MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                     Dec 05 2016, 8:38 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Jerry D. Thompson,                                       December 5, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1602-CR-400
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Christina R.
State of Indiana,                                        Klineman, Judge.
Appellee-Plaintiff.                                      Cause No. 49G17-1601-CM-48




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016    Page 1 of 5
[1]   Jerry D. Thompson appeals his conviction of battery resulting in bodily injury,
                                           1
      a Class A misdemeanor. We affirm.


[2]   The sole issue Thompson presents for our review is whether the State presented

      sufficient evidence to support his conviction.


[3]   On December 31, 2015, Thompson engaged in a verbal argument and physical

      altercation with his former girlfriend, A.L. Based upon this incident,
                                                                 2
      Thompson was charged with domestic battery and battery resulting in bodily

      injury, both as Class A misdemeanors. A bench trial was held on the charges,

      and Thompson was found guilty of battery resulting in bodily injury. He was

      sentenced to 365 days suspended to probation. This appeal followed.


[4]   Thompson contends that the evidence is insufficient to support his conviction

      because A.L.’s testimony is incredibly dubious. When we review a challenge to

      the sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App.

      2015), trans. denied. Instead, we consider only the evidence most favorable to

      the verdict and any reasonable inferences drawn therefrom. Id. If there is

      substantial evidence of probative value from which a reasonable fact-finder




      1
          Ind. Code § 35-42-2-1(b)(1), (c) (2014).
      2
          Ind. Code § 35-42-2-1.3(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016   Page 2 of 5
      could have found the defendant guilty beyond a reasonable doubt, the judgment

      will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App. 2015).


[5]   Yet, appellate courts may apply the incredible dubiosity rule to impinge upon a

      jury’s function to judge the credibility of a witness when confronted with

      inherently improbable testimony or coerced, equivocal, wholly uncorroborated

      testimony of incredible dubiosity. Whatley v. State, 908 N.E.2d 276 (Ind. Ct.

      App. 2009), trans. denied. Application of this rule is rare and is limited to cases

      where a single witness presents inherently contradictory testimony which is

      equivocal or the result of coercion and there is a complete lack of circumstantial

      evidence of guilt. Id. The standard to be applied for this rule is whether the

      testimony is so incredibly dubious or inherently improbable that no reasonable

      person could believe it. Fancher v. State, 918 N.E.2d 16 (Ind. Ct. App. 2009).


[6]   At trial, A.L. testified that she did not remember why Thompson was at her

      apartment on December 31, 2015, but that she and Thompson engaged in a

      verbal argument and physical altercation in which Thompson hit her in the

      head and pulled her hair, causing her pain. She stated that bruising appeared

      within a few days. A.L. summarized the event, stating, “I just know that he,

      we, got into an altercation and he just, got to hitting me for, I don’t know why,

      but that’s all I remember.” Tr. pp. 37-38.


[7]   The responding police officer testified that when she arrived, A.L. was at the

      door, and Thompson was located at the entrance to the apartment complex.

      The officer noticed that A.L.’s hair “was messed up” but saw no physical


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016   Page 3 of 5
      injuries. Id. at 43. On cross-examination, defense counsel asked the officer

      about the injuries A.L. reported to the officer the night of the incident. The

      officer responded that A.L. reported being pushed in the chest and pulled by the

      hair but that she did not mention being hit in the head.


[8]   Under the umbrella of incredibly dubious testimony, Thompson asserts that

      A.L.’s testimony is improbable, uncorroborated and inconsistent. We address

      each contention in turn. First, Thompson claims that A.L.’s version of the

      events is “highly questionable” and “implausible” because, as he stated at trial,

      A.L. had previously called the police and/or his parole officer to report him

      and that this time she was jealous about him possibly seeing another woman.

      Appellant’s Br. pp. 12-13. A.L. testified unequivocally at trial that Thompson

      hit her in the head and pulled her hair. This is merely an invitation by

      Thompson for this Court to invade the province of the trier of fact by

      reassessing witness credibility. It is within the factfinder’s province to judge the

      credibility of the witnesses. Brasher v. State, 746 N.E.2d 71 (Ind. 2001). In

      doing so, the trier of fact is entitled to determine which version of the incident

      to credit. Schmid v. State, 804 N.E.2d 174 (Ind. Ct. App. 2004), trans. denied.

      We decline Thompson’s invitation.


[9]   Thompson also argues that A.L.’s testimony is incredibly dubious because it is

      uncorroborated. A.L. testified unambiguously that Thompson hit her in the

      head and pulled her hair, thereby causing her pain. She further testified that she

      had bruises within a few days of the incident. Although the police officer

      testified that she saw no physical injuries, she did notice that A.L.’s hair was

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016   Page 4 of 5
       messed up. “A conviction may be sustained on the uncorroborated testimony

       of a single witness or victim.” Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct.

       App. 2007), trans. denied. Again, this argument is nothing more than a request

       for this Court to re-evaluate witness credibility. The judge, as factfinder, heard

       the testimony and made her credibility determinations which we will not

       disturb. See Brasher, 746 N.E.2d 71.


[10]   Finally, Thompson asserts that A.L.’s testimony is inconsistent with her

       statement to the police officer the night of the incident. A.L. testified that

       Thompson hit her in the head and pulled her hair. The police officer testified

       that A.L. reported to her only that Thompson had pushed A.L. in the chest and

       pulled her hair. The rule of incredible dubiosity concerns courtroom testimony,

       not statements made outside of trial or the courtroom. Reyburn v. State, 737

       N.E.2d 1169 (Ind. Ct. App. 2000); see also Holeton v. State, 853 N.E.2d 539 (Ind.

       Ct. App. 2006) (holding that discrepancies between victim’s statements to

       police and trial testimony go to weight of testimony and witness credibility and

       do not render testimony inherently contradictory). Thus, we cannot say that

       A.L.’s testimony is so incredibly dubious or inherently improbable that no

       reasonable person could believe it.


[11]   In light of the foregoing, we affirm the judgment of the trial court.


[12]   Judgment affirmed.


       Vaidik, C.J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-400 | December 5, 2016   Page 5 of 5
