MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                          Jul 25 2017, 9:13 am
the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle F. Kraus                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry L. Brown,                                          July 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1612-CR-2917
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Frances C. Gull, Judge
                                                         Trial Court Cause No.
                                                         02D05-1607-F5-210



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017          Page 1 of 7
[1]   Terry L. Brown (“Brown”) was convicted after a jury trial of domestic battery

      with a prior domestic battery conviction against the same victim 1 as a Level 5

      felony and sentenced to six years executed. He appeals, contending that the

      State failed to present sufficient evidence to support his conviction.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On July 23, 2016, Brown lived with Jacquelyn Willet (“Willet”) at her house on

      Huffman Street in Allen County, Indiana. Willet and Brown had been dating

      for six years and had been talking about getting married. That morning, after

      they woke up, Brown walked to a nearby store to buy a bottle of vodka, and

      when he returned, they began drinking. An argument soon began about

      money. Brown wanted to “scrap,” or sell, Willet’s car and use the money to

      buy spice and alcohol. Tr. at 32, 69. Willet informed Brown that they could

      not scrap the car because Willet’s mother had the title to the car.


[4]   Willet’s neighbor, Tammy Barrand (“Barrand”), arrived home from work later

      that day and heard Willet and Brown arguing. During this fighting, Barrand,

      who shared a wall with Willet’s residence, could hear slamming doors and

      things being banged around. The commotion caused a picture on Barrand’s

      wall to fall down and for her 22-month-old grandson to get upset. As the fight




      1
          See Ind. Code § 35-42-2-1.3(a)(1), (c)(4).


      Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 2 of 7
      was occurring, Barrand and multiple people in the neighborhood called police

      because of the commotion.


[5]   Barrand went outside her residence onto her porch and shouted at Willet and

      Brown to “knock it off.” Id. at 51-52. While Barrand was on the porch, she

      looked into the window of Willet’s residence and saw Brown hit Willet in the

      head with his fist. Id. at 52. This caused Willet to fall to the ground. When

      Willet attempted to get up, Brown grabbed her by her arm and “whipped her

      around.” Id. Brown “kind of” shook Willet and told her, “I said go lay down,

      I said go lay down.” Id. Brown proceeded to push Willet “catty-corner,” and

      Willet fell into a TV stand. Id.


[6]   Several police officers arrived to the residence in response to the 911 calls.

      Willet told the officers that Brown had struck her in the face three times. The

      officers noticed that Willet had “a noticeable redness to the right side of her

      face, her cheek and nose area,” which was consistent with being struck. Id. 75-

      76. The officers described it as “a distinctive red mark.” Id. at 84. The officer

      arrested Brown, and as he was being put in the police car, Brown said to Willet,

      “‘I’m gonna get you.’” Id. at 33. He also screamed obscenities and threatened

      Barrand and the police. Id. at 54, 113-114. At the time of this incident, Brown

      had a prior conviction for domestic battery against Willet from 2014 under

      cause number 02D05-1408-CM-3231. Id. at 148-50.


[7]   On July 28, 2016, the State charged Brown with domestic battery with a prior

      domestic battery conviction against the same victim as a Level 5 felony and


      Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 3 of 7
      domestic battery as a Level 6 felony. A jury trial was held, and the jury found

      Brown guilty as charged. At sentencing, the trial court vacated Brown’s Level 6

      felony domestic battery conviction based on double jeopardy concerns and

      sentenced him to six years executed for the Level 5 felony conviction. Brown

      now appeals.


                                     Discussion and Decision
[8]   Brown argues that the evidence presented at trial was not sufficient to support

      his conviction. When reviewing the sufficiency of evidence to support a

      conviction, we do not reweigh the evidence or assess the credibility of the

      witnesses. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans.

      denied. We consider only the evidence most favorable to the verdict and the

      reasonable inferences that can be drawn from that evidence. Fuentes v. State, 10

      N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We also consider conflicting

      evidence in the light most favorable to the trial court’s ruling. Oster v. State, 992

      N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. The decision comes before

      us with a presumption of legitimacy, and we will not substitute our judgment

      for that of the fact-finder. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007). We

      will affirm unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012).


[9]   Brown was convicted of Level 5 felony domestic battery with a prior domestic

      battery conviction against the same victim. In order to convict Brown of this

      crime, the State was required to prove beyond a reasonable doubt: Brown did


      Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 4 of 7
       knowingly or intentionally touch Willet, who is a family or household member,

       in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1.3(a)(1). The State

       also had to prove that, on or about November 4, 2014, Brown was convicted of

       domestic battery against the same victim, Willet, under cause number 02D05-

       1408-CM-3231. I.C. § 35-42-2-1.3(c)(4).


[10]   Brown contends that the evidence presented by the State at his trial was not

       sufficient to support his conviction. Specifically, Brown argues that the

       evidence presented by the State was incredibly dubious because Barrand was

       the only witness who testified about witnessing a battery and that no physical

       evidence supported her testimony. Brown asserts that Barrand’s testimony was

       inherently contradictory because she testified at trial that she witnessed a

       battery occur, but she did not make a statement that she observed it before the

       day of the trial. Brown maintains this makes Barrand’s testimony incredibly

       dubious, and therefore, the evidence presented was not sufficient to support his

       conviction. We disagree.


[11]   The incredible dubiosity rule provides that a court may impinge on the jury’s

       responsibility to judge witness credibility only when confronted with inherently

       improbable testimony or coerced, equivocal, wholly uncorroborated testimony

       of incredible dubiosity. Carter v. State, 31 N.E.3d 17, 30-31 (Ind. Ct. App. 2015)

       (citing Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)), trans. denied. 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. Id. at 31 (quotations omitted). The rule applies only when a witness

       Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 5 of 7
       contradicts herself or himself in a single statement or while testifying, and does

       not apply to conflicts between multiple statements. Id. (citing Manuel v. State,

       971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012)). Therefore, to warrant application

       of the incredible dubiosity rule, there must 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. Smith v. State, 34

       N.E.3d 1211, 1221 (Ind. 2015). “Cases where we have found testimony

       inherently improbable have involved situations either where the facts as alleged

       ‘could not have happened as described by the victim and be consistent with the

       laws of nature or human experience,’ or where the witness was so equivocal

       about the act charged that her uncorroborated and coerced testimony ‘was

       riddled with doubt about its trustworthiness.’” Id. (quoting Watkins v. State, 571

       N.E.2d 1262, 1265 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624

       (Ind. 1991)).


[12]   In the present case, Barrand was not the sole testifying witness to Brown’s

       crime. Barrand testified that, as she stood on her porch and looked into Willet’s

       residence through the window, she observed Brown hit Willet in the head with

       his fist, which caused Willet to fall to the ground. Additionally, several officers

       who responded to the 911 dispatch testified. They testified that Willet told

       them that Brown had struck her in the face three times and that they noticed

       that Willet had a noticeable redness to the right side of her face, which was

       consistent with being struck. Where there are multiple testifying witnesses,

       even if not eyewitnesses, the incredible dubiosity rule does not apply. See Moore


       Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 6 of 7
       v. State, 27 N.E.3d 749, 757-58 (Ind. 2015) (holding that, when an eyewitness’s

       testimony is challenged as being incredibly dubious, the rule does not apply

       when there are corroborating witnesses). Additionally, there was circumstantial

       evidence presented that supported the conviction, including the 911 calls and

       the officers’ testimony that Willet told them that Brown had hit her in the face

       and that they noticed she had a redness to her face that was consistent with

       being struck. We, therefore, conclude that the incredible dubiosity rule does

       not apply.


[13]   The evidence presented at trial supported Brown’s conviction. The evidence

       established that Brown struck Willet, who was his girlfriend and with whom he

       lived, in the face and head area multiple times. Barrand witnessed Brown strike

       Willet in the head, and Willet told the police that Brown hit her in the face

       three times. The officers noticed redness on Willet’s face area that was

       consistent with being struck. Testimony was also presented that Brown had

       previously battered Willet and was convicted of domestic battery in November

       2014 in cause number 02D05-1408-CM-3231. Sufficient evidence was

       presented to support Brown’s conviction.


[14]   Affirmed.


[15]   Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1612-CR-2917 | July 25, 2017   Page 7 of 7
