MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 30 2017, 9:54 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip Edwin Byrd, May 30, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1609-CR-2218 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Julie Verheye, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D03-1604-CM-2204
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 1 of 7 [1] Phillip Edwin Byrd appeals his conviction for invasion of privacy as a class A
misdemeanor. Byrd raises one issue which we revise and restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On December 9, 2015, D.H. received a number of phone calls from Byrd, who
was the father of her three children, despite the fact that D.H. had a no-contact
order against Byrd. Byrd told D.H. that he wanted to see her and her children
and that he knew where she lived, although she had never told him the location
of her home. These calls came during a period of about twenty minutes.
[3] Following the series of phone calls, D.H. “heard somebody rattling at [her]
door,” and she called the police. Transcript Volume 2 at 10. South Bend
Police Officer Jeff Cummins was dispatched to her home, and when he arrived
he observed that D.H.’s back door had marks indicating that someone had
attempted to pry it open.
[4] On May 6, 2016, the State charged Byrd with invasion of privacy as a class A
misdemeanor. On August 16, 2016, the court held a bench trial at which D.H.,
Officer Cummins, and Byrd testified. Officer Cummins testified that he was
not able to view the call log on D.H.’s phone because “[h]er screen was all
cracked so it wasn’t able to be viewed. She could just receive calls.” Id. at 7.
The court found Byrd guilty, noting that it believed D.H.’s testimony that she
had received phone calls from him on the evening in question. On August 24,
2016, the court sentenced Byrd to 180 days.
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 2 of 7 Discussion
[5] The issue is whether the evidence is sufficient to sustain Byrd’s conviction for
invasion of privacy as a class A misdemeanor. When reviewing the 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 assess witness credibility or reweigh
the evidence. Id. We consider conflicting evidence most favorably to the trial
court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147. The uncorroborated testimony of one witness can be
sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073
(Ind. 1991).
[6] The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1
which at the time of the offense provided in part that “[a] person who
knowingly or intentionally violates: (1) a protective order to prevent domestic
or family violence issued under IC 34-26-5 . . . commits invasion of privacy, a
Class A misdemeanor.”1 The charging information provides that “Byrd did
knowingly violate a protective order to prevent domestic or family violence
1 Subsequently amended by Pub. L. No. 65-2016, § 37 (eff. July 1, 2016).
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 3 of 7 issued under I.C. 34-26-5 . . . to protect [D.H.], to-wit: by making phone calls to
[D.H.].” Appellant’s Appendix Volume 2 at 5.
[7] Byrd argues that the State failed to prove that he committed invasion of privacy
because its case was based entirely on the testimony of D.H., whose testimony
was “equivocal when looking at the totality of the circumstances,” that no
witness placed Byrd at the scene, and that D.H.’s testimony is incredibly
dubious. Appellant’s Brief at 7. The State argues that it proved each element of
invasion of privacy beyond a reasonable doubt and that Byrd’s arguments are
merely a request to reweigh the evidence.
[8] Byrd asserts that the incredible dubiosity rule requires reversal of his
convictions. We note that the rule applies only in very narrow circumstances.
See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as
follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this 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.
Id. The Indiana Supreme Court in Smith v. State, 34 N.E.3d 1211 (Ind. 2015),
recently addressed the rule as follows:
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 4 of 7 Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury. We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: “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). In applying this summary in Moore, this Court found the first factor not met because “there were multiple testifying witnesses that the jury could have relied upon in reaching its verdict.” Id. at 757- 58. In discussing inherent probability as the second factor, we found in Moore that it was satisfied only when the witness’s trial testimony was inconsistent within itself, not that it was inconsistent with other evidence or prior testimony. Id. at 758- 59. Finally, in applying the third factor, absence of circumstantial evidence, we evaluated whether there existed circumstantial evidence of guilt, but did not require such circumstantial evidence to independently establish guilt. Id. at 759-60.
34 N.E.3d at 1221.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 30 2017, 9:54 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip Edwin Byrd, May 30, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1609-CR-2218 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Julie Verheye, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D03-1604-CM-2204
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 1 of 7 [1] Phillip Edwin Byrd appeals his conviction for invasion of privacy as a class A
misdemeanor. Byrd raises one issue which we revise and restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On December 9, 2015, D.H. received a number of phone calls from Byrd, who
was the father of her three children, despite the fact that D.H. had a no-contact
order against Byrd. Byrd told D.H. that he wanted to see her and her children
and that he knew where she lived, although she had never told him the location
of her home. These calls came during a period of about twenty minutes.
[3] Following the series of phone calls, D.H. “heard somebody rattling at [her]
door,” and she called the police. Transcript Volume 2 at 10. South Bend
Police Officer Jeff Cummins was dispatched to her home, and when he arrived
he observed that D.H.’s back door had marks indicating that someone had
attempted to pry it open.
[4] On May 6, 2016, the State charged Byrd with invasion of privacy as a class A
misdemeanor. On August 16, 2016, the court held a bench trial at which D.H.,
Officer Cummins, and Byrd testified. Officer Cummins testified that he was
not able to view the call log on D.H.’s phone because “[h]er screen was all
cracked so it wasn’t able to be viewed. She could just receive calls.” Id. at 7.
The court found Byrd guilty, noting that it believed D.H.’s testimony that she
had received phone calls from him on the evening in question. On August 24,
2016, the court sentenced Byrd to 180 days.
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 2 of 7 Discussion
[5] The issue is whether the evidence is sufficient to sustain Byrd’s conviction for
invasion of privacy as a class A misdemeanor. When reviewing the 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 assess witness credibility or reweigh
the evidence. Id. We consider conflicting evidence most favorably to the trial
court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147. The uncorroborated testimony of one witness can be
sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073
(Ind. 1991).
[6] The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1
which at the time of the offense provided in part that “[a] person who
knowingly or intentionally violates: (1) a protective order to prevent domestic
or family violence issued under IC 34-26-5 . . . commits invasion of privacy, a
Class A misdemeanor.”1 The charging information provides that “Byrd did
knowingly violate a protective order to prevent domestic or family violence
1 Subsequently amended by Pub. L. No. 65-2016, § 37 (eff. July 1, 2016).
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 3 of 7 issued under I.C. 34-26-5 . . . to protect [D.H.], to-wit: by making phone calls to
[D.H.].” Appellant’s Appendix Volume 2 at 5.
[7] Byrd argues that the State failed to prove that he committed invasion of privacy
because its case was based entirely on the testimony of D.H., whose testimony
was “equivocal when looking at the totality of the circumstances,” that no
witness placed Byrd at the scene, and that D.H.’s testimony is incredibly
dubious. Appellant’s Brief at 7. The State argues that it proved each element of
invasion of privacy beyond a reasonable doubt and that Byrd’s arguments are
merely a request to reweigh the evidence.
[8] Byrd asserts that the incredible dubiosity rule requires reversal of his
convictions. We note that the rule applies only in very narrow circumstances.
See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as
follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this 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.
Id. The Indiana Supreme Court in Smith v. State, 34 N.E.3d 1211 (Ind. 2015),
recently addressed the rule as follows:
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 4 of 7 Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury. We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: “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). In applying this summary in Moore, this Court found the first factor not met because “there were multiple testifying witnesses that the jury could have relied upon in reaching its verdict.” Id. at 757- 58. In discussing inherent probability as the second factor, we found in Moore that it was satisfied only when the witness’s trial testimony was inconsistent within itself, not that it was inconsistent with other evidence or prior testimony. Id. at 758- 59. Finally, in applying the third factor, absence of circumstantial evidence, we evaluated whether there existed circumstantial evidence of guilt, but did not require such circumstantial evidence to independently establish guilt. Id. at 759-60.
34 N.E.3d at 1221.
[9] Byrd fails to show that the testimony of D.H. was inherently contradictory. To
the extent D.H.’s testimony conflicted with the testimony of Byrd, or Byrd
argues that D.H.’s testimony was not believable or less believable than his
testimony, we note that these are issues of witness credibility. The function of
weighing witness credibility lies with the trier of fact, not this Court. Whited v.
State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the
evidence or judge the credibility of the witnesses. See Drane, 867 N.E.2d at 146.
Further, we cannot say that D.H.’s testimony that Byrd phoned her multiple
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 5 of 7 times and that she recognized his voice on the phone was so inherently
improbable that no reasonable person could believe it. D.H. testified that she
had known Byrd for six years and that Byrd was the father of her three children.
Byrd does not show how the testimony against him was somehow internally
inconsistent and has not shown D.H.’s testimony to be incredibly dubious.
[10] Also, to the extent that Byrd focuses his argument on the fact that there was not
a witness to place him at the scene, we observe that the charging information
charged the crime based upon the phone calls he made to D.H. D.H. testified
that he called her multiple times on December 9, 2015, and that he told her he
knew where she lived and that he wanted to see her and their children. Further,
Byrd acknowledged at trial that there was a protective order against him for the
protection of D.H.
[11] Based upon our review of the evidence and the testimony most favorable to the
conviction as set forth in the record and above, we conclude that sufficient
evidence exists from which the trier of fact could find Byrd guilty beyond a
reasonable doubt of invasion of privacy as a class A misdemeanor. See
Stephenson v. State, 742 N.E.2d 463, 487 (Ind. 2001) (holding that
inconsistencies in the testimony of two or more witnesses go to the weight of
the evidence and credibility of the testimony of each individual witness, and
such inconsistencies do not make the evidence “incredible” as a matter of law),
cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002); White v. State, 846 N.E.2d
1026, 1032 (Ind. Ct. App. 2006) (finding that the incredible dubiosity rule was
inapplicable and that by claiming contradictory testimony, instead of inherent
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 6 of 7 contradictions within one witness’s own testimony, the defendant was asking
the court to reweigh the evidence and assess the credibility of witnesses), trans.
denied.
Conclusion
[12] For the foregoing reasons, we affirm Byrd’s conviction for invasion of privacy
as a class A misdemeanor.
[13] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017 Page 7 of 7