      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Jan 30 2015, 8:56 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
      Ernest P. Galos                                           Gregory F. Zoeller
      South Bend, Indiana                                       Attorney General of Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tony Frary,                                              January 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A03-1406-CR-213
              v.                                               Appeal from the St. Joseph Superior
                                                               Court
                                                               The Honorable Elizabeth C. Hurley,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 71D08-1306-FD-526




      Mathias, Judge.

[1]   Tony Frary (“Frary”) appeals his conviction for Class D felony domestic

      battery. Frary presents a single issue for our review, namely, whether the State

      presented sufficient evidence to support his conviction. Specifically, Frary




      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 1 of 7
      contends that his conviction cannot stand because the victim’s testimony was

      incredibly dubious.

[2]   We affirm.



                            Facts and Procedural History
[3]   On June 10, 2013, Amanda Cool (“Cool”), who was seven months pregnant,

      arrived at the home she shared with her then-boyfriend, Frary. Cool and her

      two-year-old son, A.F., had spent the afternoon at Frary’s mother’s house.

      When Cool pulled into her home’s driveway, Frary ran out of the back door of

      the house and over to Cool’s van. He opened the van’s driver’s side door and

      punched Cool at least five times on the left side of her head. A.F., who was in

      his car seat in the back passenger side seat of the van, “was wide awake

      watching the whole thing.” Tr. p. 27.


[4]   Cool was eventually able to exit the van and took A.F. inside the house, where

      she fed him then put him in his bedroom. She then began to pack an overnight

      bag and told Frary that she was going to stay with Frary’s mother. Frary ran

      outside and attempted to let the air out of the tires on Cool’s van to keep her

      from leaving. Cool ran across the street to the home of her neighbor, Diana

      Landry (“Landry”). Landry called 911. By the time police officers arrived,

      however, Cool and Frary were walking together down the street in their

      neighborhood, pushing A.F. in a stroller. After Cool described to them what

      had happened, the officers arrested Frary.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 2 of 7
[5]   The State charged Frary with Class D felony domestic battery committed in the

      presence of a child on June 17, 2013. Frary entered a plea of not guilty. Two

      weeks after the incident, on June 24, 2013, Cool submitted a notarized

      statement to the court and to the prosecutor’s office indicating that, in fact,

      Frary had not physically abused her on June 10 and that only a verbal argument

      occurred between them, caused by her consumption of alcohol that afternoon.

      She also stated that she was “made to feel pressured by the prosecution and law

      enforcement when questioned after the alleged incident.” Appellant’s App. p.

      181. At a deposition on July 12, 2013, Cool testified that the facts alleged in the

      State’s charges were false and that the prosecution had pressured her to make

      the accusations against Frary. She made similar statements at a hearing on the

      no-contact order between Frary and Cool.1


[6]   A jury trial was held from April 22 to April 23, 2014. At trial, Cool stated that

      she had lied when she recanted her accusations of Frary. She described being

      punched several times by Frary on June 10, 2013, with two-year-old A.F. sitting

      behind her in her van’s back seat. The jury found Frary to be guilty as charged.

      On May 21, 2014, the trial court sentenced Frary to three years executed in the

      Department of Correction.


[7]   Frary now appeals.




      1
          After the hearing, the trial court terminated the no-contact order.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 3 of 7
                                  Discussion and Decision
[8]    Frary argues that the State failed to present evidence sufficient to support his

       conviction for Class D felony battery committed in the presence of a child less

       than sixteen years of age. In reviewing Frary’s claim, we respect the exclusive

       province of the trier of fact to weigh any conflicting evidence. McHenry v.

       State, 820 N .E.2d 124, 126 (Ind. 2005). Thus, we will neither reweigh the

       evidence nor judge the credibility of witnesses. Id. We consider only the

       probative evidence and reasonable inferences supporting the verdict, and we

       will 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. Id.

[9]    Indiana Code section 35-42-2-1.3 provides, in relevant part:

               (a) A person who knowingly or intentionally touches an individual
               who:
                        (1) is or was a spouse of the other person . . .in a rude, insolent,
                        or angry manner that results in bodily injury to the person
                        described in subdivision (1), (2), or (3) commits domestic
                        battery, a Class A misdemeanor.
               (b) However, the offense under subsection (a) is a Class D felony if the
               person who committed the offense . . .
                        (2) committed the offense in the physical presence of a child
                        less than sixteen (16) years of age, knowing that the child was
                        present and might be able to see or hear the offense.
[10]   Frary argues that the State did not present sufficient evidence that he committed

       domestic battery because Cool’s testimony was incredibly dubious and

       inherently improbable due to inconsistencies. Specifically, Frary notes that

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 4 of 7
       Cool’s testimony that she spent nearly three hours at Frary’s mother’s house

       contradicted Frary’s mother’s testimony that Cool was only at her house for a

       few minutes; that Cool’s testimony contradicted her pre-trial behavior and

       statements she had made prior to trial in a notarized statement, in a deposition,

       and in a hearing on the no-contact order; and that Cool’s testimony that Frary’s

       attorney pressured her to testify falsely at her deposition was inherently

       improbable.


[11]   Under the “incredible dubiosity rule,” this court may impinge upon the jury’s

       responsibility to judge the credibility of witnesses when confronted with

       inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony. Lawson v. State, 966 N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a

       sole witness presents inherently improbable testimony and a complete lack of

       circumstantial evidence exists, a defendant’s conviction may be reversed.

       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). Application of this rule is

       rare, though, and the standard to be applied is whether the testimony is so

       incredibly dubious or inherently improbable that no reasonable person could

       believe it. Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010). This

       incredibly dubiosity rule applies only when a witness contradicts himself or

       herself in a single statement or while testifying, and does not apply to conflicts

       between multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct. App.

       2008), trans. denied. Inconsistencies in the testimonies of two or more witnesses

       go to the weight of the evidence and do not make the evidence “incredible” as a

       matter of law. Morell, 933 N.E.2d at 492-93.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 5 of 7
[12]   In light of this standard, all of Frary’s arguments fail. He requests us to reweigh

       inconsistencies between witness testimony and prior statements or between the

       testimonies of multiple witnesses, which we may not do under the “incredible

       dubiosity rule.” See Glenn, 884 N.E.2d at 356. Cool’s account of the events of

       the afternoon of June 10, 2013, differed from Frary’s mother’s account, but

       inconsistencies between two witnesses’ testimonies do not make the evidence

       “incredible.” See Morell, 933 N.E.2d at 492-93. Even if Cool’s testimony that

       attorney Zappia pressured her into lying at her deposition was incredibly

       dubious, her other testimony provided sufficient evidence to support Frary’s

       conviction. We further note that we do not find it inherently improbable that a

       domestic violence victim would recant both her accusation and her denial of

       her accusation. See Otte v. State, 967 N.E.2d 540, 547-48 (Ind. Ct. App. 2012);

       Odom v. State, 711 N.E.2d 71, 74 (Ind. Ct. App. 1999).


[13]   As to Cool’s pre-trial statements that she fabricated her accusations against

       Frary, we have previously observed that inconsistencies between a witness’s

       pretrial statement and her trial testimony do not make the testimony incredibly

       dubious. See Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2002); see also Holeton v.

       State, 853 N.E.2d 539 (Ind. Ct. App. 2006) (discrepancies between a witness’s

       trial testimony and earlier statements made to police and in depositions do not

       render such testimony incredibly dubious).


[14]   “It is for the trier of fact to resolve conflicts in the evidence and to decide which

       witnesses to believe or disbelieve.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind.

       2001). “If the testimony believed by the trier of fact is enough to support the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 6 of 7
       verdict, then the reviewing court will not disturb it.” Id. At trial, Cool stated

       that she lied in her notarized statement and at her deposition. Cool’s neighbor,

       Landry, testified that she observed an area near Cool’s left ear that was “slightly

       red.” Tr. p. 134. Also, Cool testified that A.F. was in his car seat in the back of

       her van and watched as Frary punched Cool repeatedly on the side of her head.

       Under these facts and circumstances, Frary has not demonstrated that Cool’s

       testimony is inherently improbable testimony or equivocal, wholly

       uncorroborated testimony that is incredibly dubious.

[15]   Simply, the jury believed Cool’s testimony, that testimony was sufficient to

       support the guilty verdict, and we decline to impinge on the jury’s credibility

       determinations. Because Frary has failed to show that Cool’s testimony was so

       inherently improbable that no reasonable trier of fact could believe it, and

       because probative evidence from which the jury could have found Frary guilty

       beyond a reasonable doubt of Class D felony domestic battery exists, we affirm

       Frary’s conviction.

[16]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 71A03-1406-CR-213 | January 30, 2015   Page 7 of 7
