MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                           Oct 11 2019, 9:23 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha Griffin                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harold Jones,                                            October 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-501
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela D. Davis
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G16-1807-F6-22512



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019                     Page 1 of 6
[1]   Harold Jones appeals his convictions of Level 6 felony intimidation 1 and Class

      A misdemeanor battery resulting in bodily injury. 2 Jones argues his convictions

      should be overturned because the victim’s testimony was incredibly dubious.

      We affirm.



                                Facts and Procedural History
[2]   On July 9, 2018, Jones was visiting his girlfriend, D.B., at the residence she

      shared with her mother, U.L.; one-year-old son, K.B.; grandfather, Mason; and

      grandmother, Debra. U.L., with whom Jones had prior sexual history, was in

      the living and dining area of the home when she saw Jones come out of the

      bathroom. U.L. told Jones that K.B. wanted to watch television. Jones

      responded, “it’s not his mother’s fucking tv, it[’]s mine.” (Tr. Vol. II at 9.)

      U.L. commented that the language Jones was using around the child was

      “hostile.” (Id.)


[3]   Jones responded to U.L.’s comment by getting “in her face” and calling her “a

      little shit[.]” (Id. at 10, 11.) U.L. repeatedly asked Jones to get out of her face,

      and when he did not, she pushed Jones away. Jones then smacked U.L.’s face,

      and U.L. responded by throwing her phone at Jones. The phone struck Jones

      in the face.




      1
          Ind. Code § 35-45-2-1(a)(2).
      2
          Ind. Code § 35-42-2-1(c)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019   Page 2 of 6
[4]   Jones then punched U.L. in the face. U.L. stated “you were fucking me and

      eating me out, why are you hitting me now?” (App. Vol. II at 16.) U.L’s

      father, Mason, escorted Jones out of the house after the altercation. Jones

      formed his hand into the shape of a gun, pantomimed shooting U.L., and stated

      “bitch, don’t you come over here, I’ll shoot you.” (Tr. Vol. II at 14.) Because

      U.L. knew Jones owned a gun, she interpreted his gesture as a credible threat to

      shoot her, and she called the police.


[5]   Upon their arrival, the police found Jones, D.B., and K.B. in a car parked

      across the street from the house. Jones and D.B. admitted there had been a

      confrontation. U.L. was “[v]ery agitated, extremely upset[,]” (id. at 27), and

      “very emotional[.]” (Id. at 32.) U.L.’s injuries were documented at the

      hospital, including a puncture wound on her upper thigh, and bruises and

      scratches on her arms and face. Photos taken at the hospital depict redness and

      a scratch where Jones had hit her.


[6]   The State charged Jones with Level 6 felony domestic battery, 3 Level 6 felony

      intimidation, Class A misdemeanor domestic battery, 4 and Class A

      misdemeanor battery resulting in bodily injury. At the conclusion of a bench

      trial held on July 11, 2018, the court convicted Jones of Level 6 felony

      intimidation and Class A misdemeanor battery resulting in bodily injury. The




      3
          Ind. Code §§ 35-42-2-1.3(a)(1), (b)(2).
      4
          Ind. Code § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019   Page 3 of 6
      court imposed a 365-day suspended sentence and ordered 180 days of probation

      subject to early termination upon the completion of 13 weeks of anger

      management classes.



                                 Discussion and Decision
[7]   When reviewing claims of insufficient evidence, we examine the evidence

      presented in a light most favorable to the verdict. Pierce v. State, 29 N.E.3d

      1258, 1265 (Ind. 2015). We give deference to the trial court and affirm the

      verdict unless there is “no substantial evidence of probative value to support it.”

      Id.


[8]   Jones asserts the evidence was insufficient to support his convictions because

      U.L.’s testimony was incredibly dubious. The incredible dubiosity rule allows

      an appellate court to review the factual findings, but only where (1) “a sole

      witness presents” (2) “inherently contradictory testimony which is equivocal or

      the result of coercion” and (3) “there is a complete lack of circumstantial

      evidence of the appellant’s guilt.” Moore v. State, 27 N.E.3d 749, 755 (Ind.

      2015). We will infringe upon a trial court’s finding only if a showing is made

      under all three prongs. Id. at 765.


[9]   At Jones’ trial, five witnesses testified and most of them provided corroborating

      statements. The story U.L. consistently told and retold was not improbable.

      Her testimony was not contradictory or equivocal. She testified that there was

      a verbal alteration that led to physical violence and intimidating threats.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019   Page 4 of 6
       Finally, considerable circumstantial evidence existed including pictures

       showing the injuries sustained by U.L., two responding police officers testified

       to U.L.’s injuries and to seeing Jones in the car across from the home, and the

       testimony of both D.B. and Jones confirmed an altercation occurred. As such,

       the incredible dubiosity rule does not apply in this case. See, e.g., Id. at 755

       (incredible dubiosity rule does not apply because of multiple witnesses, lack of

       testimonial inconsistencies, and the existence of circumstantial evidence).


[10]   A person commits intimidation when he communicates a threat with the intent

       of making a person fearful of retaliation. Ind. Code §§ 35-45-2-1(a)(2),

       (b)(1)(A). U.L. testified Jones threated to kill her in retaliation for the fight and

       for revealing the alleged affair. These facts meet the elements of intimidation.

       See, e.g., Fleming v. State, 85 N.E.3d 626, 632 (Ind. Ct. App. 2017) (holding there

       was sufficient evidence to support conviction for intimidation where a

       reasonable fact finder could conclude threats were made with the intent to put

       the victim in fear for his safety).


[11]   The elements of battery resulting in bodily harm are knowingly or intentionally

       touching someone “in a rude, insolent, or angry manner” causing bodily harm.

       Ind. Code §§ 35-42-2-1(c)(1), (d)(1). U.L. testified that Jones pushed and hit

       her, and she testified that she had injuries. Thus, the Record contains evidence

       to support Jones’ conviction of battery resulting in bodily injury. See, e.g., Bailey

       v. State, 979 N.E.2d 133, 143 (Ind. 2012) (appellant found guilty of battery

       resulting in bodily injury after victim reported the battery caused physical pain).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019   Page 5 of 6
                                               Conclusion
[12]   The incredible dubiosity rule is inapplicable in this case, and there was

       sufficient evidence to support Jones’ convictions. Therefore, the trial court’s

       judgment is affirmed.


       Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-501 | October 11, 2019   Page 6 of 6
