’ testimony would
have been an insufficient basis for the jury to find the defendant guilty;
therefore, the first factor was satisfied). However, each of the three factors must
be shown in order to invoke the incredible dubiosity rule. See Moore, 27 N.E.3d
at 758 (noting the appellant had failed to satisfy factor one because multiple
witnesses had testified, and therefore “our analysis could here”). Therefore,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 6 of 8 even if the first factor is satisfied when multiple witnesses testify but only one is
an eyewitness, Garcia must still show the remaining Moore factors are satisfied.
[10] As to the second factor, the incredible dubiosity rule applies only to conflicts in
trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006).
Although Garcia focuses on differences between Ruiz’s statements to police
after the incidents and her trial testimony, her trial testimony was not internally
inconsistent or inherently contradictory regarding the elements of the crimes
alleged. The second prong is satisfied “only when the witness’s trial testimony
was inconsistent within itself, not [when] it was inconsistent with other
evidence or prior testimony.” Smith, 34 N.E.3d at 1221. In other words,
discrepancies between a witness’ testimony and earlier statements do not render
testimony incredibly dubious. Holeton v. State, 853 N.E.2d 539, 541-42 (Ind. Ct.
App. 2006). Ruiz’s testimony on the important facts regarding what Garcia did
to her was consistent.
[11] And as to the third factor, “[i]n a case where there is circumstantial evidence of
an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.”
Smith, 34 N.E.3d at 1222 (quotation omitted). Here, there was not a complete
lack of circumstantial evidence. Moreover, the circumstantial evidence is not
required to independently establish guilt. Id. at 1221. Officers photographed
Ruiz’s injuries after each incident. Officer Bishop described Ruiz’s demeanor
in the aftermath of the June 3 incident as “visually upset” and “panicked,” and
he observed the scratches on her leg and foot. Tr., Vol. II at 162.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 7 of 8 [12] Garcia has failed to establish the limited exception of the incredible dubiosity
rule applies, and we decline to disturb the finder of fact’s determination that
Ruiz’s testimony was more credible than Garcia’s regarding what occurred on
May 20 and June 3, 2017. The State presented direct testimony and
circumstantial evidence that was sufficient for a reasonable finder of fact to find
Garcia guilty beyond a reasonable doubt of the crimes charged.
Conclusion [13] The incredible dubiosity rule does not apply in the circumstances of this case.
The victim’s testimony and corroborating evidence are sufficient to support
Garcia’s convictions. Therefore, we affirm.
[14] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 8 of 8