                                                                    FILED
                                                               Oct 19 2016, 7:25 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Kurt A. Young                                               Gregory F. Zoeller
Nashville, Indiana                                          Attorney General of Indiana
                                                            James B. Martin
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                            IN THE
     COURT OF APPEALS OF INDIANA

Ryan Clark,                                                 October 19, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            49A04-1601-CR-184
       v.                                                   Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            49G01-1406-FA-029404




 Pyle, Judge.




 Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016               Page 1 of 6
                                        Statement of the Case
[1]   Following his participation in a horrific home invasion, Ryan Clark (“Clark”)

      was convicted of the following sixteen offenses: (1) two counts of rape as Class

      A felonies; (2) three counts of criminal deviate conduct as Class A felonies; (3)

      five counts of confinement as Class B felonies; (4) one count of robbery as a

      Class C felony; (5) one count of carjacking as a Class C felony; (6) two counts

      of battery as Class C felonies; and (7) two counts of battery as Class A

      misdemeanors. He now appeals those convictions and argues that the evidence

      is insufficient to support them. Specifically, he contends that the testimony of

      victim A.M. (“A.M.”) was incredibly dubious. Finding that the incredible

      dubiosity rule does not apply in this case, we affirm Clark’s convictions.


[2]   Affirmed.


                                                       Issue
              Whether there is sufficient evidence to support Clark’s
              convictions.


                                                       Facts
[3]   In September 2013, A.M. was sitting on her back patio when three men

      wearing bandanas and clear plastic gloves approached her and ordered her into

      her house at gunpoint. A.M. was subsequently ordered to go upstairs where

      she joined her husband and three children, sixteen-year-old twin sons and a

      seven-year-old son.



      Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016   Page 2 of 6
[4]   While the family was in the upstairs bedroom, Clark told A.M. she had nice

      breasts and ordered her to remove her shirt. When A.M. refused to do so in

      front of her family, Clark pointed his gun at her face and ordered her, her

      husband, and her children to all remove their shirts. This time everyone

      complied with Clark’s order. Although Clark’s face was partially covered by

      the bandana, A.M. was able to look at his eyes, which were illuminated by a

      hall light.


[5]   The family was then ordered to go downstairs to the living room. At this point,

      none of the men were wearing their bandanas, and, as the family went down

      the stairs, A.M. was able to get a good look at Clark’s face, which was

      illuminated by a bright light. When everyone got to the living room, Clark

      ordered A.M. to remove all of her clothes. When she again refused to do so in

      front of her family, Clark ordered the entire family to “strip down naked” as he

      pointed his gun at A.M. (Tr. 39). The family again complied with Clark’s

      order.


[6]   While the other gunmen loaded the family’s car with electronics, one of the

      men took A.M. to the laundry room in the basement. Shortly thereafter, the

      other two men joined them. All three men then ordered A.M. to perform oral

      sex on them at gunpoint. At one point, A.M. opened her eyes and noticed a

      birthmark on one of the men’s hip. A.M. was then taken to an adjacent

      bathroom where each of the men raped her. Clark, who was no longer wearing

      a bandana, then dragged A.M. over to the shower and poured soap and bleach

      on her “to wash all the DNA off.” (Tr. 111). Clark briefly left A.M. in the

      Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016   Page 3 of 6
       shower, and when he returned and saw A.M. peeking out, Clark punched her in

       the face two times. At that moment, A.M. was just inches from Clark’s face,

       and she got a good look at his face, which was illuminated by the bathroom

       light.


[7]    Clark then dragged A.M. out of the shower and into the basement bedroom,

       where her family was sitting. While Clark and the other men were discussing

       what to do with the family, A.M. got another good look at Clark’s face, which

       was illuminated by the bedroom light. A.M. was only three feet away from

       Clark, who was not wearing a bandana. After threatening to kill the family if

       anyone contacted the police, the three men left in the family’s car with the

       family’s laptops, video games and consoles, and televisions.


[8]    Despite the threat on their lives, the family immediately contacted the police.

       After arriving at the scene, one of the officers found a clear plastic glove during

       a search of the house. Testing on the glove revealed the DNA of Shayne

       Thompson (“Thompson”), who was the father of Clark’s sister’s baby. Clark

       and Thompson had been seen together the week of the home invasion.


[9]    In an attempt to identify the intruders, A.M. looked at 150 photographs over a

       three-month period. When A.M. saw Clark’s picture, she said, “Oh, my God,

       that’s him.” (Tr. 492). She had no doubt about her identification.


[10]   Clark was initially charged in a twenty-three count information; however, the

       State dismissed two of the counts. At Clark’s trial, A.M. identified Clark and

       testified about the events of the home invasion. She responded as follows when

       Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016   Page 4 of 6
       asked why it was important for her to remember what the intruders looked like:

       “Because I knew that I had to remember. If I could, I should. . . . That they

       might find who did it, and I needed to know and remember what they looked

       like.” (Tr. 150-51). Photographs admitted at trial revealed that Clark had a

       birthmark on his hip matching the one seen by A.M. during one of the sexual

       assaults. Father also testified about the home invasion; however, because his

       glasses were knocked off of his face, Father’s vision was “fuzzy” and he was

       unable to identify the intruders. (Tr. 282). The children did not testify.


[11]   A jury convicted Clark of the remaining twenty-one counts. The trial court

       vacated several of the convictions and sentenced Clark to 104 years. Clark now

       appeals his convictions.


                                                     Decision
[12]   Clark argues that the evidence is insufficient to support his convictions because

       A.M.’s testimony was incredibly dubious. The incredible dubiosity rule

       recognizes that, in very rare cases, a witness’ credibility is so untrustworthy and

       lacking as to justify reversal on appeal. Moore v. State, 27 N.E.3d 749, 755 (Ind.

       2015). In Moore, the Indiana Supreme Court explained that we should only

       invoke this doctrine “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. (emphases in original).

       This standard is not an impossible burden to meet, but it is a difficult one, and




       Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016   Page 5 of 6
       the testimony must be such that no reasonable person could believe it. Id. at

       756.


[13]   Here, our review of A.M.’s testimony reveals that the incredible dubiosity rule

       simply does not apply in this case. A.M.’s testimony was not inherently

       contradictory. She never wavered in her identification of Clark and had several

       opportunities to view his uncovered face, including three times in well-lit

       conditions. Further, the identifiable mark on Clark’s hip as well as DNA

       evidence implicating his friend provided circumstantial evidence of Clark’s

       guilt. Clark’s suggestions that A.M. was too distraught to make a reliable

       identification or that there was not enough light for her to clearly see the

       intruders are requests for us to reweigh the evidence. This we cannot do. See

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (appellate courts do not reweigh

       evidence or judge credibility of witnesses). As a result, there is sufficient

       evidence to support Clark’s convictions.


[14]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1601-CR-184 | October 19, 2016   Page 6 of 6
