      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be                                     Dec 05 2018, 8:43 am

      regarded as precedent or cited before any                                      CLERK
      court except for the purpose of establishing                               Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                      Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana

                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Xavier D. Jones,                                         December 5, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-406
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable Thomas Newman
      Appellee-Plaintiff                                       Jr., Judge
                                                               Trial Court Cause No.
                                                               48C03-1612-F1-2482



      May, Judge.


[1]   Xavier D. Jones appeals the denial of his motion to correct alleged errors

      arising from the proceedings resulting in his convictions of Level 1 felony

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018                    Page 1 of 7
      attempted child molesting 1 and Level 4 felony child molesting. 2 Specifically,

      Jones asserts the court should have granted his motion to correct error because:


            1. J.G.’s testimony was incredibly dubious, rendering his convictions

                 unsupported by sufficient evidence; and

            2. Juror misconduct denied him a fair trial.


      We affirm.



                                Facts and Procedural History
[2]   Jones and Tiffany Fuller were in a relationship. In September 2015, Jones

      moved in with Fuller and her three children. Jones did not work at the time

      and watched Fuller’s children while Fuller was at work. In September, soon

      after Jones moved in, Jones molested J.G., who at the time was ten. This

      occurred intermittently until July 2016. On November 14, 2016, J.G. told

      Fuller what Jones did to her.


[3]   On December 6, 2016, the State charged Jones with three counts of Level 1

      felony attempted child molestation and one count of Level 4 felony child

      molestation. On November 2, 2017, a jury found Jones guilty of two counts of

      attempted child molestation and one count of child molestation. Prior to




      1
          Ind. Code § 35-42-4-3(a) (2015).
      2
          Ind. Code § 35-42-4-3(b) (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018   Page 2 of 7
      sentencing, Jones filed a motion to correct error in which he requested a new

      trial. After hearing evidence and taking the matter under advisement, the trial

      court denied Jones’ motions and sentenced Jones to forty years.



                                Discussion and Decision
[4]   We review the denial of a motion to correct error, or a motion for a new trial,

      for an abuse of discretion. Tancil v. State, 956 N.E.2d 1204, 1208 (Ind. Ct. App.

      2011) (addressing both motion to correct error and motion for a new trial),

      trans. denied. “An abuse of discretion occurs if the decision is clearly against the

      logic and effect of the facts and circumstances before the trial court. We do not

      reweigh the evidence and we consider conflicting evidence in a light most

      favorable to the trial court’s ruling.” Heyen v. State, 936 N.E.2d 294, 299 (Ind.

      Ct. App. 2010), trans. denied. Jones alleges his motion to correct error was

      improperly denied because the State did not present sufficient evidence and

      because juror misconduct rendered his trial proceedings unfair.


                                        Incredible Dubiosity
[5]   Jones argues there was insufficient evidence to support his convictions. When

      considering the sufficiency of evidence, “a reviewing court does not reweigh the

      evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d

      124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable

      inferences drawn from the evidence could have allowed a reasonable trier of

      fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126

      (internal citation omitted).
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018   Page 3 of 7
[6]   In particular, Jones claims the evidence was insufficient because J.G.’s

      testimony was incredibly dubious. “Under the incredible dubiosity rule, a court

      will impinge upon 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.” Tillman v.

      State, 642 N.E.2d 221, 223 (Ind. 1994). “Application of this rule is limited to

      cases . . . where a sole witness presents inherently contradictory testimony [that]

      is equivocal or the result of coercion and there is a complete lack of

      circumstantial evidence of the appellant’s guilt.” Id.


[7]   During cross-examination, J.G. was confronted with statements she made

      during her interview at Kids Talk 3 that were inconsistent with her trial

      testimony. J.G. testified she did not remember making those statements during

      the interview. (Tr. Vol. II at 5). Although J.G’s trial testimony was

      inconsistent with her pre-trial statements, she did not contradict herself on the

      stand. Trial testimony is not incredibly dubious simply because it contradicts

      pre-trial statements. See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997)

      (although witness contradicted his pre-trial statements, his testimony was not

      incredibly dubious because he did not contradict himself while testifying),

      clarified on reh’g on other grounds, 696 N.E.2d 870 (Ind. 1998).




      3
       Kids Talk is a child advocacy center in Madison County. Kids Talk operates as a neutral location where
      children are interviewed about allegations of mistreatment. (Tr. Vol. II at 47-48.) J.G was interviewed at
      Kids Talk on November 15, 2016. (Id. at 53.)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018                   Page 4 of 7
[8]   The jury was made aware of the inconsistencies between J.G’s testimony and

      her pretrial statements. The jury is to weigh the evidence and assess the

      credibility of witnesses in light of such inconsistencies. See id at 1231 (jury

      allowed to evaluate testimony inconsistent with pretrial statements, and

      inconsistencies do not automatically render testimony incredibly dubious).

      J.G.’s testimony was sufficient to support Jones’ convictions. See, e.g., Wolf v.

      State, 76 N.E.3d 911, 916 (Ind. Ct. App. 2017) (holding testimony inconsistent

      with prior statements is sufficient to support conviction). Accordingly, the trial

      court did not err when it denied Jones’ motion to correct error based on this

      argument.


                                          Juror Misconduct
[9]   Jones also argues his trial was prejudiced by juror misconduct. Jones filed

      multiple affidavits regarding a post-trial conversation between a juror and

      Jones’ attorney. In one affidavit, the witness averred she heard a juror ask

      Jones’ attorney, “Why didn’t the defendant testify?” (App. Vol. II at 142.)

      Jones’ attorney explained Jones did not testify because he had a prior

      conviction of armed robbery. The juror replied: “That’s what I thought.” (Id.)

      The other two other affidavits Jones filed with his motion to correct error

      reported similar information. Jones claims this information demonstrates the

      jury ignored the court’s instruction to not consider Jones’ potential criminal

      history during deliberations and he was prejudiced thereby.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018   Page 5 of 7
[10]   “A defendant seeking a new trial because of juror misconduct must show that

       the misconduct (1) was gross and (2) probably harmed the defendant.” Griffin v.

       State, 754 N.E.2d 899, 901 (Ind. 2001), clarified on reh’g on other grounds, 763

       N.E.2d 450 (Ind. 2002). “We review the trial court’s determination for abuse of

       discretion, with the burden on the appellant to show the existence of

       misconduct, and that it meets the prerequisites for a new trial.” Id.


[11]   Jones notes Indiana Evidence Rule 606(b) would permit a trial court to allow a

       juror to testify about the jury’s deliberation process if extraneous prejudicial

       information was improperly brought to the jury’s attention. However, Jones

       has not presented any evidence demonstrating the jury actually considered his

       criminal history during the deliberations. The juror’s inquiry into why Jones

       did not testify came after trial during a discussion with the trial court and

       attorneys about the case, and that juror’s speculation about why Jones did not

       testify is not synonymous with the jury speculating about Jones’ criminal

       history. Even if the jury had speculated as to why Jones did not testify, that

       speculation is not enough to permit impeachment of the jury’s verdict under

       Indiana Evidence Rule 606(b). See Dowell v. State, 865 N.E.2d 1059, 1067 (Ind.

       Ct. App. 2007) (jury’s speculation during deliberation that defendant had

       criminal history insufficient to permit impeachment of jury’s verdict), aff’d in

       part and rev’d in part on other grounds, 873 N.E.2d 59 (Ind. 2007). Because Jones

       did not demonstrate the jury relied upon extraneous prejudicial information, he

       was not entitled to a new trial on this basis. See Ramirez v. State, 7 N.E.3d 933,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018   Page 6 of 7
       940 (Ind. 2014) (defendant not entitled to new trial after failing to prove juror

       misconduct).



                                               Conclusion
[12]   Because J.G.’s testimony was not incredibly dubious and there is no proof the

       jury considered improper prejudicial information during deliberations, the trial

       court did not abuse its discretion when it denied Jones’ motion to correct error.

       Accordingly, we affirm.


[13]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-406 | December 5, 2018   Page 7 of 7
