MEMORANDUM DECISION Jan 28 2015, 9:51 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited 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 Joel M. Schumm Gregory F. Zoeller Attorney General of Indiana Rory Gallagher Certified Legal Intern Eric P. Babbs Appellate Clinic Deputy Attorney General of Indiana Indiana University Indianapolis, Indiana Robert H. McKinney School of Law Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
T.M., January 28, 2015
Appellant-Respondent, Court of Appeals Cause No. 49A02-1405-JV-362 v. Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, State of Indiana, Judge Appellee-Petitioner The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-1402-JD-393
Crone, Judge.
Case Summary [1] T.M. appeals his adjudication as a delinquent for committing an act that would
constitute class B felony robbery with a deadly weapon if committed by an Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 1 of 7 adult. He contends that the victim’s testimony is incredibly dubious, and
therefore the evidence is insufficient to support the true finding. Given that the
victim was not the sole witness testifying to T.M.’s guilt, we conclude that the
incredible dubiosity rule is inapplicable and affirm T.M.’s delinquency
adjudication.
Facts and Procedural History [2] The facts most favorable to the true finding are as follows. In February 2012,
around 7:00 p.m., sixteen-year-old C.C. was walking to an Indianapolis store to
meet his nineteen-year-old brother Austin. It was dark. C.C. was listening to
music on his cell phone, and three boys approached him. One boy was wearing
a red jacket with the hood pulled over his head. He pointed a gun at C.C. and
told him that he would shoot C.C. if C.C. did not hand over his phone. C.C.
did not know who this boy was, but he found out later. Tr. at 5. The gun was
black with a silver rod that C.C. could see through an opening at the top. The
police later told C.C. that it was a BB gun. Another boy wearing a grey and
black jacket with the hood pulled over his head knocked C.C.’s cell phone out
of his hand, and it fell to the ground. The boy wearing the red jacket picked it
up, and the three boys ran away.
[3] C.C. met Austin. Austin saw that C.C. was teary eyed, so he asked him what
happened. C.C. told him what happened and that one of the boys was wearing
a red jacket. Austin and C.C. walked around looking for someone with a red
jacket.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 2 of 7 [4] About fifteen to twenty minutes after the robbery, Austin and C.C. saw six or
seven boys in an alley about three and a half blocks from where the robbery had
occurred. None of the boys in the alley was wearing a red jacket.
[5] Austin went up to the boys to talk to them “to see what was going on.” Id. at
30. C.C. did not approach the boys, but remained where they could probably
not see him. Id. at 20. C.C. recognized two of the boys because he had seen
them in the neighborhood before. Id. at 8. C.C. recognized T.M., who went by
the name “Buddy.” Id. at 9. C.C. was friends with T.M.’s sister and had seen
T.M. four or five times. C.C. did not know the name of the other boy he
recognized. That boy was later identified as I.D.
[6] The group of boys told Austin that they did not know what was going on with
the phone and did not have it. Austin tried to call C.C.’s phone and thought
that he heard it ring. T.M. privately told Austin that he had been involved in
the robbery, but he did not say that he pulled the gun. Id. at 30-31. Austin
asked T.M. if anyone else was involved, but T.M. would not tell him. Austin
searched T.M. but did not find the phone or a gun. Austin had never seen T.M.
or I.D. before. At some point, C.C. told Austin that T.M. looked like the boy
who had pointed the gun at him, but “he wasn’t for sure” and “he didn’t think
that Buddy would do it, because … they were friends.” Id. at 35.
[7] Austin told the boys that they had to return the phone or the police would be
called. The boys led Austin to a house purportedly to recover the phone.
Austin searched the house but did not find the phone.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 3 of 7 [8] C.C.’s mother called the police. They came to the house where C.C. and
Austin were and identified everyone that was there. The police created a lineup
of ten to twelve people, including Austin and four other people that C.C. knew.
Id. at 12. C.C. identified T.M. and I.D. as two of the perpetrators, but did not
identify the third. The phone was never recovered.
[9] The juvenile court found probable cause to approve the filing of a delinquency
petition against T.M. alleging that he was a delinquent child for committing an
act constituting a class B felony robbery with a deadly weapon if committed by
an adult. A factfinding hearing was held for T.M. and his codefendant I.D.
C.C. and Austin testified. T.M. submitted the probable cause affidavit filed
against him, which stated that a BB gun had been recovered from I.D.’s yard.
T.M.’s Ex. A. The probable cause affidavit also stated that the BB gun was
depicted in two Facebook photographs of I.D. and two other boys. I.D.
submitted the two Facebook photographs. I.D.’s Ex. A. C.C. testified that the
BB gun in the Facebook photos was the same gun that T.M. had pointed at
him. The BB gun was not submitted. The trial court entered a true finding
against T.M. and placed him on probation with a suspended commitment to
the Indiana Department of Correction. T.M. appeals.
Discussion and Decision [10] Our standard of review for claims of insufficient evidence with respect to
juvenile delinquency adjudications is well settled:
We neither reweigh the evidence nor judge the credibility of witnesses. The State must prove beyond a reasonable doubt that the juvenile Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 4 of 7 committed the charged offense. We examine only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. We will affirm if there exists substantive evidence of probative value to establish every material element of the offense. Further, it is the function of the trier of fact to resolve conflicts in testimony and to determine the weight of the evidence and the credibility of the witnesses.
K.D. v. State, 754 N.E.2d 36, 38-39 (Ind. Ct. App. 2001) (citations omitted).
[11] To sustain a true finding that T.M. committed class B felony robbery, the State
was required to prove beyond a reasonable doubt that he knowingly or
intentionally took property from another person by using or threating the use of
force on any person or putting any person in fear while armed with a deadly
weapon. Ind. Code § 35-42-5-1. T.M. argues that C.C.’s identification of him
as one of the assailants is incredibly dubious and is therefore insufficient as a
matter of law.
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MEMORANDUM DECISION Jan 28 2015, 9:51 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited 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 Joel M. Schumm Gregory F. Zoeller Attorney General of Indiana Rory Gallagher Certified Legal Intern Eric P. Babbs Appellate Clinic Deputy Attorney General of Indiana Indiana University Indianapolis, Indiana Robert H. McKinney School of Law Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
T.M., January 28, 2015
Appellant-Respondent, Court of Appeals Cause No. 49A02-1405-JV-362 v. Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, State of Indiana, Judge Appellee-Petitioner The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-1402-JD-393
Crone, Judge.
Case Summary [1] T.M. appeals his adjudication as a delinquent for committing an act that would
constitute class B felony robbery with a deadly weapon if committed by an Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 1 of 7 adult. He contends that the victim’s testimony is incredibly dubious, and
therefore the evidence is insufficient to support the true finding. Given that the
victim was not the sole witness testifying to T.M.’s guilt, we conclude that the
incredible dubiosity rule is inapplicable and affirm T.M.’s delinquency
adjudication.
Facts and Procedural History [2] The facts most favorable to the true finding are as follows. In February 2012,
around 7:00 p.m., sixteen-year-old C.C. was walking to an Indianapolis store to
meet his nineteen-year-old brother Austin. It was dark. C.C. was listening to
music on his cell phone, and three boys approached him. One boy was wearing
a red jacket with the hood pulled over his head. He pointed a gun at C.C. and
told him that he would shoot C.C. if C.C. did not hand over his phone. C.C.
did not know who this boy was, but he found out later. Tr. at 5. The gun was
black with a silver rod that C.C. could see through an opening at the top. The
police later told C.C. that it was a BB gun. Another boy wearing a grey and
black jacket with the hood pulled over his head knocked C.C.’s cell phone out
of his hand, and it fell to the ground. The boy wearing the red jacket picked it
up, and the three boys ran away.
[3] C.C. met Austin. Austin saw that C.C. was teary eyed, so he asked him what
happened. C.C. told him what happened and that one of the boys was wearing
a red jacket. Austin and C.C. walked around looking for someone with a red
jacket.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 2 of 7 [4] About fifteen to twenty minutes after the robbery, Austin and C.C. saw six or
seven boys in an alley about three and a half blocks from where the robbery had
occurred. None of the boys in the alley was wearing a red jacket.
[5] Austin went up to the boys to talk to them “to see what was going on.” Id. at
30. C.C. did not approach the boys, but remained where they could probably
not see him. Id. at 20. C.C. recognized two of the boys because he had seen
them in the neighborhood before. Id. at 8. C.C. recognized T.M., who went by
the name “Buddy.” Id. at 9. C.C. was friends with T.M.’s sister and had seen
T.M. four or five times. C.C. did not know the name of the other boy he
recognized. That boy was later identified as I.D.
[6] The group of boys told Austin that they did not know what was going on with
the phone and did not have it. Austin tried to call C.C.’s phone and thought
that he heard it ring. T.M. privately told Austin that he had been involved in
the robbery, but he did not say that he pulled the gun. Id. at 30-31. Austin
asked T.M. if anyone else was involved, but T.M. would not tell him. Austin
searched T.M. but did not find the phone or a gun. Austin had never seen T.M.
or I.D. before. At some point, C.C. told Austin that T.M. looked like the boy
who had pointed the gun at him, but “he wasn’t for sure” and “he didn’t think
that Buddy would do it, because … they were friends.” Id. at 35.
[7] Austin told the boys that they had to return the phone or the police would be
called. The boys led Austin to a house purportedly to recover the phone.
Austin searched the house but did not find the phone.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 3 of 7 [8] C.C.’s mother called the police. They came to the house where C.C. and
Austin were and identified everyone that was there. The police created a lineup
of ten to twelve people, including Austin and four other people that C.C. knew.
Id. at 12. C.C. identified T.M. and I.D. as two of the perpetrators, but did not
identify the third. The phone was never recovered.
[9] The juvenile court found probable cause to approve the filing of a delinquency
petition against T.M. alleging that he was a delinquent child for committing an
act constituting a class B felony robbery with a deadly weapon if committed by
an adult. A factfinding hearing was held for T.M. and his codefendant I.D.
C.C. and Austin testified. T.M. submitted the probable cause affidavit filed
against him, which stated that a BB gun had been recovered from I.D.’s yard.
T.M.’s Ex. A. The probable cause affidavit also stated that the BB gun was
depicted in two Facebook photographs of I.D. and two other boys. I.D.
submitted the two Facebook photographs. I.D.’s Ex. A. C.C. testified that the
BB gun in the Facebook photos was the same gun that T.M. had pointed at
him. The BB gun was not submitted. The trial court entered a true finding
against T.M. and placed him on probation with a suspended commitment to
the Indiana Department of Correction. T.M. appeals.
Discussion and Decision [10] Our standard of review for claims of insufficient evidence with respect to
juvenile delinquency adjudications is well settled:
We neither reweigh the evidence nor judge the credibility of witnesses. The State must prove beyond a reasonable doubt that the juvenile Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 4 of 7 committed the charged offense. We examine only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. We will affirm if there exists substantive evidence of probative value to establish every material element of the offense. Further, it is the function of the trier of fact to resolve conflicts in testimony and to determine the weight of the evidence and the credibility of the witnesses.
K.D. v. State, 754 N.E.2d 36, 38-39 (Ind. Ct. App. 2001) (citations omitted).
[11] To sustain a true finding that T.M. committed class B felony robbery, the State
was required to prove beyond a reasonable doubt that he knowingly or
intentionally took property from another person by using or threating the use of
force on any person or putting any person in fear while armed with a deadly
weapon. Ind. Code § 35-42-5-1. T.M. argues that C.C.’s identification of him
as one of the assailants is incredibly dubious and is therefore insufficient as a
matter of law. Generally, appellate courts do not judge witness credibility, but
we may apply the “incredible dubiosity” rule to impinge upon the factfinder’s
function to judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208
(Ind. 2007). Under the incredible dubiosity rule,
[i]f 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.
[12] Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 5 of 7 [13] The fact that the sole witness gives inconsistent testimony does not render such
testimony incredibly dubious. See Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct.
App. 2007) (concluding that officer’s testimony contained inconsistencies but
was not incredibly dubious); see also Moore v. State, 827 N.E.2d 631, 640-41 (Ind.
Ct. App. 2005) (stating that minor inconsistencies did not render sole witness’s
testimony incredibly dubious but rather went to its weight and that was a matter
for factfinder), trans. denied. “The incredible dubiosity rule applies only when a
witness contradicts himself in a single statement or while testifying, not to
conflicts between multiple statements.” Glenn v. State, 884 N.E.2d 347, 356
(Ind. Ct. App. 2008), trans. denied; see also Buckner v. State, 857 N.E.2d 1011,
1018 (Ind. Ct. App. 2006) (“The incredible dubiosity rule applies to conflicts in
trial testimony rather than conflicts that exist between trial testimony and
statements made to the police before trial.”).
[14] T.M. argues that we should apply the incredible dubiosity rule because C.C.’s
testimony was equivocal and appears to have been coerced by his older
brother’s self-help investigation into the robbery. However, C.C. was not the
only witness to testify to T.M.’s identity as one of the assailants. Austin
testified that T.M. told him that he was involved in the robbery. Thus, there is
independent evidence of T.M.’s guilt such that the incredible dubiosity rule is
inapplicable. See Cox v. State, 780 N.E.2d 1150, 1154 (Ind. Ct. App. 2002)
(declining to address Cox’s incredible dubiosity claim because more than one
witness testified as to events surrounding crime).
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 6 of 7 [15] Nevertheless, T.M. argues that Austin’s testimony should not bar the
application of the incredible dubiosity rule because Austin is his older brother
and was the primary source of coercion. Whether the incredible dubiosity rule
should be extended to situations involving more than one witness is a question
that we may leave for another day because we cannot agree with T.M. that the
record establishes that C.C. was coerced by Austin. Cf. Gaddis v. State, 253 Ind.
73, 77-82, 251 N.E.2d 658, 660-62 (1969) (sole witness testified that he was
threatened with prison if he did not testify against Gaddis and his testimony
regarding his identification of Gaddis as assailant was vacillating,
contradictory, and uncertain and therefore incredibly dubious). Accordingly,
we affirm T.M.’s delinquency adjudication.
[16] Affirmed.
Friedlander, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 7 of 7