Shirley Jones v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 7, 2013
• Docket: 49A05-1301-CR-4
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited Aug 07 2013, 5:28 am before any 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:

BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenburg, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

SHIRLEY JONES, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1301-CR-4 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Linda Brown, Judge Cause No. 49F10-1207-CM-048716

August 7, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge Case Summary and Issue

Shirley Jones appeals her conviction for battery as a Class A misdemeanor. Jones

raises one issue on appeal: whether Jones’s conviction should be reversed for insufficient

evidence under the doctrine of incredible dubiosity. Concluding that the doctrine of

incredible dubiosity is inapplicable here, we affirm.

Facts and Procedural History

At some point before July 15, 2012, Bobbi Davis purchased a cell phone from

Jones for $100, paying her $50 at the time and agreeing to pay the other $50 at another

time. Once in possession of the phone, Davis noticed that the phone would not hold a

charge. Davis mentioned this to Ranika Jackson, who was Davis’s friend and Jones’s

niece. On July 15, 2012, Davis went with Jackson to Jones’s house to pick up Jackson’s

son. As they were leaving, Davis asked Jones whether they were going to talk about the

phone. Jones told her they could talk about it and to go back inside the house, and then

told Davis to sit down. Davis indicated that she did not want to sit down, and Jones

began yelling and calling Davis names. Jones told Davis that Davis should have come to

her directly about any problems with the phone. The two women moved toward a wall of

the room, and when they reached the wall, Jones began to choke Davis with two hands,

causing Davis pain. Jackson was able to stop Jones, and Davis went outside. Jackson

drove Davis home, and on the way home Davis called her mother to relay what had

happened. Davis’s mother told her to call the police, which she did. When Officer

Terence Fulner responded to the call, Davis was upset and crying, and Officer Fulner

took a report of the battery. Officer Fulner noted that Davis stated that she was in pain,

2 and also noted that there were no visible injuries. Officer Fulner also spoke to Jackson,

whose statement matched Davis’s.

On July 20, 2012, Jones was charged with Class A misdemeanor battery. A bench

trial was held on December 11, 2012. Jones testified at trial that she never yelled at or

grabbed or choked Davis. Jones also testified that she uses oxygen for severe asthma,

and that she has arthritis and as a result of an accident cannot lift or grab anything with

her right arm. Following the trial, Jones was convicted of battery as charged and

sentenced to 365 days with two days credit and 363 days suspended to probation, during

which Jones would be required to attend an anger management course. This appeal

followed.

Discussion and Decision

I. Standard of Review

The standard for reviewing sufficiency of the evidence claims is well settled. We

do not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755

N.E.2d 173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences

drawn therefrom that support the verdict and will affirm the conviction if there is

probative evidence from which a reasonable trier-of-fact could have found the defendant

guilty beyond a reasonable doubt. Id.

In rare cases, we may reverse the decision of the trial court based on the incredible

dubiosity rule. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). Under this rule, we

will “impinge on the jury’s responsibility to judge the credibility of the witnesses only

when [we have] confronted inherently improbable testimony or coerced, equivocal,

wholly uncorroborated testimony of incredible dubiosity.” Id. (quotations and citation 3 omitted). 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.” Id.

II. Incredible Dubiosity

Jones claims that Davis’s testimony meets the limited applicability of the

incredible dubiosity doctrine. We disagree. There was nothing inherently improbable

about Davis’s testimony that Jones grabbed her neck and choked her. As far as Jones’s

testimony that she has medical conditions that limit her, compared to Davis’s testimony

that Jones choked her, that goes to witness credibility and weighing the evidence, which

we will not do on appeal. There was nothing inherently contradictory about Davis’s

testimony, nor was it equivocal, and Jones does not allege that Davis’s testimony was

coerced. As the State points out, the incredible dubiosity rule applies only when a

witness contradicts herself in a single statement or while testifying. Glenn v. State, 884

N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied. Where there are inconsistencies

between the testimonies of multiple witnesses, the evidence is not per se incredible, but

rather those inconsistencies go to the credibility of the witnesses and the weight to be

given to the evidence. Morell v. State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010).

Additionally, Davis’s testimony is not wholly uncorroborated. Officer Fulner testified

that although he did not see physical marks on Davis, she was crying and upset when he

responded to her call. Jackson was present during the incident, and when Officer Fulner

responded to the call, she was present and corroborated Davis’s story. Jones makes no

other argument contesting the sufficiency of the evidence supporting her conviction, and

4 we conclude that the evidence was sufficient to support her misdemeanor conviction for

battery.

Conclusion

Concluding that the incredible dubiosity rule is inapplicable and that Jones’s

conviction was supported by sufficient evidence, we affirm.

Affirmed.

RILEY, J., and KIRSCH, J., concur.