                                                                            FILED
                                                                        Feb 12 2019, 8:37 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Nicholas F. Wallace                                        Curtis T. Hill, Jr.
Deputy Public Defender                                     Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill                          J.T. Whitehead
Fort Wayne, Indiana                                        Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Cody J. Chambless,                                         February 12, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1384
        v.                                                 Appeal from the
                                                           Allen Superior Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        John F. Surbeck, Jr., Judge
                                                           Trial Court Cause No.
                                                           02D06-1801-F5-1



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019                           Page 1 of 19
[1]   Cody J. Chambless (“Chambless”) appeals his convictions for Level 5 felony

      domestic battery,1 Level 6 felony domestic battery,2 and Level 6 felony

      strangulation3 arising from the assault of his girlfriend (“K.B.”) He raises three

      evidentiary issues and one sufficiency of evidence issue, which we restate as

      follows:


                 I. Regarding admission of evidence, whether the trial court: (A)
                 committed fundamental error in admitting K.B.’s 911 phone call
                 into evidence; (B) abused its discretion in admitting K.B.’s
                 statement to the medic who treated her that Chambless was her
                 attacker; and (C) abused its discretion in admitting the jail phone
                 conversation between Chambless and K.B. in which K.B.
                 accused Chambless of choking her; and


                 II. Whether sufficient evidence supports Chambless’s
                 convictions.


      We affirm.


                                       Facts and Procedural History
[2]   Chambless was K.B.’s boyfriend. Tr. Vol. 1 at 24. On Christmas day of 2017,

      K.B. was living with Chambless in an Allen County apartment. Id. at 24-25.

      K.B. was working ninety-six hours per pay period as a cook at the Pilot truck

      stop while Chambless was unemployed. Id. at 25. K.B. worked Christmas Eve




      1
          See Ind. Code § 35-42-2-1.3(c).
      2
          See Ind. Code § 35-42-2-1.3(b).
      3
          See Ind. Code § 35-42-2-9.


      Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019        Page 2 of 19
      from 11:00 p.m. to 7:00 a.m. Christmas morning. Id. at 26. She arrived home

      at about 7:25 or 7:30 a.m.; Chambless was at home watching television and

      drinking. Id. K.B. put on her pajamas and rested for a few hours, and when

      she awoke, Chambless was still drinking. Id.


[3]   K.B. was tired of Chambless’s drinking, which she described as an everyday

      occurrence: “every time I come home he’s drinking, every time I wake up

      before work, he’s drinking . . . . So he was drinking and that really upset me.”

      Id. at 26-27. They argued and fought; K.B. threatened to leave Chambless,

      warning him that it was “his drinking or me.” Id. at 27. During the fight,

      Chambless punched holes in the wall and broke a door on an upstairs

      bathroom. Id. at 27-28; State’s Ex. 6, 8. The fight occurred around 10:10 a.m.

      Id. at 52.


[4]   K.B. ran from the apartment to a BP gas station two or three blocks away. Tr.

      Vol. 1 at 28-29, 48. Even though it was cold outside, K.B., in her haste, did not

      don a winter coat or boots, instead wearing only a shirt, pants, and regular

      shoes. Id. 28-29, 53. When she arrived at the BP station, K.B. told the

      employees about the fight, and they called 911 for her. Id. at 28-29. During the

      call, K.B. told the police that Chambless had beaten her. Id. at 28. She also

      said that she was having trouble breathing. Id. at 30. Her breathing sounded

      labored and wheezy. See State’s Ex. 1.


[5]   Medics, including Marah Bradbury (“Medic Bradbury”), responded to the 911

      call and tended to K.B. at the gas station by checking her blood pressure and


      Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 3 of 19
      pulse. Tr. Vol. 1 at 30, 47. K.B. told Medic Bradbury that Chambless had

      assaulted her. Id. at 30, 48. Offering more details, K.B. said that Chambless

      slapped her in the face and strangled her with his hands, making her feel like

      she would faint. Id. at 48. K.B. also told Medic Bradbury that she escaped

      Chambless “just in time” and ran to the gas station to call for help. Id. Medic

      Bradbury observed abrasions to each side of K.B.’s jaw and a bruise on the

      bottom of K.B.’s neck. Id. at 47.


[6]   Police officers, including Officer Robert Geiger of the Fort Wayne Police

      Department (“Officer Geiger”), also responded to the 911 call, arriving at the

      BP station around 10:30 a.m. Id. at 36, 51-52. K.B. was still upset and crying

      when she spoke with Officer Geiger; she told him that she was still afraid. Id. at

      37, 51. K.B. told the officers that Chambless had strangled her. Id. at 36.

      Officer Geiger observed redness around K.B.’s neck. Id. at 53. Later that day,

      K.B. spoke to Detective Michael Epps of the Fort Wayne Police Department

      (“Detective Epps”), and likewise told him that Chambless had choked her. Id.

      at 40, 57. Detective Epps observed a scratch on K.B.’s neck and swelling on her

      left cheek. Id. at 57.


[7]   The State charged Chambless with three counts: Count I, Level 5 felony

      domestic battery with a prior domestic battery conviction where K.B. was the

      victim; Count II, Level 6 felony domestic battery with a prior domestic battery

      conviction where someone other than K.B. was the victim; and Count III,

      Level 6 felony strangulation. Appellant’s App. Vol. II at 14-18.



      Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019   Page 4 of 19
[8]    Chambless was initially incarcerated at the Allen County Jail. Upon placement

       there, inmates such as Chambless receive a packet that tells them that the jail

       monitors inmate phone calls. Tr. Vol. 1 at 61-62. The same information is

       posted in every cell block. Id. at 62. When an inmate uses a jail phone, an

       audio recording reminds the inmate that the phone call is monitored. Id. On

       December 26, 2017, while Chambless was in jail, he and K.B. spoke on the

       phone about their fight from the previous night. Id. at 65, 70; State’s Ex. 11. In

       their conversation, K.B. told Chambless: “you strangled the fuck” out of me.

       Tr. Vol. 1 at 70; State’s Ex. 11.


[9]    At Chambless’s jury trial, the State tendered, and the trial court admitted, an

       audio recording of K.B.’s 911 call without objection from Chambless. Tr. Vol. 1

       at 22-23. The trial court also admitted, this time over Chambless’s hearsay

       objection, the audio recording of Chambless’s phone call from jail to K.B. Id.

       at 63-65; 70; State’s Ex. 11. The State tendered Exhibit 11 through Corporal Jeff

       Kroemer of the Allen County Sheriff’s Department, who operated the phone

       system at the Allen County Jail, and who listened to the conversation between

       Chambless and K.B. The exhibit was published to the jury. Tr. Vol. 1 at 66.


[10]   The State also elicited testimony, over Chambless’s objection, from Medic

       Bradbury, who recounted K.B.’s statements to Medic Bradbury that Chambless

       had assaulted K.B. by striking her and choking her and that she had escaped

       “just in time” to run to the gas station for help. Id. at 30, 40-41, 46-49.




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019         Page 5 of 19
[11]   When K.B. testified, she recanted her allegation that Chambless had assaulted

       her. She said Chambless had not choked her but that she had choked herself,

       explaining:


               [K.B.]: Because I was just tired of everything, I’m tired of the
               stress and going through everything. I was to the point where I
               was just ready to end my life. I lost my daughter six (6) years
               ago, towards, four (4) days before Christmas, and living with
               that, it hurts. I’ve never gotten help for it. I don’t know if I ever
               will.


               ....


               [Defense counsel]: Okay. We just heard on the 911 call, as [the
               deputy prosecutor] said, that you told them my boyfriend
               assaulted me. Why would you tell them that?


               [K.B.]: Cause I was just tired of everything, the stress, everything
               going on at home, him drinking, him not working. I’m the only
               one paying the bills. Yeah, he goes on Craigslist and sells his
               stuff, trade his stuff to help out, yeah. It helps out with the food
               and everything, and cigarettes, but it’s – the bigger picture I’m
               looking at . . . bills, somewhere for us to live, and a roof over our
               head, and it’s just all the stress and everything. I just couldn’t
               take it no more, and I didn’t mean to do that for him. I
               apologize, and it’s not right.


               ....


               [Defense counsel]: How were you going to get him out of the
               house?




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019           Page 6 of 19
               [K.B.]: Make up lies just to get him out cause I know you would
               have to evict him cause he established residency there, he gets
               mail there. So the only way is the eviction and I wasn’t going to
               go through another stressor on top of another stressor, the
               eviction process, and then going to court for the eviction. It’s just
               – the only thing I knew is get him to go to jail, is the only thing I
               knew.


       Id. at 31-33.


[12]   The jury found Chambless guilty as charged. Id. at 86-89. At sentencing, the

       trial court merged Counts II and III into Count I and sentenced Chambless to

       five years, with three years executed and two years suspended to probation.

       Appellant’s App. Vol. II at 8-9, 93. Chambless now appeals.


                                       Discussion and Decision
[13]   Chambless raises three evidentiary issues and one sufficiency issue. Regarding

       the former, he argues that the trial court should not have admitted the following

       three pieces of evidence, all out-of-court statements: 1) the recording of K.B.’s

       911 phone call; 2) the part of Medic Bradbury’s testimony that recounted K.B.’s

       statement that Chambless was her attacker; and 3) the recording of the jail

       phone call. Because he did not object at trial to the admission of the 911 call,

       Chambless tries to resurrect that claim by alleging fundamental error.

       Regarding the latter issue, he argues that the State failed to present sufficient

       evidence to support his convictions because the State’s only evidence was

       inadmissible hearsay. He notes that, at trial, K.B. recanted her allegations.




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019      Page 7 of 19
       Thus, he claims that the guilty verdict is “completely against logic and sound

       reasoning.” Appellant’s Br. at 19.


                                          I. Evidentiary Issues
[14]   As to Chambless’s evidentiary claims, we note that a trial court has broad

       discretion in ruling on the admissibility of evidence, and we disturb those

       rulings only upon an abuse of that discretion. Carr v. State, 106 N.E.3d 546, 552

       (Ind. Ct. App. 2018), trans. denied. An abuse occurs only where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances.

       Palmer v. State, 704 N.E.2d 124, 127 (Ind. 1999). There is a strong presumption

       that the trial court properly exercised its discretion. Warner v. State, 773 N.E.2d

       239, 247 (Ind. 2002). In determining the admissibility of evidence, we will only

       consider evidence that favors the trial court’s ruling and unrefuted evidence that

       favors a defendant. Sallee v. State, 777 N.E.2d 1204, 1210 (Ind. Ct. App. 2002).

       We will not reverse a trial court’s evidentiary ruling if we may sustain it on any

       ground. See Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).


[15]   Hearsay is “a statement that: (1) is not made by the declarant while testifying at

       the trial or hearing; and (2) is offered in evidence to prove the truth of the

       matter asserted.” Ind. Evidence Rule 801(c). Hearsay is not admissible except

       as provided by law or by other court rules. Ind. Evidence Rule 802.


                                 A. K.B.’s Statements in 911 Phone Call

[16]   Chambless argues that it was fundamental error to admit the 911 call, claiming,

       inter alia, that K.B.’s statements in the call were hearsay, which were not

       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019      Page 8 of 19
       admissible as excited utterances because the State did not pose questions to

       K.B. as to whether she was under stress when she made the call or establish a

       time frame between the time of the fight and the 911 call. “Thus, no proper

       foundation was laid for an excited utterance exception to the prohibition

       against hearsay.” Appellant’s Br. at 14. The fundamental error exception is

       extremely narrow and encompasses only errors so blatant that the trial judge

       should have acted independently to correct the situation. See Durden v. State, 99

       N.E.3d 645, 652 (Ind. 2018). Chambless concedes that to prevail on a claim of

       fundamental error, he must show that the admission of the 911 call made “a fair

       trial impossible.” See id.


[17]   As Chambless acknowledges, a trial court may admit hearsay that qualifies

       under the excited utterance exception. See Ind. Evidence Rule 803(2). An

       excited utterance is a “statement relating to a startling event or condition made

       while the declarant was under the stress of excitement that it caused.” Id. The

       rationale behind admitting excited utterances is that startling events and

       absence of opportunity for reflection vest the statements with reliability and

       reduce the likelihood of falsification. 13 Robert Lowell Miller Jr., Indiana

       Practice: Indiana Evidence § 803.102 (3d ed. 2007). Whether a statement

       constitutes an excited utterance is a factual determination subject to a clearly

       erroneous standard of review. Davenport v. State, 749 N.E.2d 1144, 1148 (Ind.

       2001).


[18]   To use this exception, the proponent of the evidence must establish three

       foundations: (1) a startling event; (2) a statement made while the declarant was

       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 9 of 19
       under the stress of excitement caused by the event; and (3) that the statement

       relates to the event. Id. We do not apply this test mechanically but consider the

       particularities of each case. Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App.

       2012). “The heart of the inquiry is whether the declarant was incapable of

       thoughtful reflection.” Id. “A declaration does not lack spontaneity simply

       because it was an answer to a question. Whether given in response to a

       question or not, the statement must be unrehearsed and made while still under

       the stress of excitement from the startling event.” Yamobi v. State, 672 N.E.2d

       1344, 1346 (Ind. 1996).


[19]   The event and utterance need not be contemporaneous, though lapse of time is

       a factor to consider when deciding if the statement was spontaneous and

       unrehearsed. Holmes v. State, 480 N.E.2d 916, 918 (Ind. 1985). The longer the

       time between an event and an utterance, the greater the likelihood that the

       statement is a narrative of past events instead of an excited utterance. See Lewis

       v. State, 554 N.E.2d 1133, 1136 (Ind. 1990) (discussing res gestae exception, “the

       possibility of shrewd and self-calculated answer” was not precluded but was in

       fact facilitated by the passage of time). However, the greater the stress caused

       by the event, the longer the effects of the stress can endure. For instance, in

       Yamobi, 672 N.E.2d at 1346-48, our Supreme Court held that a statement as

       long as one hour after a shooting was admissible as an excited utterance. In

       Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans. denied, a rape

       victim’s 911 phone call at least four hours after the rape was admissible under

       the excited utterance exception.

       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019    Page 10 of 19
[20]   Chambless’s arguments that the State did not ask K.B. on direct exam whether

       she was under stress when she made the call or establish a time frame between

       the fight and the call are unavailing. The testimony at trial clearly showed the

       contrary. K.B. had been beaten and strangled, clearly a startling event, one that

       made her run from the apartment “just in time,” not taking the time to wear a

       coat and winter boots despite the cold weather. See Tr. Vol 1 at 28-29, 48, 53.

       Further, the fact that Chambless, during the altercation, punched holes in the

       wall and broke a door to an upstairs bathroom accentuated the emotional

       intensity of the event. See id. at 27-28; State’s Ex. 8. K.B. had trouble breathing

       during her 911 call further illustrating her distressed state of mind. Tr. Vol. 1 at

       30. Because the fight occurred at 10:10 a.m. and K.B. called 911 no later than

       10:28 a.m., her statement to the 911 operator occurred a short time after she

       was attacked, not giving her time for thoughtful reflection. See id. at 36, 51-52;

       see also Yamobi, 672 N.E.2d at 1346 (statement one hour after shooting was an

       excited utterance) and Newbill, 884 N.E.2d at 397 (rape victim’s 911 phone call

       at least four hours after incident was admissible as an excited utterance).


[21]   These facts easily established the foundational requirements for excited

       utterances: (1) a startling event; (2) a statement made under the stress of the

       event; and (3) a statement that relates to the event. Davenport, 749 N.E.2d at

       1144. They also establish that K.B.’s statements during the 911 call were

       unrehearsed and made while still under the stress from the fight. See Yamobi,

       672 N.E.2d at 1346. K.B.’s statements during the 911 call were admissible as




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 11 of 19
       excited utterances, and there was no error, fundamental or otherwise, in

       allowing the jury to hear this evidence.


                                  B. K.B.’s Statements to Medic Bradbury

[22]   Chambless argues that Medic Bradbury’s statement that recounted K.B.’s

       allegation to Medic Bradbury that Chambless had assaulted her was

       inadmissible hearsay. Chambless acknowledges that statements made pursuant

       to medical treatment or diagnosis are admissible under Indiana Rule of

       Evidence 803(4), but he claims that statements about the identity of the

       perpetrator who caused the injuries are not admissible under this exception.4


[23]   Indiana Evidence Rule 803(4) provides that statements for purposes of medical

       diagnosis or treatment are admissible if the statement:


                (A) is made by a person seeking medical diagnosis or treatment;


                (B) is made for--and is reasonably pertinent to--medical diagnosis
                or treatment; and


                (C) describes medical history; past or present symptoms, pain or
                sensations; their inception; or their general cause.




       4
         Chambless has waived this claim because while he made a general objection at trial on hearsay grounds at
       the outset of Medic Bradbury’s testimony, he failed to object on these more specific grounds when Medic
       Bradbury testified that K.B. told her that Chambless was her attacker. Tr. Vol 1 at 48. A party may not add
       to or change his grounds for objections on appeal. Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010). Any
       ground not raised at trial is not available on appeal. Id. Nonetheless, we will review this claim on the merits.



       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019                             Page 12 of 19
       Id. This hearsay exception is “based upon the belief that a declarant’s self-

       interest in seeking medical treatment renders it unlikely that the declarant

       would mislead the medical personnel person she wants to treat her.” Miles v.

       State, 777 N.E.2d 767, 771 (Ind. Ct. App. 2002) (citing McClain v. State, 675

       N.E.2d 329, 331 (Ind. 1996)).


[24]   Such statements usually do not include statements that identify the perpetrator

       because the identity of the perpetrator is usually not necessary to provide

       effective medical care. Perry v. State, 956 N.E.2d 41, 49 (Ind. Ct. App. 2011);

       Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001). However, where

       the identity of the perpetrator is relevant to appropriate diagnosis and

       treatment, we have upheld the admission of statements that identify a

       perpetrator. In Nash, for instance, we found that a rape victim’s statement to an

       emergency room nurse that her estranged husband had raped her was relevant

       to her treatment because part of the nurse’s job was to determine if a person was

       a victim of abuse and, if so, determining the identity of perpetrator would help

       the nurse recommend appropriate counseling resources and how to advise the

       victim about avoiding further domestic abuse. Id. at 1025. Nash also discussed

       how other jurisdictions had used this rationale to admit children’s statements to

       medical providers that identified the perpetrator of abuse.


               The reason for allowing such testimony is “that knowledge of the
               perpetrator is important to the treatment of psychological injuries
               that may relate to the identity of the perpetrator and to the
               removal of the child from the abuser’s custody or control.” 2
               John W. Strong, McCormick on Evidence § 278 at n.9. . . .
               [T]he identity of the child abuser is not only pertinent to treating
       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019      Page 13 of 19
               the child’s emotional and psychological injuries, but also
               necessary to prevent a child from being returned to an abusive
               environment. Accordingly, where a child abuser is a member of
               the family or household, this person’s identity is particularly
               pertinent to the medical personnel’s recommendation with
               respect to treatment.


       Id. at 1024-25.


[25]   United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993) discussed this rationale

       in rape cases:


               The physician generally must know who the abuser was in order
               to render proper treatment because the physician’s treatment will
               necessarily differ when the abuser is a member of the victim’s
               family or household. In the domestic sexual abuse case, for
               example, the treating physician may recommend special therapy
               or counseling and instruct the victim to remove herself from the
               dangerous environment by leaving the home and seeking shelter
               elsewhere. In short, the domestic sexual abuser’s identity is
               admissible under Rule 803(4) where the abuser has such an
               intimate relationship with the victim that the abuser’s identity
               becomes “reasonably pertinent” to the victim’s proper treatment.


       See also Perry, 956 N.E.2d at 49.


[26]   The same reasoning applies here. K.B.’s identification of Chambless, her live-

       in boyfriend, as her attacker was relevant to Medic Bradbury’s diagnosis and

       treatment of K.B. As with any medical professional, Medic Bradbury would

       need to tailor her diagnosis and treatment to the particularities of each case.

       Her treatment and recommendations for a victim of domestic abuse would

       undoubtedly differ, in some regards, from the treatment and recommendations
       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 14 of 19
       she would give a victim who was assaulted by a stranger. See Joe, 8 F.3d at

       1494-95. Special therapy or counseling is often appropriate for victims of

       domestic violence. See Nash, 754 N.E.2d at 1025. Thus, learning from K.B.

       that Chambless was her attacker would help Medic Bradbury assess what kind

       of counseling services would best suit K.B. and could result in K.B. being

       directed to one of the local domestic violence shelters.


[27]   Thus, while the identification of an attacker in a statement to a medical

       professional is normally not admissible under Indiana Evidence Rule 803(4),

       K.B.’s statement here identifying Chambless as her attacker was admissible to

       aid Medic Bradbury in her diagnosis and treatment of K.B. Thus, the trial court

       did not abuse its discretion in admitting this statement.5


                             C. K.B.’s Statements During Jail Phone Call

[28]   Chambless contends that the trial court abused its discretion in admitting into

       evidence a recording of the jail phone call conversation between him and K.B.,

       particularly K.B.’s statement to Chambless during that conversation that “you

       strangled the fuck out of me”. Tr. Vol. 1 at 70; State’s Ex. 11. Chambless

       acknowledges that his own statements during the conversation were admissible




       5
         K.B.’s statement to Medic Bradbury was also arguably admissible under the exited utterance exception.
       While the record does not explicitly state that K.B. spoke to Medic Bradbury around the same time she made
       her 911 call, the most reasonable interpretation of the record suggests that both conversations occurred
       around the same time. Because K.B. was clearly agitated and stressed when she made her 911 call, she was
       likely in the same state of mind when she told Medic Bradbury that Chambless was the person who attacked
       her. See Tr. Vol 1 at 37, 51.

       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019                        Page 15 of 19
       as statements against interest but claims this reason does not justify admission

       of K.B.’s statements during that conversation.


[29]   Chambless fails to recognize that recordings of telephone calls made from jail

       are admissible when the defendant discusses the crime for which he is

       incarcerated. Baer v. State, 866 N.E.2d 752, 762 (Ind. 2007); King v. State, 985

       N.E.2d 755, 759 (Ind. Ct. App. 2013). In Baer, the defendant was advised that

       jail phone conversations were recorded. Id.


[30]   The same is true here. Inmates at the Allen County Jail receive a packet that

       provides information about the jail’s policies, including the policy that allows

       jail personnel to monitor inmate phone calls. Tr. Vol. 1 at 61-62. The same

       information is posted in every cell block, and when an inmate uses a jail phone,

       an audio recording reminds the inmate about the policy. Id. Thus, Chambless

       was warned that his phone conversations, including his conversation with K.B.,

       would be recorded. Id. Nonetheless, he chose, at his own risk, to discuss his

       crime over the phone with K.B. Thus, the trial court did not abuse its discretion

       in admitting the jail phone conversation between Chambless and K.B. See Baer,

       866 N.E.2d at 762.6




       6
         Chambless’s final argument regarding evidence admitted at trial is that even if the admission of each
       statement was, standing alone, harmless error, the cumulative effect of the erroneous rulings resulted in
       fundamental error. Because we find no error regarding any of these evidentiary issues, this argument has no
       merit.



       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019                          Page 16 of 19
                                     II. Sufficiency of Evidence
[31]   Chambless claims the State failed to present sufficient evidence for his

       convictions because they rested solely on the inadmissible hearsay statements

       from the 911 call, the testimony of Medic Bradbury, and the jail phone

       conversation. Thus, Chambless argues, the only evidence addressing his guilt

       was K.B.’s recantation at trial that Chambless had assaulted her. Therefore, he

       contends we should invoke the incredible dubiosity rule to impinge on what is

       usually the jury’s responsibility to judge witness credibility. See Moore v. State,

       27 N.E.3d 749, 754 (Ind. 2015).


[32]   When reviewing the sufficiency of evidence, we do not reweigh the evidence or

       judge the credibility of the witnesses, and it is the jury’s role to weigh conflicting

       evidence. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001). We consider only

       the probative evidence and reasonable inferences supporting the verdict. Id.

       We will affirm the trial court if the probative evidence and reasonable

       inferences drawn therefrom could have allowed the jury to find a defendant

       guilty beyond a reasonable doubt. Id. A conviction can be sustained on the

       uncorroborated testimony of a single witness, even when that witness is the

       victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We will not second

       guess a jury’s assessment of witness credibility unless the witness’s testimony is

       inherently improbable. See Holden v. State, 815 N.E.2d 1049, 1053 (Ind. Ct.

       App. 2004), trans. denied.




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019      Page 17 of 19
[33]   Here, we reject Chambless’s argument that the State failed to present sufficient

       evidence for his convictions. It is not true that K.B.’s convictions were

       supported only by her out-of-court statements. Independent evidence of the

       assault came from: (1) Medic Bradbury’s observation of abrasions to each side

       of K.B.’s jaw and a bruise on the bottom of K.B.’s neck; (2) Officer Geiger’s

       observations of redness around K.B.’s neck; and (3) Detective Epps’s

       observations of a scratch on K.B.’s neck and swelling on her left cheek. Tr. Vol.

       1 at 47, 53, 57.


[34]   This independent evidence is especially important because where, as here, a

       victim recants, a conviction may not rest on a repudiated out-of-court statement

       unless there is substantial independent evidence of probative value from which

       the jury could find that the repudiated statement is credible. Peckinpaugh v.

       State, 447 N.E.2d 576, 581 (Ind. 1983). Here, the testimony of Medic

       Bradbury, Officer Geiger, and Detective Epps regarding her injuries provided

       such substantial evidence that allowed the jury to find that K.B.’s repudiated

       statement was, in fact, credible. See id.


[35]   Finally, Chambless’s incredible dubiosity argument is unavailing. Under the

       incredible dubiosity rule, a court will impinge on the jury's responsibility to

       judge the credibility of the witnesses only when it has confronted inherently

       improbable testimony or coerced, equivocal, wholly uncorroborated testimony

       of incredible dubiosity. Moore v. State, 27 N.E.3d at 755. This rule applies only

       when a witness contradicts herself in a single statement or while testifying; it

       does not apply to conflicts between multiple statements. See Glenn v. State, 884

       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 18 of 19
       N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied; see also Buckner v. State, 857

       N.E.2d 1011, 1018 (Ind. Ct. App. 2006). When a witness’s trial testimony

       contradicts a statement she made before trial, it is the jury’s province to decide

       which statement to believe. Glenn, 884 N.E.2d at 356. Discrepancies between

       pretrial statements and trial testimony go to the weight of testimony and

       credibility of the witness but do not render such testimony incredibly dubious.

       Holeton v. State, 853 N.E.2d 539, 542-43 (Ind. Ct. App. 2006). Thus, the

       incredible dubiosity doctrine does not apply here because the contradiction was

       between K.B.’s pre-trial statements and her trial testimony, not within her trial

       testimony itself. Accordingly, the State presented sufficient evidence for

       Chambless’s convictions.


[36]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019     Page 19 of 19
