MEMORANDUM DECISION
                                                                    Mar 10 2015, 8:10 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
Donald J. Frew                                            Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Kenneth E. Biggins
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

C.C.,                                                    March 10, 2015

Appellant-Respondent,                                    Court of Appeals Cause No.
                                                         02A03-1408-JV-279
        v.                                               Appeal from the Allen Superior
                                                         Court.
State of Indiana,                                        The Honorable Daniel G. Heath,
                                                         Judge.
Appellee-Petitioner.
                                                         The Honorable Daniel G. Pappas,
                                                         Magistrate.
                                                         Cause No. 02D07-1303-JD-433




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 02A03-1408-JV-279 | March 10, 2015     Page 1 of 6
                                   STATEMENT OF THE CASE
[1]   Appellant-Respondent, C.C., appeals his delinquency adjudication for battery,

      which would be a Class A misdemeanor if committed by an adult, Ind. Code §

      35-42-2-1 (2013).


[2]   We affirm.


                                                     ISSUE

[3]   C.C. raises one issue on appeal, which we restate as follows: Whether the State

      presented sufficient evidence to establish his adjudication of delinquency

      beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   On March 7, 2013, D.B. was riding home from middle school on the school

      bus. While on the bus, D.B. and C.C. got into an argument about the jacket

      D.B. was wearing. At the drop-off location, D.B., C.C., and other children

      exited the school bus and D.B. started walking home with a friend. Suddenly,

      D.B. heard a noise and felt something hit him in the back. He quickly turned

      around and noticed C.C. “trying to [] tuck the gun back away and run through

      some houses.” (Transcript p. 15). The gun was “probably a little pistol,” five

      or six inches long, “all black and probably had a little bit of silver on the

      bottom.” (Tr. pp. 15, 16). D.B. incurred an injury on his back, which hurt and

      bled.

      Court of Appeals of Indiana | Memorandum Decision | 02A03-1408-JV-279 | March 10, 2015   Page 2 of 6
[5]   On May 1, 2013, the State filed a petition to adjudge delinquency against C.C.

      for battery, which would be a Class A misdemeanor if committed by an adult.

      On May 19, 2014, the juvenile court conducted a fact finding hearing, at the

      close of which the juvenile court adjudicated C.C. to be a delinquent child. On

      July 10, 2014, the court held a dispositional hearing, placing C.C. “under the

      operational supervision of the [] Probation Department[.]” (Appellant’s App.

      p. 21).


[6]   C.C. now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[7]   C.C. contends that the State failed to present sufficient evidence beyond a

      reasonable doubt to sustain his adjudication for battery which, if committed by

      an adult, would be a Class A misdemeanor. Generally, in addressing a claim of

      insufficient evidence, an appellate court must consider only the probative

      evidence and reasonable inferences supporting the judgment, without weighing

      evidence or assessing witness credibility, and determine therefrom whether a

      reasonable trier of fact could have found the defendant guilty beyond a

      reasonable doubt. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008),

      trans. denied.


[8]   While C.C. does not contest the statutory elements of the true finding of

      battery, C.C. asserts that his conviction should be set aside because D.B.’s

      testimony was incredibly dubious and inherently improbable. Within the

      narrow confines of the incredible dubiosity rule, a court may impinge upon a

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      jury’s prerogative to judge the credibility of a witness. White v. State, 706

      N.E.2d 1078, 1079 (Ind. 1999). 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. This is appropriate only where the court has

      confronted inherently improbable testimony or coerced, equivocal, wholly

      uncorroborated testimony of incredible dubiosity. Id. 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.

      Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001).


[9]   During the hearing, D.B. described the gun used by C.C. as a little handgun,

      “all black” with “a little bit of silver on the bottom.” (Tr. p. 16). This

      statement appeared to contradict statements given to three police officers on the

      day of the incident. Officer Cameron Norris with the City of Fort Wayne

      Police Department testified that D.B. told him that he never saw the gun but

      still “thought this weapon sounded like it had a silencer on it.” (Tr. p. 40).

      Officer Mark Bell informed the juvenile court that D.B. never told him a gun

      was involved. And lastly, Officer Stephen Ealing reported that D.B. “believed

      that he was shot with a long gun.” (Tr. p. 53). The officer added that the

      situation and D.B.’s statements were “confusing me.” (Tr. p. 57). Although

      D.B.’s pre-trial statements appear to contradict his trial testimony, these

      discrepancies do not make his testimony incredibly dubious. We have

      previously held that the rule only applies when a witness contradicts himself in

      a single statement or while testifying; the rule finds no application with respect


      Court of Appeals of Indiana | Memorandum Decision | 02A03-1408-JV-279 | March 10, 2015   Page 4 of 6
       to conflicts between multiple statements. See, e.g., Buckner v. State, 857 N.E.2d

       1011, 1018 (Ind. Ct. App. 2006) (“The incredible dubiosity rule applies to

       conflicts in trial testimony rather than conflicts that exist between trial

       testimony and statements made to the police before trial.”). Reviewing D.B.’s

       trial testimony, we cannot find any inherent contradictions that would propel

       his testimony to the realm of incredibly dubious.


[10]   Moreover, it is well established that the testimony of a single eye-witness is

       sufficient to sustain a conviction. Brasher v. State, 746 N.E.2d 71, 72 (Ind.

       2001). D.B. testified that he was shot by C.C. while walking home. He turned

       around and saw C.C. put the gun away and flee.


[11]   To be sure, while D.B.’s statements evolved over time, the juvenile court was

       made aware of these inaccuracies through either direct or cross examination

       and had the opportunity to determine the veracity of each witness. Based on

       the facts before us, there is no basis to apply the incredible dubiosity rule. See

       Cowan v. State, 783 N.E.2d 1270, 1278 (Ind. Ct. App. 2003) (A defendant

       cannot appeal to this rule by merely showing some inconsistency or irregularity

       in a witness’s testimony.), trans. denied.


                                               CONCLUSION

[12]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support a true finding of delinquency.


[13]   Affirmed.


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[14]   Vaidik, C.J. and Baker, J. concur




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