Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
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:

EUGENE C. HOLLANDER                             GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                GARY R. ROM
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                              FILED
                                                                          Jul 31 2012, 9:26 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                   CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




TOMMY JOE DOUBLIN,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 90A05-1110-CR-521
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE WELLS CIRCUIT COURT
                       The Honorable Kenton W. Kiracofe, Judge
                            Cause No. 90C01-1103-FB-3


                                      July 31, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Tommy Doublin (Doublin), appeals his conviction for

burglary, a Class B felony, Ind. Code § 35-43-2-1 and his adjudication as a habitual

offender, I.C. § 35-50-2-8.

       We affirm.

                                         ISSUES

       Doublin raises three issues on appeal, which we restate as:

       (1)    Whether the testimony of the single witness was incredibly dubious;

       (2)    Whether the State committed misconduct during its final argument; and

       (3)    Whether the trial court properly instructed the jury.

                        FACTS AND PROCEDURAL HISTROY

       On February 16, 2011, Tim Kleinknight (Kleinknight) gave his ex-wife, Tricia

Shutt-Lewis (Lewis), a key to his home so that Lewis could store ice cream in

Kleinknight’s freezer for their daughter’s upcoming birthday party. Kleinknight and

Lewis were married for four years and had been divorced for three years, but Lewis still

came to Kleinknight’s home about once a week to see and pick up their minor daughter

who continued to live with Kleinknight after their divorce. Lewis was familiar with the

layout of Kleinknight’s home and was aware that he kept money under his waterbed

mattress in his bedroom as well as in a safe. After receiving Kleinknight’s key that day,

Lewis went to a hardware store and had a duplicate key made.



                                             2
      On February 21, 2011, Lewis drove Doublin, her then boyfriend, to Kleinknight’s

home and Doublin used the duplicate key to enter the house. Lewis drove around the

block while Doublin was inside the home. After about five minutes of being inside,

Lewis returned and Doublin entered the vehicle with a handful of cash.

      After returning home, Kleinknight did not notice any signs of forced entry, but

noticed seven hundred fifty dollars missing from under his mattress and that the handle

on his safe was broken. Kleinknight suspected his former wife was responsible for the

burglary and contacted the Bluffton City Police Department and spoke to Sergeant James

Mettler (Sergeant Mettler). Sergeant Mettler interviewed Lewis and Doublin regarding

the burglary, and both denied any knowledge of it. Days later, Sergeant Mettler received

a telephone call from Lewis telling him that she had lied to him during her interview.

Lewis then told Sergeant Mettler that Doublin had talked her into making a duplicate key

to Kleinknight’s home and that they had mutually agreed the key would later be used to

enter the house and steal his money.

      Lewis was charged with burglary. In return for her signing a plea agreement that

required her to testify against Doublin, Lewis was sentenced to house arrest.

      On March 21, 2011, the State filed an Information charging Doublin with

burglary, a Class B felony, I.C. § 35-43-2-1. On March 28, 2011, the State submitted a

notice to seek habitual offender status, I.C. § 35-50-2-8. On September 6, 2011, a

bifurcated jury trial was held. At the close of the evidence Doublin was found guilty.

After Doublin was convicted of burglary, he pled guilty to the habitual offender

                                            3
enhancement. On September 20, 2011, a sentencing hearing was held and the trial court

sentenced Doublin to fifteen years executed with an additional twenty year term under

the habitual offender status.

       Doublin now appeals. Additional facts will be provided as necessary.

                                DISCUSSION AND DECSION

                                  I. Incredible Dubiosity Rule

       Doublin first contends that his burglary conviction was not supported by sufficient

evidence. Doublin argues that there was no evidentiary connection or independent proof

linking him to the burglary other than Lewis’ testimony. He claims that such testimony

of Lewis was inherently improbable and totally uncorroborated by any other item of

evidence and should therefore not be considered credible.          When reviewing the

sufficiency of the evidence needed to support a criminal conviction, we neither reweigh

the evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). “We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from such evidence.” Id. We will affirm if there is

substantial evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt.           Id.   Evidence is

insufficient to convict when no rational fact finder could have found the defendant guilty

beyond a reasonable doubt. Clark v. State, 728 N.E.2d 880, 887 (Ind. Ct. App. 2000).


       This court may impinge upon the jury’s responsibility to judge the credibility of

witnesses only when confronted with inherently improbable testimony or coerced,
                                            4
equivocal, wholly uncorroborated testimony. Lawson v. State, 966 N.E.2d 1273, 1281

(Ind. Ct. App. 2012). If a sole witness presents inherently improbable testimony and

there is a complete lack of circumstantial evidence, a defendant’s conviction may be

reversed. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). This is appropriate only

where the court has confronted inherently improbable testimony or coerced, equivocal,

and wholly uncorroborated testimony of incredible dubiosity. 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 incredibly dubiosity rule applies only when a witness contradicts

himself in a single statement or while testifying, and does not apply to conflicts between

multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct. App. 2008), trans.

denied.

      Lewis’ testimony was consistent and un-contradicted on both her direct and cross

examination.    Doublin gave no examples of Lewis’ testimony being inherently

contradictory and instead spent seven pages attempting to persuade this court to reweigh

her testimony and credibility, which we cannot do. Although Lewis’ testimony as the

sole witness was unsupported, a reasonable fact-finder found Lewis’ testimony credible

and Doublin guilty beyond a reasonable doubt. Thus, we conclude that Lewis’ testimony

was not incredibly dubious, and the State did present sufficient evidence to support

Doublin’s conviction.

                              II. Prosecutorial Misconduct

                                            5
      Doublin also contends that the State’s statements during closing argument

amounted to prosecutorial misconduct. In reviewing whether prosecutorial misconduct

occurred, we consider (1) whether the prosecutor engaged in misconduct, and if so, (2)

whether the misconduct, under all of the circumstances, placed the defendant in a

position of grave peril. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans.

denied. The gravity of the peril turns on the probable persuasive effect of the misconduct

on the jury’s decision, not on the degree of impropriety. Id. In judging the propriety of a

prosecutor’s remarks, we consider statements made in the context of the argument. Weis

v. State, 825N.E.2d 896, 907 Ind. Ct. App. 2005).

      A claim of prosecutorial misconduct presented on appeal without a

contemporaneous trial objection, as here, will not succeed unless the defendant

establishes not only prosecutorial misconduct but also fundamental error. Carter, 956

N.E.2d at 170. To rise to the level of fundamental error, the error “must constitute a

blatant violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process. Etienne v.

State, 716 N.E.2d 457, 462 (Ind. 1999).

      Although Doublin’s specific argument is difficult to discern, it appears that he

complains about the State’s references to “innuendo and subterfuge” and the State’s

mention of “community standards” in its closing argument. (Appellant Br. pp. 23, 26).

The State emphasized to the jury that Lewis’ testimony was uncontroverted and

recommended that they follow their common sense. We conclude that these actions did

                                            6
not amount to prosecutorial misconduct nor did it place Doublin in a position of peril

because it was not improper for the prosecutor to ask the jurors to use common sense in

deciding their verdict. See Staton v. State, 853 N.E.2d 470, 475 (Ind. 2006) (referencing

Charles A. Wright & Victor J. Gold, Federal Practice & Procedures § 6075 at 450

(1990) (obviously, no juror can or should approach deliberations with an entirely clean

cognitive slate. Humans can make intelligent decisions only by drawing upon their

accumulated background knowledge and experience. Jurors are not only permitted to

make decisions in this manner, it is expected of them)). Therefore, we conclude that the

State’s statements during closing argument did not amount t prosecutorial misconduct.

                                         III. Jury Instruction

         Finally, Doublin contends the trial court erred by not instructing the jury as to the

reasonable theory of innocence. Specifically, he asserts that because the evidence against

him solely consisted of circumstantial evidence, the jury should have been instructed on

the difference between circumstantial and direct evidence. Instructing the jury is a matter

assigned to the sound discretion of the trial court, and we review a trial court’s decisions

only for an abuse of discretion. Smith v. State, 668 N.E.2d 661, 662 (Ind. 1996). In

reviewing a challenge to a jury instruction, “this court considers: (1) whether the

instruction correctly stated the law; (2) whether there was evidence in the record to

support the giving of the instruction; and (3) whether the substance of the tendered

instruction was covered by the instruction. Hubbard v. State, 742 N.E.2d 919, 921 (Ind.

2001).

                                               7
       Because Doublin failed to object at trial, he now contends that it was fundamental

error when the jury was not given an instruction on the reasonable theory of innocence.

Our supreme court concluded that this instruction should not be used unless the trial court

determines that the actus reus of a crime may only be established by circumstantial

evidence; and if so the jury should be instructed with a requirement that proof be so

conclusive and sure as to exclude every reasonable theory of innocence. Hampton v.

State, 961 N.E.2d 480, 491 (Ind. 2012). In formulating this position, the court reasoned

that requiring the instruction in cases where there is any direct evidence of the fact that a

criminal offense has occurred would result in the instruction rarely being used and

requiring the instruction in cases where direct evidence is lacking for any single element

would necessitate the instruction’s use in almost all criminal cases because mens rea is

often shown only by circumstantial evidence. Id. at 490-91. Thus, the court required the

instruction’s use when the trial court determines that the actus reus of a crime was

established only by circumstantial evidence. Id. at 491.

       Doublin argues that all the evidence of his guilt was entirely circumstantial and

this court should require that proof of his guilt should be so conclusive and sure that it

excluded every reasonable theory of innocence. Direct evidence is evidence that is based

on personal knowledge or observation and that, if true, proves a fact without inference or

presumption. Id. at 489. Circumstantial evidence is evidence based on inference and not

on personal knowledge or observation. Id. Witness testimony to an alleged crime can be

direct evidence. See Chapman v. State, 556 N.E.2d 927, 931(Ind. 1990) (testimony of

                                             8
bank teller was considered direct evidence when the teller identified the unmasked man

she saw outside bank and the masked man who robbed the bank as the same person).

Lewis was a direct witness and testified to Doublin’s crime. She testified that Doublin

used her duplicate key to gain unauthorized access to Kleinknight’s home and steal his

money. Lewis drove Doublin to Kleinknight’s, picked him up, and observed him with

the money in his hand when leaving Kleinknight’s home.         Because direct evidence

established evidence of Doublin’s guilt, the trial court did not err, let alone make a

fundamental error, by not offering a jury instruction on the reasonable theory of

innocence.

                                       CONCLUSION

      Based on the foregoing, we conclude that:         (1) Lewis’ testimony was not

incredibly dubious and sufficient to convict Doublin; (2) statements by the State during

its closing argument did not amount to fundamental error; and (3) the trial court did not

commit fundamental error by not giving a jury instruction on the reasonable theory of

innocence jury instruction.

      Affirmed.

NAJAM, J. and DARDEN, S. J. concur




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