MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    May 30 2017, 9:54 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sally Skodinski                                         Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Phillip Edwin Byrd,                                     May 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1609-CR-2218
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Julie Verheye,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D03-1604-CM-2204



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017               Page 1 of 7
[1]   Phillip Edwin Byrd appeals his conviction for invasion of privacy as a class A

      misdemeanor. Byrd raises one issue which we revise and restate as whether the

      evidence is sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On December 9, 2015, D.H. received a number of phone calls from Byrd, who

      was the father of her three children, despite the fact that D.H. had a no-contact

      order against Byrd. Byrd told D.H. that he wanted to see her and her children

      and that he knew where she lived, although she had never told him the location

      of her home. These calls came during a period of about twenty minutes.


[3]   Following the series of phone calls, D.H. “heard somebody rattling at [her]

      door,” and she called the police. Transcript Volume 2 at 10. South Bend

      Police Officer Jeff Cummins was dispatched to her home, and when he arrived

      he observed that D.H.’s back door had marks indicating that someone had

      attempted to pry it open.


[4]   On May 6, 2016, the State charged Byrd with invasion of privacy as a class A

      misdemeanor. On August 16, 2016, the court held a bench trial at which D.H.,

      Officer Cummins, and Byrd testified. Officer Cummins testified that he was

      not able to view the call log on D.H.’s phone because “[h]er screen was all

      cracked so it wasn’t able to be viewed. She could just receive calls.” Id. at 7.

      The court found Byrd guilty, noting that it believed D.H.’s testimony that she

      had received phone calls from him on the evening in question. On August 24,

      2016, the court sentenced Byrd to 180 days.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 2 of 7
                                                       Discussion

[5]   The issue is whether the evidence is sufficient to sustain Byrd’s conviction for

      invasion of privacy as a class A misdemeanor. When reviewing the 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 assess witness credibility or reweigh

      the evidence. Id. We consider conflicting evidence most favorably to the trial

      court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt.” Id.

      (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). The evidence is

      sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id. at 147. The uncorroborated testimony of one witness can be

      sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073

      (Ind. 1991).


[6]   The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1

      which at the time of the offense provided in part that “[a] person who

      knowingly or intentionally violates: (1) a protective order to prevent domestic

      or family violence issued under IC 34-26-5 . . . commits invasion of privacy, a

      Class A misdemeanor.”1 The charging information provides that “Byrd did

      knowingly violate a protective order to prevent domestic or family violence




      1
          Subsequently amended by Pub. L. No. 65-2016, § 37 (eff. July 1, 2016).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 3 of 7
      issued under I.C. 34-26-5 . . . to protect [D.H.], to-wit: by making phone calls to

      [D.H.].” Appellant’s Appendix Volume 2 at 5.


[7]   Byrd argues that the State failed to prove that he committed invasion of privacy

      because its case was based entirely on the testimony of D.H., whose testimony

      was “equivocal when looking at the totality of the circumstances,” that no

      witness placed Byrd at the scene, and that D.H.’s testimony is incredibly

      dubious. Appellant’s Brief at 7. The State argues that it proved each element of

      invasion of privacy beyond a reasonable doubt and that Byrd’s arguments are

      merely a request to reweigh the evidence.


[8]   Byrd asserts that the incredible dubiosity rule requires reversal of his

      convictions. We note that the rule applies only in very narrow circumstances.

      See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as

      follows:


              If a sole witness presents inherently improbable testimony and
              there is a complete lack of circumstantial evidence, a defendant’s
              conviction may be reversed. This is appropriate only where the
              court has confronted inherently improbable testimony or coerced,
              equivocal, wholly uncorroborated testimony of incredible
              dubiosity. 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. The Indiana Supreme Court in Smith v. State, 34 N.E.3d 1211 (Ind. 2015),

      recently addressed the rule as follows:




      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 4 of 7
              Application of the incredible dubiosity rule is limited to cases
              with very specific circumstances because we are extremely
              hesitant to invade the province of the jury. We recently
              summarized that, to warrant application of the incredible
              dubiosity rule, there must be: “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). In
              applying this summary in Moore, this Court found the first factor
              not met because “there were multiple testifying witnesses that the
              jury could have relied upon in reaching its verdict.” Id. at 757-
              58. In discussing inherent probability as the second factor, we
              found in Moore that it was satisfied only when the witness’s trial
              testimony was inconsistent within itself, not that it was
              inconsistent with other evidence or prior testimony. Id. at 758-
              59. Finally, in applying the third factor, absence of
              circumstantial evidence, we evaluated whether there existed
              circumstantial evidence of guilt, but did not require such
              circumstantial evidence to independently establish guilt. Id. at
              759-60.


      34 N.E.3d at 1221.


[9]   Byrd fails to show that the testimony of D.H. was inherently contradictory. To

      the extent D.H.’s testimony conflicted with the testimony of Byrd, or Byrd

      argues that D.H.’s testimony was not believable or less believable than his

      testimony, we note that these are issues of witness credibility. The function of

      weighing witness credibility lies with the trier of fact, not this Court. Whited v.

      State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the

      evidence or judge the credibility of the witnesses. See Drane, 867 N.E.2d at 146.

      Further, we cannot say that D.H.’s testimony that Byrd phoned her multiple


      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 5 of 7
       times and that she recognized his voice on the phone was so inherently

       improbable that no reasonable person could believe it. D.H. testified that she

       had known Byrd for six years and that Byrd was the father of her three children.

       Byrd does not show how the testimony against him was somehow internally

       inconsistent and has not shown D.H.’s testimony to be incredibly dubious.


[10]   Also, to the extent that Byrd focuses his argument on the fact that there was not

       a witness to place him at the scene, we observe that the charging information

       charged the crime based upon the phone calls he made to D.H. D.H. testified

       that he called her multiple times on December 9, 2015, and that he told her he

       knew where she lived and that he wanted to see her and their children. Further,

       Byrd acknowledged at trial that there was a protective order against him for the

       protection of D.H.


[11]   Based upon our review of the evidence and the testimony most favorable to the

       conviction as set forth in the record and above, we conclude that sufficient

       evidence exists from which the trier of fact could find Byrd guilty beyond a

       reasonable doubt of invasion of privacy as a class A misdemeanor. See

       Stephenson v. State, 742 N.E.2d 463, 487 (Ind. 2001) (holding that

       inconsistencies in the testimony of two or more witnesses go to the weight of

       the evidence and credibility of the testimony of each individual witness, and

       such inconsistencies do not make the evidence “incredible” as a matter of law),

       cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002); White v. State, 846 N.E.2d

       1026, 1032 (Ind. Ct. App. 2006) (finding that the incredible dubiosity rule was

       inapplicable and that by claiming contradictory testimony, instead of inherent

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 6 of 7
       contradictions within one witness’s own testimony, the defendant was asking

       the court to reweigh the evidence and assess the credibility of witnesses), trans.

       denied.


                                                   Conclusion

[12]   For the foregoing reasons, we affirm Byrd’s conviction for invasion of privacy

       as a class A misdemeanor.


[13]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2218 | May 30, 2017   Page 7 of 7
