                                                                                 Oct 31 2013, 5:31 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                                   GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES TINZLEY,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A02-1303-CR-267
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Stanley E. Kroh, Judge Pro Tempore
                             Cause No. 49G16-1211-CM-76679


                                        October 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       On November 1, 2012, Appellant-Defendant James Tinzley entered a Hardee’s

restaurant where his ex-girlfriend Sheree Washington was working. As Washington exited

the restaurant’s restroom, Tinzley forced her back into the restroom where he grabbed her by

the hair and punched her in the chest and rib area, causing her pain. Tinzley then fled the

restaurant. When Washington exited the restroom, she was holding the upper part of her

chest and looked as if she had been crying. Washington reported that Tinzley had beaten her

while in the restroom. Tinzley was charged with and convicted of Class A misdemeanor

battery. On appeal, Tinzley contends that the evidence is insufficient to sustain his

conviction for Class A misdemeanor battery. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On the morning of November 1, 2012, Washington was working at a Hardee’s

restaurant in Indianapolis. As Washington exited the restaurant’s restroom, she saw Tinzley.

Tinzley approached Washington and forced her back into the restroom. While in the

restroom, Tinzley accused Washington of slashing one of the tires on his vehicle. Tinzley

grabbed Washington by the hair and punched her in her chest and rib area, causing

Washington pain. Tinzley then fled the restaurant.

       A few minutes later, Washington emerged from the restroom. Donald Woodbury,

who had witnessed Tinzley force Washington into the restroom, noticed that Washington was

holding the upper part of her chest and was whimpering and crying as if in pain. Woodbury

observed that Washington’s eyes were blurry and that she seemed to have trouble focusing.

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Woodbury notified police after Washington told him that Tinzley had “just got finished

beating her inside the restroom.” Tr. p. 26.

       On November 15, 2012, the State charged Tinzley with one count of Class A

misdemeanor domestic battery and one count of Class A misdemeanor battery. Following a

bench trial, Tinzley was found guilty of Class A misdemeanor battery. Tinzley was found

not guilty of Class A misdemeanor domestic battery. The trial court imposed a sentence of

365 days with credit for time served and the remainder suspended. The trial court ordered

that Tinzley serve the suspended portion of his sentence on probation. The trial court

instructed Tinzley to complete twenty-six weeks of domestic violence counseling in addition

to all standard conditions of probation. The trial court also instructed Tinzley to have no

contact with Washington.

                             DISCUSSION AND DECISION

       Tinzley contends that the evidence is insufficient to sustain his conviction for Class A

misdemeanor battery.

       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.


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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).

       Indiana Code section 35-42-2-1(a) provides that “[a] person who knowingly or

intentionally touches another person in a rude, insolent, or angry manner commits battery.”

The offense is a Class A misdemeanor if it results in bodily injury to any other person. Ind.

Code § 35-42-2-1(a)(1)(A). Any degree of physical pain may constitute bodily injury. See

Bailey v. State, 979 N.E.2d 133, 142 (Ind. 2012). In challenging the sufficiency of the

evidence to sustain his conviction for Class A misdemeanor battery, Tinzley argues that

Washington’s testimony is not believable because Washington is the complaining witness

and her testimony is not corroborated by any other evidence in the record.

       It is well-established that “[a] conviction can be sustained on only the uncorroborated

testimony of a single witness, even when that witness is the victim.” Id. at 135 (citing Ferrell

v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991)). However, under the rule of incredible

dubiosity, a defendant’s conviction may be reversed if the sole witness presents inherently

improbable testimony. West v. State, 907 N.E.2d 176, 177 (Ind. Ct. Ap. 2009). The

“incredible dubiosity” test is a difficult standard to meet, one that requires great ambiguity

and inconsistency in the evidence. Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). “For

                                               4
testimony to be so inherently incredible that it is disregarded based on a finding of ‘incredible

dubiosity,’ the witness must present testimony that is inherently contradictory, wholly

equivocal or the result of coercion, and there must also be a complete lack of circumstantial

evidence of the defendant’s guilt.” Clay v. State, 755 N.E.2d 187, 189 (Ind. 2001). Thus,

before a court can interfere with the fact-finder’s authority to judge witness credibility and

evaluate evidence, the court must be presented with testimony which “‘runs counter to the

human experience,’” and is “so convoluted and/or contrary to human experience that no

reasonable person could believe it.” Edwards, 753 N.E.2d at 622 (quoting Campbell v. State,

732 N.E.2d 197, 207 (Ind. Ct. App. 2000)). Washington’s testimony does not meet this

standard.

       Washington testified at trial that after forcing her into the restroom, Tinzley grabbed

her by the hair and punched her in the chest and rib area, causing her pain. Washington’s

testimony was corroborated, in part, by Woodbury who testified that he saw Tinzley place

Washington “in like a headlock” and force her into the restroom. Tr. p. 30. A few minutes

later, Woodbury saw Tinzley exit the restroom and flee the restaurant. When Washington

emerged from the restroom, Woodbury observed that she was holding her upper chest as if

she were in pain. Woodbury also observed that Washington was whimpering and that her

eyes looked as if she had been crying. This testimony is sufficient to establish that Tinzley

committed Class A misdemeanor battery.

       Moreover, contrary to Tinzley’s claim on appeal, Washington’s testimony was not

incredulously dubious. Washington’s testimony did not run counter to the human experience.

                                               5
See Edwards, 753 N.E.2d at 622. It was not so convoluted that no reasonable person could

believe it, inherently contradictory, or wholly equivocal. See id.; Clay, 755 N.E.2d at 189. In

addition, nothing the record suggests that Washington’s testimony was the result of coercion.

See Clay, 755 N.E.2d at 189. To the contrary, Washington’s testimony was consistent and

unequivocal. Tinzley’s claim on appeal effectively amounts to an invitation to reweigh the

evidence, which we will not do. Stewart, 768 N.E.2d 433 at 435.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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