MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any                         Nov 29 2018, 7:25 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Susan D. Rayl                                           Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                              Attorney General of Indiana
Indianapolis, Indiana
                                                        Kelly A. Loy
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Javier Garcia,                                          November 29, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1286
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Peggy Hart, Judge
Appellee-Plaintiff.                                     Pro Tem
                                                        Trial Court Cause Nos.
                                                        49G05-1706-F5-24176
                                                        49G05-1706-F6-20831



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018          Page 1 of 8
                                Case Summary and Issue
[1]   Following a bench trial, Javier Garcia was convicted of strangulation, a Level 6

      felony; criminal confinement, a Level 5 felony; and domestic battery, a Class A

      misdemeanor, and sentenced to three years. Garcia appeals his convictions,

      raising the sole issue of whether the evidence was insufficient to support his

      convictions because the testimony of the complaining witness was incredibly

      dubious. Concluding the incredible dubiosity rule does not apply in this case,

      we affirm.



                            Facts and Procedural History
[2]   Garcia and Amanda Ruiz met at work. Eventually their relationship turned

      romantic and they moved in together. During their relationship, they started a

      landscaping business together. For various reasons, they opened a business

      banking account in Ruiz’s name alone, purchased the mobile home in which

      they lived in Ruiz’s name alone, and bought a truck for the company in Ruiz’s

      name alone, although she later signed the title over to Garcia.


[3]   In November 2016, Garcia moved to “another house he had” but would

      occasionally return to the trailer the two had shared. Transcript, Volume II at

      27. On the morning of May 20, 2017, Ruiz was at the trailer and a friend came

      over. Garcia arrived, uninvited, a few minutes later and began attacking Ruiz’s

      friend. Ruiz tried to separate them, but Garcia pushed her to the side. Ruiz’s

      friend was able to flee the trailer and Garcia then turned to Ruiz, pushed her to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 2 of 8
      the bed, put his hand on her throat and exerted pressure, held a knife to her

      throat, and smacked her on the leg, causing her pain. He then left the trailer

      and Ruiz called 9-1-1. Photographs taken following the incident and later

      admitted into evidence at trial show red marks on Ruiz’s throat and thigh.


[4]   Two weeks later, on June 3, 2017, Ruiz was at the trailer cleaning when Garcia

      again arrived uninvited and entered the house through the front door. Ruiz told

      him to leave but instead he pushed her into the bedroom, pushed her onto the

      bed, and took her shorts off as she kicked at him and asked him to leave her

      alone. They heard a noise at the front door and Garcia got up and left the

      trailer. Ruiz called 9-1-1. Officer Stuart Bishop of the Lawrence Police

      Department responded and found Ruiz “visually upset” and “in a panicked

      demeanor.” Tr., Vol. II at 162. Officer Bishop observed “a scratch or some

      skin peeled off on [Ruiz’s] foot and then a scratch on her inner thigh.” Id.

      Photographs admitted into evidence at trial from this incident show a scratch

      on Ruiz’s leg and an injury to her foot.


[5]   For the incident on May 20, 2017, the State charged Garcia with strangulation,

      a Level 6 felony; residential entry, a Level 6 felony; domestic battery, a Class A

      misdemeanor; and battery, a Class A misdemeanor. For the incident on June

      3, 2017, the State charged Garcia with criminal confinement, a Level 5 felony,

      and battery resulting in bodily injury, a Class A misdemeanor. Garcia waived

      his right to a trial by jury and the two cases were tried together. At the close of

      the State’s case-in-chief, Garcia moved for a directed verdict with respect to all

      counts. The trial court granted a directed verdict and dismissed the residential

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 3 of 8
      entry count but denied a directed verdict as to the remaining counts. Garcia

      testified on his own behalf and denied the May 20 incident occurred at all. He

      asserted the June 3 incident was actually between himself and Ruiz’s husband

      who had recently returned. He also asserted that $2,000 in the business account

      in Ruiz’s name disappeared after his arrest. At the conclusion of the evidence,

      the trial court found Garcia guilty of all remaining counts, entering judgment of

      conviction only as to strangulation, criminal confinement, and domestic

      battery. The trial court sentenced Garcia to an aggregate of three years

      executed.1 Garcia now appeals.



                                  Discussion and Decision
                                       I. Standard of Review
[6]   Our standard of review for sufficiency of the evidence claims is well settled: we

      do not reweigh the evidence or judge the credibility of the witnesses. Purvis v.

      State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the

      evidence most favorable to the verdict and the reasonable inferences drawn

      therefrom. Id. We will affirm a defendant’s conviction “if there is substantial

      evidence of probative value supporting each element of the crime from which a




      1
       The trial court sentenced Garcia to one year each for the strangulation and domestic battery convictions
      and three years for the criminal confinement conviction, all to be served concurrently.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018                 Page 4 of 8
      reasonable trier of fact could have found the defendant guilty beyond a

      reasonable doubt.” Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).


                              II. Sufficiency of the Evidence
[7]   Garcia does not specifically contend that Ruiz’s testimony did not prove the

      elements of the charges against him. Instead, he argues Ruiz’s testimony is not

      sufficient to support his convictions because Ruiz’s “statements to police and

      her testimony were evasive, inherently contradictory, and demonstrate that she

      was not a credible witness.” Appellant’s Brief at 14. In general, the

      uncorroborated testimony of the victim is sufficient to sustain a conviction.

      Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an exception,

      however, when that testimony is incredibly dubious. The incredible dubiosity

      rule allows the reviewing court to impinge upon a fact finder’s responsibility to

      judge the credibility of the witnesses when confronted with evidence that is “so

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

      reach a guilty verdict based upon that evidence alone.” Moore v. State, 27

      N.E.3d 749, 751 (Ind. 2015). The rule is applied in limited circumstances,

      namely where there is “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.” Id. at 756. Application of the incredible

      dubiosity 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.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). “[W]hile incredible

      dubiosity provides a standard that is ‘not impossible’ to meet, it is a ‘difficult

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 5 of 8
      standard to meet, [and] one that requires great ambiguity and inconsistency in

      the evidence.’” Moore, 27 N.E.3d at 756 (quoting Edwards v. State 753 N.E.2d

      618, 622 (Ind. 2001)).


[8]   Garcia contends that Ruiz was “the sole witness to testify to the incidents she

      claimed occurred,” discounting the testimony of two police officers because

      they were not present for the alleged incidents. Appellant’s Br. at 15. He also

      focuses on alleged inconsistencies between what Ruiz told police at the time of

      the incidents and what she testified to in court. And finally, he alleges the

      photographs are not corroborating evidence because “[a]ny marks on on [sic]

      her she could have made herself.” Id. at 17.


[9]   In applying the Moore factors, we conclude the incredible dubiosity rule is

      inapplicable to the present case. With respect to the first factor, although there

      were three testifying witnesses, the testimony of the two police officers alone

      would likely have been insufficient to find Garcia guilty because they were not

      eyewitnesses to the incidents, leaving only Ruiz’s testimony to prove the

      elements of the crimes. See Smith v. State, 34 N.E.2d 1211, 1221-22 (Ind. 2015)

      (noting that although three witnesses testified, without the allegedly incredibly

      dubious testimony of one witness, the remaining witnesses’ testimony would

      have been an insufficient basis for the jury to find the defendant guilty;

      therefore, the first factor was satisfied). However, each of the three factors must

      be shown in order to invoke the incredible dubiosity rule. See Moore, 27 N.E.3d

      at 758 (noting the appellant had failed to satisfy factor one because multiple

      witnesses had testified, and therefore “our analysis could here”). Therefore,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 6 of 8
       even if the first factor is satisfied when multiple witnesses testify but only one is

       an eyewitness, Garcia must still show the remaining Moore factors are satisfied.


[10]   As to the second factor, the incredible dubiosity rule applies only to conflicts in

       trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006).

       Although Garcia focuses on differences between Ruiz’s statements to police

       after the incidents and her trial testimony, her trial testimony was not internally

       inconsistent or inherently contradictory regarding the elements of the crimes

       alleged. The second prong is satisfied “only when the witness’s trial testimony

       was inconsistent within itself, not [when] it was inconsistent with other

       evidence or prior testimony.” Smith, 34 N.E.3d at 1221. In other words,

       discrepancies between a witness’ testimony and earlier statements do not render

       testimony incredibly dubious. Holeton v. State, 853 N.E.2d 539, 541-42 (Ind. Ct.

       App. 2006). Ruiz’s testimony on the important facts regarding what Garcia did

       to her was consistent.


[11]   And as to the third factor, “[i]n a case where there is circumstantial evidence of

       an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.”

       Smith, 34 N.E.3d at 1222 (quotation omitted). Here, there was not a complete

       lack of circumstantial evidence. Moreover, the circumstantial evidence is not

       required to independently establish guilt. Id. at 1221. Officers photographed

       Ruiz’s injuries after each incident. Officer Bishop described Ruiz’s demeanor

       in the aftermath of the June 3 incident as “visually upset” and “panicked,” and

       he observed the scratches on her leg and foot. Tr., Vol. II at 162.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 7 of 8
[12]   Garcia has failed to establish the limited exception of the incredible dubiosity

       rule applies, and we decline to disturb the finder of fact’s determination that

       Ruiz’s testimony was more credible than Garcia’s regarding what occurred on

       May 20 and June 3, 2017. The State presented direct testimony and

       circumstantial evidence that was sufficient for a reasonable finder of fact to find

       Garcia guilty beyond a reasonable doubt of the crimes charged.



                                              Conclusion
[13]   The incredible dubiosity rule does not apply in the circumstances of this case.

       The victim’s testimony and corroborating evidence are sufficient to support

       Garcia’s convictions. Therefore, we affirm.


[14]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018   Page 8 of 8
