MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                            FILED
Memorandum Decision shall not be regarded as                           May 31 2018, 10:40 am
precedent or cited before any court except for the
                                                                            CLERK
purpose of establishing the defense of res judicata,                    Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Nappanee, Indiana                                        Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eddie J. Bates,                                          May 31, 2018

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         20A05-1712-CR-2791
        v.                                               Appeal from the Elkhart Circuit
                                                         Court

State of Indiana,                                        The Honorable Michael A.
                                                         Christofeno, Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No. 20C01-1608-
                                                         F3-36




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018             Page 1 of 10
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Eddie Bates (Bates), appeals his conviction for robbery

      while armed with a deadly weapon, a Level 3 felony, Ind. Code § 35-42-5-1(1);

      and for his adjudication as a habitual offender.


[2]   We affirm.


                                                   ISSUE
[3]   Bates presents a single issue on appeal, which we restate as: Whether the

      victim’s identification of him as the robber was incredibly dubious.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 11, 2016, Theresa Palmer (Palmer) was working at the Dollar General

      store in Elkhart County, Indiana. The manager, Becky Mathiak (Mathiak), and

      another employee were present at the store that day, but were in the back of the

      store pulling down some items from the shelves. There were two registers in

      the front of the store, and Palmer conducted sales from the register that had

      been assigned to her.


[5]   At around noon that day, two men walked into the store. One of the men, later

      identified as Bates, asked where he could get a certain type of pencil, and the

      other man, later identified as Henry Bates (Henry), asked for cigarettes. Palmer

      walked to the cigarette case, obtained the requested cigarettes, and returned to

      the register. At that point, Henry had walked behind the counter and Palmer

      informed Henry that he needed to go the front of the counter to pay. Instead of

      Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 2 of 10
      doing what Palmer had asked him to, Henry placed a knife on Palmer’s back

      and ordered Palmer to “open the drawer” and that she “was being robbed.”

      (Transcript Vol. II, p. 65). Henry then “reached in the drawer and took money

      out of it and then just took off.” 1 (Tr. Vol. II, p. 65).


[6]   While the robbery was taking place, Bates stood in the front of the counter

      watching. Before Palmer could close the register, Bates stated, “[D]on’t close

      that. Lift it up; I want to see what you have underneath your drawer.” (Tr.

      Vol. II, pp. 65-66). Palmer lifted the drawer and showed Bates that there was

      nothing underneath. Bates then instructed Palmer not to hit the panic button,

      but Palmer informed Bates that there was no panic button. Bates afterward

      ordered Palmer to open the other register, however, Palmer indicated that the

      register had been “assigned to a different cashier” with specific “codes” and

      there was no way she could “get into it.” (Tr. Vol. II, p. 67). Bates then

      ordered Palmer to open a safe that was positioned between the two registers,

      but Palmer expressed that she “couldn’t do that; it was on time delay.” (Tr.

      Vol. II, p. 67). Bates asked Palmer if there were other employees present in the

      store, and Palmer stated that her manager Mathiak and another employee were




      1
        Henry was subsequently charged with robbery and he pleaded “guilty in May of 2017.” (Tr. Vol. II, p.
      162).

      Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018           Page 3 of 10
      in the back of the store. At that point, Bates ordered Palmer to take him to the

      store office. Upon entering the office, Bates demanded copies of the

      surveillance videos from Palmer. Palmer stated that she could not give him

      copies of surveillance videos because the “corporate office” conducted the

      recordings. (Tr. Vol. II, p. 68). Bates repeatedly threated Palmer by telling her

      that if she failed to follow to his commands, he would “get the other man,”

      presumably Henry, to come “hurt” her. (Tr. Vol. II, p. 70). While talking to

      Palmer, Bates saw Mathiak’s wallet on the desk. Bates took the wallet,

      rummaged through it, and retrieved some money. Before leaving the office,

      Bates reached up to “an electric box on the wall” that had an “antenna” and he

      “snapped the antenna off of it.” (Tr. Vol. II, p. 71). Palmer assumed that Bates

      broke off the antenna to stop the surveillance cameras from recording. Before

      leaving, Bates ordered Palmer to sit in the office until he was out of the

      building, or he “would come back in with the other gentleman, and they would

      hurt” her. (Tr. Vol. II, p. 71). As soon as Bates walked out of the store, Palmer

      yelled for Mathiak. The Elkhart Police Department were immediately

      contacted.


[7]   The police released surveillance videos and still pictures of Henry and Bates to

      news media outlets and they sought tips about their identities. Both Bates and

      Henry wore hats during the robbery. The surveillance videos also appeared in

      an online newspaper. Detective Kirk Maggert (Detective Maggert) of the

      Goshen Police Department recognized Bates based on an encounter that

      occurred six days before the robbery. Detective Maggert contacted Detective


      Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 4 of 10
       Scott Johnson (Detective Johnson) of the Elkhart Police Department. The

       police also received the names of Henry and William Lee (Lee) as possible

       suspects.


[8]    Detective Johnson subsequently interviewed Palmer and he showed Palmer

       three photo lineups. From the first lineup, Palmer picked out Henry. In the

       second photo lineup, Palmer circled Lee’s picture, and in the third photo

       lineup, Palmer circled Bates. Lee was also investigated, but when Detective

       Johnson spoke with Lee, he determined that Lee was not one of the robbers

       based on his facial features.


[9]    About fifteen days after the robbery, Detective Johnson also spoke with Bates.

       During a recorded interview, Bates was miranderized and subsequently shown

       the still photograph depicting him and Henry robbing the Dollar General store.

       Bates responded by stating that “I thought it was me too.” (Tr. Vol. II, p. 171).

       Bates then stated, “[I]f you look at the photograph, I never paid him no

       attention.” (Tr. Vol. II, p. 171). Detective Johnson then played for Bates the

       surveillance video documenting the robbery. After watching the video, Bates,

       referring to Henry, stated, “I didn’t know he had no knife.” (Tr. Vol. II, p.

       173). Also, after interviewing Bates, Detective Johnson again watched the

       surveillance video from the store and concluded that Bates was the man in the

       video.


[10]   On August 19, 2016, the State filed an Information, charging Bates with

       robbery while armed with a deadly weapon, a Level 3 felony. On September


       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 5 of 10
       22, 2016, the State amended its Information because in the original filing it had

       alleged that Mathiak was the victim to the robbery. In the amended

       Information, the State replaced Mathiak’s name with Palmer’s. The same day,

       the State added a habitual offender charge against Bates, alleging that he had

       accumulated two prior unrelated felonies.


[11]   A three-day jury trial was conducted on July 17 through July 19, 2017. Palmer

       again identified Bates as the robber from the same photo lineup that Detective

       Johnson had revealed to her during the police investigation. That photo lineup

       was admitted as Exhibit 11, and when Palmer was asked if she was sure that

       Bates was the perpetrator, Palmer testified that “there is no doubt” in her mind

       that Bates was the same person that robbed the store. (Tr. Vol. II, p. 104). At

       the close of the evidence, the jury found Bates guilty as charged. Bates then

       pleaded guilty to the habitual offender charge. On November 2, 2017, the trial

       court conducted a sentencing hearing. At the end of the hearing, the trial court

       sentenced Bates to serve sixteen years, and enhanced by twenty years based on

       the habitual offender adjudication, for an aggregate sentence of thirty-six years.


[12]   Bates now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[13]   Bates argues that there is insufficient evidence to sustain his conviction for his

       Level 3 felony robbery while armed with a deadly weapon because his

       conviction is based on Palmer’s inherently contradictory testimony.

       Specifically, he argues that Palmer’s “testimony . . . during trial was dubious”

       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 6 of 10
       because Palmer misidentified him in one of the photo lineups, and “there can

       be almost no question that this played a role in the jury developing

       unreasonable inferences that . . . . Bates was the suspect in the video

       surveillance tape.” (Appellant’s Br. p. 12).


[14]   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 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. 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.’” Hampton v. State, 921

       N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201,

       1208 (Ind. 2007)), trans. denied. The rule applies only when a witness

       contradicts herself or himself in a single statement or while testifying, and does

       not apply to conflicts between multiple statements. Manuel v. State, 971 N.E.2d

       1262, 1271 (Ind. Ct. App. 2012). Cases where we have found testimony

       inherently improbable have involved situations either where the facts as alleged

       “could not have happened as described by the victim and be consistent with the

       laws of nature or human experience,” or where the witness was so equivocal

       about the act charged that his uncorroborated and coerced testimony “was

       riddled with doubt about its trustworthiness.” Watkins v. State, 571 N.E.2d




       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 7 of 10
       1262, 1265 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind.

       1991).


[15]   At Bates’s jury trial, the State introduced three photo lineups. The first photo

       lineup was admitted as Exhibit 9 where Palmer had circled Henry as one of the

       robbers. The second photo lineup that was admitted as Exhibit 10, Palmer had

       identified Lee as another perpetrator. Finally, the third photo lineup that was

       admitted as Exhibit 11, Palmer had circled Bates as the other robber. During

       her direct examination, Palmer testified the men who robbed the store wore

       hats. She then testified that when she identified Bates in Exhibit 11, she

       expressed to Detective Johnson that “[I]f you put a hat on him, that’s him right

       there.” (Tr. Vol. II, p. 83). During cross-examination, and referencing both

       Exhibit 10 (Lee’s picture) and Exhibit 11 (Bates’s picture), Palmer testified that

       she recalled informing Detective Johnson that the other perpetrator to the

       robbery would have either been “between those two.” (Tr. Vol. II, p. 96).

       However, if she “had to pick,” she was certain that it was Bates and not Lee

       that robbed the store with Henry. (Tr. Vol. II, p. 96).


[16]   Bates contends that Palmer’s testimony on cross-examination that “it would

       have been between those two,” meaning the robber was either Lee or Bates, is

       inherently dubious. (Tr. Vol. II, p. 96). We disagree. Bates seems to be cherry

       picking the unfavorable portions of Palmer’s testimony to support his dubiosity

       claim. Even though Palmer picked two different people from the photo lineups,

       Palmer’s subsequent statements in the same paragraph ousts any confusion.

       Palmer stated that she remembered telling Detective Johnson that while it

       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 8 of 10
       would have been “between those two,” Lee or Bates, she was “sure” that it was

       Bates who robbed the store. (Tr. Vol. II. p. 96). Then during redirect

       examination, the State again asked Palmer if she doubted her identification of

       Bates being the other Dollar General store robber, and Palmer stated, “[N]o,

       sir. There’s no doubt.” (Tr. Vol. II, p. 104).


[17]   While Palmer picked two different individuals from the photo lineups, she

       unequivocally testified that she was sure that it was Bates and not Lee who

       robbed the store. See Manuel v. State, 971 N.E.2d at 1271. In addition, we note

       that there was not a complete lack of circumstantial evidence. Detective

       Maggert testified that six days before the robbery, he had an encounter with

       Bates, and he recognized his picture from the online newspaper. In addition,

       Palmer’s testimony was corroborated by Detective Johnson’s testimony who

       testified that after he interviewed Bates, he again watched the surveillance

       video, and he concluded that Bates was the other person who robbed the Dollar

       General store. Furthermore, during a recorded interview, and after watching

       the surveillance video, Bates implicated himself in the robbery by informing

       Detective Johnson that he “didn’t know” that Henry had a “knife.” (Tr. Vol.

       II, p. 173). Thus, we find that the incredible dubiosity rule is inapplicable in the

       present case and cannot serve as grounds for overturning the jury’s verdict.

       Accordingly, we conclude that the State presented sufficient evidence beyond a

       reasonable doubt to convict Bates of Level 3 felony robbery while armed with a

       deadly weapon.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 9 of 10
                                             CONCLUSION
[18]   Based on the foregoing, we conclude that the principles of incredible dubiosity

       are inapplicable and the State presented sufficient evidence beyond a reasonable

       doubt to convict Bates of Level 3 felony robbery while armed with a deadly

       weapon.


[19]   Affirmed.


[20]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A05-1712-CR-2791 | May 31, 2018   Page 10 of 10
