MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 08 2017, 9:00 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Caryn Nieman-Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary S. Kirkwood,                                        June 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1612-CR-2779
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D04-1603-F5-84



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017                Page 1 of 10
[1]   Gary S. Kirkwood appeals his convictions of Level 5 felony operating a vehicle

      while a habitual traffic violator (“HTV”) 1 and Class A misdemeanor battery. 2

      Kirkwood argues the State did not present sufficient evidence he committed

      either of the crimes. We affirm.



                                Facts and Procedural History
[2]   On March 27, 2016, Jamie Dunfee and Kirkwood were in Elkhart County,

      Indiana, at the home of Dunfee’s father. The pair had been “bickering back

      and forth,” (Tr. at 56), about their relationship when Kirkwood grabbed his

      belongings and walked away from the house. Kirkwood returned shortly

      thereafter, and Dunfee told him she would take him home in her car. She

      handed Kirkwood her keys for him to drive. At the time, Dunfee had a valid

      driver’s license, but Kirkwood did not have a valid license as he had forfeited

      his driving privileges for life after being found to be an HTV.


[3]   On the way home, Dunfee was not paying attention to the route Kirkwood was

      taking. Kirkwood abruptly slammed on the brakes causing the car to come to a

      stop facing south in a yard on the shoulder of State Road 15. Dunfee and her

      two small dogs, which were sitting on her lap, hit the dashboard.




      1
          Ind. Code § 9-30-10-17(a) (2015).
      2
          Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c) (2014).


      Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 2 of 10
[4]   Jeremy Troyer was in his backyard when he heard brakes screeching. Within

      thirty to forty-five seconds he went to his front yard and observed Kirkwood

      outside of the car on the driver’s side arguing with Dunfee, who was standing

      outside the passenger’s side. Kirkwood threw the car keys into a nearby yard.

      Dunfee retrieved her keys, and then Kirkwood pushed her down. Troyer saw

      Dunfee lying on the ground in front of the car with Kirkwood standing over

      her.


[5]   Jeffery Norton was traveling north along State Road 15 and saw Dunfee’s car

      parked on the shoulder. Norton stopped his truck when “it appeared that

      [Kirkwood] was hitting [Dunfee].” (Id. at 83.) According to Norton, it

      appeared Kirkwood was dragging Dunfee toward the front of the car. Norton

      yelled at Kirkwood to stop hitting Dunfee. Kirkwood responded that Norton

      should “mind [his] own business,” (id. at 86), went across the road to Norton,

      and hit Norton on the right eye area knocking Norton’s glasses off. The two

      men had a short “schoolyard brawl.” (Id. at 87.) Then Kirkwood retrieved his

      belongings out of Dunfee’s car and ran away.


[6]   Norton called 911 and Officer Jennifer Smith with the Elkhart County Sheriff’s

      Department responded to the scene. Officer Smith saw Dunfee was upset. She

      also observed redness and swelling on Norton’s face. Officer Smith took

      pictures of Norton’s injuries.


[7]   Corporal Milovich with the Elkhart County Sheriff’s Department was also

      dispatched to the area to look for a suspect described as “a white male wearing


      Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 3 of 10
      a yellow shirt, carrying a backpack, bald, no hair.” (Id. at 124.) Cpl. Milovich

      detained Kirkwood, who matched the description, while he was walking

      through a yard. Kirkwood was handcuffed, placed in the back of Cpl.

      Milovich’s patrol car, and driven back to the scene. Cpl. Milovich ran

      Kirkwood’s information through the Indiana BMV database and saw

      Kirkwood’s driving privileges were forfeited for life. Cpl. Milovich transported

      Kirkwood to the Elkhart County Correctional Facility.


[8]   The State charged Kirkwood with one count of Level 5 felony operating a

      vehicle while an HTV, one count of Class A misdemeanor battery for hitting

      Norton, and one count of Class B misdemeanor battery for hitting Dunfee. The

      jury found Kirkwood not guilty of Class B misdemeanor battery, but guilty of

      Level 5 felony operating a vehicle while an HTV and Class A misdemeanor

      battery. He was sentenced to six years for the felony conviction, with two years

      suspended to reporting probation, and 365 days for the Class A misdemeanor

      conviction to run concurrent to the felony sentence.



                                 Discussion and Decision
[9]   When reviewing sufficiency of the evidence to support a conviction, we must

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh

      evidence or assess the credibility of witnesses, as that is the role of the fact-

      finder. Id. When confronted with conflicting evidence, we must consider it

      most favorably to the verdict. Id. We affirm a “conviction unless no reasonable

      Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 4 of 10
       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt.” Id. It is therefore not necessary that the evidence overcome every

       reasonable hypothesis of innocence, but rather the evidence is sufficient if an

       inference reasonably may be drawn from it to support the verdict. Id. at 147.


                              1. Operating a Vehicle while an HTV
[10]   To prove Kirkwood committed Level 5 felony operating a vehicle while an

       HTV, the State was required to prove beyond a reasonable doubt that (1)

       Kirkwood, (2) operated a motor vehicle, (3) after his driving privileges were

       forfeited for life. See Ind. Code § 9-30-10-17. Kirkwood argues this conviction

       should be reversed because Dunfee’s incredibly dubious testimony was

       insufficient to prove he drove Dunfee’s vehicle.


[11]   The incredible dubiosity rule is limited to situations in which there was: “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). The rule is applied in narrow

       circumstances and should be applied here only if “testimony is so incredibly

       dubious or inherently improbable that no reasonable person could believe it.”

       Rose v. State, 36 N.E.3d 1055, 1061 (Ind. Ct. App. 2015). Further, the testimony

       from the witness must run “counter to human experience.” Campbell v. State,

       732 N.E.2d 197, 207 (Ind. Ct. App. 2000). Kirkwood argues Dunfee’s

       testimony was incredibly dubious because Dunfee’s version of events was

       inconsistent and improbable. We disagree.


       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 5 of 10
[12]   Kirkwood asserts incredible dubiosity applies because Dunfee was the only

       witness to testify he was driving, Dunfee had Kirkwood drive her vehicle even

       though Kirkwood did not have a valid license, Dunfee does not remember

       much of the car ride, and Dunfee was drinking that day.


[13]   However, Kirkwood’s arguments fail to satisfy the elements of incredible

       dubiosity. Dunfee testified there was no other reason she wanted Kirkwood to

       drive her car that day than “to make sure he was secure enough that he was

       going to get home . . . on his own.” (Tr. at 58.) Dunfee testified she did not

       remember much of the car ride not because she was intoxicated “to the point of

       blacking out,” (id. at 62), but because she was “daydreaming.” (Id.) It is not

       inherently impossible, so that no reasonable person could believe it, that a

       passenger would be daydreaming during a car ride and not remember the route

       taken or that Dunfee desired Kirkwood to drive himself home. See Lewis v.

       State, 726 N.E.2d 836, 842-43 (Ind. Ct. App 2000) (victim’s testimony was not

       incredibly dubious though she was unclear on some details of the incident),

       trans. denied. Further, Dunfee never contradicted herself during trial testimony,

       and the jury chose to believe her version of events. 3




       3
         Kirkwood argues that the jury did not believe Dunfee’s testimony, as it did not convict Kirkwood of Class B
       misdemeanor battery. However, Kirkwood does not explain why the jury’s failure to find him guilty of one
       crime means the jury could not have believed a witness’s testimony regarding another crime. We decline to
       hold Dunfee’s testimony was incredibly dubious simply because the jury did not convict Kirkwood of all
       charges. See, e.g., Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002) (defendant was not convicted of all
       charges and, nevertheless, the witness’s testimony was not incredibly dubious).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017             Page 6 of 10
[14]   There was also circumstantial evidence presented at trial. Troyer testified that

       when he first witnessed the pair fighting, about thirty to forty-five seconds after

       hearing the vehicle screech to a halt, they were outside of the car with

       Kirkwood on the driver’s side and Dunfee on the passenger’s side. Troyer and

       Dunfee both testified that Kirkwood was holding the car keys, which he then

       threw into a nearby yard.


[15]   Kirkwood’s arguments are requests for us to reweigh evidence and judge the

       credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court does not reweigh evidence or judge the credibility of witnesses).

       As the trial testimony was not “incredibly dubious or inherently improbable,”

       we hold the evidence was sufficient for the jury to find Kirkwood guilty of

       Level 5 felony operating while an HTV. See, e.g., Fonner v. State, 876 N.E.2d

       340, 343 (Ind. Ct. App. 2007) (sufficient evidence to uphold defendant’s

       conviction of operating a motor vehicle while privileges are forfeited for life

       when arresting officer’s testimony not found to be incredibly dubious).


                                  2. Class A Misdemeanor Battery
[16]   Kirkwood also challenges his conviction for battery, arguing the State presented

       insufficient evidence Kirkwood caused bodily injury to Norton.


[17]   A Class A misdemeanor conviction of battery is justified when a person

       knowingly or intentionally: (1) touches another person in a rude, insolent, or

       angry manner, and (2) that conduct results in bodily injury to another person.

       Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c). “Bodily injury” is defined as “any

       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 7 of 10
       impairment of physical condition, including physical pain.” Ind. Code § 35-

       31.5-2-29. The State alleged Kirkwood inflicted at least minimal “bodily

       injury” on Norton as “human experience rationally dictates that when a person

       is punched in the eye/cheek area, there is at least some level of pain involved.”

       (Appellee’s Br. at 12). Kirkwood contends that because Norton testified he did

       not feel pain from the blow and did not notice any swelling, the State did not

       prove beyond a reasonable doubt that Kirkwood caused bodily injury to

       Norton. We disagree.


[18]   It is not necessary for the State to prove Norton suffered physical pain to satisfy

       the element of bodily injury. See Tucker v. State, 725 N.E.2d 894, 897-98 (Ind.

       Ct. App. 2000) (battery conviction upheld when victim testified being grabbed

       did not hurt, but did leave a bruise, which the court held was a physical

       impairment), trans. denied. Redness and bruises have been held sufficient proof

       of bodily injury. Delahanty v. State, 658 N.E.2d 660, 662 (Ind. Ct. App. 1995)

       (battery causing bodily injury affirmed when the victim testified she did not

       suffer physical pain, but did sustain bruising and a red mark, which

       demonstrated bodily injury).


[19]   Norton testified he noticed redness to his face after the blow to his eye and

       cheek area. 4 The red area was also in the exact area Kirkwood hit Norton.




       4
        Kirkwood also asserts Norton had been drinking that day and Norton’s redness could have been caused by
       something other than Kirkwood’s hit. However, Norton testified that he did not notice any redness to his
       face prior to the hit. Further, it is well established that “it is the fact-finder’s role, not that of the appellate

       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017                      Page 8 of 10
       Norton testified that he did not remember feeling any pain, as his “main

       objective” was to stop Kirkwood from hitting Dunfee. (Tr. at 100.) In

       addition, Officer Smith testified to seeing and taking photographs of the redness

       and swelling on Norton’s face around his right cheekbone. It is reasonable to

       infer from the evidence that Norton could have been too concerned with

       Dunfee’s welfare to notice any pain, and that the redness on Norton’s right eye

       and cheek was caused by Kirkwood’s blow to that area.


[20]   As stated above, we cannot reweigh evidence or assess the credibility of

       witnesses. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh

       evidence or judge the credibility of witnesses). We conclude that Norton’s

       injuries satisfy the definition of “bodily injury,” the State presented sufficient

       evidence that Norton suffered bodily injury at Kirkwood’s hands, and the Class

       A misdemeanor battery conviction was appropriate. See Delahanty, 658 N.E.2d

       at 662 (sufficient evidence of physical impairment to uphold battery conviction

       when victim sustained bruises and redness).



                                                   Conclusion




       courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a
       conviction.” See Drane, 867 N.E.2d at 146.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017                 Page 9 of 10
[21]   The State presented sufficient evidence Kirkwood committed Level 5 felony

       operating a vehicle while an HTV and Class A misdemeanor battery.

       Accordingly, we affirm.


[22]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1612-CR-2779 | June 8, 2017   Page 10 of 10
