MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 11 2016, 8:41 am
this Memorandum Decision shall not be                                        CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
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
Donald J. Frew                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey C. Johnson,                                      April 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1509-CR-1490
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck
Appellee-Plaintiff,                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1501-F5-02



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016            Page 1 of 7
[1]   On December 29, 2014, Appellant-Defendant Jeffrey Johnson was charged with

      Level 5 felony battery, Level 6 felony residential entry, Level 6 felony

      strangulation, Level 6 felony criminal recklessness, and Class A misdemeanor

      invasion of privacy. A jury found Johnson guilty of battery and invasion of

      privacy. The trial court sentenced Johnson to an aggregate term of four years of

      incarceration. On appeal, Johnson argues that there was insufficient evidence

      to sustain his battery conviction. Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   Johnson began dating Theresa Jerome in June of 2014. (Tr. 107) The two lived

      in separate units in the same apartment building. (id) The couple had a

      contentious relationship and, in September 2014, Johnson was convicted of

      battery against Theresa. (Tr. 132, 186) A no-contact order was issued to keep

      Johnson away from Theresa; however, the couple continued to see one another

      romantically. (id 138)


[3]   On the morning of December 29, 2014, Johnson and Theresa began arguing.

      (tr. 109) Theresa dropped Johnson off at work but the argument continued via

      text messages. (110) At Johnson’s request, Theresa picked up Johnson from

      work and the two returned to Theresa’s apartment. (111) Theresa attempted to

      end the relationship and Johnson returned to his apartment. (id)

      Approximately an hour later, Johnson returned to Theresa’s apartment, forced

      his way inside, and threatened to kill Theresa. (116-17) Johnson brandished a



      Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016   Page 2 of 7
      silver box cutter and, as Theresa attempted to flee, grabbed her by the hair and

      slammed her against a wall and a glass side table. (tr. 117, 118)


[4]   Theresa again attempted to escape but Johnson forced her to the ground,

      straddled her chest, and threatened to stab her with the box cutter. (tr. 118-19)

      After some time, Johnson said “I can’t do it,” rolled off of Theresa, and laid on

      the floor. Tr. p. 119. Johnson then crawled over to Theresa, placed his head

      and the box cutter on her knee, and said, “just kill me.” Tr. p. 120. After

      Theresa told Johnson to leave, and he complied, Theresa called the police.

      (120, 122) Fort Wayne Police Officers John Nichter and Cameron Norris

      arrived shortly thereafter to investigate the incident.


[5]   The officers testified that Theresa had an abrasion and swelling on the left side

      of her head, an abrasion on her right ankle, and scratches on her back. (Tr. 159,

      162, 172) The officers took photographs of Theresa’s injuries which were

      admitted into evidence at trial. (ex. 13, 14) While Theresa was speaking with

      the officers, Johnson texted Theresa saying, “please help me” and “I’m done,

      killing myself.” Tr. pp. 123, 161. The officers went to Johnson’s apartment to

      assure that he was safe and to question him. (Tr. 169) Johnson gave the

      officers permission to search his apartment and, during the search, Officer

      Norris found a silver box cutter behind a dresser in Johnson’s bedroom. (169,

      170, ex. 19)




      Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016   Page 3 of 7
[6]   On January 5, 2015, the State charged Johnson with Level 5 felony battery 1,

      Level 6 felony residential entry, Level 6 felony strangulation, Level 6 felony

      criminal recklessness, and Class A misdemeanor invasion of privacy. (app. 14)

      A jury trial was held on July 28, 2015. (tr. 1) The jury found Johnson guilty of

      battery and invasion of privacy, and not guilty of the remaining charges. (app.

      5) The trial court sentenced Johnson to four years for battery and one year for

      invasion of privacy, to be served concurrently. (App. 6-7)



                                 Discussion and Decision
[7]   Johnson appeals his conviction for Level 5 felony battery, arguing that there

      was insufficient evidence to sustain his conviction.

              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The




      1
       The conviction was enhanced to a Level 5 felony under Indiana Code § 35-42-2-1(f)(4) because Johnson
      had a previous conviction for battery against Theresa.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016         Page 4 of 7
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original).


[8]   Johnson argues that Theresa’s testimony was incredibly dubious so as to render

      it insufficient to support his conviction. “The incredible dubiosity rule allows

      the Court to impinge upon a jury’s responsibility to judge the credibility of the

      witnesses only when confronted with inherently improbable testimony. The

      incredible dubiosity rule is only applied in limited circumstances.” Moore v.

      State, 27 N.E.3d 749, 754 (Ind. 2015) (internal citation omitted). “Application

      of this rule is limited to cases…where a sole witness presents inherently

      contradictory testimony which is equivocal or the result of coercion and there is

      a complete lack of circumstantial evidence of the appellant’s guilt.” Tillman v.

      State, 642 N.E.2d 221, 223 (Ind. 1994) (citing Gaddis v. State, 253 Ind. 73, 251

      N.E.2d 658 (1969)). Convictions should be affirmed unless the testimony is so

      inherently improbable that no reasonable person could believe it. Stephenson v.

      State, 742 N.E.2d 463, 498 (Ind. 2001).


[9]   Johnson argues that Theresa’s testimony was inherently contradictory because

      her initial account of the attack given to Officers Nichter and Norris differed


      Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016   Page 5 of 7
       slightly from her trial testimony describing the attack.2 Theresa initially told

       officers that Johnson “shoved her against the wall and then threw her down

       onto the ground and…she hit her head on a glass table.” Appellant’s App. p. 7

       (citing Tr. p. 158-59). Johnson argues that this conflicts with her trial testimony

       that he “grabbed the back of my head, and swung me by my hair and slammed

       me into the wall, the corner, the edge of the wall.” Appellant’s App. p. 7 (citing

       Tr. p. 117). Theresa went on to testify, “I don’t know if he slammed me into

       the table, the glass table…or if I fell. I think I was pushed into the table when I

       was bending over on my head.” Tr. p. 118.


[10]   The doctrine of incredible dubiosity is inapplicable here for two reasons. First,

       the content of Theresa’s testimony was not inherently contradictory or

       improbable, quite the opposite, in fact. Theresa’s trial testimony describing the

       attack was nearly identical to her initial description to police. The alleged

       inconsistencies raised by Johnson focus on the exact manner in which he

       attacked Theresa from behind as she attempted to flee. Such inconsistencies, if

       they can even be called that, are negligible. It is reasonable to assume that there

       would be some minor, insubstantial inconsistencies when any witness is

       recounting events from seven months prior, especially traumatic events such as




       2
         Johnson acknowledges that the incredible dubiosity rule only applies to conflicts within trial testimony and
       not conflicts between trial testimony and previous out-of-court statements. Buckner v. State, 857 N.E.2d 1011,
       1018 (Ind. Ct. App. 2006). However, he argues that Theresa testified that her account of the attack given to
       police was completely accurate and, therefore, there is inconsistency within her trial testimony. We decline
       to address whether such an alleged inconsistency is sufficient to invoke the incredible dubiosity rule, and
       instead address only the merits of Johnson’s incredible dubiosity argument.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016              Page 6 of 7
       these during which Theresa described herself as “disoriented,” and panicked to

       the point she was “shaking and convulsing.” Tr. pp. 118.


[11]   Furthermore, there was substantial circumstantial evidence of Johnson’s guilt:

       (1) Theresa had cuts and abrasions which indicated that she had been attacked,

       (2) police found a silver box cutter behind Johnson’s bedroom dresser which

       corroborated Theresa’s account of the attack, (3) officers read text messages

       sent to Theresa from Johnson which revealed that Johnson was very upset and

       threatening suicide, and (4) the legs of a glass table in Theresa’s apartment had

       been bent, corroborating Theresa’s account of the attack. Application of the

       rule is limited to cases where there is a complete lack of circumstantial evidence

       of the appellant’s guilt. Tillman, 642 N.E.2d at 223. The incredible dubiosity

       rule is inapplicable here and, as such, there was sufficient evidence supporting

       Johnson’s battery conviction.


[12]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1490 | April 11, 2016   Page 7 of 7
