MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jun 20 2016, 9:44 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
T. Andrew Perkins                                        Gregory F. Zoeller
Peterson Waggoner & Perkins, LLP                         Attorney General of Indiana
Rochester, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Esposito,                                         June 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         25A03-1512-CR-2237
        v.                                               Appeal from the Fulton Superior
                                                         Court
State of Indiana,                                        The Honorable Wayne E. Steele,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         25D01-1304-FC-206



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016            Page 1 of 9
[1]   On September 30, 2012, Appellant-Defendant Joseph Esposito entered the

      residence of Cathy Neises and stole Neises’s purse. When Neises struggled

      with Esposito in an attempt to retain possession of her purse, Esposito

      threatened to harm her if she continued to fight back. Following the struggle,

      Esposito ran out of Neises’s residence with her purse. Appellee-Plaintiff the

      State of Indiana (the “State”) subsequently charged Esposito with Class C

      felony robbery. Esposito was found guilty as charged following a jury trial. On

      appeal, Esposito contends that the evidence is insufficient to sustain his

      conviction. Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   On September 30, 2012, Esposito asked Matthew Henning if he could borrow

      Henning’s truck. In asking to borrow Henning’s truck, Esposito explained that

      he needed to drive to Rochester to retrieve money that someone owed him.

      Henning did not want to allow Esposito to take his truck, but agreed to go with

      Esposito to Rochester. Later that day, Esposito, Henning, drove together to

      Rochester with their friend, Donovan Ward, and Esposito’s fiancée, Taylor

      Lawson, in Henning’s maroon Ford F150 truck.


[3]   Once the group arrived in Rochester, Esposito asked to stop at a local Walmart.

      While at Walmart, Esposito bought a camouflage mask. Upon leaving

      Walmart, Esposito, who at that time was driving the truck, drove to a local

      trailer park and parked across the street from Neises’s residence. Neises had

      known Ward for years and had previously lived a few residences down from

      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 2 of 9
      her. Neises also knew Esposito because he had previously come to her

      residence with some of her neighbors. Neises did not know Esposito’s last

      name, but knew that his first name was “Joe.” Tr. p. 141. After Esposito

      parked, Henning, Ward, and Lawson remained in the truck as Esposito exited

      the truck, placed the mask on top of his head, and walked to Neises’s residence.


[4]   When Esposito entered, Neises was resting on the couch in her living room

      with her back to the door. She had left the interior front door open because it

      was a nice day, but the screen door was closed. When Neises heard the screen

      door open, she did not react immediately because she “just thought it was the

      wind blowing the door.” Tr. p. 139. She then felt someone at her back. Neises

      tried to fight the intruder but was told to “[s]top fighting or I’ll hurt you.” Tr. p.

      139.


[5]   Both Esposito and Neises then reached for Neises’s purse, which was sitting on

      the end of the couch. Esposito and Neises struggled over the purse. Neises

      attempted to stand and to remove Esposito’s mask, but only managed to pull

      and break his necklace. During the struggle, Esposito pulled Neises off the

      couch onto the floor and dragged her across the floor. Ultimately, the purse

      strap broke, Neises lost her grip on the purse, and Esposito ran out of Neises’s

      residence with the purse. Neises attempted to chase after Esposito and saw him

      get into an older red Ford pickup truck that was parked across the street. At the

      time it was taken, Neises’s purse contained approximately $1400 in cash.

      Neises’s purse also contained her wallet, identification, checkbook, makeup,

      and various other items.

      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 3 of 9
[6]   Upon returning to the truck, Esposito instructed his friends to keep quiet and

      not to talk about what had happened. The group then went to the home of

      Esposito’s cousin, Dena Myers, where Esposito and Lawson were living at the

      time. When Myers arrived home later that day, she observed that Esposito and

      his friends seemed to be in a good mood.


[7]   Esposito told Myers that the group had gone to Rochester and that he had

      entered a woman’s residence and stolen her purse. Esposito stated that he had

      obtained a lot of cash and pills from a woman named “Cat.” 1 Tr. p. 184.

      Esposito further stated that he had bought a mask at Walmart beforehand.

      Myers observed the purse and saw that it contained approximately $1000 in

      cash, identification, makeup, and a prescription pill bottle. Myers looked at the

      pill bottle and saw that it was labeled with the name Cathy. A few weeks later,

      Myers found the mask in a box of Esposito’s belongings that he had left at her

      house. Myers subsequently provided the mask to the police.


[8]   On April 4, 2013, the State charged Esposito with Class C felony robbery. A

      jury trial commenced on October 14, 2015. During trial, Neises testified that

      she recognized Esposito during the robbery and identified him in court as the

      perpetrator. Neises testified that she recognized Esposito’s voice, hair, clothing,

      and the necklace he was wearing. She described his distinctive clothing style of

      choice and the length and style of his “bleached blonde” hair for the jury. Tr. p.




      1
          The record reveals that Neises sometimes went by the nickname “Cat.” Tr. p. 157.

      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 4 of 9
       141. Neises indicated that in light of these identifying factors, she recognized

       the perpetrator as the person she knew as “Joe” even though he wore a mask

       during the robbery. Tr. p. 141. She described the mask as resembling a zebra,

       like the Rochester high school’s mascot.2


[9]    In addition, Ward and Henning both testified at trial that they accompanied

       Esposito to Rochester, that they observed Esposito enter Neises’s residence, and

       that Esposito ran out of the residence wearing a camouflage mask. Ward

       testified that Esposito purchased the mask used during the commission of the

       robbery at Walmart beforehand and that the mask presented by the State at trial

       looked like the mask that Esposito had purchased at Walmart. Myers also

       identified the mask at trial as the mask that Esposito claimed to have used

       during the robbery and that she found among his belongings in her home

       afterwards. The mask was admitted into evidence as State’s Exhibit 11 and was

       displayed for the jury.


[10]   Following trial, the jury found Esposito guilty as charged. The trial court

       subsequently sentenced Esposito to a term of eight years, with five years

       executed and three years suspended to probation. This appeal follows.



                                  Discussion and Decision


       2
         Review of the record reveals that although made of a camouflage-like colors, the mask worn
       by Esposito during the robbery contains markings which could reasonably be described as
       resembling a zebra. See State’s Ex. 11.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 5 of 9
                               A. Sufficiency of the Evidence
[11]   Esposito contends that the evidence is insufficient to sustain his conviction for

       Class C felony robbery.

                When reviewing the sufficiency of the evidence to support a
                conviction, appellate courts must consider only the probative
                evidence and reasonable inferences supporting the verdict. It is
                the fact-finder’s role, not that of appellate courts, to assess
                witness credibility and weigh the evidence to determine whether
                it is sufficient to support a conviction. To preserve this structure,
                when appellate courts are confronted with conflicting evidence,
                they must consider it most favorably to the trial court’s ruling.
                Appellate courts affirm the conviction unless no reasonable fact-
                finder could find the elements of the crime proven beyond a
                reasonable doubt. It is therefore not necessary that the evidence
                overcome every reasonable hypothesis of innocence. The
                evidence is sufficient if an inference may reasonably be drawn
                from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


[12]   In order to convict Esposito of Class C felony robbery, the State was required to

       prove that he knowingly or intentionally took property “from another person or

       from the presence of another person: (1) by using or threatening the use of force
       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 6 of 9
       on any person; or (2) by putting any person in fear.” Ind. Code § 35-42-5-1. “A

       person engages in conduct ‘intentionally’ if, when he engages in the conduct, it

       is his conscious objective to do so.” Ind. Code § 34-41-2-2(a). “A person

       engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware

       of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).


[13]   Review of the record demonstrates that five different witnesses—including the

       the victim, the three individuals who accompanied Esposito to the scene of the

       robbery, and Myers, the individual to whom Esposito admitted that he

       committed the robbery—testified that Esposito committed the robbery in

       question. Neises testified that during the commission of the robbery, Esposito

       threatened to “hurt” her if she did not stop fighting with him. Tr. p. 139.

       Myers testified that she observed Esposito with a purse, cash, and a pill bottle

       which had the victim’s first name on it shortly after Esposito admitted that he

       had committed the robbery. Myers further testified that she subsequently found

       the mask which Esposito claimed to have worn during the commission of the

       robbery among Esposito’s personal belongings. Myers turned the mask over to

       police and the mask was admitted into evidence during trial. Upon review, we

       conclude that the evidence is sufficient to sustain the jury’s guilty finding.


                                B. Incredible Dubiosity Rule
[14]   Esposito further contends that the evidence should be found insufficient to

       sustain his conviction because Neises’s testimony should have been found

       unreliable under the incredible dubiosity rule. The Indiana Supreme Court has


       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 7 of 9
       held that the incredible dubiosity rule applies only in situations “‘where a sole

       witness presents inherently contradictory testimony which is equivocal or the

       result of coercion and there is a complete lack of circumstantial evidence of the

       appellant’s guilt.’” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (quoting

       Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)) (emphases in Moore). Here,

       the State did not rely on the testimony of a single witness in presenting its case

       against Esposito, but rather on the testimony of five different witnesses. One of

       the five witnesses was the victim of Esposito’s crime, three accompanied him

       during the commission of the crime, and Esposito admitted to the fifth that he

       had committed the crime.


[15]   Furthermore, although these witnesses’ testimony contained slight variations

       about (1) the design of the mask worn by Esposito during the robbery, (2) when

       Esposito put the mask on, and (3) whether Neises chased after the truck when

       Esposito left the scene of the crime, all five witnesses unequivocally testified

       that Esposito carried out the robbery in question. Their testimony was also

       corroborated by the discovery of the mask used during the commission of the

       crime among Esposito’s belongings. Given that the incredible dubiosity rule

       only applies in situations where a sole witness presents inherently contradictory

       evidence coupled with the fact that five witnesses consistently testified that

       Esposito committed the charged offense and their testimony was corroborated

       by other evidence at trial, we conclude that the incredible dubiosity rule does

       not apply to the instant matter. The evidence is sufficient to sustain Esposito’s

       conviction for Class C felony robbery.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 8 of 9
[16]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2237 | June 20, 2016   Page 9 of 9
