Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                        Dec 30 2014, 9:34 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.


ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

ANDREA L. CIOBANU                               GREGORY F. ZOELLER
ALEX BEEMAN                                     Attorney General of Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana                           CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JUSTIN KNIGHT,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 82A05-1406-CR-286
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                   The Honorable Jeffrey L. Biesterveld, Special Judge
                          Cause No. 82D05-1204-CM-1640



                                    December 30, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Justin Knight appeals his conviction for Battery,1 a class A misdemeanor. Knight

argues that the evidence presented against him at trial was incredibly dubious and that the

trial court erred in excluding certain testimony from the victim. Finding no error, we

affirm.

                                          FACTS

          Knight and Alaina Barnett have a daughter, M.K. On the morning of February 11,

2012, Knight, Alaina, M.K., and Alaina’s mother, Janice, were together at Knight’s

home. When M.K. awoke, Janice went to get her from her bedroom. Janice brought

M.K. out to Alaina, who put her on the floor of the living room. M.K. found a plastic toy

pumpkin, which she picked up and began to carry towards Knight’s bedroom where

Knight lay in his bed. Alaina grabbed a diaper and some wipes and followed the child.

          Once inside the bedroom, Alaina picked M.K. up and laid her on the bed next to

Knight. At this moment, Knight sprung from the bed and kicked Alaina. Janice, who

witnessed this from the living room, ran towards the bedroom. Just as she reached the

entrance, Knight slammed the door in her face, hitting her in the nose. Janice pushed the

door off her face, but upon entering the bedroom, Knight placed her in a headlock.

Janice struggled to break free, but before she was able to, Knight managed to slam her

against the bedroom wall several times.

          When Janice escaped from Knight’s grasp, she ran into the living room and called

911. Alaina brought M.K. to the living room and waited with Janice until the police

1
    Ind. Code § 35-42-2-1.
                                              2
arrived. Knight remained in the bedroom. The police arrived approximately 15 minutes

later and spoke to all three adults.

       On April 2, 2012, Knight was charged with class A misdemeanor battery. A

bench trial was held on April 25, 2014. Both Janice and Alaina testified. While cross-

examining Janice, Knight attempted to elicit prior testimony that she had given at a

hearing regarding Knight’s visitation with M.K. The State objected and the trial court

sustained the objection. The trial proceeded and Knight was found guilty as charged.

Knight was sentenced to a term of 365 days, all of which was suspended to probation.

He now appeals.

                              DISCUSSION AND DECISION

       Knight first argues that the evidence presented against him was insufficient

because Janice’s testimony was incredibly dubious. In reviewing a challenge to the

sufficiency of the evidence, this Court neither reweighs the evidence nor assesses the

credibility of the witnesses.      Kilpatrick v. State, 746 N.E.2d 52, 60 (Ind. 2001).

However, under the “incredible dubiosity rule,” this Court may intrude upon the trier of

fact’s responsibility to judge witness credibility “when confronted with inherently

improbable testimony or coerced, equivocal, wholly uncorroborated testimony of

incredible dubiosity.” Id. at 60-61. “Application of this rule is limited to cases . . . where

a sole witness presents inherently contradictory testimony which is equivocal or the result

of coercion and there is a complete lack of circumstantial evidence of the appellant’s

guilt.” Id. at 61.

                                              3
       A review of the testimony shows that this is hardly a case where application of the

incredible dubiosity rule is appropriate. Here, we have two witnesses, Janice and Alaina,

telling an identical story. The story goes, in relevant part: (1) Alaina went into Knight’s

bedroom; (2) Knight kicked Alaina; (3) Janice ran towards the bedroom; (4) Knight

slammed the door in her face; (5) Knight put Janice in a headlock; and (6) Knight

slammed Janice against the wall several times. Tr. p. 9-11, 44-45. The testimony is

neither inherently improbable nor equivocal, and each corroborates the other.          Put

differently, Janice’s testimony fails to display even conventional dubiosity, let alone the

incredible variety.

       Knight argues that, aside from the testimony, there is no evidence of bodily injury,

as is required to show class A misdemeanor battery. I.C. 35-42-2-1(c). Knight asserts

that there was “no sign that Janice’s body sustained trauma of any kind” and that “one

would expect bruising, swelling, bleeding of the nose, swelling of the eyes, or some

external or visible sign of trauma.” Appellant’s Br. p. 13. This may be true. But the fact

that, in Knight’s opinion, other evidence in the record may contradict the testimony, does

not automatically render that testimony incredibly dubious. And, unless the testimony is

incredibly dubious, we leave it to the trier of fact to weigh that testimony against other

evidence. Kilpatrick, 746 N.E.2d at 60-61. In this case, Janice and Alaina’s testimony

was sufficient to sustain Knight’s conviction. See Griffith v. State, 898 N.E.2d 412, 418-

19 (Ind. Ct. App. 2008) (holding testimony sufficient to support conviction for class A

misdemeanor battery).

                                            4
       Knight next argues that the trial court erred in excluding testimony he sought to

elicit from Janice. The decision to admit or exclude evidence rests within the sound

discretion of the trial court and we will reverse only for an abuse of discretion. Bradford

v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012). Even if the trial court erred in its

evidentiary ruling, we will not reverse unless the error prejudiced the defendant’s

substantial rights. Ind. Trial Rule 61.

       At trial, counsel for Knight cross-examined Janice and attempted to elicit prior

testimony she had given at a hearing regarding Knight’s visitation with M.K. Appellant’s

Br. p. 16. The State objected, arguing that the prior testimony was irrelevant and the trial

court sustained the objection.

       Indiana Evidence Rule 103 provides that a party may claim error if the trial court

excludes evidence and “a party informs the court of its substance by an offer of proof,

unless the substance was apparent from the context.” Knight made no offer of proof, but

he argues that the substance of the testimony he sought to elicit was apparent from the

context, and thus, no offer of proof was necessary. Reply Br. p. 6-7. Knight argues that

his “theory of the case was that Janice did not sustain any ‘bodily injury’ and that both

Janice and Alaina had ulterior motive[s] to testify.” Appellant’s Br. p. 18. He further

argues that “[t]he fact that there were multiple custody proceedings and that both Janice

and Alaina were adversaries to Knight in those proceedings seeking to limit Knight’s

ability to see his child unsupervised is relevant and establishes a motive for their

testimony.” Id.

                                             5
       Assuming solely for the sake of argument that the testimony Knight sought to

elicit was relevant, we do not see how he was prejudiced as a result of the trial court’s

decision to exclude it. First, as to Alaina, Knight was allowed to question her about the

prior hearing with no objection. Appellant’s Br. p. 16 n. 3. Second, as to Janice, for the

purposes of Knight’s motive theory, all he needed to show was that Janice opposed him

in the visitation hearing. A review of the testimony shows that Knight was able to do

this. At trial, counsel for Knight questioned Janice as follows:

       Q:     You testified in a hearing in Vanderburgh Superior Court, when he
              [Knight] asked the Court for unsupervised visitation, do you
              remember that?
       A:     Yes.
       Q:     And uh, you told the same version of events then to that Judge that
              uh, you told Judge Biesterveld, correct?
       A:     To my recollection, yes.
       Q:     Because you didn’t want him to get unsupervised visitation with his
              child?

Appellant’s Br. p. 16.      Following this, the State objected on relevancy grounds.

However, the testimony preceding the objection was sufficient to show that Janice took

part in the hearing. Furthermore, because Janice testified that she told the same story in

that hearing—that Knight had battered her in the presence of her daughter and

granddaughter—it was certainly clear to the trier of fact that Janice opposed Knight’s

unsupervised visitation with M.K.

       Therefore, Knight was able to show that Janice took part in a hearing where she

opposed Knight’s unsupervised visitation with M.K. As Knight does not argue that there



                                             6
was anything more he wished to elicit from Janice, we find that he was not prejudiced as

a result of the exclusion of her testimony.

       The judgment of the trial court is affirmed.

VAIDIK, C.J., and RILEY, J., concur.




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