Jerry D. Thompson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 5, 2016
• Docket: 49A02-1602-CR-400
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Dec 05 2016, 8:38 am

precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerry D. Thompson, December 5, 2016

Appellant-Defendant, Court of Appeals Case No. 49A02-1602-CR-400 v. Appeal from the Marion Superior Court. The Honorable Christina R. State of Indiana, Klineman, Judge. Appellee-Plaintiff. Cause No. 49G17-1601-CM-48

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 1 of 5 [1] Jerry D. Thompson appeals his conviction of battery resulting in bodily injury, 1 a Class A misdemeanor. We affirm.

[2] The sole issue Thompson presents for our review is whether the State presented

sufficient evidence to support his conviction.

[3] On December 31, 2015, Thompson engaged in a verbal argument and physical

altercation with his former girlfriend, A.L. Based upon this incident, 2 Thompson was charged with domestic battery and battery resulting in bodily

injury, both as Class A misdemeanors. A bench trial was held on the charges,

and Thompson was found guilty of battery resulting in bodily injury. He was

sentenced to 365 days suspended to probation. This appeal followed.

[4] Thompson contends that the evidence is insufficient to support his conviction

because A.L.’s testimony is incredibly dubious. When we review a challenge to

the sufficiency of the evidence, we neither reweigh the evidence nor judge the

credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App.

2015), trans. denied. Instead, we consider only the evidence most favorable to

the verdict and any reasonable inferences drawn therefrom. Id. If there is

substantial evidence of probative value from which a reasonable fact-finder

1 Ind. Code § 35-42-2-1(b)(1), (c) (2014). 2 Ind. Code § 35-42-2-1.3(a) (2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 2 of 5 could have found the defendant guilty beyond a reasonable doubt, the judgment

will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App. 2015).

[5] Yet, appellate courts may apply the incredible dubiosity rule to impinge upon a

jury’s function to judge the credibility of a witness when confronted with

inherently improbable testimony or coerced, equivocal, wholly uncorroborated

testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276 (Ind. Ct.

App. 2009), trans. denied. Application of this rule is rare and is limited to cases

where a single witness presents inherently contradictory testimony which is

equivocal or the result of coercion and there is a complete lack of circumstantial

evidence of guilt. Id. The standard to be applied for this rule is whether the

testimony is so incredibly dubious or inherently improbable that no reasonable

person could believe it. Fancher v. State, 918 N.E.2d 16 (Ind. Ct. App. 2009).

[6] At trial, A.L. testified that she did not remember why Thompson was at her

apartment on December 31, 2015, but that she and Thompson engaged in a

verbal argument and physical altercation in which Thompson hit her in the

head and pulled her hair, causing her pain. She stated that bruising appeared

within a few days. A.L. summarized the event, stating, “I just know that he,

we, got into an altercation and he just, got to hitting me for, I don’t know why,

but that’s all I remember.” Tr. pp. 37-38.

[7] The responding police officer testified that when she arrived, A.L. was at the

door, and Thompson was located at the entrance to the apartment complex.

The officer noticed that A.L.’s hair “was messed up” but saw no physical

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 3 of 5 injuries. Id. at 43. On cross-examination, defense counsel asked the officer

about the injuries A.L. reported to the officer the night of the incident. The

officer responded that A.L. reported being pushed in the chest and pulled by the

hair but that she did not mention being hit in the head.

[8] Under the umbrella of incredibly dubious testimony, Thompson asserts that

A.L.’s testimony is improbable, uncorroborated and inconsistent. We address

each contention in turn. First, Thompson claims that A.L.’s version of the

events is “highly questionable” and “implausible” because, as he stated at trial,

A.L. had previously called the police and/or his parole officer to report him

and that this time she was jealous about him possibly seeing another woman.

Appellant’s Br. pp. 12-13. A.L. testified unequivocally at trial that Thompson

hit her in the head and pulled her hair. This is merely an invitation by

Thompson for this Court to invade the province of the trier of fact by

reassessing witness credibility. It is within the factfinder’s province to judge the

credibility of the witnesses. Brasher v. State, 746 N.E.2d 71 (Ind. 2001). In

doing so, the trier of fact is entitled to determine which version of the incident

to credit. Schmid v. State, 804 N.E.2d 174 (Ind. Ct. App. 2004), trans. denied.

We decline Thompson’s invitation.

[9] Thompson also argues that A.L.’s testimony is incredibly dubious because it is

uncorroborated. A.L. testified unambiguously that Thompson hit her in the

head and pulled her hair, thereby causing her pain. She further testified that she

had bruises within a few days of the incident. Although the police officer

testified that she saw no physical injuries, she did notice that A.L.’s hair was

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 4 of 5 messed up. “A conviction may be sustained on the uncorroborated testimony

of a single witness or victim.” Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct.

App. 2007), trans. denied. Again, this argument is nothing more than a request

for this Court to re-evaluate witness credibility. The judge, as factfinder, heard

the testimony and made her credibility determinations which we will not

disturb. See Brasher, 746 N.E.2d 71.

[10] Finally, Thompson asserts that A.L.’s testimony is inconsistent with her

statement to the police officer the night of the incident. A.L. testified that

Thompson hit her in the head and pulled her hair. The police officer testified

that A.L. reported to her only that Thompson had pushed A.L. in the chest and

pulled her hair. The rule of incredible dubiosity concerns courtroom testimony,

not statements made outside of trial or the courtroom. Reyburn v. State, 737

N.E.2d 1169 (Ind. Ct. App. 2000); see also Holeton v. State, 853 N.E.2d 539 (Ind.

Ct. App. 2006) (holding that discrepancies between victim’s statements to

police and trial testimony go to weight of testimony and witness credibility and

do not render testimony inherently contradictory). Thus, we cannot say that

A.L.’s testimony is so incredibly dubious or inherently improbable that no

reasonable person could believe it.

[11] In light of the foregoing, we affirm the judgment of the trial court.

[12] Judgment affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016 Page 5 of 5