MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Feb 10 2015, 10:47 am
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
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John D. May,                                              February 10, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          28A01-1406-CR-241
        v.                                                Appeal from the Greene Circuit
                                                          Court.
State of Indiana,                                         The Honorable Erik C. Allen, Judge.
                                                          Cause No. 28C01-1402-FC-12
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 1 of 9
                                   STATEMENT OF THE CASE
[1]   Appellant-Defendant, John D. May (May), appeals his conviction for

      intimidation, as a Class D felony, Ind. Code § 35-45-2-1(a)(1); -(b)(2)(A) (2013);

      criminal mischief as a Class B misdemeanor, I.C. §35-43-1-2(a)(1); battery with

      a deadly weapon, as a Class B misdemeanor, I.C. § 35-42-2-1(a)(3); and his

      adjudication as a habitual offender.


[2]   We affirm.


                                                     ISSUE

[3]   May raises one issue on appeal, which we restate as follows: Whether the State

      presented sufficient evidence to establish his conviction for intimidation beyond

      a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   On February 27, 2014, Debra Stephens (Stephens) lived in Linton, Indiana and

      was in a romantic relationship with May. That morning, after sending her two

      children, K.C. and R.C., to school, she ran errands with May, who had spent

      the night at Stephens’ home. On their way back, between 1:30 and 2:30 p.m.,

      they stopped at a liquor store to purchase beer and whiskey. Before the children

      returned home from school, Stephens and May had consumed “beer” and “a

      few shots of whiskey.” (Transcript p. 227).



      Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 2 of 9
[5]   At around 5:00 p.m., May, Stephens, and K.C. left the residence to visit a

      friend of May’s—Stephens’ son, R.C., had already left to spend the night with

      his friend. At May’s friend’s house, May continued to drink beer and whiskey.

      After visiting with more friends and May’s grandmother, they returned home,

      stopping along the way to “pick up some more liquor.” (Tr. p. 54). At

      Stephens’ home, May “was really drunk” but continued to drink whiskey and

      beer. (Tr. p. 55). K.C. went to her room where she remained for most of the

      night. May asked Stephens to go to the bar with him even though he was

      “pretty wasted.” (Tr. p. 56). Because she did not want May to get mad,

      Stephens agreed to drive him to the bar. She told K.C. where they were headed

      and instructed her to call if she needed anything.


[6]   At the bar, May and Stephens continued to drink and play pool. At some

      point, May left the bar while Stephens was in the restroom. Still at the bar,

      Stephens received a phone call from K.C. telling her mother that “she was

      hearing noises in the house.” (Tr. p. 60). Stephens immediately returned

      home.


[7]   Meanwhile, May had walked back to Stephens’ house. After entering the

      house, May continued drinking whiskey. He became “upset” and “started

      breaking windows and stuff.” (Tr. p. 239). When Stephens arrived home, she

      saw May “breaking our [her] window.” (Tr. p. 60). She entered the house and

      yelled at May to leave. May left through the front door. Checking on K.C.,

      Stephens heard noises coming from the back door. Before walking to the back

      door, Stephens instructed K.C. to call the police if she heard more noise.

      Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 3 of 9
[8]   By the time Stephens arrived at the back door, May had punched a hole

      through the door and had put his hand through the hole in an attempt to unlock

      the door. Although Stephens tried to block the door, she was unable to prevent

      May from entering the house. May “got through the door and [] came after”

      Stephens. (Tr. p. 68). Afraid because of all the damage done to her house,

      Stephens ran towards the kitchen but May “grabbed ahold of [her] hair” and

      pulled her “back into the laundry room[.]” (Tr. p. 69). May pinned Stephens

      up against the washing machine and told her “to be quiet.” (Tr. p. 153). May

      told Stephens that “he didn’t want [her] to leave him and that he’d kill [her] if

      [she] left him.” (Tr. p. 73). Picking up a steak knife, May held it against

      Stephens’ head. He swung at her, but she blocked him; however, the knife still

      left a scratch on Stephens’ forehead. K.C. heard her mother say “stop, don’t do

      it” and May replied “be quiet.” (Tr. p. 153). K.C. called the police and told the

      dispatcher that May and Stephens were fighting and “tearing up the house.”

      (Tr. p. 129).


[9]   When Officer Chad Crynes (Officer Crynes) with the Linton Police Department

      arrived at Stephens’ residence, he observed broken windows, blood on the

      damaged back door and heard screaming. Looking inside the house, Officer

      Crynes noticed May and Stephens “pressed up against each other.” (Tr. p.

      172). At that point, Officer Crynes opened the back door and announced his

      presence. May turned and dropped “a knife [] from his left hand.” (Tr. p. 174).

      The officer ordered May to the ground. Stephens was “upset, crying,

      distraught, [and] she had blood about her hair, her face, her arms, [and] her


      Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 4 of 9
       shirt.” (Tr. p. 185). After an ambulance was called to check on May, he was

       arrested. Stephens’ children were removed from her care and placed with the

       Department of Child Services (DCS).


[10]   On February 28, 2014, the State charged May with Count I, intimidation, as a

       Class C felony; Count II, battery, as a Class D felony; and Count III, criminal

       mischief, as a Class A misdemeanor. On March 6, 2014, the State filed a

       request for habitual felon offender sentence enhancement. On April 14, 2014,

       the State amended its Information by adding Count IV, residential entry as a

       Class D felony; and Count V, battery, as a Class C felony.


[11]   On May 13 through May 15, 2014, the trial court conducted a jury trial. At the

       close of the evidence, the jury found May guilty of intimidation, as a Class D

       felony, criminal mischief as a Class B misdemeanor; and battery, as a Class B

       misdemeanor, and adjudicated him to be a habitual offender. The jury found

       him not guilty of the other charges. During the sentencing hearing on May 30,

       2014, the trial court sentenced Stephens to three years for intimidation,

       enhanced by four and one half years for the habitual offender finding, and to

       concurrent one hundred and eighty day sentences for criminal mischief and

       battery, to run consecutive to the intimidation sentence.


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


                                   DISCUSSION AND DECISION




       Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 5 of 9
[13]   May contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain his conviction for intimidation. Generally, in

       addressing a claim of insufficient evidence, an appellate court must consider

       only the probative evidence and reasonable inferences supporting the judgment,

       without weighing evidence or assessing witness credibility, and determine

       therefrom whether a reasonable trier of fact could have found the defendant

       guilty beyond a reasonable doubt. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct.

       App. 2008), trans. denied.


[14]   To support a conviction of May for intimidation, as a Class D felony, the State

       was required to establish beyond a reasonable doubt that May communicated a

       threat to Stephens with the intent that Stephens engage in conduct against her

       will and the threat was to commit a forcible felony. See I.C. § 35-45-2-1. Threat

       is statutorily defined, in relevant part, as an expression with the intent to

       “unlawfully injure the person threatened or another person, or damage

       property.” I.C. § 35-45-2-1(d).


[15]   During the proceedings, Stephens testified that May had told her “to be quiet”

       and threatened to “kill [her] if [she] left him.” (Tr. pp. 153, 73). Because only

       Stephens testified as to the threat made by May, May now characterizes her

       testimony as incredibly dubious. In support of his allegation, May asserts that

       Stephens “admitted she lied under oath; had to press charges against and

       cooperate with the prosecution of May as a condition for the return of her

       children; was in denial about the amount of alcohol she consumed on February



       Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 6 of 9
       27; and admitted she could not remember aspects because she was brain dead.”

       (Appellant’s Br. p. 15).


[16]   Within the narrow confines of the incredible dubiosity rule, a court may

       impinge upon a jury’s prerogative to judge the credibility of a witness. White v.

       State, 706 N.E.2d 1078, 1079 (Ind. 1999). If a sole witness presents inherently

       improbable testimony and there is a complete lack of circumstantial evidence, a

       defendant’s conviction may be reversed. Id. This is appropriate only where the

       court has confronted inherently improbable testimony or coerced, equivocal,

       wholly uncorroborated testimony of incredible dubiosity. Id. 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. Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001).


[17]   Although Stephens admitted at trial that her current testimony contradicted a

       statement given during a prior civil protection hearing and one given during a

       deposition under oath, in which she both times denied going to the bar on the

       evening of February 27, 2014, this trial admission did not make her testimony

       incredibly dubious. We have previously held that the rule only applies when a

       witness contradicts herself in a single statement or while testifying; the rule

       finds no application with respect to conflicts between multiple statements. See,

       e.g., Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006) (“The

       incredible dubiosity rule applies to conflicts in trial testimony rather than

       conflicts that exist between trial testimony and statements made to the police

       before trial.”). Reviewing Stephens’ trial testimony, we note the adamancy of

       Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 7 of 9
       her statements with respect to May’s threat to kill her and we cannot find any

       inherent contradictions within these declarations that would propel Stephens’

       testimony to the realm of incredibly dubious.


[18]   Nevertheless, seizing on Stephens’ trial acknowledgment that she had “to

       cooperate with the State of Indiana in this prosecution” as a condition of

       getting her children back from DCS, May now asserts that Stephens’ testimony

       was “coerced” and “wholly uncorroborated.” White, 706 N.E.2d at 1079.

       However, while it is the State’s prerogative to file the Information, which

       instigated the charges against May, and while DCS might require Stephens’

       cooperation in a criminal proceeding against May as a requisite for the return of

       her children, the record does not reflect that Stephens was coerced to

       specifically testify that May had threatened to kill her.


[19]   Furthermore, we cannot say that Stephens’ testimony was unequivocal or

       uncorroborated and devoid of any circumstantial evidence. K.C. testified that

       she heard her mother scream, with May telling her mother to be quiet. When

       Officer Crynes arrived on the scene, he saw May and Stephens were “pressed

       up against each other.” (Tr. p. 172). As soon as the officer announced his

       presence, May turned and dropped a knife from his left hand. Officer Crynes

       testified that Stephens was “upset, crying, distraught, [and] she had blood about

       her hair, her face, her arms, [and] her shirt.” (Tr. p. 185). Looking around the

       home, he noticed property damage and an interior in disarray.




       Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 8 of 9
[20]   To be sure, while Stephens’ testimony contained admissions of memory lapses

       and there are noted discrepancies between Stephens’ and her daughter’s

       testimony, the jury was made aware of these inaccuracies through either direct

       or cross examination and had the opportunity to determine the veracity of each

       witness. Regardless of these inconsistencies, Stephens’ trial testimony was

       consistent with regard to the threat uttered by May on the evening of February

       27, 2014, and did not reflect inherent contradictions. Based on the facts before

       us, there is no basis to apply the incredible dubiosity rule. See Cowan v. State,

       783 N.E.2d 1270, 1278 (Ind. Ct. App. 2003), trans. denied (A defendant cannot

       appeal to this rule by merely showing some inconsistency or irregularity in a

       witness’s testimony.).


                                               CONCLUSION

[21]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support May’s conviction for intimidation.


[22]   Affirmed.


[23]   Vaidik, C. J. and Baker, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 28A01-1406-CR-241 | February 10, 2015   Page 9 of 9
