Jesse W. Lepley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 14, 2019
• Docket: 18A-CR-2850
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 14 2019, 9:39 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jesse W. Lepley, June 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2850 v. Appeal from the Noble Superior Court State of Indiana, The Honorable Robert E. Kirsch, Appellee-Plaintiff. Judge Trial Court Cause No. 57D01-1710-F1-1

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 1 of 5 Statement of the Case [1] Jesse W. Lepley appeals his conviction for battery, as a Level 5 felony,

following a jury trial. 1 Lepley raises a single issue for our review, namely,

whether the State presented sufficient evidence to support his conviction. We

affirm.

Facts and Procedural History [2] On August 22, 2017, Indiana Department of Child Services Family Case

Manager Marie Kidd (“FCM Kidd”) received a report of potential child abuse

against J.S., who at the time was eight years old. FCM Kidd immediately

observed that J.S. had a black eye. J.S. also showed FCM Kidd other injuries,

namely, scratches and redness on his back, arm, and chin.

[3] J.S. reported to FCM Kidd that his step-father, Lepley, had hit him. 2 FCM

Kidd contacted local law enforcement, and she proceeded to J.S.’s residence

with an officer. Lepley answered the door, and, when asked about the alleged

battery of J.S., he stated that J.S. had fallen down the stairs.

1 Over the course of multiple fact-finding hearings in this same trial court cause number, Lepley was also convicted of several other offenses, which he does not challenge in this appeal. And, while Lepley filed his notice of appeal prior to the finalization of all of those proceedings in the trial court, there is no dispute that those proceedings have since become final and that this Court therefore has jurisdiction over this appeal. 2 Although neither FCM Kidd nor J.S. expressly testified that J.S. had made this report to FCM Kidd, it is the reasonable and obvious inference from FCM Kidd’s ensuing course of conduct. In any event, we note this inference here simply for context.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 2 of 5 [4] Meanwhile, a forensic nurse practitioner, Leslie Cook, at the Forensic Medical

Center examined J.S.’s injuries. During that examination, J.S. reported to

Cook that he had had “a bad day at school” that resulted in him being upset at

home. Tr. Vol. 2 at 184. In response to J.S. being upset, Lepley “hit [J.S.] right

in the eye with his hand . . . .” Id.

[5] The State charged Lepley with battery, as a Level 5 felony. During his ensuing

jury trial, FCM Kidd testified, and the State had admitted into the record a

statement from Cook regarding her evaluation of J.S. J.S. also testified. In his

testimony, he stated:

Q [D]id you ever go to school with a black eye?

A Yes.

Q Can you tell the ladies and gentlemen of the jury how you got your black eye? What happened? I want to hear the whole story.

A My step dad kicked me in the eye.

Q Why did he do that?

A Because he got angry at me.

Q Why?

A Because I was crying at my desk.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 3 of 5 Id. at 123-24. The jury found Lepley guilty of the battery charge, and this

appeal ensued.

Discussion and Decision [6] On appeal, Lepley asserts that the State failed to present sufficient evidence that

he committed battery, as a Level 5 felony. When reviewing the sufficiency of

the evidence to support a conviction, we do not reweigh the evidence or judge

witness credibility. E.g., B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We

consider only the evidence favorable to the judgment and the reasonable

inferences supporting it. Id. We will affirm if a reasonable trier of fact could

have concluded that the defendant was guilty beyond a reasonable doubt. Id.

[7] Lepley’s only argument on appeal is that J.S.’s testimony was incredibly

dubious because J.S. testified that Lepley had kicked him in the eye but J.S. told

Cook during the forensic examination that Lepley had hit him in the eye with

Lepley’s hand. As our Supreme Court has made clear:

Under our “incredible dubiosity” rule, we will invade the jury’s province for judging witness credibility only in exceptionally rare circumstances. The evidence supporting the conviction must have been offered by a sole witness; the witness’s testimony must have been coerced, equivocal, and wholly uncorroborated; it must have been “inherently improbable” or of dubious credibility; and there must have been no circumstantial evidence of the defendant’s guilt.

McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 4 of 5 [8] We conclude that the incredible dubiosity rule does not apply here for at least

two reasons. First, J.S.’s testimony to the jury was not inconsistent. He

testified that Lepley kicked him in the eye, and he gave no other explanation

during his testimony for his black eye. The other, inconsistent evidence, that

Lepley struck J.S. with Lepley’s hand, was contained in Cook’s written report

and admitted into evidence well after J.S. testified. The incredible dubiosity

rule applies only when a sole witness’s testimony is “inherently improbable,”

not when other admissible evidence calls a witness’s credibility into question.

See id.

[9] Second, despite Lepley’s assertions on appeal, the evidence supporting Lepley’s

battery conviction was not based on a sole witness. While FCM Kidd and

Cook did not witness the alleged battery, they did personally observe injuries

that were consistent with, and thus corroborated, the alleged battery.

Accordingly, Lepley’s argument that the State failed to present sufficient

evidence to support his conviction under the incredible dubiosity rule fails, and

we affirm his conviction.

[10] Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 5 of 5