MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2018, 8:43 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Xavier D. Jones, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-406 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman Appellee-Plaintiff Jr., Judge Trial Court Cause No. 48C03-1612-F1-2482
May, Judge.
[1] Xavier D. Jones appeals the denial of his motion to correct alleged errors
arising from the proceedings resulting in his convictions of Level 1 felony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 1 of 7 attempted child molesting 1 and Level 4 felony child molesting. 2 Specifically,
Jones asserts the court should have granted his motion to correct error because:
1. J.G.’s testimony was incredibly dubious, rendering his convictions
unsupported by sufficient evidence; and
2. Juror misconduct denied him a fair trial.
We affirm.
Facts and Procedural History [2] Jones and Tiffany Fuller were in a relationship. In September 2015, Jones
moved in with Fuller and her three children. Jones did not work at the time
and watched Fuller’s children while Fuller was at work. In September, soon
after Jones moved in, Jones molested J.G., who at the time was ten. This
occurred intermittently until July 2016. On November 14, 2016, J.G. told
Fuller what Jones did to her.
[3] On December 6, 2016, the State charged Jones with three counts of Level 1
felony attempted child molestation and one count of Level 4 felony child
molestation. On November 2, 2017, a jury found Jones guilty of two counts of
attempted child molestation and one count of child molestation. Prior to
1 Ind. Code § 35-42-4-3(a) (2015). 2 Ind. Code § 35-42-4-3(b) (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 2 of 7 sentencing, Jones filed a motion to correct error in which he requested a new
trial. After hearing evidence and taking the matter under advisement, the trial
court denied Jones’ motions and sentenced Jones to forty years.
Discussion and Decision [4] We review the denial of a motion to correct error, or a motion for a new trial,
for an abuse of discretion. Tancil v. State, 956 N.E.2d 1204, 1208 (Ind. Ct. App.
2011) (addressing both motion to correct error and motion for a new trial),
trans. denied. “An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the trial court. We do not
reweigh the evidence and we consider conflicting evidence in a light most
favorable to the trial court’s ruling.” Heyen v. State, 936 N.E.2d 294, 299 (Ind.
Ct. App. 2010), trans. denied. Jones alleges his motion to correct error was
improperly denied because the State did not present sufficient evidence and
because juror misconduct rendered his trial proceedings unfair.
Incredible Dubiosity [5] Jones argues there was insufficient evidence to support his convictions. When
considering the sufficiency of evidence, “a reviewing court does not reweigh the
evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005). We must 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. at 126
(internal citation omitted). Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 3 of 7 [6] In particular, Jones claims the evidence was insufficient because J.G.’s
testimony was incredibly dubious. “Under the incredible dubiosity rule, a court
will impinge upon the jury’s responsibility to judge the credibility of witnesses
only when confronted with inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony of incredible dubiosity.” Tillman v.
State, 642 N.E.2d 221, 223 (Ind. 1994). “Application of this rule is limited to
cases . . . where a sole witness presents inherently contradictory testimony [that]
is equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of the appellant’s guilt.” Id.
[7] During cross-examination, J.G. was confronted with statements she made
during her interview at Kids Talk 3 that were inconsistent with her trial
testimony. J.G. testified she did not remember making those statements during
the interview. (Tr. Vol. II at 5). Although J.G’s trial testimony was
inconsistent with her pre-trial statements, she did not contradict herself on the
stand. Trial testimony is not incredibly dubious simply because it contradicts
pre-trial statements. See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997)
(although witness contradicted his pre-trial statements, his testimony was not
incredibly dubious because he did not contradict himself while testifying),
clarified on reh’g on other grounds, 696 N.E.2d 870 (Ind. 1998).
3 Kids Talk is a child advocacy center in Madison County. Kids Talk operates as a neutral location where children are interviewed about allegations of mistreatment. (Tr. Vol. II at 47-48.) J.G was interviewed at Kids Talk on November 15, 2016. (Id. at 53.)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 4 of 7 [8] The jury was made aware of the inconsistencies between J.G’s testimony and
her pretrial statements. The jury is to weigh the evidence and assess the
credibility of witnesses in light of such inconsistencies. See id at 1231 (jury
allowed to evaluate testimony inconsistent with pretrial statements, and
inconsistencies do not automatically render testimony incredibly dubious).
J.G.’s testimony was sufficient to support Jones’ convictions. See, e.g., Wolf v.
State, 76 N.E.3d 911, 916 (Ind. Ct. App. 2017) (holding testimony inconsistent
with prior statements is sufficient to support conviction). Accordingly, the trial
court did not err when it denied Jones’ motion to correct error based on this
argument.
Juror Misconduct [9] Jones also argues his trial was prejudiced by juror misconduct. Jones filed
multiple affidavits regarding a post-trial conversation between a juror and
Jones’ attorney. In one affidavit, the witness averred she heard a juror ask
Jones’ attorney, “Why didn’t the defendant testify?” (App.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2018, 8:43 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Xavier D. Jones, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-406 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman Appellee-Plaintiff Jr., Judge Trial Court Cause No. 48C03-1612-F1-2482
May, Judge.
[1] Xavier D. Jones appeals the denial of his motion to correct alleged errors
arising from the proceedings resulting in his convictions of Level 1 felony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 1 of 7 attempted child molesting 1 and Level 4 felony child molesting. 2 Specifically,
Jones asserts the court should have granted his motion to correct error because:
1. J.G.’s testimony was incredibly dubious, rendering his convictions
unsupported by sufficient evidence; and
2. Juror misconduct denied him a fair trial.
We affirm.
Facts and Procedural History [2] Jones and Tiffany Fuller were in a relationship. In September 2015, Jones
moved in with Fuller and her three children. Jones did not work at the time
and watched Fuller’s children while Fuller was at work. In September, soon
after Jones moved in, Jones molested J.G., who at the time was ten. This
occurred intermittently until July 2016. On November 14, 2016, J.G. told
Fuller what Jones did to her.
[3] On December 6, 2016, the State charged Jones with three counts of Level 1
felony attempted child molestation and one count of Level 4 felony child
molestation. On November 2, 2017, a jury found Jones guilty of two counts of
attempted child molestation and one count of child molestation. Prior to
1 Ind. Code § 35-42-4-3(a) (2015). 2 Ind. Code § 35-42-4-3(b) (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 2 of 7 sentencing, Jones filed a motion to correct error in which he requested a new
trial. After hearing evidence and taking the matter under advisement, the trial
court denied Jones’ motions and sentenced Jones to forty years.
Discussion and Decision [4] We review the denial of a motion to correct error, or a motion for a new trial,
for an abuse of discretion. Tancil v. State, 956 N.E.2d 1204, 1208 (Ind. Ct. App.
2011) (addressing both motion to correct error and motion for a new trial),
trans. denied. “An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the trial court. We do not
reweigh the evidence and we consider conflicting evidence in a light most
favorable to the trial court’s ruling.” Heyen v. State, 936 N.E.2d 294, 299 (Ind.
Ct. App. 2010), trans. denied. Jones alleges his motion to correct error was
improperly denied because the State did not present sufficient evidence and
because juror misconduct rendered his trial proceedings unfair.
Incredible Dubiosity [5] Jones argues there was insufficient evidence to support his convictions. When
considering the sufficiency of evidence, “a reviewing court does not reweigh the
evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005). We must 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. at 126
(internal citation omitted). Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 3 of 7 [6] In particular, Jones claims the evidence was insufficient because J.G.’s
testimony was incredibly dubious. “Under the incredible dubiosity rule, a court
will impinge upon the jury’s responsibility to judge the credibility of witnesses
only when confronted with inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony of incredible dubiosity.” Tillman v.
State, 642 N.E.2d 221, 223 (Ind. 1994). “Application of this rule is limited to
cases . . . where a sole witness presents inherently contradictory testimony [that]
is equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of the appellant’s guilt.” Id.
[7] During cross-examination, J.G. was confronted with statements she made
during her interview at Kids Talk 3 that were inconsistent with her trial
testimony. J.G. testified she did not remember making those statements during
the interview. (Tr. Vol. II at 5). Although J.G’s trial testimony was
inconsistent with her pre-trial statements, she did not contradict herself on the
stand. Trial testimony is not incredibly dubious simply because it contradicts
pre-trial statements. See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997)
(although witness contradicted his pre-trial statements, his testimony was not
incredibly dubious because he did not contradict himself while testifying),
clarified on reh’g on other grounds, 696 N.E.2d 870 (Ind. 1998).
3 Kids Talk is a child advocacy center in Madison County. Kids Talk operates as a neutral location where children are interviewed about allegations of mistreatment. (Tr. Vol. II at 47-48.) J.G was interviewed at Kids Talk on November 15, 2016. (Id. at 53.)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 4 of 7 [8] The jury was made aware of the inconsistencies between J.G’s testimony and
her pretrial statements. The jury is to weigh the evidence and assess the
credibility of witnesses in light of such inconsistencies. See id at 1231 (jury
allowed to evaluate testimony inconsistent with pretrial statements, and
inconsistencies do not automatically render testimony incredibly dubious).
J.G.’s testimony was sufficient to support Jones’ convictions. See, e.g., Wolf v.
State, 76 N.E.3d 911, 916 (Ind. Ct. App. 2017) (holding testimony inconsistent
with prior statements is sufficient to support conviction). Accordingly, the trial
court did not err when it denied Jones’ motion to correct error based on this
argument.
Juror Misconduct [9] Jones also argues his trial was prejudiced by juror misconduct. Jones filed
multiple affidavits regarding a post-trial conversation between a juror and
Jones’ attorney. In one affidavit, the witness averred she heard a juror ask
Jones’ attorney, “Why didn’t the defendant testify?” (App. Vol. II at 142.)
Jones’ attorney explained Jones did not testify because he had a prior
conviction of armed robbery. The juror replied: “That’s what I thought.” (Id.)
The other two other affidavits Jones filed with his motion to correct error
reported similar information. Jones claims this information demonstrates the
jury ignored the court’s instruction to not consider Jones’ potential criminal
history during deliberations and he was prejudiced thereby.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 5 of 7 [10] “A defendant seeking a new trial because of juror misconduct must show that
the misconduct (1) was gross and (2) probably harmed the defendant.” Griffin v.
State, 754 N.E.2d 899, 901 (Ind. 2001), clarified on reh’g on other grounds, 763
N.E.2d 450 (Ind. 2002). “We review the trial court’s determination for abuse of
discretion, with the burden on the appellant to show the existence of
misconduct, and that it meets the prerequisites for a new trial.” Id.
[11] Jones notes Indiana Evidence Rule 606(b) would permit a trial court to allow a
juror to testify about the jury’s deliberation process if extraneous prejudicial
information was improperly brought to the jury’s attention. However, Jones
has not presented any evidence demonstrating the jury actually considered his
criminal history during the deliberations. The juror’s inquiry into why Jones
did not testify came after trial during a discussion with the trial court and
attorneys about the case, and that juror’s speculation about why Jones did not
testify is not synonymous with the jury speculating about Jones’ criminal
history. Even if the jury had speculated as to why Jones did not testify, that
speculation is not enough to permit impeachment of the jury’s verdict under
Indiana Evidence Rule 606(b). See Dowell v. State, 865 N.E.2d 1059, 1067 (Ind.
Ct. App. 2007) (jury’s speculation during deliberation that defendant had
criminal history insufficient to permit impeachment of jury’s verdict), aff’d in
part and rev’d in part on other grounds, 873 N.E.2d 59 (Ind. 2007). Because Jones
did not demonstrate the jury relied upon extraneous prejudicial information, he
was not entitled to a new trial on this basis. See Ramirez v. State, 7 N.E.3d 933,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 6 of 7 940 (Ind. 2014) (defendant not entitled to new trial after failing to prove juror
misconduct).
Conclusion [12] Because J.G.’s testimony was not incredibly dubious and there is no proof the
jury considered improper prejudicial information during deliberations, the trial
court did not abuse its discretion when it denied Jones’ motion to correct error.
Accordingly, we affirm.
[13] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018 Page 7 of 7