      MEMORANDUM DECISION
                                                                          Mar 05 2015, 6:52 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Timothy J. Burns                                         Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Devonne Clayborne,                                       March 5, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1407-CR-508
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Amy Jones, Judge
                                                               Case No. 49F08-0201-CM-7877
      Appellee-Plaintiff



      Mathias, Judge.

[1]   Devonne Clayborne (“Clayborne”) was convicted in Marion Superior Court of

      Class A Misdemeanor Battery. On appeal, Clayborne claims that the evidence

      was insufficient to rebut his claim of self-defense, and he claims that the

      testimony of the State’s witness should be disregarded as incredibly dubious.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015        Page 1 of 6
[2]   We affirm.


                                    Facts and Procedural History

[3]   On January 12, 2002, an altercation occurred at the apartment of Clayborne’s

      father at 2129 Shelburne Road, Indianapolis, Indiana. When Clayborne

      arrived, Clayborne’s father was arguing with the victim, James Bralock

      (“Bralock”), over gas money. Clayborne grabbed a whiskey bottle to use as a

      weapon against Bralock in case of a physical altercation. Bralock left the

      apartment and returned to his car. Clayborne followed Bralock out of the

      apartment to ensure that he was leaving the premises. Bralock entered his car to

      leave. Clayborne then threw the whiskey bottle at Bralock. The bottle shattered

      the driver’s side window and struck Bralock on the hand. Bralock was injured

      from the bottle and shattered glass.

[4]   As a result, the State charged Clayborne with Class A Misdemeanor Battery.

      On the date he was charged, Clayborne was living out of state. Clayborne failed

      to appear for his trial, and an arrest warrant was issued. Twelve years later,

      Clayborne was arrested during a traffic stop in Indiana. On June 26, 2014, a

      bench trial was held. Only two witnesses were at trial. Bralock, the victim, was

      the State’s sole witness. Clayborne was the sole witness in his own defense.

[5]   Clayborne testified that he acted in self-defense, and he raised this as an

      affirmative defense. According to Clayborne, Bralock continued making threats

      after leaving the apartment and going to his car. He testified that Bralock was




      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015   Page 2 of 6
       armed with a knife and that Bralock collided with a pillar of the building when

       he was driving away.

[6]    For his part, Bralock was unable to recall many facts of the case. Bralock could

       not recall what Clayborne said during the altercation, whether his car struck

       anything as he left, or whether he was armed with a knife.


[7]    However, Bralock testified that Clayborne threw the whiskey bottle at him.

       Specifically, Bralock testified that he left the apartment and entered his car.

       According to Bralock, Clayborne followed him out of the building and threw

       the bottle through his car window. Tr. p. 8.


[8]    Based on the testimony from these two witnesses, the trial court found that

       Clayborne did not act in self-defense. Clayborne was convicted of Class A

       Misdemeanor Battery. His sentence was suspended to probation. Clayborne

       now appeals.

                                        Discussion and Decision

[9]    Clayborne appeals his conviction on two grounds. First, Clayborne claims the

       evidence was insufficient to rebut his claim of self-defense. Second, he claims

       that the testimony of the State’s witness is incredibly dubious and should be

       disregarded.

[10]   Clayborne admits that he battered Bralock, but he argues that his actions were

       justified as self-defense. Therefore, the evidence under scrutiny is only that

       which relates to the trial court rejecting Clayborne’s self-defense claim.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015   Page 3 of 6
                                                 Self-Defense

[11]   When appealing a conviction on the grounds of sufficiency of evidence,

       “appellate courts must affirm if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt.” McHenry v. State,

       820 N.E.2d 124, 126 (Ind. 2005). The appellate court “does not reweigh the

       evidence or judge the credibility of the witnesses[.]” Id.


[12]   Because Clayborne raised a self-defense claim, the State had the burden of

       disproving at least one of the necessary elements by rebutting the defense

       directly or relying on the sufficiency of evidence in its case. Ballard v. State, 808

       N.E.2d 729, 732 (Ind. Ct. App. 2004). The necessary elements of self-defense

       are that the defendant (1) was in place where he had a right to be; (2) did not

       provoke, instigate, or participate willingly in the violence; and (3) had a

       reasonable fear of death or great bodily harm. Id.


[13]   In reviewing sufficiency of evidence appeals, appellate courts look to the

       evidence most favorable to the verdict or, in the case of a bench trial, the

       judgment. See Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001). In this case, the

       evidence most favorable to the judgment is the testimony of Bralock. Bralock

       left the apartment and was in his car when Clayborne threw the bottle at him.

       The trial court found that when Bralock went to his car, the threat ended, and

       Clayborne no longer had a reasonable fear of death or great bodily harm.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015   Page 4 of 6
[14]   Under these facts and circumstances, the trial court reasonably found that

       Clayborne’s actions were not justified as self-defense and that he was, therefore,

       guilty beyond a reasonable doubt.


                                        Incredible Dubiosity Rule

[15]   Regarding a sufficiency of evidence claim, appellate courts consider only “the

       probative evidence and reasonable inferences supporting the judgment, without

       weighing evidence or assessing witness credibility[.]” Fajardo v. State, 859

       N.E.2d 1201, 1208 (Ind. 2007). However, we may apply the “incredible

       dubiosity” rule “to impinge upon a jury’s function to judge the credibility of a

       witness.” Id.


[16]   “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.” Id. This rule is rarely applied, and the standard is

       “whether the testimony is so incredibly dubious or inherently improbable that

       no reasonable person could believe it.” Id.


[17]   The trial court convicted Clayborne based on its comparison of both witnesses’

       testimonies. The trial court was somewhat skeptical of Bralock’s inability to

       recall certain facts: “I do find it quite interesting that during [Bralock’s]

       testimony there are certain things that he cannot recall. . . . So I did have some

       concerns regarding his credibility in his testimony.” Tr. p. 27. However, the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015   Page 5 of 6
       court then stated that Clayborne’s testimony corroborated Bralock’s: “However,

       [] I then heard [Clayborne’s] testimony and [he] was able to quite frankly []

       corroborate those elements . . . . I don’t believe that self-defense is a viable

       defense under these circumstances.” Tr. pp. 27–28.

[18]   Under these facts and circumstances, a reasonable fact-finder, in this case the

       trial judge, could disbelieve Clayborne’s claim of self-defense. We conclude that

       Bralock’s testimony was not incredibly dubious.


[19]   Sufficient evidence exists in this case to support Clayborne’s Class A

       Misdemeanor Battery conviction.


[20]   Affirmed.


       Najam, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-508 | March 5, 2015   Page 6 of 6
