MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 08 2020, 8:47 am
court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Talisha Griffin                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andriosha M. Brown,                                       July 8, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-3069
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Clayton Graham,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G07-1907-CM-27477



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020                           Page 1 of 7
                                                      Summary
[1]   Andriosha Brown appeals her conviction for criminal mischief, a Class B

      misdemeanor. We affirm.


                                                         Issue
[2]   Brown presents one issue for our review, which we restate as whether the

      evidence is sufficient to convict Brown for criminal mischief, a Class B

      misdemeanor.


                                                         Facts
[3]   Brown and Deondre 1 have four children together and have been in an open

      relationship for eight or nine years. Tr. Vol. II p. 31. On June 2, 2019, Brandi

      Ingram (“Ingram”) was visiting Deondre at another friend’s apartment in

      Marion County. During the visit, Ingram heard a noise outside the apartment.

      Ingram then went to the window of the apartment where she witnessed Brown

      repeatedly striking the windows of Ingram’s 2014 Mazda with a short pole.

      Ingram recognized Brown because Ingram and Brown went to high school

      together and grew up in the same neighborhood.


[4]   According to Ingram, the incident lasted approximately five minutes; Brown

      first broke the front windshield and subsequently broke the passenger side and

      driver side windows. Ingram also witnessed Brown attempt to unsuccessfully




      1
          Deondre’s last name was not provided in the court record.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020   Page 2 of 7
      break the back window. After Brown left, Ingram called her mother, Sarah

      Fitzgerald (“Fitzgerald”), and her cousin. Ingram observed Brown leave the

      scene, but Brown kept returning. Ingram’s cousin arrived approximately fifteen

      minutes later and followed Ingram to Fitzgerald’s house. While at Fitzgerald’s

      home, Ingram called the police. According to Fitzgerald: (1) the windshield

      and the back window of the 2014 Mazda were both broken; and (2) the back

      window, located behind her grandson’s car seat in the back seat, was broken

      and the car seat was covered with broken glass fragments.


[5]   Officer Turner 2 with the Indianapolis Metropolitan Police Department arrived

      at Fitzgerald’s residence. Officer Turner took photographs and spoke with

      Ingram. Ingram later spoke to Detective Richard Eldridge and emailed him a

      video 3 depicting Brown by Ingram’s car.


[6]   The State charged Brown with criminal mischief, a Class A misdemeanor. A

      bench trial was held in December 2019. At the close of the presentation of the

      State’s evidence, Brown moved to dismiss under Indiana Trial Rule 41(B),

      which the trial court denied.


[7]   Brown testified that, in the afternoon on June 2, 2019, she took her children to

      a waterpark. Brown denied that she damaged Ingram’s car windows. At the




      2
          Officer Turner’s first name was not provided in the record.
      3
       Ingram testified she attempted to record the incident but testified she “recorded [Brown] moments after she
      bust (sic) the last window”. Tr. Vol. II p. 17.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020                      Page 3 of 7
      bench trial, the State did not introduce the police report, photographs, or

      Ingram’s video into evidence. During closing arguments, the State contended

      the police report did not “add any merit to the case . . .” Id. at 35-36.


[8]   The trial court entered judgment on the lesser-included offense of criminal

      mischief, a Class B misdemeanor, and stated: “. . . it was not made clear to the

      Court through the testimony at trial that [the damage] was at least $750.” Id. at

      37. The trial court sentenced Brown to 180 days, with 174 days suspended to

      probation. Brown now appeals her conviction.


                                                   Analysis
[9]   Brown argues the evidence is insufficient to support her conviction. When

      there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh

      evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

      (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),

      cert. denied. Instead, “we ‘consider only that evidence most favorable to the

      judgment together with all reasonable inferences drawn therefrom.’” Id.

      (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

      supported by ‘substantial evidence of probative value even if there is some

      conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558

      (Ind. 2018) (holding that, even though there was conflicting evidence, it was

      “beside the point” because that argument “misapprehend[s] our limited role as

      a reviewing court”). “We will affirm the conviction unless no reasonable fact-

      finder could find the elements of the crime proven beyond a reasonable doubt.”


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020   Page 4 of 7
       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007)).


[10]   Brown was found guilty of criminal mischief, a Class B misdemeanor, pursuant

       to Indiana Code Section 35-43-1-2(a), which provides 4: “A person who

       recklessly, knowingly, or intentionally damages or defaces property of another

       person without the other person’s consent commits criminal mischief . . . .”

       Brown’s specific argument is that the evidence is insufficient to prove Brown

       damaged or defaced Ingram’s 2014 Mazda because: (1) there is a lack of

       evidence presented to prove the damage was caused by Brown; and (2)

       Ingram’s testimony is incredibly dubious.


[11]   The incredible dubiosity rule “allows an appellate court to impinge upon the

       fact-finder’s assessment of witness credibility when the testimony at trial was so

       ‘unbelievable, incredible, or improbable that no reasonable person could ever

       reach a guilty verdict based upon that evidence alone.’” Carter v. State, 44

       N.E.3d 47, 52 (Ind. Ct. App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751

       (Ind. 2015)). “Incredible dubiosity is a difficult standard to meet, requiring

       ambiguous, inconsistent testimony that ‘runs counter to human experience.’”

       Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In Moore, our

       Supreme Court held that “the appropriate scope of the incredible dubiosity rule




       4
         The Class A misdemeanor statute has a pecuniary loss requirement of “at least seven hundred fifty dollars
       ($750) but less than fifty thousand dollars ($50,000).” Ind. Code § 35-43-1-2. Although Brown was charged
       with a Class A misdemeanor, the trial court convicted her of a Class B misdemeanor. Accordingly, we will
       not discuss the pecuniary loss requirement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020                     Page 5 of 7
       as utilized in Indiana and other jurisdictions requires that there be: 1) a sole

       testifying witness; 2) testimony that is inherently contradictory, equivocal, or

       the result of coercion; and 3) a complete absence of circumstantial evidence.”

       Moore, 27 N.E.3d at 756.


[12]   Brown’s reliance on the incredible dubiosity rule is misplaced. Importantly,

       Ingram’s testimony was consistent throughout. Ingram claimed Brown was

       present at the scene and broke the windows of the 2014 Mazda. The fact that

       Ingram testified that Brown and Deondre also had an altercation that day does

       not render the incredible dubiosity rule applicable. See Berry v. State, 703 N.E.2d

       154, 160 (Ind. 1998) (declining to apply the incredible dubiosity rule to

       defendant’s argument that the testimony of the State’s witnesses conflicted,

       because no witness contradicted himself).


[13]   Brown also argues that Ingram’s testimony regarding the extent of the damage

       conflicted with Fitzgerald’s testimony. Ingram testified she could clearly see

       Brown striking the Mazda windows with a short pole. Ingram then testified

       that, after Brown broke the front, driver-side, and passenger windows, Brown

       attempted to break the rear window of the vehicle. Similarly, although she was

       not present when the damage occurred, Fitzgerald testified that when she saw

       the vehicle, the front windshield, driver-side and passenger-side windows, and

       the rear window of the Mazda were broken. Brown contends there is an

       inconsistency between Ingram’s and Fitzgerald’s testimony concerning the

       damage incurred to the rear window.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020   Page 6 of 7
[14]   This difference in Ingram’s and Fitzgerald’s testimony presents a mere

       credibility question for the trial court, and the incredible dubiosity doctrine does

       not apply. Ingram’s testimony was not inherently contradictory, equivocal, or

       the result of coercion; accordingly, Brown fails to satisfy the second prong of

       the incredible dubiosity rule. Brown’s argument that Ingram’s testimony is

       insufficient because it conflicts with Fitzgerald’s testimony is simply a request

       for us to reweigh the evidence, which we cannot do. See Gibson, 51 N.E.3d at

       210.


[15]   Ultimately, Ingram testified that she saw Brown strike the Mazda with a short

       pole, and the trial court found Ingram to be a credible witness. The State

       presented evidence that Brown recklessly, knowingly, or intentionally damaged

       the vehicle without the owner’s consent. Accordingly, the State introduced

       sufficient evidence to convict Brown of criminal mischief, a Class B

       misdemeanor.


                                                 Conclusion
[16]   The evidence is sufficient to support Brown’s conviction. We affirm.


[17]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3069 | July 8, 2020   Page 7 of 7
