MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               May 16 2018, 10:44 am

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
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry D. Newkirk,                                       May 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A01-1709-CR-2062
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff                                      Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1704-F6-101



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018               Page 1 of 7
[1]   Larry D. Newkirk appeals his convictions of Level 6 felony domestic battery

      perpetrated in the presence of a child under sixteen years of age 1 and Class A

      misdemeanor interference with reporting a crime. 2 Newkirk argues the

      evidence was insufficient because the only testifying witness provided incredibly

      dubious testimony. We affirm.



                                Facts and Procedural History
[2]   In April 2017, thirty-three-year-old Newkirk lived with Jessica Willoughby and

      their eight-month-old daughter. On April 4, 2017, Willoughby told Newkirk he

      had to move out. An argument ensued in which Newkirk pulled Willoughby’s

      hair and grabbed her jaw. Willoughby was holding their daughter throughout

      the argument, and the baby was crying “because of [Newkirk] being so loud.”

      (Tr. Vol. 1 at 43.) Willoughby threatened to call the police, and Newkirk took

      her phone. Willoughby attempted to leave the apartment, but Newkirk would

      not allow her to go. Eventually, Newkirk left. Willoughby found her phone

      behind the door and called the police.


[3]   Aurora Police Department Officer Lorraine Oguz answered the dispatch and

      interviewed Willoughby. No marks were apparent on Willoughby. Officer

      Oguz located Newkirk later that evening and interviewed him at the police




      1
          Ind. Code § 35-42-2-1.3 (2016).
      2
          Ind. Code § 35-45-2-5 (2002).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018   Page 2 of 7
      station. Newkirk acknowledged the argument and his taking of Willoughby’s

      phone, but he denied touching Willoughby. Officer Oguz arrested Newkirk.

      The State charged Newkirk with Level 6 felony domestic battery and Class A

      misdemeanor interference with reporting a crime. After a bench trial, Newkirk

      was found guilty as charged.



                                Discussion and Decision
[4]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.


[5]   Newkirk contends the State failed to present sufficient evidence to support his

      convictions of domestic battery and interference with reporting of a crime. To

      prove Newkirk committed Level 6 felony domestic battery against Willoughby

      in the presence of a minor under age sixteen, the State was required to show

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018   Page 3 of 7
      Newkirk, who is “at least eighteen (18) years of age,” touched Willoughby, a

      “household member[,] in a rude, insolent, or angry manner . . . in the physical

      presence of a child less than sixteen (16) years of age, knowing that the child

      was present and might be able to see or hear the offense.” Ind. Code § 35-42-2-

      1.3(a)(1) & (b)(2). To prove Newkirk committed interference with reporting a

      crime, the State was required to show Newkirk interfered with Willoughby

      “using a 911 emergency telephone system.” Ind. Code § 35-45-2-5(1).


[6]   The State presented evidence that Newkirk, age thirty-three, had pulled

      Willoughby’s hair and grabbed her jaw, causing her pain. The two lived

      together. Thereafter, when Willoughby said she was going to call the police,

      Newkirk took her phone, and Willoughby was not able to retrieve her phone

      until he left. At the time of the incident, the couple’s child was eight months

      old and was in Willoughby’s arms. The baby was “screaming because of

      [Newkirk] being so loud.” (Tr. Vol. 1 at 43.)


[7]   While Newkirk agrees with everything else Willoughby said, he takes issue with

      Willoughby’s statements that he pulled her hair and grabbed her chin. He notes

      no marks were found on Willoughby and her version of events were

      unsubstantiated by anyone else. Newkirk contends that, because Willoughby

      was the sole testifying witness and her version of events does not agree with his

      version of events, her version was “inherently dubious and wholly incredible.”

      (Appellant’s Br. at 10.)




      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018   Page 4 of 7
[8]   The incredible dubiosity rule allows the appellate court to impinge on the fact-

      finder’s assessment of witness credibility when the testimony at trial was “so

      contradictory that the verdict reached would be inherently improbable.” Moore

      v. State, 27 N.E.3d 749, 751 (Ind. 2015). “For the incredible dubiosity rule to

      apply, the evidence presented must be so unbelievable, incredible, or

      improbable that no reasonable person could ever reach a guilty verdict based

      upon that evidence alone.” 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 is a high standard to meet. There must be: (1) a sole

      testifying witness; (2) whose testimony is inherently contradictory, equivocal, or

      the result of coercion; and (3) a complete absence of circumstantial evidence.

      Moore, 27 N.E.3d at 756.


[9]   The incredible dubiosity rule does not apply here. Although Willoughby was

      the sole eyewitness to testify, nothing about Willoughby’s testimony was

      inherently dubious or wholly incredible. 3 From the time she reported the crime

      through the trial, 4 Willoughby consistently stated the same facts: 1) she




      3
        Newkirk cites Gaddis v. State, 251 N.E.2d 658 (Ind. 1969), to support his claim Willoughby’s testimony was
      incredibly dubious. The witness in Gaddis was threatened with prison if he did not testify against Gaddis and
      he based his identification of Gaddis on that threat. Gaddis, 251 N.E.2d at 660. Our Indiana Supreme Court
      held such testimony to be incredibly dubious and insufficient to support a conviction because it was coerced.
      Id. at 662. Here, as there was no suggestion that Willoughby was threatened or coerced to testify, Gaddis is
      inapposite.
      4
       Even if Willoughby’s story had changed between her report to the police and when she testified at trial, that
      would not support a claim of incredible dubiosity. To be incredibly dubious, Willoughby’s testimony at trial
      would need to be inherently contradictory. See Holeton v. State, 853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006)

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018                Page 5 of 7
       requested Newkirk leave; 2) an argument ensued; 3) Newkirk pulled her hair

       and grabbed her jaw; 4) she said she was going to call the police; 5) Newkirk

       took her phone; 6) Newkirk blocked the exit of the apartment; 7) Newkirk left;

       8) Willoughby found her phone. Nothing about Willoughby’s testimony was

       “counter to human experience,” Campbell, 732 N.E.2d at 207, and her

       testimony provided evidence of all elements required for Newkirk’s convictions.


[10]   Newkirk’s assertions are merely a request for us to reweigh the evidence and

       assess the credibility of the witness, which our Indiana Supreme Court recently

       reiterated misapprehends “our limited role as a reviewing court.” McCallister v.

       State, 91 N.E.3d 554, 558 (Ind. 2018). We have consistently held the

       “uncorroborated testimony of a victim alone is sufficient to convict.” Mayo v.

       State, 681 N.E.2d 689, 692 (Ind. 1997). Although Newkirk’s statements to the

       police were entered as evidence, it was the province of the fact-finder to assess

       credibility and weigh Newkirk’s statements against Willoughby’s testimony,

       and we will not impinge on that power. See Carter v. State, 44 N.E.3d 47, 54

       (Ind. Ct. App. 2015) (when testimony is neither so incredible nor improbable

       that a reasonable person could not believe it, “we will not impinge on the fact-

       finder’s responsibility to judge witness credibility”).



                                                 Conclusion


       (“discrepancies between a witness’s trial testimony and earlier statements made to police and in depositions
       do not render such testimony ‘incredibly dubious’”).

       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018                Page 6 of 7
[11]   As the State presented sufficient evidence to support the convictions herein and

       Willoughby’s testimony was not incredibly dubious, we affirm.


[12]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2062 | May 16, 2018   Page 7 of 7
