MEMORANDUM DECISION                                                                 FILED
                                                                              09/06/2017, 9:44 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                    CLERK
this Memorandum Decision shall not be                                           Indiana Supreme Court
                                                                                   Court of Appeals
regarded as precedent or cited before any                                            and Tax Court

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
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Anthony S. Churchward, PC
Fort Wayne, Indiana                                      Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daveaun D. Carson,                                       September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1612-CR-2895
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D05-1608-F3-48



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017          Page 1 of 7
[1]   Daveaun D. Carson appeals his conviction of Level 3 felony robbery, 1 arguing

      the evidence was insufficient to sustain the conviction. We affirm.



                                Facts and Procedural History
[2]   On July 28, 2016, John Burley was trying to buy a used television through a

      mobile device application called LetGo. 2 He located a television that interested

      him and entered into negotiations with a user calling himself “Brian,” (see, e.g.,

      Tr. Vol. 1 at 35), later identified as Carson. Burley agreed to buy the television

      for $250. After some confusion about the address where Burley could obtain

      the television, Burley and his two small children arrived at the location Carson

      indicated.


[3]   Carson met Burley at his car and told Burley the television was inside the

      apartment. Burley agreed to follow Carson inside and locked his children in the

      car. Burley followed Carson around the building. Another man was sitting

      outside the apartment. Carson then pulled a gun on Burley and ordered him to

      hand over the money for the television. Burley told the men the money was in

      the car. “With the gun still [pointed] at [him],” the men walked Burley back to

      his car where he unlocked his car and retrieved the $250. (Id. at 41.) Carson

      took Burley’s money, phone, and car keys.




      1
          Ind. Code § 35-42-5-1 (2014).
      2
       LetGo is an application used on mobile devices to “buy and exchange goods with someone.” (Tr. Vol. 1 at
      79.)

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017      Page 2 of 7
[4]   Burley drove his car to a nearby gas station and requested assistance from a

      bystander. 3 The bystander called 911 for Burley, and the police arrived to take

      Burley’s statement. At the gas station, Burley stated the man with the gun was

      “5’9” to 5’11”, bald, African American with a dark complexion,” (id. at 74),

      and the other man at the scene was “African American, bigger build, 5’7”,

      5’9”ish . . . curly hair.” (Id. at 67.) However, when the police went to the

      apartment complex they were unable to locate either individual and the

      apartment toward which Carson led Burley to get the television was empty.


[5]   The next day, Burley discovered his LetGo account was blocked from viewing

      any posts from “Brian.” Burley created a fake account in the name of

      “Brittney.” (See, e.g., id. at 73.) Using this account, he located “Brian” and

      entered into negotiations to buy an iPhone “Brian” had listed. Burley

      contacted Detective Larry Tague of the Fort Wayne Police Department to tell

      him about his negotiations. Detective Tague asked Burley to arrange a meeting

      between “Brian” and “Brittney.” After warning Burley to stay away from the

      meeting location, Detective Tague and several other officers conducted

      surveillance of the area. Detective Tague observed Carson at the meeting area

      but Carson left when he saw Detective Tague. Uniformed police officers

      conducted a traffic stop of the car Carson was in and arrested the occupants.




      3
       Burley’s vehicle had a “mechanical malfunction” wherein it was able to run without a key in the ignition.
      (Tr. Vol. 1 at 80.)

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017         Page 3 of 7
[6]   Detective Tague requested Detective Daniel Peters present two photo arrays to

      Burley. Carson’s picture was in the first array and the driver of the car was in

      the second array. Burley identified Carson as the man who had “pointed [a

      gun] at [his] face” and robbed him. (Id. at 63.) Burley did not identify anyone

      in the second array.


[7]   The State charged Carson with Level 3 felony robbery and the case was tried by

      jury. The jury found Carson guilty, and the trial court entered the conviction

      and sentenced Carson to twelve years.



                                 Discussion and Decision
[8]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

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

      147.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017   Page 4 of 7
[9]    Carson was convicted of Level 3 felony robbery. “[A] person who knowingly

       or intentionally takes property from another person . . . by using or threatening

       the use of force . . . or by putting any person in fear . . . while armed with a

       deadly weapon” commits Level 3 felony robbery. Ind. Code § 35-42-5-1 (2014).


[10]   Carson argues the State did not present sufficient evidence because Burley’s

       testimony was incredibly dubious. Specifically, he asserts Burley originally

       identified the person who robbed him as bald and between 5’9” to 5’11” tall,

       but that Burley’s later identifications of Carson in the photo array and at trial

       were of a man who was not bald and stands between 6’3” and 6’4” tall.


[11]   The incredible dubiosity rule allows the appellate court to impinge on the fact-

       finder’s assessment of witness credibility when the testimony at trial was “so

       contradictory that the verdict reached would be inherently improbable.” Moore

       v. State, 27 N.E.3d 749, 751 (Ind. 2015). “For the incredible dubiosity rule to

       apply, the evidence presented must be so unbelievable, incredible, or

       improbable that no reasonable person could ever reach a guilty verdict based

       upon that evidence alone.” Id. “Incredibly dubious or inherently improbable

       testimony is that which runs counter to human experience, and which no

       reasonable person could believe.” Campbell v. State, 732 N.E.2d 197, 207 (Ind.

       Ct. App. 2000). This is a high standard to meet. There must be: (1) a sole

       testifying witness; (2) whose testimony is inherently contradictory, equivocal, or

       the result of coercion; and (3) a complete absence of circumstantial evidence.

       Moore, 27 N.E.3d at 756. It is well-settled that “discrepancies between a

       witness’s trial testimony and earlier statements made to police and in

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017   Page 5 of 7
       depositions do not render such testimony ‘incredibly dubious.’” Holeton v. State,

       853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006).


[12]   The incredible dubiosity rule does not apply here because Burley’s testimony

       was supported by circumstantial evidence and his testimony at trial was not

       inherently contradictory, equivocal or the result of coercion. At trial, Burley

       maintained he could “remember [Carson’s] face more than anything.” (Tr.

       Vol. 1 at 44.) He was focusing on Carson’s “nose, his eyes, and just the shape –

       what his picture of his face looked like.” (Id.) Thus, although he may have

       misconstrued very short hair for bald and did not have Carson’s height correct,

       his identification and subsequent testimony was unequivocal that Carson was

       the man who robbed him.


[13]   Additionally, Burley’s identification of Carson is supported by the fact Carson

       showed up for the fictitious sale of the iPhone. When questioned by Detective

       Marc Deshaies, Carson indicated “he was there to meet a female in order to

       buy an IPhone [sic] 6S plus.” (Id. at 130.) Thus, Burley’s testimony was not

       inherently contradictory, equivocal, or the result of coercion, nor was there a

       complete absence of circumstantial evidence. As such, the incredible dubiosity

       rule does not apply. See Moore, 27 N.E.3d at 760 (holding incredible dubiosity

       rule inapplicable where factors necessary to warrant application of the rule were

       not present). Carson’s arguments to the contrary are an invitation for us to

       reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.

       Carson does not assert any other grounds to support his claim of insufficient

       evidence, and we therefore hold the State presented sufficient evidence to prove

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017   Page 6 of 7
       Level 3 felony robbery. See Wilburn v. State, 515 N.E.2d 1109, 1110 (Ind. 1987)

       (“The uncorroborated testimony of [robbery] victim was sufficient to convict

       the appellant.”).



                                               Conclusion
[14]   The State presented sufficient evidence of Level 3 felony robbery as Burley’s

       testimony was not incredibly dubious. Accordingly, we affirm.


[15]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017   Page 7 of 7
