MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Jun 30 2015, 7:38 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
Anthony S. Churchwood                                    Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, IN
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Reginald Gant,                                           June 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1412-CR-445
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 02D04-1404-FC-108




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015        Page 1 of 7
                                       Statement of the Case
[1]   Reginald Gant appeals his conviction for domestic battery, as a Class D felony.

      Gant presents one issue for our review, namely, whether the State presented

      sufficient evidence to support his conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 11, 2014, Jennifer Fryback traveled with JaMarcus Sheffield to Gant’s

      home in Fort Wayne, where Gant lived with his mother, to pick up E.F.,

      Gant’s eight-month-old son with Fryback. Fryback and Sheffield were in a

      relationship. When Fryback and Sheffield arrived at Gant’s home, Gant was

      outside with several friends. Fryback exited the vehicle, and Gant approached

      her. Immediately, Gant began asking Fryback questions about Sheffield.

      While Gant questioned Fryback, the two proceeded into Gant’s home so that

      Fryback could gather E.F. and his belongings. Sheffield remained in the

      vehicle.


[4]   As Fryback collected E.F., Gant asked her if she and Sheffield were in a

      relationship, to which Fryback responded that Sheffield was “a friend of a

      friend.” Tr. at 85. Gant stated that he did not believe Fryback and exited the

      home, leaving Fryback inside. Gant entered the vehicle to ask Sheffield about

      his relationship with Fryback, and Sheffield responded that their relationship

      was sexual in nature. At Sheffield’s response, Gant, who had a firearm tucked



      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015   Page 2 of 7
      into his waistband, told Sheffield to exit the car because “[i]t’s about to get real

      wet.” Id. at 60. Undeterred, Sheffield exited the vehicle.


[5]   Meanwhile, Fryback had begun putting E.F. into the car, and she heard Gant

      tell Sheffield to get out of the vehicle. In an attempt to avoid an escalation of

      the confrontation, Fryback asked Sheffield to leave the premises, and she got

      into the car with Gant and drove away. E.F. was sleeping in the backseat of the

      car.


[6]   Fryback and Gant continued to argue as Fryback drove around Fort Wayne,

      and their argument continued when Fryback ultimately parked in a nearby

      neighborhood. While stopped, the two faced each other, and their discussion

      became increasingly heated. Gant, who held his gun in his right hand, then

      struck Fryback in her left jaw with his right hand. Fryback’s eyes were closed

      when Gant struck her, so she did not see the attack coming. E.F. woke when

      Gant hit Fryback. Soon thereafter, Fryback and Gant returned to Gant’s home,

      and Fryback left with E.F.


[7]   Fryback suffered redness, swelling, and bruising to her left jaw, and, the next

      morning, Fryback called the Fort Wayne Police Department to report the

      incident. Later that day, Gant came to Fryback’s home, and Fryback again

      called the police, and Gant was arrested soon after. On April 17, 2014, the

      State charged Gant with criminal confinement, as a Class C felony; battery, as a

      Class C felony; pointing a firearm, as a Class D felony; and domestic battery, as




      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015   Page 3 of 7
      a Class D felony. Subsequently, the State dismissed the pointing a firearm

      charge.


[8]   The trial court held Gant’s jury trial on October 21 and 22, 2014. At the

      conclusion of his trial, the jury acquitted Gant of criminal confinement and

      battery but convicted him of domestic battery. Following a sentencing hearing

      held on November 17, 2014, the trial court sentenced Gant to three years in the

      Department of Correction, with two years suspended to probation. This appeal

      ensued.


                                     Discussion and Decision
[1]   Gant contends that the State failed to present sufficient evidence to support his

      conviction for domestic battery. Our standard of review for sufficiency of the

      evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

      quotation marks omitted).




      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015   Page 4 of 7
[2]   To prove that Gant committed domestic battery against Fryback, as a Class D

      felony, the State was required to show: Gant (1) knowingly or intentionally; (2)

      touched Fryback, an individual with whom he had a child in common; (3) in a

      rude, insolent, or angry manner; (4) in the physical presence of a child less than

      sixteen years of age; (5) knowing that the child was present and might be able to

      see or hear the offense; (6) which resulted in bodily injury to Fryback. See Ind.

      Code § 35-42-2-1.3.


[3]   Gant does not contest that the evidence adduced at trial, if reliable, established

      each element of domestic battery, as a Class D felony. Instead, Gant asserts

      that Fryback, the victim, was the only witness against him, and “[s]he gave

      inconsistent testimony that was completely uncorroborated by any independent

      evidence. Further, he[r] testimony was not supported by any surrounding

      circumstances.” Appellant’s Br. at 10. Specifically, Gant argues:


              [Fryback] described the scene and said that she was in the
              driver’s seat[,] and Mr. Gant was on her right in the passenger’s
              seat. She stated that he struck her with the firearm in his right
              hand on the left-side [sic] of her face. The physical position in
              the vehicle described by Ms. Fryback is not realistic and goes
              against common sense. She had also claimed in prior statements
              that Mr. Gant had held the firearm to her head during the car
              ride when[,] at trial[,] she stated that he never pointed it at her.


      Appellant’s Br. at 12-13. Gant also takes issue with photographs of the injuries

      to Fryback’s face, which he contends do not “portray any injury, save a small

      amount of redness. The redness, if any, is completely inconsistent and contrary



      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015   Page 5 of 7
      to her story of being struck with a firearm.” Id. at 13. Thus, Gant maintains

      that Fryback’s testimony was “incredibly dubious.” Id. at 12.


[4]   “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.” Moore v. State, 27 N.E.3d 749, 754

      (Ind. 2015) (internal quotation marks omitted). The rule should only be applied

      in very limited circumstances. Id. Indeed, as our supreme court has explained:


              Under this rule, a court will impinge on the jury’s responsibility
              to judge the credibility of the witnesses only when it has
              confronted inherently improbable testimony or coerced,
              equivocal, wholly uncorroborated testimony of incredible
              dubiosity. . . . A court will only impinge upon the jury’s duty to
              judge witness credibility 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.


      Id. (emphasis in original; internal citations and quotation marks omitted).


[5]   The incredible dubiosity rule does not apply here, and Gant’s attempt to use the

      rule is merely an attempt to circumvent the ordinary rule that, in sufficiency

      challenges, we cannot reweigh the evidence and assess the credibility of

      witnesses. Fryback testified that she and Gant faced each other in the car, as

      she sat in the driver’s seat and as Gant sat in the passenger’s seat. While in this

      position, Gant struck her in the left side of her face with his right hand, in

      which he held a firearm. Nothing about this testimony “goes against common

      sense,” Appellant’s Br. at 13, or is inherently contradictory such that we would
      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015   Page 6 of 7
      invoke the incredible dubiosity rule.1 Further, although Gant disputes the

      content depicted in the photographs of Fryback’s injuries, it was the province of

      the jury to weigh that evidence, and we will not impinge that power here.

      Finally, although it is true that, over the pendency of Gant’s case, Fryback first

      said that Gant pointed the gun at her and later stated that he did not do so, the

      State dropped Gant’s pointing a firearm charge prior to his trial. And,

      moreover, this inconsistency is irrelevant to whether Gant struck Fryback in the

      face, which provided the basis for his conviction for domestic battery.


[6]   Gant also contends that the jury’s acquittal of Gant on the charge of battery is

      “suggestive that there was insufficient evidence” to convict him of domestic

      battery. Appellant’s Br. at 13. However, as Gant recognizes, “[j]ury verdicts in

      criminal cases are not subject to appellate review on grounds that they are

      inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643,

      649 (Ind. 2010). Therefore, we hold that the State presented sufficient evidence

      to convict Gant of domestic battery, as a Class D felony.


[7]   Affirmed.




      Baker, J., and Friedlander, J., concur.




      1
         From Fryback’s testimony, the jury could infer that, although Gant held the firearm in his hand when he
      struck Fryback, he hit her only with his hand and not with the firearm itself.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-445| June 30, 2015               Page 7 of 7
