MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Sep 17 2015, 9:02 am
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
Douglas R. Long                                          Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marvin Hester,                                           September 17, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1501-CR-28
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff                                       Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1309-FD-1712



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 1 of 9
                                Case Summary and Issue
[1]   Following a bench trial, Marvin Hester was convicted of pointing a firearm at

      another person, a Class D felony. He raises two issues for our review, which

      we consolidate and restate as whether the evidence is sufficient to sustain his

      conviction. Concluding the evidence was sufficient to prove Hester’s guilt

      beyond a reasonable doubt, we affirm.



                            Facts and Procedural History
[2]   In August of 2013, Hester lived with his mother, Deborah Hester, in her

      residence in Anderson, Indiana. On August 31, police were called to the

      residence following a report of a son pointing a firearm at his mother. When

      police arrived, Deborah explained Hester pointed a firearm at her while she was

      in the home office. Further, after learning the police had been called, Hester

      took the firearm apart and then wiped it clean, leaving “bullets on the floor

      . . . .” Transcript at 138. Hester denied the presence of a firearm in the

      residence, but police discovered five .25 caliber bullets—four being found in the

      hallway “just outside the door of the office”— a firearm magazine, and an

      unloaded .25 caliber firearm located “underneath a reclining-type sofa in the

      living room or family room of the home.” Id. at 184, 189. Hester was arrested.


[3]   The State charged Hester with pointing a firearm at another person, and a

      bench trial was held. On direct examination, Deborah consistently testified

      Hester pointed a firearm at her:


      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 2 of 9
        [State:] [A]nd after this point in time . . . you talked about the
        . . . handgun. Can you go back to that and . . . tell the court what
        happened?
        [Deborah:] After I threw the things at him, he left the room, and
        he came back and he had a hand gun [sic], and he pointed it at
        me.
        ***
        [State:] And when he pointed the handgun at you, was he
        standing up?
        [Deborah:] Yes.
        ***
        [State:] Uh, what do you recall seeing of the handgun that you
        can talk about now in court?
        [Deborah:] That it was being pointed at me.


Id. at 133, 135, 136. On cross-examination, Hester’s counsel attempted to

impeach Deborah’s credibility by addressing her history of mental illness and

ability to accurately recall the altercation. Specifically, counsel questioned

whether the firearm was pointed directly at her:


        [Defense Counsel:] You told the police that, um, [Hester] had a
        gun and was pointing it at you. When . . . you told the police
        that he was pointing the gun at you, was it pointed in your
        direction?
        [Deborah:] Um, I don’t recall. I just recall the gun pointing into
        the room.
        [Defense Counsel:] But you don’t recall if it was pointed at you?
        [Deborah:] I recall it being pointed into the room.


Id. at 164. However, when questioned on re-direct, Deborah recalled telling

police Hester pointed a firearm at her. Moreover, Deborah appeared conflicted

about testifying against her son:


Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 3 of 9
              [State:] [D]id you indicate to me, um, that you didn’t want to
              testify against your son?
              [Deborah:] Yes, I did.
              [State:] And is that still how you feel?
              [Deborah:] Yes, it is.
              [State:] And you don’t want to see anything happen to your son,
              is that correct?
              [Deborah:] That’s the truth.
              [State:] And when I say “anything happen” I mean . . . through
              the legal process.
              [Deborah:] That’s the truth.


      Id. at 170-71.


[4]   Responding Officer Jon Bell testified that when police arrived, Deborah

      explained there had been a heated altercation resulting in Hester pointing a

      firearm at her. Upon learning of the firearm, Officer Bell began a search of the

      residence. According to Officer Bell, Deborah was so adamant the firearm

      remained in the residence, she crawled through a bedroom window to gain

      access to Hester’s room, which had been locked. Officer Bell testified that after

      discovering the firearm, bullets, and magazine scattered throughout the

      residence, he recognized the firearm and bullets were of the same caliber.


[5]   The trial court found Hester guilty of pointing a firearm at another person.

      Hester was sentenced to 1,095 days, with 180 days executed in the Indiana

      Department of Correction and the remainder served through a community

      corrections program. Hester now appeals his conviction.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 4 of 9
                                 Discussion and Decision
                                      I. Standard of Review
[6]   When reviewing the sufficiency of the evidence to support a conviction, a

      reviewing court shall consider only the probative evidence and reasonable

      inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). The court neither reweighs the evidence nor reassesses the credibility of

      witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Instead, the

      court should affirm the conviction unless “no reasonable fact-finder could find

      the elements of the crime proven beyond a reasonable doubt.” Drane, 867

      N.E.2d at 146-47 (citation omitted).


                              II. Sufficiency of the Evidence
                              A. Incredibly Dubious Testimony
[7]   Hester claims Deborah’s testimony was insufficient to support his conviction

      because the testimony was inherently contradictory and equivocal. Specifically,

      Hester cites his mother’s poor memory, history of mental illness, and

      inconsistent statements as to whether the firearm was pointed at her.


[8]   The incredible dubiosity rule allows a reviewing court to “impinge upon a [fact

      finder’s] responsibility to judge the credibility of the witnesses only when

      confronted with inherently improbable testimony.” Moore v. State, 27 N.E.3d

      749, 755 (Ind. 2015) (citations and internal quotation marks omitted).

      Therefore, “[a]pplication of this rule is rare and the standard to be applied is


      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 5 of 9
      whether the testimony is so incredibly dubious or inherently improbable that no

      reasonable person could believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind.

      2002). In Moore, our supreme court stated the appropriate scope of the

      incredible dubiosity rule, which requires: “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.” 27 N.E.3d at 756. If

      any one factor is lacking, application of the incredible dubiosity rule is

      precluded. Id. at 758.


[9]   As noted above, Deborah initially told the police and later testified Hester

      pointed a firearm at her. On cross-examination, however, Deborah became

      unsure, testifying she only remembered the firearm being pointed into the room

      where she sat. Hester claims this testimony is inherently contradictory, but we

      disagree. Deborah told the police Hester pointed a firearm at her. She testified

      Hester pointed a firearm at her. Deborah never testified the firearm was not

      pointed at her; on-cross examination, she simply stated she could not recall. As

      the trial court noted in its decision, the statements were merely different

      “characterizations as to what happened that were crafted by . . . counsel in the

      way questions were posed.” Tr. at 270. Further, a reasonable person could

      believe Deborah’s varying characterizations were due to her poor memory,

      history of mental illness, and reluctance to see her son suffer any legal

      consequences. Ultimately, the trial court deemed Deborah’s testimony

      credible, noting she “never relinquished from the fact” she told police Hester




      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 6 of 9
       pointed a firearm at her, and, at trial, “never indicated that’s not what

       happened.” Id. at 270.


[10]   We conclude Deborah’s testimony is not so “inherently improbable that no

       reasonable person could believe it.” Love, 761 N.E.2d at 810. Accordingly, it

       would be inappropriate for this court to impinge on the trial court’s

       responsibility to judge the credibility of a witness. See Moore, 27 N.E.3d at 760.

       Deborah’s testimony is neither inherently contradictory nor equivocal. Because

       at least one Moore factor is not satisfied, Deborah’s testimony is not incredibly

       dubious.


                                          B. Loaded Firearm
[11]   Hester claims the evidence is insufficient to support his conviction because the

       State failed to prove beyond a reasonable doubt the firearm was loaded. “A

       person who knowingly or intentionally points a firearm at another person

       commits a Class D felony. However, the offense is a Class A misdemeanor if

       the firearm was not loaded.” Ind. Code § 35-47-4-3(b) (2013). Obtaining a

       Class D felony conviction does not necessarily require the State to prove the

       firearm was loaded. Adkins v. State, 887 N.E.2d 934, 937 (Ind. 2008).


[12]   If a defendant is charged with the Class D felony, but seeks to be convicted of

       the Class A misdemeanor, “the defendant must place the fact of the gun having

       been unloaded at issue if the State’s evidence has not done so.” Id. at 938

       (holding the fact that a gun is unloaded is a “mitigating factor” rather than an

       affirmative defense). The fact “is at issue if there is some evidence from which

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 7 of 9
       the jury can draw a conclusion that the weapon was unloaded.” Scott v. State,

       924 N.E.2d 169, 176 (Ind. Ct. App. 2010), trans. denied, cert. denied, 562 U.S.

       1152 (2011). Once at issue, the State must prove the firearm was loaded

       beyond a reasonable doubt. Adkins, 887 N.E.2d at 938.


[13]   In the present case, it is not necessary to determine whether the fact that the

       firearm was loaded was at issue. Hester fails to cite to any part of the record

       indicating where the fact comes into question. Nonetheless, assuming the fact

       was at issue, and the State was required to prove the firearm was loaded beyond

       a reasonable doubt, there is ample evidence in the record to support such a

       finding. Deborah testified that Hester pointed a firearm at her while she was in

       the home office. After she threatened to call police, Hester took the firearm

       apart—leaving “bullets on the floor”—and wiped it clean with a rag. Tr. at

       138. Hester told police there was no firearm in the residence, but police

       discovered a hidden firearm, bullets, and magazine in, and near, the home

       office. The bullets were the same caliber as the firearm. These facts, taken

       together with the entirety of the record, would support a finding beyond a

       reasonable doubt the firearm was loaded when pointed at Deborah.


[14]   Hester’s arguments merely invite this court to reweigh the evidence and reassess

       the credibility of witnesses. In accordance with our standard of reviewing

       sufficiency claims, we credit the trial court’s findings as to the evidence and

       credibility of witnesses. Accordingly, the evidence is sufficient to sustain

       Hester’s conviction as a Class D felony.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 8 of 9
                                               Conclusion
[15]   Application of the incredible dubiosity rule is precluded because Deborah’s

       testimony was not inherently contradictory. Additionally, regardless of

       whether the firearm being loaded was at issue, the evidence was sufficient to

       show the firearm was loaded when Hester pointed it at his mother.

       Accordingly, we conclude a reasonable fact-finder could find beyond a

       reasonable doubt the elements of pointing a firearm at another person. Hester’s

       conviction is affirmed.


[16]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015   Page 9 of 9
