                                                                            Sep 30 2013, 5:28 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JEFFREY S. JACOB                              GREGORY F. ZOELLER
JACOB HAMMERLE & JOHNSON                      Attorney General of Indiana
Zionsville, Indiana
                                              J. T. WHITEHEAD
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

PAUL J. LIVERS, II,                           )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )        No. 06A01-1303-CR-119
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE BOONE SUPERIOR COURT
                       The Honorable Rebecca S. McClure, Judge
                           Cause No. 06D02-1207-CM-494


                                  September 30, 2013

                             OPINION – FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Paul Livers II (Livers), appeals his convictions for battery

causing bodily injury, a Class A misdemeanor, Ind. Code § 35-42-2-1(a)(1)(A); and

interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1).

      We affirm.

                                         ISSUES

      Livers raises two issues on appeal, which we restate as the following:

      (1) Whether Livers was denied effective assistance of counsel based upon trial

          counsel’s untimely filing of a demand for jury trial; and

      (2) Whether the evidence was sufficient to support his conviction.

                       FACTS AND PROCEDURAL HISTORY

      On July 22, 2012, Lisa Maroon (Maroon) returned from a business trip to her

home in Lebanon, Indiana, where she lived with Livers and another man. Livers was not

home when Maroon arrived but appeared later. Livers was intoxicated and the two began

arguing. The dispute escalated, and Maroon went to the garage to get into her car to

leave. Maroon sat on the driver’s side of the car with the door ajar. Livers, who had

followed her to the garage, hit Maroon in the jaw.

      Maroon told Livers that she was going to call the police. Livers took Maroon’s

cell phone and keys, which were lying on the passenger seat of the car. Thereafter,



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Livers left the house but left Maroon’s cell phone on a table near the door to the home.

Maroon retrieved her cell phone and called the police.

      Officer Daniel Vernon (Officer Vernon) of the Lebanon Police Department

responded and arrived at Maroon’s residence to take a statement. Officer Vernon saw

that Maroon’s clothes were ripped and that she had scratches on her body and a red mark

on her face. Officer Vernon took photographs of Maroon, including her face and arm.

      On July 24, 2012, the State filed an Information charging Livers with Count I,

domestic battery, a Class A misdemeanor, Ind. Code § 35-42-2-1.3; and Count II,

interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1). On

August 14, 2012, an initial hearing was held and a bench trial was set for October 17,

2012. The trial court also appointed counsel for Livers, who initialed an advice of rights

form. Paragraph No. 1 of the advice of rights form provided:

      1. You have a right to a public and speedy trial of your case, and that could
         be a trial by court of [sic] by jury. FOR A MISDEMEANOR
         CHARGE, YOU MUST REQUEST A JURY TRIAL IN WRITING AT
         LEAST TEN (10) DAYS BEFORE THE FIRST SCHDULED [sic]
         TRIAL DATE, OR YOU WILL LOSE THE RIGHT TO TRIAL BY
         JURY. If you are charged with a felony offense your case will
         automatically be set for a jury trial.

(Appellant’s App. p. 62).

      On October 17, 2012, Livers requested a continuance and the bench trial was

rescheduled to December 19, 2012. On October 26, 2012, Livers filed a request for jury

trial pursuant to Indiana Criminal Rule 22, which the trial court denied as untimely filed.



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On November 14, 2012, Livers filed a praecipe for a contested bench trial, which the trial

court granted on November 15, 2012.

         On January 16, 2013, a bench trial was held. Prior to the start of the bench trial,

Livers renewed his request for a jury trial, which the trial court again denied. On January

22, 2013, the trial court issued its Order, acquitting Livers of domestic battery, but

finding him guilty of battery causing bodily injury and interference with reporting a

crime.     On February 14, 2013, the trial court sentenced Livers to two years of

incarceration with 722 days suspended to probation.

         Livers now appeals. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

                             I. Ineffective Assistance of Counsel

         Livers argues on appeal that he was denied the effective assistance of trial counsel

based upon his counsel’s failure to timely file a demand for jury trial.           Ineffective

assistance of counsel claims are subject to the two-part test established by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Our supreme

court has summarized the relevant requirements of this two-part test:

         First, a defendant must show that counsel’s performance was deficient.
         This requires a showing that counsel’s representation fell below an
         objective standard of reasonableness and that counsel made errors so
         serious that counsel was not functioning as counsel guaranteed to the
         defendant by the Sixth Amendment. Second, a defendant must show that
         the deficient performance prejudiced the defense. This requires showing
         that counsel’s errors were so serious as to deprive the defendant of a fair
         trial, meaning a trial where the result is reliable. To establish prejudice, a
         defendant must show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding would have
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       been different. A reasonable probability is one that is sufficient to
       undermine confidence in the outcome. Further, counsel’s performance is
       presumed effective, and a defendant must offer strong and convincing
       evidence to overcome this presumption.

Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010).

       Livers asserts that his trial counsel’s untimely filing of a jury trial demand

constituted deficient performance that resulted in prejudice. Indiana Rule of Criminal

Procedure 22 provides that for misdemeanor offenses, defendants must make a written

request for a jury trial “not later than ten (10) days prior to the first trial date set for the

case.” Failure to timely demand a jury trial constitutes a waiver “unless a defendant is

without fifteen (15) days’ advance notice of the scheduled trial date and did not receive

an explanation of the consequences of his failure to demand a trial by jury.” Crim. R. 22.

       Here, Livers’ first scheduled trial date was October 17, 2012. He received notice

of the trial date on August 15, 2012 and was advised of the consequences of not

demanding a jury trial. Pursuant to Crim. R. 22, Livers had up to ten days before the trial

date to make his demand for a jury trial. Instead, on October 26, 2012, his trial counsel

filed a motion for jury trial, which was denied by the trial court as untimely.

       Livers contends that the foregoing facts give rise to an inference that his trial

counsel inadvertently missed the deadline to request a jury trial. However, the record

does not provide any indication from Livers that he wanted a jury trial prior to his trial

counsel’s belated request. Nor did trial counsel provide a reason for the untimeliness

either in her October 26, 2012 motion or at the bench trial.


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       Livers elected to raise his claim on direct appeal, rather than in post-conviction

proceedings, relying solely upon the trial record. A defendant who asserts an ineffective

assistance of counsel claim on direct appeal runs the risk that that the issue will be

foreclosed from collateral review. Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998),

cert. denied, 528 U.S. 1259 (1999). The presentation of ineffective assistance of counsel

claims often requires the development of new facts not present in the trial record. See

McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999). As explained by the United States

Supreme Court, “[i]f the alleged error is one of commission, the record may reflect the

action taken by counsel but not the reasons for it.” Massaro v. U.S., 538 U.S. 500, 505

(2003).    Similarly, “[t]he trial record may contain no evidence of alleged errors of

omission, much less the reasons underlying them.” Id. As pointed out by the Seventh

Circuit:

       When the only record on which a claim of ineffective assistance is based is
       the trial record, every indulgence will be given to the possibility that a
       seeming lapse or error by defense counsel was in fact a tactical move,
       flawed only in hindsight. It is no surprise that such claims almost always
       fail.
United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991), cert. denied, 500 U.S. 927

(1991).

       We conclude that the record is insufficient to evaluate Livers’ ineffective

assistance of counsel claim on direct appeal. This court has no testimony from trial

counsel which might explain her conduct. Nor is there any indication in the record that

Livers wanted a jury trial prior to his counsel’s belated request. Cf. Lewis v. State, 929

                                            6
N.E.2d 261, 265 (Ind. Ct. App. 2010).        Absent such a record, Livers has failed to

demonstrate his trial counsel’s ineffectiveness and the presumption that counsel

performed competently prohibits this court from finding his trial counsel’s performance

deficient.

                                 II. Incredible Dubiosity

       Livers next argues that the evidence was insufficient to sustain his conviction

because Maroon’s testimony was incredibly dubious. Under the “incredible dubiosity

rule,” this court may impinge upon the jury’s responsibility to judge the credibility of

witnesses when confronted with inherently improbable testimony or coerced, equivocal,

wholly uncorroborated testimony. Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App.

2012). 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.

Application of this rule is rare, though, 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.   This incredible dubiosity rule applies only when a witness

contradicts himself or herself in a single statement or while testifying, and does not apply

to conflicts between multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct.

App. 2008), trans. denied.

       Livers claims that Maroon was inconsistent in describing how Livers hit her jaw

while holding the driver’s side door open and therefore her testimony was incredibly

dubious. He argues that Maroon described his conduct at least three different ways:

                                             7
Livers hit her through the car door window, or over or through the car door itself. While

somewhat equivocal, we do not find this testimony incredible because Maroon

consistently testified that Livers struck her on the left side of her jaw, and she never

deviated from that testimony. Further, during re-direct, the State clarified that by holding

the door open, there was an opening between the car and the door. As a result of

observing Livers’ “physique in the courtroom” and without testimony regarding the size

of [Maroon’s] car,” the trial court concluded that Livers did not show that Maroon’s

testimony lacked plausibility. (Appellant’s App. p. 37). More importantly, the State

produced circumstantial evidence in the form of Officer Vernon’s testimony on Maroon’s

jaw injury and photographs depicting the same.         Thus, we conclude that the State

provided sufficient evidence to support Livers’ battery conviction.

                                     CONCLUSION

       Based upon the foregoing, we conclude that Livers was not denied effective

assistance of counsel. We further conclude that the State produced sufficient evidence to

prove beyond a reasonable doubt that Livers committed battery.

       Affirmed.

ROBB, C. J. and VAIDIK, J. concur




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