      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Jun 24 2019, 7:18 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




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Daniel Hageman                                           Attorney General of Indiana
      Marion County Public Defender Agency                     Samantha M. Sumcad
      – Appellate Division                                     Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Cynthia Gonzalez,                                        June 24, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2046
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Peggy R. Hart,
      Appellee-Plaintiff.                                      Magistrate
                                                               Trial Court Cause No.
                                                               49G10-1802-CM-6257



      Mathias, Judge.


[1]   Gonzalez appeals her criminal mischief conviction from the Marion Superior

      Court. She argues the conviction is not supported by sufficient evidence.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019                 Page 1 of 6
[2]   We affirm.


                                 Facts and Procedural History
[3]   On May 9, 2017, Tyler Walker (“Walker”) was leaving the parking lot of an

      Indianapolis Walmart. As Walker was backing out of her parking spot in her

      Ford Focus, a small, red Honda approached quickly, and the two cars almost

      came into contact. The Honda stopped and waited for Walker to finish backing

      out of her parking spot.


[4]   However, a male passenger exited the Honda and walked toward Walker’s

      vehicle. Walker also observed the passenger and the female driver

      communicating. Fearing for her safety, Walker attempted to drive around the

      unknown male and the Honda. The passenger got back into the Honda, and

      Walker was able to slowly drive away. The two vehicles were close to one

      another; however, the driver of the Honda opened her door. Walker heard what

      she believes was a key pressed against her car as she drove by and a sound she

      describes as “like nails on chalk board.” Tr. p. 35. She then saw the driver of the

      Honda close her car door and speed away.


[5]   Walker stopped her vehicle again to observe the damage. After seeing the key

      mark, Walker got back into her vehicle and began to follow the Honda. She

      obtained the license plate information and relayed this to the police, whom she

      had called. Police instructed Walker to stop following the Honda, and she did.


[6]   Detective Stephen Carroll (“Detective Carroll”) from the Indianapolis

      Metropolitan Police Department was assigned to the matter. Police were able to
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019   Page 2 of 6
      obtain BMV records showing the registered owner of the Honda was Cynthia

      Gonzalez. The detective had also obtained surveillance video from Walmart,

      and while the video showed the incident, it was not possible to identify the

      individuals from the video. Three days after the incident, Walker met with

      Detective Carroll.


[7]   When Walker met with the Detective, she identified Cynthia Gonzalez out of a

      photo array line up. Tr. pp. 51–53; Ex. Vol., State’s Exs. 6–8. Walker also gave

      a taped statement of the events. While taking this taped statement, the detective

      confirmed with Walker that she picked “the right person.” Tr. p. 25. After the

      detective had told her she had picked the “right” person, she responded, saying

      “good – because I was only about sixty percent sure.” Id. Defense counsel

      deposed Walker about year after Walker had identified Gonzalez. During this

      deposition, Walker also stated that “a lot of Mexican females, personally to me,

      look identical.” Tr. p. 27.


[8]   However, at trial, Walker was much more certain that she had identified the

      right person, saying,


              Now that I have seen her in person, I know that was her. In the
              pictures that I circled, she wasn’t wearing glasses. So it was a
              little bit harder to identify. Uh, but now that I’ve seen her in
              person, yes I can fully identify her; and that was her who
              damaged my car.


      Tr. p. 30. Detective Carroll had no recollection of a confidence issue when

      Walker identified Gonzalez out of the photo array. A bench trial was held on


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019   Page 3 of 6
       July 30, 2018, and at the conclusion of the bench trial, Gonzalez was convicted

       of criminal mischief as a Class B Misdemeanor. Gonzalez now appeals.


                                      Discussion and Decision

[9]    When reviewing challenges to the sufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925

       N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. Instead, we consider only

       the evidence most favorable to the verdict and the reasonable inferences drawn

       therefrom, and we will affirm if the evidence and those inferences constitute

       substantial evidence of probative value to support the verdict. Id. Reversal is

       appropriate only when a reasonable trier or fact would not be able to form

       inferences as to each material element of the offense. Id.


[10]   Here, the conviction is supported by substantial evidence. Walker was able to

       identify Gonzalez as the defendant out of a photo array of six individuals with

       similar features. While she had some doubt at the time she identified Gonzalez,

       Walker testified she was confident she had the correct individual once she was

       able to see Gonzalez in person at court. The State introduced evidence of the

       scratch on the car as well as an estimate for repair. While this estimate also

       contained costs of repair work that was not claimed to be as a result of the acts

       of the Defendant, a reasonable trier can deduce the cost of repair for the scratch

       on the car. Indiana Bureau of Motor Vehicle (“BMV”) records showed that the

       defendant was the registered owner of the Honda being driven that day.

       Gonzalez raises the question of whether she was actually the individual driving


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019   Page 4 of 6
       her car that day; however, given the positive identification and that Gonzalez is

       the registered owner of the vehicle being driven in the Walmart parking lot

       during the events in question, we conclude that there was substantial evidence

       of probative value to support the conviction.


[11]   Gonzalez also argues that Walker’s identification of her in the photo array is

       incredibly dubious. The incredible dubiosity standard is a difficult standard to

       meet and requires great ambiguity and inconsistency in the evidence. Moore v.

       State, 27 N.E.3d 749, 756 (Ind. 2015). It applies only in limited circumstances.

       Id. at 754. “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. at 751.


               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.


       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (quoting Love v. State, 761

       N.E.2d 806, 810 (Ind. 2002)).


[12]   Although Walker had some admitted doubt about her identification of

       Gonzalez in the photo array of individuals with similar features, she was

       positive she had identified the correct person when she was able to see her in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019   Page 5 of 6
       person at the bench trial. Given the evidence presented at the bench trial, we do

       not conclude that Walker’s positive identification of Gonzalez was inherently

       improbable.


                                                 Conclusion
[13]   We conclude that sufficient evidence was presented in support of Gonzalez’s

       criminal mischief conviction. We also conclude that Walker’s identification of

       Gonzalez from a photo array was not incredibly dubious.


[14]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2046 | June 24, 2019   Page 6 of 6
