      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
