MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2015, 8:56 am 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 Ernest P. Galos Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Frary, January 30, 2015
Appellant-Defendant, Court of Appeals Case No. 71A03-1406-CR-213 v. Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, State of Indiana, Judge Appellee-Plaintiff Cause No. 71D08-1306-FD-526
Mathias, Judge.
[1] Tony Frary (“Frary”) appeals his conviction for Class D felony domestic
battery. Frary presents a single issue for our review, namely, whether the State
presented sufficient evidence to support his conviction. Specifically, Frary
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 1 of 7 contends that his conviction cannot stand because the victim’s testimony was
incredibly dubious.
[2] We affirm.
Facts and Procedural History [3] On June 10, 2013, Amanda Cool (“Cool”), who was seven months pregnant,
arrived at the home she shared with her then-boyfriend, Frary. Cool and her
two-year-old son, A.F., had spent the afternoon at Frary’s mother’s house.
When Cool pulled into her home’s driveway, Frary ran out of the back door of
the house and over to Cool’s van. He opened the van’s driver’s side door and
punched Cool at least five times on the left side of her head. A.F., who was in
his car seat in the back passenger side seat of the van, “was wide awake
watching the whole thing.” Tr. p. 27.
[4] Cool was eventually able to exit the van and took A.F. inside the house, where
she fed him then put him in his bedroom. She then began to pack an overnight
bag and told Frary that she was going to stay with Frary’s mother. Frary ran
outside and attempted to let the air out of the tires on Cool’s van to keep her
from leaving. Cool ran across the street to the home of her neighbor, Diana
Landry (“Landry”). Landry called 911. By the time police officers arrived,
however, Cool and Frary were walking together down the street in their
neighborhood, pushing A.F. in a stroller. After Cool described to them what
had happened, the officers arrested Frary.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 2 of 7 [5] The State charged Frary with Class D felony domestic battery committed in the
presence of a child on June 17, 2013. Frary entered a plea of not guilty. Two
weeks after the incident, on June 24, 2013, Cool submitted a notarized
statement to the court and to the prosecutor’s office indicating that, in fact,
Frary had not physically abused her on June 10 and that only a verbal argument
occurred between them, caused by her consumption of alcohol that afternoon.
She also stated that she was “made to feel pressured by the prosecution and law
enforcement when questioned after the alleged incident.” Appellant’s App. p.
181. At a deposition on July 12, 2013, Cool testified that the facts alleged in the
State’s charges were false and that the prosecution had pressured her to make
the accusations against Frary. She made similar statements at a hearing on the
no-contact order between Frary and Cool.1
[6] A jury trial was held from April 22 to April 23, 2014. At trial, Cool stated that
she had lied when she recanted her accusations of Frary. She described being
punched several times by Frary on June 10, 2013, with two-year-old A.F. sitting
behind her in her van’s back seat. The jury found Frary to be guilty as charged.
On May 21, 2014, the trial court sentenced Frary to three years executed in the
Department of Correction.
[7] Frary now appeals.
1 After the hearing, the trial court terminated the no-contact order.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 3 of 7 Discussion and Decision [8] Frary argues that the State failed to present evidence sufficient to support his
conviction for Class D felony battery committed in the presence of a child less
than sixteen years of age. In reviewing Frary’s claim, we respect the exclusive
province of the trier of fact to weigh any conflicting evidence. McHenry v.
State, 820 N .E.2d 124, 126 (Ind. 2005). Thus, we will neither reweigh the
evidence nor judge the credibility of witnesses. Id. We consider only the
probative evidence and reasonable inferences supporting the verdict, and we
will affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Id.
[9] Indiana Code section 35-42-2-1.3 provides, in relevant part:
(a) A person who knowingly or intentionally touches an individual who: (1) is or was a spouse of the other person . . .in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor. (b) However, the offense under subsection (a) is a Class D felony if the person who committed the offense . . . (2) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense. [10] Frary argues that the State did not present sufficient evidence that he committed
domestic battery because Cool’s testimony was incredibly dubious and
inherently improbable due to inconsistencies. Specifically, Frary notes that
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 4 of 7 Cool’s testimony that she spent nearly three hours at Frary’s mother’s house
contradicted Frary’s mother’s testimony that Cool was only at her house for a
few minutes; that Cool’s testimony contradicted her pre-trial behavior and
statements she had made prior to trial in a notarized statement, in a deposition,
and in a hearing on the no-contact order; and that Cool’s testimony that Frary’s
attorney pressured her to testify falsely at her deposition was inherently
improbable.
[11] Under the “incredible dubiosity rule,” this court may impinge upon the jury’s
responsibility to judge the credibility of witnesses when confronted with
inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony. Lawson v. State, 966 N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a
sole witness presents inherently improbable testimony and a complete lack of
circumstantial evidence exists, a defendant’s conviction may be reversed.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). Application of this rule is
rare, though, and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person could
believe it. Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010). This
incredibly dubiosity rule applies only when a witness contradicts himself or
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2015, 8:56 am 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 Ernest P. Galos Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Frary, January 30, 2015
Appellant-Defendant, Court of Appeals Case No. 71A03-1406-CR-213 v. Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, State of Indiana, Judge Appellee-Plaintiff Cause No. 71D08-1306-FD-526
Mathias, Judge.
[1] Tony Frary (“Frary”) appeals his conviction for Class D felony domestic
battery. Frary presents a single issue for our review, namely, whether the State
presented sufficient evidence to support his conviction. Specifically, Frary
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 1 of 7 contends that his conviction cannot stand because the victim’s testimony was
incredibly dubious.
[2] We affirm.
Facts and Procedural History [3] On June 10, 2013, Amanda Cool (“Cool”), who was seven months pregnant,
arrived at the home she shared with her then-boyfriend, Frary. Cool and her
two-year-old son, A.F., had spent the afternoon at Frary’s mother’s house.
When Cool pulled into her home’s driveway, Frary ran out of the back door of
the house and over to Cool’s van. He opened the van’s driver’s side door and
punched Cool at least five times on the left side of her head. A.F., who was in
his car seat in the back passenger side seat of the van, “was wide awake
watching the whole thing.” Tr. p. 27.
[4] Cool was eventually able to exit the van and took A.F. inside the house, where
she fed him then put him in his bedroom. She then began to pack an overnight
bag and told Frary that she was going to stay with Frary’s mother. Frary ran
outside and attempted to let the air out of the tires on Cool’s van to keep her
from leaving. Cool ran across the street to the home of her neighbor, Diana
Landry (“Landry”). Landry called 911. By the time police officers arrived,
however, Cool and Frary were walking together down the street in their
neighborhood, pushing A.F. in a stroller. After Cool described to them what
had happened, the officers arrested Frary.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 2 of 7 [5] The State charged Frary with Class D felony domestic battery committed in the
presence of a child on June 17, 2013. Frary entered a plea of not guilty. Two
weeks after the incident, on June 24, 2013, Cool submitted a notarized
statement to the court and to the prosecutor’s office indicating that, in fact,
Frary had not physically abused her on June 10 and that only a verbal argument
occurred between them, caused by her consumption of alcohol that afternoon.
She also stated that she was “made to feel pressured by the prosecution and law
enforcement when questioned after the alleged incident.” Appellant’s App. p.
181. At a deposition on July 12, 2013, Cool testified that the facts alleged in the
State’s charges were false and that the prosecution had pressured her to make
the accusations against Frary. She made similar statements at a hearing on the
no-contact order between Frary and Cool.1
[6] A jury trial was held from April 22 to April 23, 2014. At trial, Cool stated that
she had lied when she recanted her accusations of Frary. She described being
punched several times by Frary on June 10, 2013, with two-year-old A.F. sitting
behind her in her van’s back seat. The jury found Frary to be guilty as charged.
On May 21, 2014, the trial court sentenced Frary to three years executed in the
Department of Correction.
[7] Frary now appeals.
1 After the hearing, the trial court terminated the no-contact order.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 3 of 7 Discussion and Decision [8] Frary argues that the State failed to present evidence sufficient to support his
conviction for Class D felony battery committed in the presence of a child less
than sixteen years of age. In reviewing Frary’s claim, we respect the exclusive
province of the trier of fact to weigh any conflicting evidence. McHenry v.
State, 820 N .E.2d 124, 126 (Ind. 2005). Thus, we will neither reweigh the
evidence nor judge the credibility of witnesses. Id. We consider only the
probative evidence and reasonable inferences supporting the verdict, and we
will affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Id.
[9] Indiana Code section 35-42-2-1.3 provides, in relevant part:
(a) A person who knowingly or intentionally touches an individual who: (1) is or was a spouse of the other person . . .in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor. (b) However, the offense under subsection (a) is a Class D felony if the person who committed the offense . . . (2) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense. [10] Frary argues that the State did not present sufficient evidence that he committed
domestic battery because Cool’s testimony was incredibly dubious and
inherently improbable due to inconsistencies. Specifically, Frary notes that
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 4 of 7 Cool’s testimony that she spent nearly three hours at Frary’s mother’s house
contradicted Frary’s mother’s testimony that Cool was only at her house for a
few minutes; that Cool’s testimony contradicted her pre-trial behavior and
statements she had made prior to trial in a notarized statement, in a deposition,
and in a hearing on the no-contact order; and that Cool’s testimony that Frary’s
attorney pressured her to testify falsely at her deposition was inherently
improbable.
[11] Under the “incredible dubiosity rule,” this court may impinge upon the jury’s
responsibility to judge the credibility of witnesses when confronted with
inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony. Lawson v. State, 966 N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a
sole witness presents inherently improbable testimony and a complete lack of
circumstantial evidence exists, a defendant’s conviction may be reversed.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). Application of this rule is
rare, though, and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person could
believe it. Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010). This
incredibly dubiosity rule applies only when a witness contradicts himself or
herself in a single statement or while testifying, and does not apply to conflicts
between multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct. App.
2008), trans. denied. Inconsistencies in the testimonies of two or more witnesses
go to the weight of the evidence and do not make the evidence “incredible” as a
matter of law. Morell, 933 N.E.2d at 492-93.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 5 of 7 [12] In light of this standard, all of Frary’s arguments fail. He requests us to reweigh
inconsistencies between witness testimony and prior statements or between the
testimonies of multiple witnesses, which we may not do under the “incredible
dubiosity rule.” See Glenn, 884 N.E.2d at 356. Cool’s account of the events of
the afternoon of June 10, 2013, differed from Frary’s mother’s account, but
inconsistencies between two witnesses’ testimonies do not make the evidence
“incredible.” See Morell, 933 N.E.2d at 492-93. Even if Cool’s testimony that
attorney Zappia pressured her into lying at her deposition was incredibly
dubious, her other testimony provided sufficient evidence to support Frary’s
conviction. We further note that we do not find it inherently improbable that a
domestic violence victim would recant both her accusation and her denial of
her accusation. See Otte v. State, 967 N.E.2d 540, 547-48 (Ind. Ct. App. 2012);
Odom v. State, 711 N.E.2d 71, 74 (Ind. Ct. App. 1999).
[13] As to Cool’s pre-trial statements that she fabricated her accusations against
Frary, we have previously observed that inconsistencies between a witness’s
pretrial statement and her trial testimony do not make the testimony incredibly
dubious. See Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2002); see also Holeton v.
State, 853 N.E.2d 539 (Ind. Ct. App. 2006) (discrepancies between a witness’s
trial testimony and earlier statements made to police and in depositions do not
render such testimony incredibly dubious).
[14] “It is for the trier of fact to resolve conflicts in the evidence and to decide which
witnesses to believe or disbelieve.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind.
2001). “If the testimony believed by the trier of fact is enough to support the
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 6 of 7 verdict, then the reviewing court will not disturb it.” Id. At trial, Cool stated
that she lied in her notarized statement and at her deposition. Cool’s neighbor,
Landry, testified that she observed an area near Cool’s left ear that was “slightly
red.” Tr. p. 134. Also, Cool testified that A.F. was in his car seat in the back of
her van and watched as Frary punched Cool repeatedly on the side of her head.
Under these facts and circumstances, Frary has not demonstrated that Cool’s
testimony is inherently improbable testimony or equivocal, wholly
uncorroborated testimony that is incredibly dubious.
[15] Simply, the jury believed Cool’s testimony, that testimony was sufficient to
support the guilty verdict, and we decline to impinge on the jury’s credibility
determinations. Because Frary has failed to show that Cool’s testimony was so
inherently improbable that no reasonable trier of fact could believe it, and
because probative evidence from which the jury could have found Frary guilty
beyond a reasonable doubt of Class D felony domestic battery exists, we affirm
Frary’s conviction.
[16] Affirmed.
Najam, J., and Bradford, J. concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015 Page 7 of 7