MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      May 22 2018, 9:00 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
Daniel J. Vanderpool                                     Curtis T. Hill, Jr.
Warsaw, Indiana                                          Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

C.V.,                                                    May 22, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A02-1712-JV-2826
        v.                                               Appeal from the Wabash Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff.                                      McCallen III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1704-JD-11



Altice, Judge



Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018              Page 1 of 9
                                                  Case Summary
[1]   C.V. was adjudicated a delinquent child after the juvenile court found that he

      committed perjury as a Level 6 felony if committed by an adult, and theft as a

      Class A misdemeanor if committed by an adult. Following a dispositional

      hearing, the juvenile court placed C.V. on probation. On appeal, C.V. claims

      there was insufficient evidence to support his adjudications for perjury and

      theft.


[2]   We affirm.


                                       Facts & Procedural History
[3]   On February 6, 2017, sixteen-year-old C.V. and his friends, Jacob Carles (age

      nineteen) and Steven Cornett (age eighteen), were at the home of Betty Kroft, in
                                                                       1
      Wabash, Indiana, where Carles had been residing. The three friends left

      Kroft’s home and went to a store, a fast food restaurant, and C.V.’s house so

      that he could pick up some clothes, as C.V. planned to spend the night at

      Kroft’s. The three then returned to Kroft’s. Later that night, Cornett drove

      C.V. to a location and dropped him off so he could meet with another friend.

      Cornett returned to Kroft’s home and “hung out for a little bit” and then left.

      Transcript Vol. 2 at 7. After Cornett left, Carles went to bed. At some point,

      C.V. returned to Kroft’s home.




      1
          Betty Kroft was the mother of Jacob Carles’s girlfriend.


      Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 2 of 9
[4]   Mona Corbran worked at Anna House where she took care of special needs

      patients. Anna House was located approximately one block from Kroft’s

      home. Corbran typically worked at Anna House overnight. On the night of

      February 6, 2017, Corbran arrived at work and parked her car at the front door.

      The next day, on February 7, 2017, around 10:00 a.m., Corbran went out to her

      car and noticed that items had been moved and that her passenger door was

      open. It had rained the night before, and the inside of her car was wet.

      Corbran looked inside her glove compartment for her wallet and iPad but both

      were missing. She called the police and reported the items as stolen.


[5]   Later that afternoon, Corbran noticed that her cell phone, which was

      programmed to automatically sync to her iPad, was reporting that her iPad was

      at Kroft’s home. Corbran went to Kroft’s house and knocked on the door.

      Carles answered, and Corbran told him what had happened. Carles apologized

      about her missing items and said, “[B]ut we don’t have it.” Id. at 13. Corbran

      again called the police.


[6]   Carles went inside and told C.V. what was happening. Carles testified that

      C.V. “freaked out and he told [Carles] that he had an iPad and a purse that he

      had taken.” Id. at 30. Carles further testified that C.V. placed the iPad and

      wallet behind a washing machine. Zachary Campbell, Kroft’s son who, at the

      time of the incident, resided with Kroft, testified that when C.V. learned that

      Corbran was at the door, he “seemed panicked” and “immediately left without

      saying a word.” Id. at 25.



      Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 3 of 9
[7]   The police arrived at Kroft’s home and spoke with Carles and with Kroft, who

      had just arrived. With Kroft’s permission, the officers searched the home while

      Corbran waited outside. The police found Corbran’s iPad and wallet behind a

      clothes dryer.


[8]   C.V. later spoke with the police about the incident and provided the following

      statement under oath:


              I got to Jacob’s at 8:00-8:05, we sat at his house for maybe an
              hour. His friend Steven showed up around 9:30ish and all
              THREE [sic] of us left to Wal-Mart [sic], and Jacob and Steven
              bought three gold-fish [sic]. After they purchased the gold-fish
              [sic] we went to Mcdonalds [sic] and Steven bought fries and I
              bought a pop. We had left Mcdonalds [sic] at 10:30ish, and went
              back to Jacob’s and sat in his basement and talked and played
              cards. Steven left around 12:00 because he said he has school.
              After Steven left Jacob went to buy some weed, and he was gone
              5-7 minutes, he came back [sic] told me to “Roll one up,” so I did
              and then we smoked and played cards until we got tired. When
              we woke up the next day at 1:45, Jacob told me there was a lady
              outside wanting her ipad [sic]. He told me to take the ipad [sic]
              and go through his basement window. I didn’t take it, I walked
              out the back door, and talked to the lady who said her ipad [sic]
              was at the house, and she gave me her number and said to call if
              we knew anything, then she called the cops and they told her to
              wait in her vehicle and when she walked over to her vehicle, I
              left.


      Exhibit Book Vol. 1 at 4-5. Corbran testified that she never spoke with C.V., only

      with Carles.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 4 of 9
[9]    On April 18, 2017, the juvenile court authorized the filing of a delinquency

       petition, alleging that C.V. committed perjury as a Level 6 felony if committed

       by an adult, and theft as a Class A misdemeanor if committed by an adult. On

       September 18, 2017, the court held a factfinding hearing and, on the following

       day, entered a true finding on all allegations.


[10]   On October 23, 2017, the court held a dispositional hearing. The court entered

       a dispositional order that same day; however, the order did not contain a

       finding regarding the disposition. C.V. filed a motion to correct error, and, on

       November 27, 2017, the juvenile court entered an amended dispositional order

       placing C.V. on probation until he turned eighteen. C.V. now appeals.


                                       Discussion & Decision
[11]   C.V. argues that the evidence was insufficient to support his adjudication as a

       delinquent for committing perjury and theft.


               When the State seeks to have a juvenile adjudicated as a
               delinquent child for committing an act which would be a crime if
               [ ] committed by an adult, the State must prove every element of
               the crime beyond a reasonable doubt. In reviewing a juvenile
               adjudication, this court will consider only the evidence and
               reasonable inferences supporting the judgment and will neither
               reweigh evidence nor judge the credibility of the witnesses. If
               there is substantial evidence of probative value from which a
               reasonable trier of fact could conclude that the juvenile was guilty
               beyond a reasonable doubt, we will affirm the adjudication.


       E.D. v. State, 905 N.E.2d 505, 506-07 (Ind. Ct. App. 2009) (internal citations

       omitted). “Circumstantial evidence is no different than other evidence for this

       Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 5 of 9
       purpose, and standing alone may sufficiently support a conviction.” R.L.H. v.

       State, 738 N.E.2d 312, 315 (Ind. Ct. App. 2000).


                                                       1. Perjury
[12]   C.V. first claims there was insufficient evidence to support his adjudication for

       perjury. A person commits perjury when he “makes a false, material statement

       under oath or affirmation, knowing the statement to be false or not believing it

       to be true[.]” Ind. Code § 35-44.1-2-1(a)(1). The statement must be clear and

       direct, not implied or suggested. Barker v. State, 681 N.E.2d 727, 729 (Ind. Ct.

       App. 1997).


[13]   The State alleged that while under oath, C.V. made a false, material statement

       when he told the police “he left Jacob Carles’s house and talked to Mona

       Corbran who had said that her ipad [sic] had been stolen.” Appellant’s Appendix

       Vol. II at 29. C.V. maintains that the State failed to prove his statement was
                     2
       material. The materiality element is satisfied if the statement is “reasonably

       calculated to mislead an investigation.” Daniels v. State, 658 N.E.2d 121, 123

       (Ind. Ct. App. 1995). The State, however, is not required to prove actual

       impairment of the investigation. Wilke v. State, 496 N.E.2d 616, 618 (Ind. Ct.

       App. 1986).




       2
           C.V. does not challenge the other elements of perjury.


       Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 6 of 9
[14]   We find that the State presented sufficient evidence to prove C.V.’s false

       statement to police was material. Wabash Police Officer Ron Miller testified

       that during his investigation of the theft, he advised C.V. of his Miranda rights

       and spoke to C.V. about the incident. After consulting with his grandfather,

       C.V. waived his rights and, while under oath, made the false statement to the

       police. The crux of C.V.’s statement was to portray himself as a helpful,

       cooperative person and to attempt to deflect blame. C.V. “stuck to” his false

       statement and, at his hearing, testified that when Corbran arrived at Kroft’s

       house, he “went and talked to [Corbran]. She gave me her phone number, and

       then I said if I hear anything, I’ll call you.” Transcript at 48.


[15]   A reasonable factfinder could determine from this evidence that C.V.’s false

       statement interfered with the police officers’ investigation and, potentially,

       misled the officers. As such, his false statement was material, and sufficient

       evidence was presented to support C.V.’s adjudication for perjury.


                                                    2. Theft
[16]   C.V. next challenges the sufficiency of the evidence to support his adjudication

       for theft. To support an adjudication for theft, the State was required to prove

       beyond a reasonable doubt that C.V. knowingly or intentionally exerted

       unauthorized control over property of Corbran, with intent to deprive her of its

       value or use. See Ind. Code § 35-43-4-2. A theft conviction may be sustained by

       circumstantial evidence. Bennett v. State, 871 N.E.2d 316, 323 (Ind. Ct. App.

       2007), opinion adopted by Bennett v. State, 878 N.E.2d 836 (Ind. 2008).


       Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 7 of 9
[17]   C.V. claims his adjudication was unsupported by sufficient evidence because his

       “finding of delinquency could only have been based upon the testimony of

       Jacob Carles, as he was the only witness who claimed to have knowledge that it

       was C.V. who stole [Corbran’s iPad] and wallet,” and Carles’s testimony was

       incredibly dubious. Appellant’s Brief at 15. Per C.V., we should apply the

       incredible dubiosity rule because Carles’s testimony was “‘inherently

       contradictory’ and at the least ‘equivocal,’” as Carles changed his testimony at

       the factfinding hearing. Id. During direct examination, Carles testified that

       C.V. told him that he had taken “an iPad and a purse.” Transcript at 30. When

       cross-examined, Carles testified that C.V. “never said he had the iPad in those

       exact words.” Id. at 38.


[18]   The “incredible dubiosity” rule allows us, in rare circumstances, to impinge

       upon a trier of fact’s function to judge the credibility of a witness. Hardley v.

       State, 893 N.E.2d 1140, 1143 (Ind. Ct. App. 2008) (citing Love v. State, 761

       N.E.2d 806, 810 (Ind. 2002)). Our supreme court stated the rule as follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. 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.


       Love, 761 N.E.2d at 810 (citations omitted).



       Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 8 of 9
[19]   Carles was not the only witness to testify to C.V.’s alleged theft of the iPad and

       wallet. Corbran testified that sometime during the night in question, her iPad

       and wallet were taken from her car that was parked approximately one block

       from the house where C.V. was staying. Cornett testified that, on that night, he

       and C.V. left Kroft’s house and Cornett dropped C.V. off so that C.V. could

       meet with a friend. Campbell testified that, at some point, C.V. returned to

       Kroft’s house and was at Kroft’s house the day Corbran arrived. He further

       testified that when C.V. learned that Corbran was at the door, C.V. panicked

       and left the house immediately. As more than one witness testified at C.V.’s

       hearing, the incredible dubiosity rule is inapplicable. See Moore v. State, 27

       N.E.3d 749, 758 (Ind. 2015) (testimony of multiple witnesses alone precludes

       application of incredible dubiosity rule); Cox v. State, 780 N.E.2d 1150, 1154

       (Ind. Ct. App. 2002) (declining to address incredible dubiosity claim because

       more than one witness testified to events surrounding the crime); see also

       Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001) (“It is for the trier of fact to

       resolve conflicts in the evidence and to decide which witnesses to believe or

       disbelieve.”).


[20]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1712-JV-2826 | May 22, 2018   Page 9 of 9
