MEMORANDUM DECISION                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this                       Feb 06 2017, 8:54 am

Memorandum Decision shall not be regarded as                           CLERK
precedent or cited before any court except for the                 Indiana Supreme Court
                                                                      Court of Appeals
purpose of establishing the defense of res judicata,                    and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Brian J. Johnson                                       Curtis T. Hill, Jr.
Danville, Indiana                                      Attorney General of Indiana
                                                       Christina D. Pace
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

D.H.,                                                      February 6, 2017

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           32A01-1606-JV-1216

        v.                                                 Appeal from the Hendricks Superior
                                                           Court
State of Indiana,                                          The Honorable Karen M. Love,
                                                           Judge
Appellee-Petitioner.
                                                           Trial Court Cause No. 32D03-1601-
                                                           JD-15




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JV-1216 | February 6, 2017    Page 1 of 5
                                           Case Summary
[1]   In October of 2015, S.O., a juvenile, arranged via the internet to meet with a

      person who claimed to be interested in some shoes S.O. was selling. Appellant-

      Respondent D.H. arrived at the meeting place with a companion. At one point,

      D.H. forced S.O. to the ground and put a gun to his head as D.H. and his

      companion stole five pairs of shoes and an electronic tablet. The State charged

      D.H. with what would be Level 3 felony robbery if committed by an adult, and,

      after an evidentiary hearing, the juvenile court entered a true finding. D.H.

      contends that the State failed to introduce evidence sufficient to sustain the

      juvenile court’s judgment. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   In August of 2015, S.O. posted a pair of shoes for sale on the Instagram page

      “Indy on Feet.” Tr. p. 42. The shoes sold, but on October 9, 2015, someone

      using the name “cooling_all_the_time_gang” contacted S.O. Tr. p. 44. S.O.

      informed cooling_all_the_time_gang that the shoes had been sold but that he

      had five other pairs for sale. The two arranged to meet on October 12, 2015.


[3]   At around 9:00 p.m. on October 12, 2015, S.O. met with D.H. at the clubhouse

      of Avon Creek Apartments in Hendricks County. S.O. encountered D.H. and a

      companion, and D.H. indicated that there was a person nearby in a truck with

      money who was prepared to buy the shoes. S.O. could not find this person, so

      he returned to his house to communicate with cooling_all_the_time_gang via


      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JV-1216 | February 6, 2017   Page 2 of 5
      Instagram. Apparently based on this communication, S.O. returned to the

      clubhouse with the five pairs of shoes and his tablet device. D.H. and his

      companion met S.O. at the clubhouse. D.H. pulled S.O. to the ground with a

      chokehold, put a gun to his head, and said, “give me all that s***[.]” Tr. p. 57.

      D.H. and his companion took the shoes and tablet and left. It was later

      determined that D.H. owned an Instagram account using the same profile

      picture used by cooling_all_the_time_gang.


[4]   On January 15, 2016, the State filed a petition alleging D.H. to be a delinquent

      for committing what would be Level 3 robbery if committed by an adult.

      Following an evidentiary hearing during which S.O. identified D.H. as the

      person who had taken the items from him at gunpoint, the juvenile court

      entered a true finding, awarded wardship of D.H. to the Department of

      Correction, and ordered restitution of $541.00.



                                 Discussion and Decision
[5]   D.H. contends that the State produced insufficient evidence to sustain the

      juvenile court’s finding that he committed what would be Level 3 felony

      robbery if committed by an adult.

              In reviewing the sufficiency of the evidence with respect to
              juvenile adjudications, our standard of review is well settled. We
              neither reweigh the evidence nor judge the credibility of
              witnesses. C.S. v. State, 735 N.E.2d 273, 276 (Ind. Ct. App.
              2000), trans. denied (citing Fields v. State, 679 N.E.2d 898, 900
              (Ind. 1997); Moran v. State, 622 N.E.2d 157, 158 (Ind. 1993)).
              The State must prove beyond a reasonable doubt that the juvenile
      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JV-1216 | February 6, 2017   Page 3 of 5
              committed the charged offense. Id. We examine only the
              evidence most favorable to the judgment along with all
              reasonable inferences to be drawn therefrom. Id. We will affirm
              if there exists substantive evidence of probative value to establish
              every material element of the offense. Id. Further, it is the
              function of the trier of fact to resolve conflicts in testimony and to
              determine the weight of the evidence and the credibility of the
              witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App.
              1998).

      K.D. v. State, 754 N.E.2d 36, 38-39 (Ind. Ct. App. 2001).


[6]   In order to sustain a true finding that D.H. committed what would be Level 3

      felony robbery if committed by an adult, the State was required to prove that he

      “knowingly or intentionally [took] property from another person or from the

      presence of another person … by using or threatening the use of force on any

      person [or] by putting any person in fear … while armed with a deadly

      weapon[.]” Ind. Code § 35-42-5-1. S.O. testified that D.H. held a gun to his

      head and took his shoes and tablet, which is sufficient, standing alone, to

      sustain the juvenile court’s adjudication. “‘The uncorroborated testimony of a

      single witness may suffice to sustain the delinquency adjudication.’” T.G. v.

      State, 3 N.E.3d 19, 23 (Ind. Ct. App. 2014) (quoting D.W. v. State, 903 N.E.2d

      966, 968 (Ind. Ct. App. 2009), trans. denied), trans. denied.


[7]   D.H. contends that S.O. offered conflicting testimony as to the identity of his

      attacker such that we should discount that testimony. “Appellate courts may …

      apply the ‘incredible dubiosity’ rule to impinge upon a jury’s function to judge




      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JV-1216 | February 6, 2017   Page 4 of 5
      the credibility of a witness.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007)

      (citing Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)).


              If a sole witness presents inherently improbable testimony and
              there is a complete lack of circumstantial evidence, a defendant’s
              conviction may be reversed. This is appropriate only where the
              court has confronted inherently improbable testimony or coerced,
              equivocal, wholly uncorroborated testimony of incredible
              dubiosity. Application of this rule is rare and the standard to be
              applied is whether the testimony is so incredibly dubious or
              inherently improbable that no reasonable person could believe it.

      Love, 761 N.E.2d at 810 (citations omitted).


[8]   Although D.H. points to several examples of what he claims are inconsistencies

      in S.O.’s testimony, suffice it to say that, even if we assume this to be true, none

      of these examples are material to S.O.’s in-court identification of D.H. as his

      assailant, which was unequivocal. D.H. also argues that S.O.’s testimony was

      the product of “police suggestion.” Appellant’s Br. p. 20. Even if this is the

      case, this is a far cry from coercion. In the end, D.H.’s lengthy arguments

      amount to nothing more than an invitation to reweigh the evidence, which we

      will not do.


[9]   We affirm the judgment of the juvenile court.


      Vaidik, C.J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JV-1216 | February 6, 2017   Page 5 of 5
