MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 11 2016, 8:41 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Donald J. Frew Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey C. Johnson, April 11, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1509-CR-1490 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck Appellee-Plaintiff, Jr., Judge Trial Court Cause No. 02D04-1501-F5-02
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 1 of 7 [1] On December 29, 2014, Appellant-Defendant Jeffrey Johnson was charged with
Level 5 felony battery, Level 6 felony residential entry, Level 6 felony
strangulation, Level 6 felony criminal recklessness, and Class A misdemeanor
invasion of privacy. A jury found Johnson guilty of battery and invasion of
privacy. The trial court sentenced Johnson to an aggregate term of four years of
incarceration. On appeal, Johnson argues that there was insufficient evidence
to sustain his battery conviction. Concluding otherwise, we affirm.
Facts and Procedural History [2] Johnson began dating Theresa Jerome in June of 2014. (Tr. 107) The two lived
in separate units in the same apartment building. (id) The couple had a
contentious relationship and, in September 2014, Johnson was convicted of
battery against Theresa. (Tr. 132, 186) A no-contact order was issued to keep
Johnson away from Theresa; however, the couple continued to see one another
romantically. (id 138)
[3] On the morning of December 29, 2014, Johnson and Theresa began arguing.
(tr. 109) Theresa dropped Johnson off at work but the argument continued via
text messages. (110) At Johnson’s request, Theresa picked up Johnson from
work and the two returned to Theresa’s apartment. (111) Theresa attempted to
end the relationship and Johnson returned to his apartment. (id)
Approximately an hour later, Johnson returned to Theresa’s apartment, forced
his way inside, and threatened to kill Theresa. (116-17) Johnson brandished a
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 2 of 7 silver box cutter and, as Theresa attempted to flee, grabbed her by the hair and
slammed her against a wall and a glass side table. (tr. 117, 118)
[4] Theresa again attempted to escape but Johnson forced her to the ground,
straddled her chest, and threatened to stab her with the box cutter. (tr. 118-19)
After some time, Johnson said “I can’t do it,” rolled off of Theresa, and laid on
the floor. Tr. p. 119. Johnson then crawled over to Theresa, placed his head
and the box cutter on her knee, and said, “just kill me.” Tr. p. 120. After
Theresa told Johnson to leave, and he complied, Theresa called the police.
(120, 122) Fort Wayne Police Officers John Nichter and Cameron Norris
arrived shortly thereafter to investigate the incident.
[5] The officers testified that Theresa had an abrasion and swelling on the left side
of her head, an abrasion on her right ankle, and scratches on her back. (Tr. 159,
162, 172) The officers took photographs of Theresa’s injuries which were
admitted into evidence at trial. (ex. 13, 14) While Theresa was speaking with
the officers, Johnson texted Theresa saying, “please help me” and “I’m done,
killing myself.” Tr. pp. 123, 161. The officers went to Johnson’s apartment to
assure that he was safe and to question him. (Tr. 169) Johnson gave the
officers permission to search his apartment and, during the search, Officer
Norris found a silver box cutter behind a dresser in Johnson’s bedroom. (169,
170, ex. 19)
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 3 of 7 [6] On January 5, 2015, the State charged Johnson with Level 5 felony battery 1,
Level 6 felony residential entry, Level 6 felony strangulation, Level 6 felony
criminal recklessness, and Class A misdemeanor invasion of privacy. (app. 14)
A jury trial was held on July 28, 2015. (tr. 1) The jury found Johnson guilty of
battery and invasion of privacy, and not guilty of the remaining charges. (app.
5) The trial court sentenced Johnson to four years for battery and one year for
invasion of privacy, to be served concurrently. (App. 6-7)
Discussion and Decision [7] Johnson appeals his conviction for Level 5 felony battery, arguing that there
was insufficient evidence to sustain his conviction.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The
1 The conviction was enhanced to a Level 5 felony under Indiana Code § 35-42-2-1(f)(4) because Johnson had a previous conviction for battery against Theresa.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 4 of 7 evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original).
[8] Johnson argues that Theresa’s testimony was incredibly dubious so as to render
it insufficient to support his conviction. “The incredible dubiosity rule allows
the Court to impinge upon a jury’s responsibility to judge the credibility of the
witnesses only when confronted with inherently improbable testimony. The
incredible dubiosity rule is only applied in limited circumstances.” Moore v.
State, 27 N.E.3d 749, 754 (Ind. 2015) (internal citation omitted). “Application
of this rule is limited to cases…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 guilt.” Tillman v.
State, 642 N.E.2d 221, 223 (Ind. 1994) (citing Gaddis v. State, 253 Ind. 73, 251
N.E.2d 658 (1969)). Convictions should be affirmed unless the testimony is so
inherently improbable that no reasonable person could believe it. Stephenson v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 11 2016, 8:41 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Donald J. Frew Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey C. Johnson, April 11, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1509-CR-1490 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck Appellee-Plaintiff, Jr., Judge Trial Court Cause No. 02D04-1501-F5-02
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 1 of 7 [1] On December 29, 2014, Appellant-Defendant Jeffrey Johnson was charged with
Level 5 felony battery, Level 6 felony residential entry, Level 6 felony
strangulation, Level 6 felony criminal recklessness, and Class A misdemeanor
invasion of privacy. A jury found Johnson guilty of battery and invasion of
privacy. The trial court sentenced Johnson to an aggregate term of four years of
incarceration. On appeal, Johnson argues that there was insufficient evidence
to sustain his battery conviction. Concluding otherwise, we affirm.
Facts and Procedural History [2] Johnson began dating Theresa Jerome in June of 2014. (Tr. 107) The two lived
in separate units in the same apartment building. (id) The couple had a
contentious relationship and, in September 2014, Johnson was convicted of
battery against Theresa. (Tr. 132, 186) A no-contact order was issued to keep
Johnson away from Theresa; however, the couple continued to see one another
romantically. (id 138)
[3] On the morning of December 29, 2014, Johnson and Theresa began arguing.
(tr. 109) Theresa dropped Johnson off at work but the argument continued via
text messages. (110) At Johnson’s request, Theresa picked up Johnson from
work and the two returned to Theresa’s apartment. (111) Theresa attempted to
end the relationship and Johnson returned to his apartment. (id)
Approximately an hour later, Johnson returned to Theresa’s apartment, forced
his way inside, and threatened to kill Theresa. (116-17) Johnson brandished a
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 2 of 7 silver box cutter and, as Theresa attempted to flee, grabbed her by the hair and
slammed her against a wall and a glass side table. (tr. 117, 118)
[4] Theresa again attempted to escape but Johnson forced her to the ground,
straddled her chest, and threatened to stab her with the box cutter. (tr. 118-19)
After some time, Johnson said “I can’t do it,” rolled off of Theresa, and laid on
the floor. Tr. p. 119. Johnson then crawled over to Theresa, placed his head
and the box cutter on her knee, and said, “just kill me.” Tr. p. 120. After
Theresa told Johnson to leave, and he complied, Theresa called the police.
(120, 122) Fort Wayne Police Officers John Nichter and Cameron Norris
arrived shortly thereafter to investigate the incident.
[5] The officers testified that Theresa had an abrasion and swelling on the left side
of her head, an abrasion on her right ankle, and scratches on her back. (Tr. 159,
162, 172) The officers took photographs of Theresa’s injuries which were
admitted into evidence at trial. (ex. 13, 14) While Theresa was speaking with
the officers, Johnson texted Theresa saying, “please help me” and “I’m done,
killing myself.” Tr. pp. 123, 161. The officers went to Johnson’s apartment to
assure that he was safe and to question him. (Tr. 169) Johnson gave the
officers permission to search his apartment and, during the search, Officer
Norris found a silver box cutter behind a dresser in Johnson’s bedroom. (169,
170, ex. 19)
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 3 of 7 [6] On January 5, 2015, the State charged Johnson with Level 5 felony battery 1,
Level 6 felony residential entry, Level 6 felony strangulation, Level 6 felony
criminal recklessness, and Class A misdemeanor invasion of privacy. (app. 14)
A jury trial was held on July 28, 2015. (tr. 1) The jury found Johnson guilty of
battery and invasion of privacy, and not guilty of the remaining charges. (app.
5) The trial court sentenced Johnson to four years for battery and one year for
invasion of privacy, to be served concurrently. (App. 6-7)
Discussion and Decision [7] Johnson appeals his conviction for Level 5 felony battery, arguing that there
was insufficient evidence to sustain his conviction.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The
1 The conviction was enhanced to a Level 5 felony under Indiana Code § 35-42-2-1(f)(4) because Johnson had a previous conviction for battery against Theresa.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 4 of 7 evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original).
[8] Johnson argues that Theresa’s testimony was incredibly dubious so as to render
it insufficient to support his conviction. “The incredible dubiosity rule allows
the Court to impinge upon a jury’s responsibility to judge the credibility of the
witnesses only when confronted with inherently improbable testimony. The
incredible dubiosity rule is only applied in limited circumstances.” Moore v.
State, 27 N.E.3d 749, 754 (Ind. 2015) (internal citation omitted). “Application
of this rule is limited to cases…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 guilt.” Tillman v.
State, 642 N.E.2d 221, 223 (Ind. 1994) (citing Gaddis v. State, 253 Ind. 73, 251
N.E.2d 658 (1969)). Convictions should be affirmed unless the testimony is so
inherently improbable that no reasonable person could believe it. Stephenson v.
State, 742 N.E.2d 463, 498 (Ind. 2001).
[9] Johnson argues that Theresa’s testimony was inherently contradictory because
her initial account of the attack given to Officers Nichter and Norris differed
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 5 of 7 slightly from her trial testimony describing the attack.2 Theresa initially told
officers that Johnson “shoved her against the wall and then threw her down
onto the ground and…she hit her head on a glass table.” Appellant’s App. p. 7
(citing Tr. p. 158-59). Johnson argues that this conflicts with her trial testimony
that he “grabbed the back of my head, and swung me by my hair and slammed
me into the wall, the corner, the edge of the wall.” Appellant’s App. p. 7 (citing
Tr. p. 117). Theresa went on to testify, “I don’t know if he slammed me into
the table, the glass table…or if I fell. I think I was pushed into the table when I
was bending over on my head.” Tr. p. 118.
[10] The doctrine of incredible dubiosity is inapplicable here for two reasons. First,
the content of Theresa’s testimony was not inherently contradictory or
improbable, quite the opposite, in fact. Theresa’s trial testimony describing the
attack was nearly identical to her initial description to police. The alleged
inconsistencies raised by Johnson focus on the exact manner in which he
attacked Theresa from behind as she attempted to flee. Such inconsistencies, if
they can even be called that, are negligible. It is reasonable to assume that there
would be some minor, insubstantial inconsistencies when any witness is
recounting events from seven months prior, especially traumatic events such as
2 Johnson acknowledges that the incredible dubiosity rule only applies to conflicts within trial testimony and not conflicts between trial testimony and previous out-of-court statements. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006). However, he argues that Theresa testified that her account of the attack given to police was completely accurate and, therefore, there is inconsistency within her trial testimony. We decline to address whether such an alleged inconsistency is sufficient to invoke the incredible dubiosity rule, and instead address only the merits of Johnson’s incredible dubiosity argument.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 6 of 7 these during which Theresa described herself as “disoriented,” and panicked to
the point she was “shaking and convulsing.” Tr. pp. 118.
[11] Furthermore, there was substantial circumstantial evidence of Johnson’s guilt:
(1) Theresa had cuts and abrasions which indicated that she had been attacked,
(2) police found a silver box cutter behind Johnson’s bedroom dresser which
corroborated Theresa’s account of the attack, (3) officers read text messages
sent to Theresa from Johnson which revealed that Johnson was very upset and
threatening suicide, and (4) the legs of a glass table in Theresa’s apartment had
been bent, corroborating Theresa’s account of the attack. Application of the
rule is limited to cases where there is a complete lack of circumstantial evidence
of the appellant’s guilt. Tillman, 642 N.E.2d at 223. The incredible dubiosity
rule is inapplicable here and, as such, there was sufficient evidence supporting
Johnson’s battery conviction.
[12] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016 Page 7 of 7