                                                             FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                          Nov 30 2012, 8:46 am
before any court except for the purpose
of establishing the defense of res
                                                                  CLERK
judicata, collateral estoppel, or the law                       of the supreme court,
                                                                court of appeals and
                                                                       tax court
of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING                               GREGORY F. ZOELLER
Duerring Law Offices                             Attorney General of Indiana
South Bend, Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN HOOK, JR.,                                )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 71A03-1204-CR-192
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1109-FC-206


                                      November 30, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Steven Hook, Jr., appeals his conviction for Class C felony battery with a deadly

weapon. We affirm.

                                           Issue

       Hook, Jr., raises one issue, which we restate as whether there is sufficient evidence

to support his conviction.

                                           Facts

       On September 4, 2011, Hook, Jr., was at Murphy’s Bar in South Bend with his

father, Steven Hook, Sr., and Kayla Kerr. Brian Putz and Chris Jakubowicz were also at

the bar that evening. At some point, Kerr began talking to Putz and Jakubowicz and

asked them to give her a ride home, and Putz and Jakubowicz agreed to do so.

       After leaving the bar, Jakubowicz drove Putz and Kerr in Putz’s truck to a nearby

7-Eleven convenience store to buy some snack foods. Hook, Jr., and Hook, Sr., also

drove to the 7-Eleven in their truck. Hook, Jr., followed Jakubowicz into the store and

yelled obscenities at him. Jakubowicz said he did not want any trouble, made his

purchases, and returned to Putz’s truck. Hook, Jr., approached the truck and reached

through its windows, attempting to punch Putz and Jakubowicz. Kerr, meanwhile, had

left the vehicle. During the exchange, Hook, Jr., took off his shirt.

       Finally, Jakubowicz started to drive away from the 7-Eleven. However, he and

Putz noticed that their cell phones, which had been placed in the truck’s open center

console, were missing. Suspecting that Hook, Jr., had taken them, Jakubowicz returned

to the 7-Eleven, where they saw Hook, Jr., holding up a cell phone and saying, “I got

                                              2
your phone.” Tr. p. 57. Putz got out of the truck, asked for his and Jakubowicz’s phones

back, and Hook, Jr., immediately approached Putz and punched him in the face. The two

men began wrestling in the 7-Eleven parking lot, during which Hook, Sr., went to his

truck, retrieved a baseball bat, and gave it to Hook, Jr. Hook, Jr., then repeatedly struck

Putz with the bat. As the fight was ending, a nearby onlooker managed to flag down a

passing police officer.

       The State charged Hook, Jr., with Class C felony battery with a deadly weapon.

After a jury trial on March 5-6, 2012, Hook, Jr., was convicted as charged. Hook, Jr.,

now appeals.

                                         Analysis

       Hook, Jr., claims that the evidence is insufficient to support his conviction because

Putz’s trial testimony was incredibly dubious. In reviewing a sufficiency of the evidence

claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Love

v. State, 761 N.E.2d 806, 810 (Ind. 2002). We look to the evidence most favorable to the

verdict and reasonable inferences drawn therefrom and will affirm the conviction if there

is probative evidence from which a reasonable jury could have found the defendant guilty

beyond a reasonable doubt. Id.

       Within the narrow limits of the “incredible dubiosity” rule, we may impinge upon

a jury’s function to judge the credibility of a witness. Id. “If a sole witness presents

inherently improbable testimony and there is a complete lack of circumstantial evidence,

a defendant’s conviction may be reversed.” Id. This is appropriate only where we are

confronted with inherently improbable testimony or coerced, equivocal, wholly

                                             3
uncorroborated testimony of incredible dubiosity. Id. “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.

       According to Hook, Jr., Putz’s trial testimony about having been beaten with a

baseball bat is incredibly dubious because a photograph of Putz taken after the incident

does not show “anything one would expect to see after being struck over and over by a

metal baseball bat.” Appellant’s Br. p. 5. Hook also points out that Putz did not seek

medical treatment, that Jakubowicz did not attempt to call the police during the incident,

and that, because surveillance video shows that Putz never left the truck, it is highly

improbable that Hook, Jr., took the cell phones from the truck. Hook also asserts that the

testimony of two bystanders is highly suspect.

       Contrary to his assertions, however, the incredible dubiousity rule does not apply

here because this is not a case in which a sole witness presented inherently improbable

testimony and there is a complete lack of circumstantial evidence. In fact, Putz testified

unequivocally that Hook, Jr., struck him with a baseball bat. In addition to Putz’s

testimony, Jakubowicz testified that Hook, Jr., hit Putz with a bat. Another witness, who

saw the incident from across the street, testified that he saw a man without a shirt hit

someone with a bat. This is consistent with the testimony of yet another witness who saw

the fight from across the street and who identified Hook, Jr., as the person who hit the

victim with a baseball bat. In addition to this testimony, the State also introduced

pictures of Putz indicating he had injuries to his forehead and arms.



                                             4
       Because the incredible dubiousity rule does not apply, we may not reweigh the

evidence or judge witness credibility. The evidence is sufficient to support the conviction

for Class C felony battery with a deadly weapon.

                                       Conclusion

       There is sufficient evidence to support the conviction for Class C felony battery

with a deadly weapon. We affirm.

       Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




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