MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                     FILED
this Memorandum Decision shall not be                                           Mar 16 2017, 9:41 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
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael W. Simpson,                                      March 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1607-CR-1741
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D04-1509-CM-1483



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017            Page 1 of 7
                                       Statement of the Case
[1]   Michael W. Simpson appeals his conviction, following a bench trial, for

      battery, as a Class A misdemeanor. He raises one issue on appeal, namely,

      whether the State presented sufficient evidence to support his conviction. We

      affirm.


                                 Facts and Procedural History
[2]   On June 10, 2015, Theodore Fuentes was at his girlfriend Rachel Grove’s

      apartment. Grove had previously dated Zachary Garrett (“Zachary”), but she

      began dating Fuentes some time before June 10. At approximately 9:30 p.m.,

      Fuentes was lying on Grove’s couch in the living room playing on his cell

      phone as Grove put her daughter to bed in the nearby bedroom. Light was

      coming into the apartment from an exterior light and waning daylight.


[3]   While Fuentes was on the couch, Zachary entered the apartment, ran over to

      him, and began to punch him in the face. Fuentes and Zachary scuffled for

      about thirty seconds until Zachary’s sister, Lesley Garrett (“Lesley”), and

      Simpson ran in and began attacking Fuentes as well. During the ensuing fight

      Zachary placed Fuentes in a headlock while Leslie and Simpson repeatedly hit,

      scratched, punched, and kicked Fuentes. Grove heard the commotion, ran into

      the living room, and saw Simpson, Zachary, and Lesley attacking Fuentes.

      Grove attempted to pull Simpson, Zachary, and Lesley off of Fuentes. Grove

      then ran to her daughter’s bedroom and said she was going to call the police,

      which allowed Fuentes an opportunity to run out of the apartment. Grove


      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017   Page 2 of 7
      watched as Fuentes ran out of her apartment to find the security guard and call

      9-1-1 while his attackers ran in the opposite direction. As a result of the attack,

      Fuentes sustained numerous injuries including a bloody nose, swollen lip, black

      eye, and numerous bruises, scratches, and abrasions on his head and face.

      Physical evidence of the attack was left in the living room as Fuentes had bled

      on the floor during the attack and the furniture was knocked around.


[4]   The State charged Simpson with battery, as a Class A misdemeanor, and the

      trial court held a bench trial on June 6, 2016. Fuentes testified that he had seen

      Simpson attack him but he had not known Simpson or his name at the time of

      the attack and had not seen him before the attack. Fuentes had later learned

      Simpson’s name from Grove, and he had identified Simpson in a photo array

      that Detective Miller of the Goshen Police Department had shown him

      approximately one month after the attack. Detective Miller had shown Fuentes

      a total of three separate photo lineups containing suspects. In one of the lineups

      Fuentes had identified Simpson. In an additional photo lineup Fuentes had

      identified Zachary. At trial, the State mistakenly entered the lineup with

      Zachary, instead of the lineup with Simpson, into evidence as Exhibit 10.

      Fuentes positively identified Simpson during the bench trial.


[5]   Grove testified that she had known Simpson for approximately seven-and-one-

      half years before the attack and had seen him regularly one to two times per

      month over that time span. She testified that, on June 10, 2015, she had seen

      Simpson, Zachary, and Leslie attacking Fuentes and that, while she had tried to



      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017   Page 3 of 7
      pull them off of Fuentes, she had been “standing right in front of” Simpson,

      “less than a foot away,” and had been able to see his face. Tr. at 35-36.


[6]   The trial court found Simpson guilty of battery, as a Class A misdemeanor, and

      sentenced him accordingly. This appeal ensued.


                                     Discussion and Decision
[7]   Simpson contends that the State failed to provide sufficient evidence to support

      his conviction. Because he appeals a judgment entered by the trial court

      without a jury, we employ a clearly erroneous standard of review and give “due

      regard . . . to the opportunity of the trial court to judge the credibility of the

      witnesses.” Ind. Trial Rule 52(A).


              Under th[e clearly erroneous] standard we review only for
              sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161
              (Ind. 2013). “We neither reweigh the evidence nor determine the
              credibility of witnesses.” Id. “We consider only the probative
              evidence and reasonable inferences supporting the judgment and
              reverse only on a showing of clear error.” Id. Clear error is “that
              which leaves us with a definite and firm conviction that a mistake
              has been made.” Id. (citation omitted).


      Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).


[8]   To prove Simpson engaged in battery, as a Class A misdemeanor, the State was

      required to prove beyond a reasonable doubt that: (1) Simpson, (2) knowingly

      or intentionally, (3) touched Fuentes, (4) in a rude, insolent, or angry manner,

      (5) which resulted in bodily injury. Ind. Code § 35-42-2-1(b)(1), (c) (2015).

      Simpson does not dispute that Fuentes was touched in a rude, insolent, or
      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017   Page 4 of 7
       angry manner which resulted in bodily injury. He contends only that there was

       insufficient evidence that he was one of the people who committed the battery.


[9]    We cannot agree. There is ample evidence in the record that Simpson battered

       Fuentes. Both Fuentes and Grove positively identified Simpson as one of the

       attackers. Fuentes testified that he saw Simpson attacking him, although he did

       not know who Simpson was at the time of the attack. Fuentes identified

       Simpson as one of the attackers both in a photo lineup and at the trial. Grove

       also testified that she saw Simpson attack Fuentes and that she was standing

       less than one foot in front of Simpson at one point during the attack, at which

       point she saw Simpson’s face. She also testified that she knew Simpson well

       prior to the attack, having seen him one to two times a month for the previous

       seven and a half years. The testimony of the two eye-witnesses who positively

       identified Simpson as one of the people who battered Fuentes is sufficient

       evidence of Simpson’s identity.


[10]   Nonetheless, Simpson contends that the evidence of his identity was insufficient

       because Fuentes’ and Grove’s testimony was “incredibly dubious” in light of

       the mistaken photo array evidence. Appellant’s Br. at 7. However, application

       of the “incredible dubiosity rule . . . is limited to cases 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

       defendant’s guilt.” Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (emphasis

       added). Because Simpson’s conviction was not based on the testimony of only

       one witness, the incredible dubiousity rule is inapplicable. Moreover, Fuentes’

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017   Page 5 of 7
       and Grove’s testimony was not contradictory, equivocal, or coerced. Both eye-

       witnesses positively identified Simpson as one of the attackers. And there is no

       support in the record for Simpson’s contention that Fuentes identified him in

       person at trial and then misidentified Zachary as Simpson in State’s Exhibit 10.

       Rather, Fuentes was not asked to, and did not, identify at trial who the

       individual was in State’s Exhibit 10.


[11]   Simpson further asserts that Fuentes “testified to what he thought he was

       supposed to say, or that he was told to say, instead of information he actually

       knew” and that Fuentes and Grove “colluded” with each other regarding

       Simpson’s identity. Appellant’s Br. at 9. However, he points to no evidence to

       support those assertions. Moreover, the trial court specifically noted that it had

       “carefully weighed the credibility of the witnesses,” had “carefully viewed the

       [witnesses’] mannerisms . . . [and] demeanor,” and had considered the

       “consistency” of the witnesses’ testimony. Appellant’s App. at 23-24. Having

       done so, the trial court found “that the testimony of Mr. Fuentes and Ms.

       Grove is consistent” and that the State had proven beyond a reasonable doubt

       that Simpson was guilty of battery. Id. at 24. Simpson’s contentions to the

       contrary are simply requests for this court to reweigh the evidence, which we

       will not do. The State presented sufficient evidence to support Simpson’s

       conviction and the trial court’s findings and judgment were not clearly

       erroneous.


[12]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1741 | March 16, 2017   Page 6 of 7
Bailey, J., and May, J, concur.




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