Pursuant to Ind.Appellate Rule 65(D), this
                                                                     Aug 28 2013, 5:49 am
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:

BARBARA J. SIMMONS                               GREGORY F. ZOELLER
Oldenburg, Indiana                               Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TERRY E. PEARSALL,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A04-1301-CR-45
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Helen Marchal, Judge
                      The Honorable Shannon Logsdon, Commissioner
                            Cause No. 49G16-1209-CM-61142


                                      August 28, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

          Appellant–Defendant, Terry E. Pearsall (Pearsall), appeals his conviction for

battery, a Class A misdemeanor, Ind. Code § 35-42-2-1(a)1(A).

          We affirm.

                                              ISSUE

          Pearsall raises one issue on appeal, which we restate as follows: Whether the

testimony of Melody Goodwin (Goodwin) was inherently contradictory so as to render

her testimony incredibly dubious.

                         FACTS AND PROCEDURAL HISTORY

          Pearsall and Goodwin met in 2005 and they started dating. On September 2, 2012,

Pearsall visited Goodwin at her apartment. They were both drinking. At some point,

Goodwin asked Pearsall how much money he made but that question made Pearsall mad.

Pearsall walked across living room lunged at Goodwin, pushed her left shoulder, and

threw her on the ground. Goodwin went down on her right side and she hurt her right

elbow and bruised her right knee. Goodwin thereafter went outside and she called the

police.

          Indianapolis Metropolitan Police Officer Jovan Lopez (Officer Lopez) responded

to the call. When he arrived, he found Goodwin standing in the pouring rain. He

questioned Goodwin as to what had happened and even though she was visibly shaken,

she calmly narrated her story.       Officer Lopez thereafter proceeded to Goodwin’s

apartment where he found Pearsall inside. During questioning, Officer Lopez asked

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Pearsall at what point he had pushed Goodwin and Pearsall response was, “when she got

up in my face.” (Transcript p. 35).

       On September 2, 2012, the State filed an Information charging Pearsall with Count

I, domestic battery, class A misdemeanor, Ind. Code Section 35-42-2-1.3(a); Count II,

battery, class A misdemeanor, I. C. § 35-42-2-1(a)(1)(A); and Count II, trespass, Class A

misdemeanor I. C. § 35-43-2-2(a). On January 3, 2012, before Pearsall’s bench trial

commenced, the State moved to dismiss Count I and Count III. At the close of the

hearing, the trial court found Pearsall guilty of battery. The trial court sentenced Pearsall

to 365 days, with 106 days executed and the remaining 259 days suspended to probation.

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

                             DISCUSSION AND DECISION

       Pearsall now contends that Goodwin’s testimony was inherently contradictory so

as to render her testimony incredibly dubious.

       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.

Whedon v. State, 765 N.E.2d 1276, 1277 (Ind. 2002). Appellate courts may, however,

apply the “incredible dubiosity” rule to impinge upon a jury’s function to judge the

credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). This rule is

expressed as follows:

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        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.
        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.

        In support of his argument, Pearsall argues that there were inconsistencies with

respect to Goodwin’s testimony. Pointing to specific examples, he asserts in his brief

that:

        Human experience teaches that if one had been drinking heavily and arguing
        throughout the night as admitted by both Ms. Goodwin and Mr. Pearsall, the
        recollection of events may not be accurate. Ms. Goodwin claimed she knew that
        Mr. Pearsall was having sexual relations with another woman. She testified that
        Mr. Pearsall came at her and pushed her down because they were probably arguing
        about money. Her version of the events is highly questionable. []

        This is classic example of a vindictive ex-girlfriend making false accusation. Ms.
        Goodwin was motivated to say Mr. Pearsall pushed her because she was angry at
        him about having sexual relations with another woman and also she was
        intoxicated. She wanted to seek revenge against Mr. Pearsall infidelity. []

        Finally, Ms. Goodwin’s version was not corroborated by the State’s other witness,
        Officer Lopez.

(Appellant’s Br. p 9).

        Our review of the record establishes that Goodwin’s testimony was not so

incredible dubious or inherently improbable that no reasonable person could believe it.

We find that Officer Lopez’s testimony at trial corroborated Goodwin’s testimony.

Specifically, Officer Lopez testified that when he arrived at Goodwin’s apartment, he

observed that Goodwin was visibly shaken but calm enough to narrate to her what had

                                             4
happened. Officer Lopez also stated that when he questioned Pearsall that night, Pearsall

admitted that he had pushed Goodwin when she got up in his face. Further, Officer

Lopez testified that although he observed open containers of alcohol at Goodwin’s

apartment, he did not observe any signs that Goodwin was intoxicated.

      In this regard, we find that Pearsall has not shown that Goodwin’s testimony was

incredibly dubious. Pearsall’s theory that Goodwin was drunk that night and she was a

jilted ex-girlfriend does not establish that Goodwin’s testimony was not credible.

Goodwin’s testimony was consistent throughout trial and her testimony of the ordeal was

corroborated by Officer Lopez. We find that Pearsall’s argument misses “the point of the

rule of incredible dubiosity.” West v. State, 907 N.E.2d 176, 177 (Ind. Ct. App. 2009.

Accordingly, we find that the record is void of any evidence that Goodwin’s testimony

was so unbelievable that no reasonable person could believe it under the circumstances.

                                     CONCLUSION

      Based on the foregoing, we conclude that Goodwin’s testimony was not inherently

contradictory so as to render her testimony incredibly dubious.

      Affirmed.

KIRSCH, J. and C. J. ROBB concur




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