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                                 Sep 19 2013, 5:43 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK F. JAMES                                    GREGORY F. ZOELLER
Anderson, Agostino & Keller, P.C.                Attorney General of Indiana
South Bend, Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

J.D.M.,                                          )
                                                 )
        Appellant-Respondent,                    )
                                                 )
               vs.                               )    No. 71A05-1303-JV-109
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE ST. JOSEPH PROBATE COURT
                             The Honorable James Fox, Judge
                               Cause No. 71J01-1301-JD-5


                                     September 19, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      J.D.M. appeals his adjudication as a delinquent child for committing an act that

would be dangerous possession of a firearm, a Class A misdemeanor. We affirm.

                                         Issue

      The sole issue before us is whether there is sufficient evidence to support the true

finding that J.D.M. committed dangerous possession of a firearm.

                                         Facts

      The evidence most favorable to the true finding reveals that, on November 30,

2012, Juanita Mincey was at her home in South Bend with her mother, Kathy Mincey.

From inside her house, Juanita saw her nephew, Treonn Hardin, and J.D.M. talking in a

nearby alley. J.D.M. then approached the house, removed what appeared to be a sawed-

off shotgun from his pants, and fired it toward Juanita’s house. Buckshot penetrated the

house, and Kathy could feel it fly past her head. J.D.M. then ran away while carrying the

shotgun, as observed by Juanita and Kathy, and Juanita called 911. Juanita told the 911

operator that she did not know the shooter’s name. However, when police arrived on the

scene, she was able to name J.D.M. as the shooter.

      On January 3, 2013, the State filed a petition alleging that J.D.M., who was

sixteen, was a delinquent child for committing what would be Class A misdemeanor

dangerous possession of a firearm and Class D felony criminal recklessness if committed

by an adult. J.D.M. denied the allegations. On January 30, 2013, after conducting a fact

finding hearing, the trial court found that J.D.M. had committed dangerous possession of

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a firearm but not that he had committed criminal recklessness, and adjudicated J.D.M. to

be delinquent accordingly. J.D.M. now appeals.

                                        Analysis

      J.D.M. argues that there is insufficient evidence to support his delinquency

adjudication. When reviewing such a claim, we do not reweigh the evidence or judge the

credibility of witnesses. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.

denied.   We look only to probative evidence supporting the adjudication and the

reasonable inferences that may be drawn from that evidence to determine whether a

reasonable trier of fact could conclude beyond a reasonable doubt that the juvenile had

committed a prohibited act. Id. We will not set aside a delinquency adjudication if there

is substantial evidence of probative value to support it.      Id.   The uncorroborated

testimony of an eyewitness may be sufficient by itself to sustain an adjudication of

delinquency on appeal. Id.

      A child who knowingly, intentionally, or recklessly possesses a firearm for any

purpose other than a purpose described in Indiana Code Section 35-47-10-1 commits

dangerous possession of a firearm. Ind. Code § 35-47-10-5. J.D.M. concedes that none

of the exceptions in Section 35-47-10-1, such as use of a firearm while hunting with a

license or possessing a firearm at home with a parent or guardian’s permission, applies

here. Both Juanita and Kathy unequivocally identified J.D.M. in court as having been in

possession of what appeared to be an operational sawed-off shotgun, which he fired into

the residence. Although the firearm J.D.M. possessed was not introduced into evidence,

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this testimony was sufficient to support J.D.M.’s delinquency adjudication. See Gorman

v. State, 968 N.E.2d 845, 850-51 (Ind. Ct. App. 2012) (holding that when State must

prove possession of firearm in commission of crime, the weapon need not be introduced

at trial and conviction may be based on witness’s testimony that he or she saw defendant

in possession of what appeared to be a gun), trans. denied.

       J.D.M. alleges that the testimony of Juanita and Kathy was incredibly dubious.

Under the “incredible dubiosity rule,” we may impinge upon a fact finder’s responsibility

to judge witness credibility if we are confronted with inherently improbable testimony or

coerced, equivocal, wholly uncorroborated testimony of incredibility dubiosity. Young v.

State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. We may reverse under

this rule only if a sole witness presents inherently improbable or incredibly dubious

testimony and there is no circumstantial evidence of the defendant’s guilt. Id.

       We reject J.D.M.’s invocation of the incredible dubiosity rule.            First, his

delinquency adjudication was not based on the testimony of a sole witness, but two

witnesses—both of whose testimony was unequivocal and not in any way inherently

improbable. Second, J.D.M. attempts to raise concerns about Juanita’s and Kathy’s

ability to accurately identify him as the person they saw outside their home possessing a

firearm, based on Juanita’s not having seen him for approximately one year before the

incident and Kathy having never seen him before that day. Indiana courts, however,

leave the judging of the accuracy of eyewitness identifications within the purview of fact

finders and appellate courts will not reweigh their determinations. See Gorman, 968

                                             4
N.E.2d at 849. Third, J.D.M. questions Juanita’s in-court identification of him because

she was unable to name him as the perpetrator in the initial 911 call. It is well-settled,

however, that any inconsistencies between a witness’s trial testimony and earlier pre-trial

statements do not necessarily render the trial testimony incredibly dubious. Young, 973

N.E.2d at 1226-27.     Also, Juanita explained at trial that her inability to remember

J.D.M.’s name at the time of the 911 call was due to her shock at what had just happened.

In sum, the incredible dubiosity rule does not warrant reversal of J.D.M.’s delinquency

adjudication.

      J.D.M. also contends the trial court should have accepted the alibi testimony of his

grandfather, with whom J.D.M. was living at the time of the incident and who testified

that J.D.M. was supposed to be grounded on that day and to his knowledge did not leave

the house that day until after the incident would have occurred. We review rejection of

an alibi defense as we do any other sufficiency matter—i.e., we will not reweigh

evidence or judge witness credibility. Thompson v. State, 728 N.E.2d 155, 159 (Ind.

2000). “The State is not required to rebut directly a defendant’s alibi but may disprove

the alibi by proving its own case-in-chief beyond a reasonable doubt.” Id. Here, the

State adequately proved its case-in-chief through Juanita’s and Kathy’s testimony, which

was sufficient to rebut the alibi defense. The trial court was not required to believe

J.D.M.’s grandfather at all, or it could have believed J.D.M. was able to sneak out of the

house without his knowledge.



                                            5
       J.D.M. further argues that the State failed to prove that he possessed a sawed-off

shotgun. He relies upon Indiana Code Section 35-47-1-10, which defines “sawed-off

shotgun” as: “(1) a shotgun having one (1) or more barrels less than eighteen (18) inches

in length; and (2) any weapon made from a shotgun (whether by alteration, modification,

or otherwise) if the weapon as modified has an overall length of less than twenty-six (26)

inches.” It is true that the State presented no evidence as to the precise length of the

weapon J.D.M. possessed and, as noted earlier, did not introduce the actual weapon into

evidence.

       This lack of evidence could have been problematic if J.D.M. was alleged to have

committed dealing in or possession of a sawed-off shotgun under Indiana Code Section

35-47-5-4.1.   But he was not.       To the extent the State specifically alleged in the

delinquency petition that J.D.M. possessed a sawed-off shotgun, the precise type of

firearm that J.D.M. possessed was not a necessary element of the charge of dangerous

possession of a firearm. The State did not have to prove that J.D.M. possessed a sawed-

off shotgun that met the definition of a “sawed-off shotgun” that would be illegal for

anyone, adults included, to possess. In the context of charging informations in criminal

cases, it is clear that unnecessary descriptive material or allegations that are not essential

to a charge and that may be omitted without affecting the sufficiency of the charge are

mere surplusage and do not need to be proven by the State. Bonner v. State, 789 N.E.2d

491, 493 (Ind. Ct. App. 2003). We see no reason why the same rule would not apply to

allegations in a petition alleging delinquency. We conclude the State was not required to

                                              6
prove that J.D.M. possessed a sawed-off shotgun that met the statutory definition of a

“sawed-off shotgun” to prove the charged allegation.

       Finally, J.D.M. suggests it was illogical for the trial court to find that he

committed dangerous possession of a firearm but not criminal recklessness, as the

evidence regarding both charges was essentially identical and overlapping. Our supreme

court has held that “[j]ury verdicts in criminal cases are not subject to appellate review on

grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924

N.E.2d 643, 649 (Ind. 2010). The court observed that in the event two different verdicts

appear logically inconsistent, it simply could mean the jury exercised its well-recognized

right to exercise lenity and not to convict a defendant of all charged offenses. Id. at 648.

It further held that a defendant is adequately protected from illogical jury verdicts by

appellate review for sufficiency of the evidence. Id. at 649 (quoting United States v.

Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478 (1984)).             Again, although Beattie

specifically addressed criminal jury trials, its logic equally applies to delinquency rulings

that are claimed to be inconsistent, contradictory, or irreconcilable. It is conceivable that

the court decided to be lenient upon J.D.M. and not enter a finding upon the record that

he had committed a Class D felony, but had only committed a Class A misdemeanor. In

any event, we need not conclusively establish a logical reason why the trial court here

decided to find J.D.M. had committed dangerous possession of a firearm but not criminal

recklessness. It suffices to say that there was sufficient evidence to support the true

finding that the trial court did make.

                                             7
                                     Conclusion

      There is sufficient evidence to support J.D.M.’s delinquency adjudication for

committing dangerous possession of a firearm. We affirm.

      Affirmed.

CRONE, J., and PYLE, J., concur.




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