MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Oct 14 2015, 8:26 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
Robert J. Little                                         Gregory F. Zoeller
Brookston, Indiana                                       Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darney R. Karim,                                         October 14, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         91A02-1502-CR-122
        v.                                               Appeal from the White Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey R. Smith,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         91D01-1407-CM-355



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 1 of 7
[1]   Following a bench trial, Darney R. Karim was convicted of Class A

      misdemeanor battery resulting in bodily injury.1 He presents the following

      restated issue on appeal: whether the evidence was sufficient to convict him

      because the victim’s testimony was incredibly dubious.


[2]   We affirm.


                                       Facts and Procedural History
[3]   From approximately March 2014 to early May 2014, Dawn Dillon (“Dillon”)

      and Karim were in a dating relationship. Around noon on Monday, July 28,

      2014, Dillon got in her car in her driveway. She intended to run a quick errand

      to the store, as she was expecting her parents and children to arrive soon, and

      she wanted to make lunch for them. Dillon realized she could not find her cell

      phone, so she parked the car, stepped out, and looked back inside it for the

      phone, which she found and held in her right hand. At that time, Karim

      suddenly grabbed Dillon’s right wrist. Dillon had not known Karim was there. 2


[4]   Karim demanded that Dillon allow him into her house to retrieve belongings

      that he had left there. Dillon refused. Karim turned Dillon around to face him,

      and he grabbed her left upper arm. The car door was open, and Dillon’s back

      was to the car. She struggled to extricate herself from Karim’s grasp, moving




      1
          See Ind. Code § 35-42-2-1(b)(1), (c).
      2
       Dillon lived in a home in the country, along gravel roads. The end of her driveway was near an intersection
      with a stop sign. She frequently heard the sounds of gravel and stopping cars, and, therefore, she did not
      notice or hear when Karim and another individual arrived and parked at the end of her driveway.

      Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015           Page 2 of 7
      her arms and kicking at him. Dillon told Karim to let her go before someone

      passing by on the nearby road saw him and called the police. The incident

      lasted about a minute, and Karim released her and left.


[5]   At that time, Dillon saw red marks on her arms and legs from the encounter,

      but did not believe that what she saw was enough to report the incident to the

      police. She went to work the next day, and she began to notice bruising. One

      or more of Dillon’s friends encouraged her to report the incident to law

      enforcement. Dillon’s July 29 work shift ended at 10:00 p.m. She went to a

      friend’s home, and that friend convinced Dillon to contact law enforcement. At

      approximately 2:45 a.m. on July 30, Dillon went to the White County Sheriff’s

      Department to make a police report.


[6]   Dillon met with Deputy Aaron Page and told him what had occurred on July

      28. Deputy Page photographed bruises on Dillon’s right wrist, left arm, and

      right leg. Thereafter, Deputy Page attempted to locate Karim, but was unable

      to find him. On July 30, 2014, the State charged Karim with Class A

      misdemeanor battery resulting in bodily injury. In November 2014, Karim filed

      a notice of alibi defense.


[7]   Karim waived trial by jury, and at the February 2015 bench trial, Dillon

      testified to the above course of events. Deputy Page also testified, describing

      that, in the early morning hours of July 30, he met with Dillon at the Sheriff’s

      Department offices regarding the encounter with Karim that occurred in the

      driveway of Dillon’s home on the afternoon of July 28. The photographs that


      Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 3 of 7
      Deputy Page had taken of Dillon’s injuries were admitted into evidence without

      objection. Upon questioning, Deputy Page opined that the bruising on Dillon’s

      wrist and arm were consistent with being grabbed, and with regard to the

      bruising on her shin, Deputy Page recalled that Dillon thought she may have

      struck the car’s open driver’s side door while she was kicking at Karim.


[8]   Karim testified at trial, acknowledging that he had been in a prior relationship

      with Dillon, but stating that he had not seen her since sometime in June 2014.

      He expressly denied that he came to her home on Monday, July 28, testifying

      that on that date he was out of town at a lake house. He did not know who

      owned the lake house, and said he was there at the invitation of another friend,

      named Devin, who did not testify at trial. Karim did not know where Devin

      was living at the time of trial or how to contact him. The trial court took the

      matter under advisement, and the following day, the trial court issued an order

      finding Karim guilty as charged. Karim now appeals.


                                     Discussion and Decision
[9]   Karim’s sole claim on appeal is that the evidence presented was insufficient to

      convict him. When we review a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence, nor judge the credibility of witnesses. McClellan v.

      State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Rather, we

      consider only the probative evidence and reasonable inferences supporting the

      conviction. Id. If there is substantial evidence of probative value from which a

      reasonable trier of fact could have drawn the conclusion that the defendant was

      guilty of the crime charged beyond a reasonable doubt, then the verdict will not
      Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 4 of 7
       be disturbed. Id. We affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Boyd v.

       State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied.


[10]   Indiana Code section 35-42-2-1(b)(1) provides in relevant part that “[a] person

       who knowingly or intentionally touches another person in a rude, insolent, or

       angry manner . . . commits battery, a Class B misdemeanor.” However, the

       offense is a Class A misdemeanor “if it results in bodily injury to any other

       person.” Ind. Code § 35-42-2-1(c). Indiana Code section 35-31.5-2-29 defines

       bodily injury as “any impairment of physical condition, including physical

       pain,” and scratches, bruises, and red marks are sufficient to establish bodily

       injury. See Bailey v. State, 979 N.E.2d 133, 138 n.11 (Ind. 2012) (citing to Hanic

       v. State, 406 N.E.2d 335, 337-38 (Ind. Ct. App. 1980), where evidence of red

       marks, bruises, and minor scratches was sufficient to support a finding of bodily

       injury). Thus, in order to prove that Karim committed Class A misdemeanor

       battery, the State was required to prove that he knowingly or intentionally

       touched Dillon in a rude, insolent, or angry manner, and that such touching

       resulted in bodily injury to her.


[11]   Here, Karim argues that the evidence was insufficient because Dillon’s

       testimony was incredibly dubious. In general, the uncorroborated testimony of

       one victim is sufficient to sustain a conviction. Holeton v. State, 853 N.E.2d 539,

       540 (Ind. Ct. App. 2006). However, the “incredible dubiosity rule” provides

       that “a court may ‘impinge on the jury’s responsibility to judge the credibility of

       witnesses only when confronted with inherently improbable testimony or

       Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 5 of 7
       coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.’”

       Govan v. State, 913 N.E.2d 237, 243 n.6 (Ind. Ct. App. 2009) (quoting Murray v.

       State, 761 N.E.2d 406, 408 (Ind. 2002)), trans. denied. The application of this

       rule is rare and is limited to situations in which a sole witness presents

       inherently improbable testimony such that no reasonable person could believe it

       and there is a complete lack of circumstantial evidence of a defendant’s guilt.

       Id. The standard to be applied is “‘whether the testimony is so incredibly

       dubious or inherently improbable that no reasonable person could believe it.’”

       Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010) (quoting Fajardo v.

       State, 859 N.E.2d 1201, 1208 (Ind. 2007)). While the incredible dubiosity

       standard is not impossible to meet, it requires great ambiguity and inconsistency

       in the evidence. Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015).


[12]   In support of his claim, Karim mentions some minor inconsistencies in Dillon’s

       testimony regarding which of two Zippo-brand Detroit Lions lighters Karim

       appeared to be holding in his hand when he grabbed Dillon’s wrist. He claims

       that her testimony about the lighter was not consistent, and, furthermore, it

       “runs counter to human experience” that he could have been holding a lighter

       in his hand as he grabbed her. Appellant’s Br. at 6. He also asserts that it “defies

       logic” that if, as Dillon claims, Karim went to her home “intent on retrieving

       his personal belongings,” he would thereafter simply leave the premises without

       the desired items. Id. at 7. Karim has failed to persuade us that any perceived

       inconsistencies in Dillon’s testimony rise to the level of incredible dubiosity.

       Her testimony was not inherently improbable or equivocal, and there was

       Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 6 of 7
       circumstantial evidence, namely bruising, that was consistent with her

       description of the encounter. Deputy Page also confirmed that the injuries to

       her wrist and arm appeared consistent with being grabbed.


[13]   To the extent that Karim’s argument is that Dillon’s testimony was incredibly

       dubious because her testimony contradicted his, i.e., Dillon said Karim was at

       her house on July 28, and he said he was at a lake house on July 28, the

       incredible dubiosity rule is not applicable in that context. See Morell, 933

       N.E.2d at 492 (standard for dubious testimony is inherent contradiction, not

       contradiction between testimony of witnesses). Karim’s actual claim is one

       asking us to believe his testimony over hers. That is merely an invitation to

       reweigh evidence, which we cannot do on appeal. McClellan, 13 N.E.3d at 548.

       The State presented sufficient evidence to convict Karim of Class A

       misdemeanor battery resulting in bodily injury.


[14]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A02-1502-CR-122 | October 14, 2015   Page 7 of 7
