MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                Oct 16 2015, 7:38 am
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
Randy M. Fisher                                          Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Jonathan R. Sichtermann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tylen L. Fowlkes,                                        October 16, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1504-CR-155
        v.                                               Appeal from the Allen County
                                                         Superior Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1408-F6-119



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015       Page 1 of 9
                                          Case Summary
[1]   Tylen L. Fowlkes (“Fowlkes”) appeals his conviction for Battery, as a Level 6

      felony. 1 We affirm.



                                                    Issues
[2]   Fowlkes presents two issues for our review, which we restate as:

                 I.       Whether the victim’s trial testimony was incredibly
                          dubious; and


                 II.      Whether Fowlkes’s sentence of two years, all suspended to
                          probation, exceeded the statutory cap of two and one-half
                          years for a Level 6 felony.


                                Facts and Procedural History
[3]   In November 2013, Fowlkes and K.H. began an intimate, sexual relationship.

      On August 8, 2014, Fowlkes took K.H. and her two young daughters to dinner

      and grocery shopping. After they returned home and K.H. put the children to

      bed in their room, the couple got into a verbal argument. As the argument

      escalated, it became physical. While K.H. was sitting on the hallway floor

      crying, Fowlkes kicked K.H. in the face. Then, in response to K.H.’s repeated

      requests that Fowlkes leave, Fowlkes placed his hands on K.H.’s face and




      1
          Ind. Code § 35-42-2-1(d)(6).


      Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 2 of 9
      covered her mouth. K.H. bit Fowlkes’s finger to make him stop. Fowlkes then

      left, and K.H. called the police.


[4]   When police arrived on scene, K.H. was crying, rubbing her face, and

      complaining of pain. The children were awake in the living room. K.H.

      reported to police that, just before Fowlkes kicked her in the face, he placed his

      hands around her jaw while yelling and calling her a “stupid bitch.” (Tr. 164.) 2

      She also stated that, after kicking her, Fowlkes slammed her head against a wall

      and held her against a wall while squeezing her jaw with his hand. Police

      officers took pictures of K.H.’s swollen face and neck.


[5]   The next day, K.H. went to the hospital to seek treatment for jaw and neck

      pain. K.H. reported to the triage nurse that she had been kicked in the face and

      choked by her boyfriend. When asked if she felt safe at home, K.H. said she

      felt safe now that her boyfriend was in jail. A nurse practitioner prescribed

      hydrocodone for the pain. A few days later, K.H. reported to Victim

      Assistance, where photographs of her face, neck, and arms were taken.


[6]   On August 14, 2014, the State charged Fowlkes with Battery, as a Level 6

      felony (“Count 1”), and Criminal Confinement, as a Level 6 felony 3 (“Count

      2”). Following a jury trial held on March 3 and 4, 2015, Fowlkes was found

      guilty of Count 1 and not guilty of Count 2. The trial court entered judgment of




      2
          Fowlkes does not challenge on appeal the trial court’s admission of K.H.’s statements to police.
      3
          I.C. § 35-42-3-3(a).


      Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015                 Page 3 of 9
      conviction accordingly. At a sentencing hearing held March 25, 2015, Fowlkes

      was sentenced to two years in the Indiana Department of Correction, all

      suspended to probation. The court also ordered as a condition of probation that

      Fowlkes wear an ankle monitoring bracelet for six months.


[7]   Fowlkes now appeals his conviction and sentence.



                                 Discussion and Decision
                                                Sufficiency
[8]   Our standard of review for sufficiency of the evidence claims is well settled.

      We consider only the probative evidence and reasonable inferences supporting

      the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

      the credibility of witnesses or reweigh evidence. Id. We will affirm the

      conviction unless “no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

      N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

      reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

      v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[9]   A person who knowingly or intentionally touches another person in a rude,

      insolent, or angry manner commits battery. I.C. § 35-42-2-1(b). The offense is

      a Level 6 felony if the offense is committed against a family or household

      member and if the person who committed the offense is at least eighteen years

      of age and committed the offense in the physical presence of a child less than

      Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 4 of 9
       sixteen years of age, knowing that the child was present and might be able to

       see or hear the offense. I.C. § 35-42-2-1(d)(6). An individual is a “family or

       household member” of another person if the individual is engaged in a sexual

       relationship with the other person. I.C. § 35-31.5-2-128(a)(3).


[10]   The State charged that on or about August 8, 2014, Fowlkes, “who is at least

       eighteen (18) years of age, did knowingly or intentionally touch another person;

       to wit: [K.H.], who is a family or household member, in a rude, insolent or

       angry manner in the physical presence of a child less than sixteen (16) years of

       age, knowing that the child was present and might be able to see or hear the

       offense[.]” (App. 15.)


[11]   In his brief, Fowlkes raises a particular sufficiency of the evidence claim:

       incredible dubiosity. Under the incredible dubiosity rule, the court may

       impinge upon the jury’s assessment of witness credibility when the testimony at

       trial is so contradictory that the verdict reached would be inherently

       improbable. Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). “For the incredible

       dubiosity rule to apply, the evidence presented must be so unbelievable,

       incredible, or improbable that no reasonable person could ever reach a guilty

       verdict based upon that evidence alone.” Id. The incredible dubiosity rule

       applies only in limited circumstances 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. If

       any one of these factors is absent, the rule does not apply. Id. at 758.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 5 of 9
[12]   Fowlkes argues that K.H.’s trial testimony was incredibly dubious because it

       was inconsistent with pre-trial statements she made to police and medical

       personnel. 4 However, where a witness’s trial testimony is inconsistent with pre-

       trial statements, the testimony is not necessarily incredibly dubious. See Murray

       v. State, 761 N.E.2d 406, 409 (Ind. 2002).


[13]   In this case, the incredible dubiosity rule is inapplicable because the State

       presented circumstantial evidence to support the jury’s verdict. On the night of

       the incident, K.H. called the police. 5 An officer testified that when he arrived

       that night, K.H. was visibly upset, crying, and rubbing her face. The State

       introduced photos showing swelling on K.H.’s face, scratches on her neck, and

       bruises on her arms. A nurse testified that in the course of treating K.H., K.H.

       said she had been kicked in the face by her boyfriend and felt safe now that her

       boyfriend was in jail. K.H. was prescribed hydrocodone for her jaw pain.


[14]   The incredible dubiosity rule therefore cannot serve as grounds for overturning

       the jury’s verdict. “It is for the trier of fact to resolve conflicts in the evidence

       and to decide which witnesses to believe or disbelieve.” Kilpatrick v. State, 746




       4
         K.H.’s trial testimony was internally consistent. She stated that she and Fowlkes argued on August 8, 2014
       and physical contact occurred, but denied that Fowlkes touched her in a rude, insolent, or angry manner.
       She testified that Fowlkes accidentally kicked her in the face and was merely trying to stop her from waking
       the children when he covered her mouth.
       5
         Although the 911 call was introduced into evidence and published to the jury, neither a copy of the
       recording nor a transcript of the call were included in the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015             Page 6 of 9
       N.E.2d 52, 61 (Ind. 2001). As such, the jury was free to weigh K.H.’s trial

       testimony against the circumstantial evidence presented by the State.


[15]   There was sufficient evidence to support Fowlkes’s conviction.


                                                  Sentence
[16]   Fowlkes next argues that the trial court imposed an illegal sentence that

       exceeded the statutory cap for a Level 6 felony. A trial court cannot impose a

       sentence that does not conform to the mandate of the relevant statute. Lane v.

       State, 727 N.E.2d 454, 456 (Ind. Ct. App. 2000), trans. denied. “A sentence that

       is contrary to or violative of a penalty mandated by statute is illegal in the sense

       that it is without statutory authorization.” Id. A sentence that exceeds

       statutory authority constitutes fundamental error and may be corrected at any

       time. Id.


[17]   Under Indiana Code section 35-50-2-7(b), a person who commits a Level 6

       felony shall be imprisoned for a fixed term of between six months and two and

       one-half years, with the advisory sentence being one year. In relevant part, the

       trial court sentenced Fowlkes as follows:

               I am going to sentence you to two years in the Indiana
               Department of Corrections [sic]; however, Mr. Fowlkes,
               pursuant to your counsel’s request, I will suspend that time. I
               will place you on active adult probation for a period of two years
               with the following conditions: You must attend the Center for
               Non-Violence and that’s no tolerance. You’ll be placed on six
               months of community control. That’s an ankle bracelet. The
               Court will consider early termination of the community control

       Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 7 of 9
               after four months after being on the ankle bracelet if you show
               absolute compliance.


       (Sentencing Tr. 21.) The judgment of conviction lists Fowlkes’s sentence as “2

       years suspended” and “placed on active adult probation 2 years.” (App. 81.)


[18]   Fowlkes interprets the court’s community control placement as a six-month

       order of home detention. He then argues that because a person confined on

       home detention generally earns one day credit time and one day good time

       credit for each day spent on home detention, see I.C. §§ 35-38-2.5-5(e)-(f), “a

       sentence that includes six (6) months of Community Control Home Detention

       as a condition of probation is effectively an added one (1) year executed

       sentence.” (Appellant’s Br. 15.)


[19]   Our review of the trial court’s oral sentencing order indicates that Fowlkes’s six-

       month community control placement is to be served as part of, not in addition

       to, his two-year probation. It also appears that Fowlkes misunderstands the

       effect of credit time, which reduces the length of a sentence rather than

       increases it.


[20]   Fowlkes’s two-year suspended sentence does not exceed the statutory cap of

       two and one-half years.



                                               Conclusion
[21]   There was sufficient evidence to support Fowlkes’s conviction. Fowlkes’s

       sentence was not illegal.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 8 of 9
[22]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-155 | October 16, 2015   Page 9 of 9
