MEMORANDUM DECISION
                                                                   Jul 15 2015, 8:14 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                                    ATTORNEY FOR APPELLEE
Timothy J. Burns                                          Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ariel Kennedy,                                            July 15, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1501-CR-003
        v.                                                Appeal from the Marion Superior
                                                          Court, Criminal Division 7

State of Indiana,                                         Cause No. 49G07-1408-CM-038551
Appellee-Plaintiff
                                                          The Honorable David E. Cook,
                                                          Judge




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-003 | July 15, 2015       Page 1 of 4
[1]   Ariel Kennedy appeals her conviction for Battery Resulting in Bodily Injury,1 a

      class A misdemeanor. She presents the following issue for review: Did the

      State present sufficient evidence to support the conviction?


[2]   We affirm.

[3]   On August 6, 2014, Courtney Walker was riding on a city bus when Kennedy

      boarded and sat across the aisle about eight feet from him. Walker observed

      what he believed to be unusual behavior by Kennedy while he continued

      listening to his music. At some point during the ride, Walker stated out loud,

      “this must be some-some lesbian stuff”. Transcript at 7. This statement upset

      Kennedy, so she texted her mother.

[4]   A few stops later, Kennedy’s mother, Audrita, boarded the bus and sat with

      Kennedy. Audrita eventually told Walker to remove his headphones, and she

      demanded to know what he had said to her daughter. After indicating that her

      daughter was a lesbian, Audrita pushed Walker’s face toward the window and

      started hitting him. Kennedy joined in on the attack, as Audrita pulled out a

      metal spoon and began striking him on the head with it. Kennedy used her fists

      to hit Walker on the head. The beating continued until the bus driver stopped

      the bus and a passenger intervened. Walker sustained injuries and lacerations

      to his head. Kennedy and Audrita were arrested as they exited the bus.




      1
       Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with all 2015 First Regular Session of the 119th General
      Assembly legislation effective through June 28, 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-003 | July 15, 2015             Page 2 of 4
[5]   At the bench trial in this case, Walker testified to the events as set forth above.

      Audrita then testified on Kennedy’s behalf. She admitted that after having a

      verbal altercation with Walker, she (Audrita) punched and then struck him in

      the head with a spoon.2 Audrita testified that Kennedy never touched Walker.

      Kennedy also testified consistently with her mother.

[6]   At the conclusion of the evidence, the trial court expressly found credible

      Walker’s testimony that Kennedy struck him several times in the face.

      Accordingly, the court found Kennedy guilty of battery.

[7]   On appeal, Kennedy invokes the incredible dubiosity rule in arguing that the

      State failed to present sufficient evidence. Kennedy directs us to the probable

      cause affidavit in which Walker “stated the order of events differently.”

      Appellant’s Brief at 6. We observe, however, both in his report to police and his

      trial testimony, Walker consistently indicated that Kennedy punched him and

      Audrita attacked him with a spoon.

[8]   Our Supreme Court has recently reiterated the limited scope of the incredible

      dubiosity rule, which 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 v. State, 27

      N.E.3d 749, 756 (Ind. 2015). While the standard is not impossible to meet, it is

      difficult and “one that requires great ambiguity and inconsistency in the



      2
          Audrita pleaded guilty prior to Kennedy’s trial.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-003 | July 15, 2015   Page 3 of 4
       evidence.” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). In

       other words, the sole witness’s testimony “must be so convoluted and/or

       contrary to human experience that no reasonable person could believe it.” Id.

       (quoting Edwards v. State, 753 N.E.2d at 622)).


[9]    Walker’s testimony in the instant case was unequivocal and not inherently

       contradictory. He consistently testified that Kennedy and her mother physically

       attacked him on the bus, and his account was not contrary to human

       experience. Further, the minor inconsistencies between his trial testimony and

       his statement to police did not render his trial testimony incredibly dubious. See

       Stephenson v. State, 742 N.E.2d 463 (Ind. 2001). The incredible dubiosity rule is

       not applicable here.


[10]   The trial court was presented with conflicting accounts regarding Kennedy’s

       involvement in the attack, and the court indicated it believed Walker. This was

       the trial court’s prerogative, and we reject the invitation to reweigh the evidence

       and judge witness credibility. See Maxwell v. State, 731 N.E.2d 459, 462 (Ind.

       Ct. App. 2000) (“[i]t 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”), trans. denied. Kennedy’s conviction was supported by sufficient

       evidence.

[11]   Judgment affirmed.

       Riley, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-003 | July 15, 2015   Page 4 of 4
