MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                       Nov 16 2018, 9:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
purpose of establishing the defense of res judicata,                    Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Marielena Duerring                                     Curtis T. Hill, Jr.
South Bend, Indiana                                    Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Demond R. Moore,                                           November 16, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1326
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Hon. Jane Woodward
Appellee-Plaintiff.                                        Miller, Judge
                                                           Trial Court Cause No.
                                                           71D01-1707-F3-49



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1326 | November 16, 2018               Page 1 of 4
                                          Case Summary
[1]   Demond Moore was housed with Larry Boggs in the St. Joseph County Jail

      when Moore became upset about Boggs’s Aryan Brotherhood tattoo. Moore

      punched Boggs and stomped him in the face, causing life-threatening injuries.

      Moore was convicted of Level 3 felony aggravated battery and received a

      sentence of fifteen years of incarceration. Moore contends that the State

      produced insufficient evidence to sustain his conviction. Because we disagree,

      we affirm.



                            Facts and Procedural History
[2]   On July 28, 2017, Moore was housed in the St. Joseph County Jail and became

      upset about an Aryan Brotherhood tattoo that fellow inmate Boggs had on his

      chest. Moore told another fellow inmate that he was going to show him “how

      things get done” and went upstairs to confront Boggs in his cell. Tr. Vol. II p.

      177. When Boggs refused Moore’s request to leave their housing unit within

      the jail, Moore punched and stomped on Boggs’s face. Moore fractured

      Boggs’s cheekbone and eye socket and caused significant brain hemorrhaging,

      injuries that created a substantial risk of death. Christopher Rucker and Derek

      Bell witnessed Moore’s beating of Boggs. On July 28, 2017, the State charged

      Moore with Level 3 felony aggravated battery. Following a trial at which

      Rucker and Bell testified for the State, a jury convicted Moore as charged, and

      the trial court sentenced him to fifteen years of incarceration.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1326 | November 16, 2018   Page 2 of 4
                                Discussion and Decision
[3]   To convict Moore of aggravated battery, the State was required to establish that

      he knowingly or intentionally inflicted injury on Boggs, creating a substantial

      risk of death, Ind. Code § 35-42-2-1.5, and Moore contends that the State

      produced insufficient evidence to do so. When reviewing the sufficiency of the

      evidence, we neither reweigh the evidence nor resolve questions of credibility.

      Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to the evidence

      of probative value and the reasonable inferences to be drawn therefrom which

      support the verdict. Id. If there is evidence of probative value from which a

      reasonable trier of fact could conclude that the defendant was guilty beyond a

      reasonable doubt, we will affirm the conviction. Spangler v. State, 607 N.E.2d

      720, 724 (Ind. 1993).


[4]   Moore contends only that his conviction must be reversed by operation of the

      incredible dubiosity rule, i.e., that the State’s evidence that he was the person

      who inflicted injury on Boggs simply cannot be believed by a reasonable person.


              Within the narrow limits of the “incredible dubiosity” rule, a
              court may impinge upon a jury’s function to judge the credibility
              of a witness. If a sole witness presents inherently improbable
              testimony and there is a complete lack of circumstantial
              evidence, a defendant’s conviction may be reversed. This is
              appropriate only where the court has confronted inherently
              improbable testimony or coerced, equivocal, wholly
              uncorroborated testimony of incredible dubiosity. Application of
              this 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.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1326 | November 16, 2018   Page 3 of 4
      Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).


[5]   The incredible dubiosity rule does not apply in this case. First, two witnesses—

      not one—testified that they saw Moore beat Boggs, a circumstance which is

      sufficient by itself to render the rule inapplicable in this case. See id. Second,

      there is evidence to corroborate the testimony, namely, (1) evidence Moore told

      another inmate that he was going to show him “how things get done[;]” (2)

      surveillance video showing Moore entering Boggs cell shortly before he was

      injured; and (3) Moore’s admission that he was present when Boggs was

      injured. Finally, neither Rucker’s nor Bell’s testimony is inherently improbable,

      equivocal, or contradictory. Rucker testified that he saw Moore enter Boggs’s

      cell, punch him once, and stomp him in the face. Bell testified that he saw

      Moore throwing punches at Boggs and then heard stomping. Although Moore

      testified that Boggs was injured when he fell from his bunk, such things are for

      the jury to evaluate as it sees fit. The evidence used to support Moore’s

      conviction falls far short of being so inherently improbable that no reasonable

      person could credit it.


[6]   We affirm the judgment of the trial court.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1326 | November 16, 2018   Page 4 of 4
