Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                          Jul 02 2014, 5:47 am
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:

TIMOTHY BURNS                                       GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHARLOTTE WIGGINS                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )         No. 49A02-1311-CR-972
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Amy Jones, Judge
                            Cause No. 49F08-1308-CM-47759



                                           July 2, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Charlotte Wiggins appeals her conviction for criminal mischief as a class B

misdemeanor. Wiggins raises one issue, which we revise and restate as whether the evidence

is sufficient to sustain her conviction. We affirm.

       Wiggins is the niece of Lydia Smith, and in July 2013 Wiggins lived with her mother

and sister. On July 7, 2013, Smith arrived at the Wiggins’s house to pick up Wiggins’s

mother for church and honked the horn of her vehicle but Wiggins’s mother did not come

out. Smith entered the house, noticed that Wiggins’s mother was not ready to leave, and

asked why one of her daughters “didn’t help [her] get ready.” Transcript at 7. Wiggins

stated “b----, she don’t need no help to get ready; she ain’t handicapped.” Id. at 8. Smith

told Wiggins that she was not talking to her, Wiggins told Smith to “get out of there,” and,

when Smith did not leave, Wiggins “popped [her],” Smith “popped her back,” they “tied up,”

and Wiggins’s sister “ran in and broke” up the altercation. Id. Wiggins stated “‘B’, you done

hit me in my eye, I’m going downstairs, and I’m going to key your car.” Id. Wiggins exited

the house, and Smith looked out the window and observed Wiggins start from near the front

of her vehicle and “pull[] back to [her] back door.” Id. at 9. Wiggins entered the house,

Smith told Wiggins’s mother that she was going to have Wiggins arrested, and Wiggins said

“if you fool with me I’ll go back out there and slash your tires.” Id.

       On August 15, 2013, the State charged Wiggins with criminal mischief as a class A

misdemeanor. On October 30, 2013, the court conducted a bench trial at which it heard the

testimony of Smith and Wiggins and the State presented evidence of the damage to Smith’s

vehicle. Smith testified to the above facts and that she paid a one hundred dollar deductible

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to repair the damage to her vehicle. Wiggins testified that she was sleeping when Smith

entered the house, that Smith “came in the house and as usual she wants to run everything,”

stating “[y]’all need to be getting up and helping your momma,” that she told Smith “my

momma don’t need no help, she’s not handicapped,” that she told Smith to leave her

bedroom, and that Smith said “put me out.” Id. at 19. Wiggins also testified that she

approached Smith told her to leave her room, that “before I knew it she hit me with her right

in my eye,” and that she hit Smith back. Id. at 20. Wiggins then testified that Smith “had

took her clothes off wanting to fight me so she wouldn’t mess up her church clothes.” Id. at

22. When Wiggins was asked what she was wearing that morning, Wiggins stated

“[p]anties,” and when asked “[s]o other than your underwear you were completely naked,”

Wiggins replied “[t]hat’s how I sleep . . . .” Id. at 25. The State called Smith as a rebuttal

witness and elicited testimony that Wiggins was wearing “an old duster” at the time of the

altercation and when she went outside. Id. at 26. The court found Wiggins guilty of the

lesser included offense of criminal mischief as a class B misdemeanor and sentenced her to

180 days with 178 days suspended to probation and ordered her to complete twenty-four

hours of community service work and pay restitution of one hundred dollars.

       The issue is whether the evidence is sufficient to sustain Wiggins’s conviction for

criminal mischief. When reviewing the sufficiency of the evidence to support a conviction,

we must consider only the probative evidence and reasonable inferences supporting the

verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness

credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to

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the trial court’s ruling. Id. We affirm the conviction unless no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt. Id. It is not necessary that

the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

is sufficient if an inference may reasonably be drawn from it to support the verdict. Id.

       The offense of criminal mischief is governed by Ind. Code § 35-43-1-2, which

provides in pertinent part:

       (a)    A person who:

              (1)    recklessly, knowingly, or intentionally damages or defaces
                     property of another person without the other person’s consent;
                     or

              (2)    knowingly or intentionally causes another to suffer pecuniary
                     loss by deception or by an expression of intention to injure
                     another person or to damage the property or to impair the rights
                     of another person;

              commits criminal mischief, a Class B misdemeanor. . . .

The State’s charging information for criminal mischief provided in relevant part that Wiggins

“did without the consent of Lydia Smith, recklessly or knowingly damage that person’s

property, to wit: 2003 Mercedes by scratching with an unknown object . . . .” Appellant’s

Appendix at 13. In order to convict Wiggins of criminal mischief as a class B misdemeanor,

the State needed to prove that she recklessly or knowingly damaged Smith’s vehicle by

scratching it without Smith’s consent.

       Wiggins contends the incredible dubiosity rule is applicable in this case and that

Smith’s testimony was not believable. Wiggins notes that she testified that Smith’s “story


                                             4
was a lie” and argues that Smith’s version of events “simply does not make any sense and is

inconsistent with her oral version of events.” Appellant’s Brief at 6. She posits that “[t]he

question is how probable is it that [Smith] would get into a fight or rumpled in a fight, but not

try to stop that same niece from damaging her Mercedes” and that “[n]o reasonable person

could believe a person who removes her clothing in order to fight would not take steps to

protect her valuable property.” Id. at 7. The State maintains that there is nothing inherently

contradictory or equivocal about Smith’s testimony which merely described Wiggins’s

childish and criminal behavior. The State also contends that Wiggins’s argument related to

Smith removing her clothes is misplaced, that Smith did not testify that she removed any of

her clothes, and that it was Wiggins who provided the testimony about Smith removing her

clothing to fight her.

       To the extent Wiggins asserts that the incredible dubiosity rule requires reversal of her

conviction, we note that the rule applies in only very narrow circumstances. Love v. State,

761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as follows:

       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.

Id.

       Wiggins fails to show that the testimony of Smith was inherently contradictory. To

the extent Smith’s testimony conflicted with Wiggins’s testimony or Wiggins argues that

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Smith’s testimony was less believable, we note that these are issues of witness credibility.

The function of weighing witness credibility lies with the trier of fact, not this court. Whited

v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the evidence and

judge the credibility of the witnesses. See Drane, 867 N.E.2d at 146. Further, we cannot say

that Smith’s testimony that Wiggins went outside following an altercation with Smith and

scratched Smith’s vehicle was so inherently improbable that no reasonable person could

believe it, that the testimony against her was internally inconsistent, or that Smith’s testimony

was incredibly dubious. Based upon the evidence and testimony most favorable to the

conviction, we conclude that sufficient evidence exists from which the trier of fact could find

Wiggins guilty beyond a reasonable doubt of criminal mischief as a class B misdemeanor.

       For the foregoing reasons, we affirm Wiggins’s conviction for criminal mischief as a

class B misdemeanor.

       Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




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