MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 20 2019, 6:32 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
Joseph P. Hunter                                        Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana

                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jacob R. Weaver,                                        November 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1054
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Marianne L.
Appellee-Plaintiff                                      Vorhees, Judge
                                                        Trial Court Cause No.
                                                        18C01-1810-F5-167



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019                  Page 1 of 5
[1]   Following a bench trial, Jacob R. Weaver was convicted of Level 5 felony

      domestic battery and Class A misdemeanor resisting law enforcement. He

      challenges only his battery conviction on appeal, seeking application of the

      incredible dubiosity rule to establish insufficiency of the evidence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Weaver and Kelci Gilliam dated off and on for many years and had previously

      lived together. At the time in question, however, Gilliam was living in a home

      with her mother and maternal grandparents.


[4]   After midnight on June 25, 2018, Weaver was outside Gilliam’s residence

      repeatedly calling her through Facebook Messenger. She did not answer

      several calls and then responded to him with a text message telling him to leave

      her alone. Weaver called several more times and sent her a text message

      demanding that she answer the phone. After she had not answered his calls for

      five minutes, he wrote her: “Are u stupid Come to the goddamnd [sic] wibdow

      [sic].” Exhibits at 15. He called many more times and sent angry messages for

      another ten minutes or so.


[5]   Eventually, Gilliam went outside and spoke with him near her front yard.

      Weaver was “really mad” and a verbal argument quickly ensued between the

      two. Transcript at 53. Gilliam’s mother heard the argument and looked out the

      window. Weaver proceeded to headbutt Gilliam, which caused her pain.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019   Page 2 of 5
      Gilliam responded by throwing a makeup container at Weaver, striking him in

      the face and breaking his glasses. Weaver then grabbed Gilliam by the hair and

      started pulling her down the road. He let go of Gilliam when a neighbor came

      outside and confronted him.


[6]   In the meantime, Gilliam’s mother, Angela, had called 911 after seeing Weaver

      headbutt Gilliam. Among other things, Angela reported to the dispatcher, “my

      daughter’s ex-boyfriend is chasing her down the road and threatening her and

      doing whatever he can to her.” Id. at 79. The dispatcher asked, “Did he hit

      her?”, and Angela responded affirmatively. Id. at 80. Angela remained on the

      phone with the dispatcher until the police arrived. Midway through the call

      Gilliam made it back to the house, and the family locked themselves inside.


[7]   Muncie Police Officers Bryan Ashton and Jacob Woods responded to the

      dispatch, which came at 1:20 a.m. Upon arriving in the area, they observed a

      man, later identified as Weaver, standing in the street just north of Gilliam’s

      residence. Weaver fled north into an alley when Officer Ashton activated the

      emergency lights on their marked police vehicle. Officer Ashton then chased

      Weaver on foot, as Officer Woods drove around the block. Weaver was caught

      trying to crawl under a parked vehicle.


[8]   After Weaver was apprehended, Officer Ashton went to speak with Gilliam,

      who was crying, upset, and seemed scared. She complained of pain to her

      forehead, though Officer Ashton could see no visible injuries. Weaver,

      however, had visible injuries to his nose and forehead.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019   Page 3 of 5
[9]    On October 8, 2018, the State charged Weaver with domestic battery, resisting

       law enforcement, and criminal trespass, all as Class A misdemeanors. The

       State also filed a notice of intent to seek enhancement of the battery to a Level 5

       felony based on a prior conviction for battery against Gilliam. Following a

       bench trial on April 4, 2019, Weaver was convicted of Level 5 felony domestic

       battery and Class A misdemeanor resisting law enforcement. On May 6, 2019,

       the trial court sentenced him to an aggregate sentence of four years in prison.

       On appeal, Weaver challenges only his conviction for domestic battery.


                                           Discussion & Decision


[10]   Likely aware that under the general sufficiency standard of review he would

       lose on appeal, Weaver frames his argument in terms of the incredible dubiosity

       rule. However, he does not appear to understand the extremely limited

       application of this rule.


               The incredible dubiosity rule allows the court to impinge upon
               the [trier of fact’s] assessment of witness credibility when the
               testimony at trial is so contradictory that the verdict reached
               would be inherently improbable. 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.


       Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). Further, the witness’s testimony

       must be wholly uncorroborated. That is, we will only impinge on the trier of

       fact’s duty to judge witness credibility “where a sole witness presents inherently

       contradictory testimony which is equivocal or the result of coercion and there is

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019   Page 4 of 5
       a complete lack of circumstantial evidence of the appellant’s guilt.” Id. at 755

       (emphases in original) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.

       1994)).


[11]   The incredible dubiosity rule is inapplicable here for several reasons. First,

       there were two eyewitnesses to the battery, the victim and her mother, and both

       testified at trial. Second, Gilliam’s testimony was not inherently contradictory,

       equivocal, or the result of coercion. She unequivocally testified that Weaver

       headbutted her and pulled her down the road by her hair until confronted by a

       neighbor. 1 Further, corroborating evidence included Gilliam’s mother’s

       testimony, the 911 recording, and the responding officers’ observations at the

       scene, including Weaver’s flight, his visible facial injuries, and Gilliam’s

       demeanor. Also admitted into evidence were the angry text messages sent and

       repeated calls made by Weaver to Gilliam just before the battery. The evidence

       is amply persuasive of Weaver’s guilt and comprises more than substantial

       evidence to support the convictions. Accordingly, he may not receive relief

       under the incredible dubiosity rule. See Tillman, 642 N.E.2d at 223.


[12]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       1
        The minor inconsistencies noted by Weaver – regarding the length of their relationship and why she went
       outside – are not relevant in terms of the incredible dubiosity rule, nor is the fact that Gilliam did not have
       visible injuries immediately after the battery.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019                     Page 5 of 5
