Tyronne J. Noel v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 18, 2013
• Docket: 87A01-1211-CR-525
• Status: Unpublished

Opinion

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, Apr 18 2013, 8:56 am collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ERIN L. BERGER GREGORY F. ZOELLER Evansville, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

TYRONNE J. NOEL, ) ) Appellant-Defendant, ) ) vs. ) No. 87A01-1211-CR-525 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WARRICK CIRCUIT COURT The Honorable David O. Kelley, Judge Cause No. 87C01-1110-CM-867

April 18, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant-Defendant Tyronne J. Noel appeals from his conviction of Class B

misdemeanor reckless driving for passing a stopped school bus. At Noel’s bench trial,

two eyewitnesses testified that the bus’s arm signal device was extended when Noel

drove around the bus. Noel argues that Appellee-Plaintiff the State of Indiana failed to

present evidence from which the trial court could reasonably find that he committed the

charged offense. Concluding that the eyewitness testimony sufficiently supports Noel’s

conviction, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 3, 2011, at approximately 7:45 a.m., Indiana State Police Sergeant

Thomas Weber cited Noel for reckless driving for passing a stopped school bus while its

arm signal device was extended. On October 18, 2011, Noel was charged with a Class B

misdemeanor for the offense.1 A bench trial was held on August 10, 2012, where the

State presented the testimony of Sergeant Weber and the driver of the school bus in

question, Larry Murphy. Noel testified in his defense.

Murphy’s morning bus route includes the following sequence: a stop on Kreager

Lane (the “Kreager Stop”), a right turn from Kreager onto Pollack Avenue, and a stop at

the intersection of Pollack and Morningside Drive (the “Morningside Stop”). Murphy

testified that, on the morning in question, he picked up students at the Kreager Stop,

turned right onto Pollack, and immediately activated the bus’s flashing yellow lights in

preparation for the Morningside Stop. When he stopped the bus at Morningside, Murphy

1 Ind. Code § 9-21-8-52(b) (2011).

2 activated its door switch to allow students to board. By activating the door switch, the

bus’s arm signal device automatically extended, and its red lights automatically began

flashing. Murphy heard a car accelerate from the rear of the bus and then witnessed Noel

drive past the bus while its arm signal device was fully extended.

Noel testified that, on the morning in question, he dropped off his son at the

Kreager Stop, and, after his son boarded Murphy’s bus, Noel followed the bus down

Pollack Avenue on his way to a job interview. When the bus stopped at Morningside, its

red lights were not flashing, and its arm signal device was not extended. On cross-

examination, Noel clarified that it was not that he did not see these warning mechanisms;

they were not there. As far as Noel could tell, Murphy had parked the bus on the side of

the road.

Sergeant Weber testified that, on the morning in question, he was parked near the

Morningside Stop and witnessed Noel drive around Murphy’s bus while it was stopped

there. Sergeant Weber admitted that he could not see the back of the bus from his

vantage point but stated that its red lights were flashing and its arm signal device was

fully extended. Sergeant Weber immediately activated his emergency lights and pursued

Noel, stopping him approximately one mile later to issue the citation.

The trial court found Noel guilty as charged and sentenced him to five days of

incarceration, suspended to thirty days of unsupervised probation. This appeal follows.

DISCUSSION AND DECISION

Noel argues that the State failed to present evidence from which the trial court

could find that he recklessly passed a stopped school bus.

3 In reviewing the sufficiency of the evidence, we neither re-weigh the evidence nor judge the credibility of the witnesses. We look only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. If there is substantial evidence of probative value to support the conviction it will not be set aside.

Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997) (internal citations and quotation marks

omitted).

Specifically, Noel claims that the State presented no evidence that there were red

flashing lights or an arm signal device at the rear of the bus. Contrary to Noel’s claim,

however, the State was not required to prove that the bus had rear warning mechanisms in

order to prove him guilty of the crime charged. Indiana Code section 9-21-8-52(b)

provides that “[a] person who operates a vehicle and who recklessly passes a school bus

stopped on a roadway when the arm signal device … is in the device’s extended position

commits a Class B misdemeanor.” Therefore, all that was needed was substantial

evidence of probative value that the bus’s arm signal device was extended when Noel

passed the bus. Here, the State presented the testimony of two eyewitnesses who stated

that Noel passed the bus while its arm signal device was fully extended.

We conclude that a reasonable factfinder could have found Noel guilty of

recklessly passing a stopped school bus based on the testimony of Murphy and Sergeant

Weber. Noel’s argument is merely an invitation for this court to reweigh the evidence,

which we cannot do. Fields, 679 N.E.2d at 900. Noel attempts to circumvent this result

by arguing that the “incredible dubiosity” rule applies to the testimony presented.

Application of this rule, however, is limited to cases “where a sole witness presents

4 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. Tillman v. State,

642 N.E.2d 221, 223 (Ind. 1994). The Indiana Supreme Court has noted that “the

application of this rule is rare and the standard utilized is whether ‘the testimony is so

incredibly dubious or inherently improbable that no reasonable person could believe it.’”

Bradford v. State, 675 N.E.2d 296, 300 (Ind. 1996) (quoting Pardue v. State, 502 N.E.2d

897, 898 (Ind. 1987)). Here, not only did more than one witness testify, but the two

witnesses presented consistent and inherently reasonable testimony.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.