MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Jun 14 2019, 9:39 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse W. Lepley,                                         June 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2850
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Kirsch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         57D01-1710-F1-1



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019               Page 1 of 5
                                            Statement of the Case
[1]   Jesse W. Lepley appeals his conviction for battery, as a Level 5 felony,

      following a jury trial. 1 Lepley raises a single issue for our review, namely,

      whether the State presented sufficient evidence to support his conviction. We

      affirm.


                                     Facts and Procedural History
[2]   On August 22, 2017, Indiana Department of Child Services Family Case

      Manager Marie Kidd (“FCM Kidd”) received a report of potential child abuse

      against J.S., who at the time was eight years old. FCM Kidd immediately

      observed that J.S. had a black eye. J.S. also showed FCM Kidd other injuries,

      namely, scratches and redness on his back, arm, and chin.


[3]   J.S. reported to FCM Kidd that his step-father, Lepley, had hit him. 2 FCM

      Kidd contacted local law enforcement, and she proceeded to J.S.’s residence

      with an officer. Lepley answered the door, and, when asked about the alleged

      battery of J.S., he stated that J.S. had fallen down the stairs.




      1
        Over the course of multiple fact-finding hearings in this same trial court cause number, Lepley was also
      convicted of several other offenses, which he does not challenge in this appeal. And, while Lepley filed his
      notice of appeal prior to the finalization of all of those proceedings in the trial court, there is no dispute that
      those proceedings have since become final and that this Court therefore has jurisdiction over this appeal.
      2
        Although neither FCM Kidd nor J.S. expressly testified that J.S. had made this report to FCM Kidd, it is
      the reasonable and obvious inference from FCM Kidd’s ensuing course of conduct. In any event, we note
      this inference here simply for context.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019                            Page 2 of 5
[4]   Meanwhile, a forensic nurse practitioner, Leslie Cook, at the Forensic Medical

      Center examined J.S.’s injuries. During that examination, J.S. reported to

      Cook that he had had “a bad day at school” that resulted in him being upset at

      home. Tr. Vol. 2 at 184. In response to J.S. being upset, Lepley “hit [J.S.] right

      in the eye with his hand . . . .” Id.


[5]   The State charged Lepley with battery, as a Level 5 felony. During his ensuing

      jury trial, FCM Kidd testified, and the State had admitted into the record a

      statement from Cook regarding her evaluation of J.S. J.S. also testified. In his

      testimony, he stated:


              Q        [D]id you ever go to school with a black eye?


              A        Yes.


              Q      Can you tell the ladies and gentlemen of the jury how you
              got your black eye? What happened? I want to hear the whole
              story.


              A        My step dad kicked me in the eye.


              Q        Why did he do that?


              A        Because he got angry at me.


              Q        Why?


              A        Because I was crying at my desk.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019   Page 3 of 5
      Id. at 123-24. The jury found Lepley guilty of the battery charge, and this

      appeal ensued.


                                     Discussion and Decision
[6]   On appeal, Lepley asserts that the State failed to present sufficient evidence that

      he committed battery, as a Level 5 felony. When reviewing the sufficiency of

      the evidence to support a conviction, we do not reweigh the evidence or judge

      witness credibility. E.g., B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We

      consider only the evidence favorable to the judgment and the reasonable

      inferences supporting it. Id. We will affirm if a reasonable trier of fact could

      have concluded that the defendant was guilty beyond a reasonable doubt. Id.


[7]   Lepley’s only argument on appeal is that J.S.’s testimony was incredibly

      dubious because J.S. testified that Lepley had kicked him in the eye but J.S. told

      Cook during the forensic examination that Lepley had hit him in the eye with

      Lepley’s hand. As our Supreme Court has made clear:


              Under our “incredible dubiosity” rule, we will invade the jury’s
              province for judging witness credibility only in exceptionally rare
              circumstances. The evidence supporting the conviction must
              have been offered by a sole witness; the witness’s testimony must
              have been coerced, equivocal, and wholly uncorroborated; it
              must have been “inherently improbable” or of dubious
              credibility; and there must have been no circumstantial evidence
              of the defendant’s guilt.


      McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019   Page 4 of 5
[8]    We conclude that the incredible dubiosity rule does not apply here for at least

       two reasons. First, J.S.’s testimony to the jury was not inconsistent. He

       testified that Lepley kicked him in the eye, and he gave no other explanation

       during his testimony for his black eye. The other, inconsistent evidence, that

       Lepley struck J.S. with Lepley’s hand, was contained in Cook’s written report

       and admitted into evidence well after J.S. testified. The incredible dubiosity

       rule applies only when a sole witness’s testimony is “inherently improbable,”

       not when other admissible evidence calls a witness’s credibility into question.

       See id.


[9]    Second, despite Lepley’s assertions on appeal, the evidence supporting Lepley’s

       battery conviction was not based on a sole witness. While FCM Kidd and

       Cook did not witness the alleged battery, they did personally observe injuries

       that were consistent with, and thus corroborated, the alleged battery.

       Accordingly, Lepley’s argument that the State failed to present sufficient

       evidence to support his conviction under the incredible dubiosity rule fails, and

       we affirm his conviction.


[10]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019   Page 5 of 5
