Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                 Feb 27 2014, 9:39 am
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:

RYAN P. DILLON                                  GREGORY F. ZOELLER
Dillon Legal Group, P.C.                        Attorney General of Indiana
Franklin, Indiana
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID E. MATNEY,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 55A01-1308-CR-372
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MORGAN SUPERIOR COURT
                       The Honorable Christopher L. Burnham, Judge
                            Cause No. 55D02-1209-FD-1316



                                    February 27, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          This case illustrates the importance of making a contemporaneous objection at

trial to the admission of evidence and the limited circumstances in which the doctrine of

“incredible dubiosity” is applied.    Appellant-defendant David E. Matney brings this

appeal following his conviction for Auto Theft,1 a class D felony.

          Matney argues that the trial court committed fundamental error in not excluding

the testimony of his co-defendant who had pleaded guilty to the offense because it

unfairly prejudiced him. Matney further claims that his conviction must be set aside

because one of the witness’ testimony was inherently improbable, speculative, and

unbelievable.

          Concluding that the evidence was sufficient to support Matney’s conviction and

that the trial court did not commit fundamental error, we affirm the judgment of the trial

court.

                                          FACTS

          Richard Jones, the owner of a used car business in Morgan County, purchased a

red Ford Mustang in May 2012 that he later advertised for sale online. On August 8,

2012, at approximately 6:00 p.m., two men—who were later identified as Matney and

Tyler Greeson—approached Jones as he was leaving the car lot. Jones spoke with one of

the men who told Jones that he had $500 and wanted to buy a vehicle. However, Jones

informed Matney and Greeson that the business was closed for the day and told them to

return the next day.

1
    Ind. Code § 35-43-4-2/5(b)(1).
                                             2
       The following day, Jones noticed that the Mustang was missing from the lot.

After Jones contacted the police, he viewed the surveillance videotape of the premises

and saw footage of Matney driving the Mustang off the lot.

       Detective Bradley Yarnell of the Mooresville Police Department reviewed the tape

and took several still shots of the suspects that he posted on a Facebook page under the

title “Mooresville Police Department Crime Tips.” Tr. p. 209-10. After viewing the

Facebook page, Heather Adams recognized Greeson as one of the suspects and contacted

Crimestoppers.     Adams—who knew both Greeson and Matney—later received a

photograph on her cell phone showing Matney in the driver’s seat of a red Ford Mustang

with his girlfriend and her children sitting in the backseat.

       When Adams contacted Matney, he told her that he had made a key to the

Mustang during a prior test drive and admitted that he drove the car off the lot the night it

was stolen. During the investigation, Detective Yarnell also spoke with Adams, who

identified the suspects as Greeson and Matney. Detective Yarnell eventually spoke to

Greeson who told the detective that he walked to the car lot with Matney, who was

carrying a key with a white tag that said “Mustang Cobra.” Tr. p. 331.

       Based on this information, on September 6, 2012, the State charged Matney with

auto theft. Greeson was also charged in the incident, and he subsequently pleaded guilty

to the charge. Matney sought to exclude Greeson’s trial testimony because he was not

able to depose Greeson prior to trial.       Matney’s counsel claimed that he scheduled

Greeson’s deposition after Greeson had already pleaded guilty. However, the State

                                              3
subsequently filed a probation violation that resulted in Greeson’s return to jail.

Matney’s counsel informed the trial court that when he arrived at the jail to depose

Greeson, he was told that Greeson’s attorney instructed Greeson to invoke his Fifth

Amendment privileges and refuse to testify.      Greeson’s counsel informed Matney’s

attorney that future attempts to depose Greeson would be futile in light of his advice not

to testify.

        The trial court denied Matney’s motion to exclude Gleeson’s testimony and the

case proceeded to trial. Greeson was granted immunity in exchange for his testimony

against Matney.     Greeson, Adams, and other witnesses testified.        Greeson’s trial

testimony was equivocal and did not identify Matney as the driver of the vehicle. In fact,

Greeson testified that he could not remember who went with him to the car lot on the day

of the theft. Matney did not object to Greeson’s testimony. Matney was found guilty as

charged and was subsequently sentenced to 1060 days of incarceration with credit for 339

days served. Matney now appeals.

                            DISCUSSION AND DECISION

                               I. Exclusion of Testimony

        Matney argues that the trial court committed fundamental error in denying his

motion to exclude Greeson’s trial testimony. Specifically, Matney contends that the

testimony should have been excluded because “Greeson’s testimony afforded the State

the opportunity to introduce extrinsic evidence of prior inconsistent statements made by

the witness.” Appellant’s Br. p. 5. Moreover, Matney maintains that his inability to

                                            4
depose Greeson prior to his testimony at the jury trial constitutes a violation of basic

principles and a denial of his fundamental due process.

       In general, the admission or exclusion of evidence is within the trial court’s

discretion, and we review those decisions only for an abuse of discretion. Jones v. State,

780 N.E.2d 373, 376 (Ind. 2002). The trial court’s determination of violations and

sanctions will be affirmed absent clear error and resulting prejudice. Bradley v. State,

770 N.E.2d 382, 387 (Ind. Ct. App. 2002).

       At the outset, we note that Matney did not object to Greeson’s trial testimony.

Thus, the issue is waived. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)

(holding that the failure to make a contemporaneous objection to the admission of

evidence results in waiver of any claim of error based upon that evidence). However, in

an effort to avoid waiver, Matney contends that the admission of Greeson’s testimony

constituted fundamental error.

       To qualify as fundamental error, an error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible. Brown v. State, 799 N.E.2d 1064, 1067 (Ind.

2003). Application of the fundamental error doctrine is extremely narrow, and is applied

only when the error constitutes a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant fundamental

due process. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App. 2007).

       The sanction of witness exclusion should not be employed unless the breach has

been purposeful or intentional or unless substantial and irreparable prejudice would result

                                             5
to the opposing party.     Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986). Our

Supreme Court has set forth several factors that are helpful in determining whether a

witness should be excluded:

              (i)When the parties first knew of the witness; (ii) the importance of the
              witness’s testimony; (iii) the prejudice resulting to the opposing party; (iv)
              the appropriateness of lesser remedies such as continuances; and (v)
              whether the opposing party would be unduly surprised and prejudiced by
              the inclusion of the witness’s testimony.

Williams v. State, 714 N.E.2d 644, 651 n.5 (Ind. 1999).

       When examining these factors in this instance, we cannot say that the trial court’s

denial of Matney’s motion to exclude Greeson’s testimony was unduly prejudicial to

Matney.    For instance, Matney has not alleged that the State violated any pre-trial

discovery orders or belatedly disclosed Greeson as a witness. Both parties knew of

Greeson from the time that the charges were filed against Matney.             Additionally,

Greeson’s name was included in the probable cause affidavit that the State filed on the

same date of the charging information. Appellant’s App. p. 2, 111-12. However, after

Matney’s counsel scheduled Greeson’s deposition, Greeson invoked his Fifth

Amendment rights on the advice of his counsel and refused to be deposed. Id. at 31-32.

Matney directs us to no authority—and we have found none—in support of his position

that a witness who invokes his Fifth Amendment privilege against self-incrimination at a

deposition may later be excluded as a witness on that basis at trial.

       Matney also does not assert that the State acted in bad faith. In our view, the State

did not engage in the type of intentional or purposeful behavior that would justify the

                                              6
extreme sanction of exclusion.        Indeed, Greeson’s decision to invoke his Fifth

Amendment privilege at his deposition was not within the State’s control. In Matney’s

written motion to exclude Greeson’s testimony, his counsel noted that he made

arrangements with the State to tentatively reschedule Greeson’s deposition, but Greeson’s

counsel indicated that he had advised Greeson not to testify at either a deposition or trial

and that he would continue to advise Greeson of the same.

       We also note that the exclusion of Greeson’s testimony was not compelled by a

showing of substantial prejudice. Pursuant to the trial court’s discovery order, the State

provided Matney’s attorney with a DVD of Greeson’s statement before trial. Thus,

defense counsel was apprised of Greeson’s expected testimony well in advance of trial.

Further, defense counsel may have been able to informally interview Greeson in the

presence of his counsel before the trial began. Hence, he could investigate at least some

aspects of Greeson’s version of the events. Tr. p. 32.

       Finally, while Greeson appeared to be an important witness based upon statements

that he made to Detective Yarnell identifying Matney as the driver of the vehicle during

the commission of the theft, Greeson recanted those statements at trial and refused to

identify Matney as the individual who accompanied him to the car lot on the day of the

auto theft or as the driver of the vehicle during commission of the crime. Appellant’s

App. p. 111-12; Tr. p. 160, 169, 171-72. In short, the State received no benefit from

providing use immunity to Greeson at trial, even though Detective Yarnell responded in

the negative when the State asked if Greeson was “consistent about … his testimony

                                             7
today and what he told you then regarding his drug use, where they went after leaving

Valley Motors, and his inability to recall who was with him” when the theft occurred. Tr.

p. 220. If anything, that testimony benefited Matney because Greeson testified that he

could not remember who accompanied him to the car lot or who drove the car away.

       Under these facts, the “most extreme sanction” of witness exclusion was not

warranted because Matney failed to demonstrate substantial and irreparable prejudice

when the trial court denied his motion to exclude Greeson’s testimony. As a result,

Matney’s claim of fundamental error fails.

                             II. Sufficiency of the Evidence

       Matney next claims that the evidence was insufficient to support his conviction.

Specifically, Matney maintains that the testimony of one of the witnesses, Heather

Adams, is “ripe with characteristics that invoke the doctrine of incredible dubiosity.”

Appellant’s Br. p. 5. As a result, Matney maintains that his conviction must be set aside.

       When a defendant challenges the sufficiency of the evidence supporting a

conviction, we do not reweigh the evidence or judge the credibility of the witnesses. We

consider only the probative evidence and reasonable inferences drawn therefrom that

support the finding of guilt. We likewise consider conflicting inferences in the light most

favorable to the conviction. We will affirm the conviction unless no reasonable trier of

fact could have found the elements of the crime proven beyond a reasonable doubt.

Neese v. State, 994 N.E.2d 336, 339 (Ind. Ct. App. 2013).



                                             8
      In challenging the sufficiency of the evidence, Matney invokes the rule of

incredible dubiosity. As explained by our Supreme Court

      Within the narrow limits of the “incredible dubiosity” rule, a court may impinge
      upon a jury’s function to judge the credibility of a witness. 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 v. State, 761 N.E.2d 806, 810 (Ind. 2002) (emphasis added).            In addition,

inconsistencies between the testimonies of multiple witnesses do not make the evidence

“incredible” as a matter of law, and only go to the weight of the evidence. Morell v.

State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010).

      The crime of auto theft is committed when a person knowingly or intentionally

exerts unauthorized control over the motor vehicle of another person, with intent to

deprive the owner of the vehicle’s use or value or a component part . . . of the vehicle.

Ind. Code § 35-43-4-2.5(b). The State’s charging information alleged as follows:

      [O]n or about August 8, 2012 in Morgan County, . . . [Defendant] did knowingly
      exert unauthorized control over the motor vehicle of Valley Motors Auto Sales, to-
      wit: 1995 Ford Mustang; with the intent to deprive Valley Motors of the vehicle’s
      value or use thereof.

Appellant’s App. p. 110.

      As discussed above, the evidence established that Jones purchased the red

Mustang in May 2012 that he subsequently advertised for sale. Tr. p. 122-24. Around

                                           9
6:00 p.m. on August 8, 2012 two men—Matney and Greeson—approached, indicating

that they wanted to purchase a vehicle. After Jones explained that the business was

closed, he asked them to return the following day. Jones noticed the next day that the

Mustang was missing. After contacting the police, Jones watched a surveillance tape of

the lot and saw footage showing the two men he spoke with the previous evening enter

the Mustang and drive it off of the lot. Tr. p. 129. Jones later identified Greeson as one

of two men who stole the vehicle.

       Following the theft, Adams received a photo showing Matney driving a Mustang

that she later identified was similar to the car that was stolen from the lot. Id. at 183, 191.

Matney admitted to Adams that he made a copy of the key to the Mustang during a test

drive of the car and that he drove the car off the lot the night that it was stolen. At trial,

Adams identified Matney as the other individual in the surveillance videotape on the date

that the Mustang was stolen from Jones’s lot. Id. at 200-01.

       In this case, Matney has failed to show that Adams’s testimony was inherently

improbable, unbelievable, of an incredibly dubious nature, or “riddled with doubt about

its trustworthiness.” Feyka v. State, 972 N.E.2d 387, 392 (Ind. Ct. App. 2012). And

there is no showing that Adams’s testimony was equivocal, coerced, or contradictory.

Adams never wavered from her account of events and her testimony was not inconsistent.

Rather, her testimony was descriptive and clear.

       We also note that Adams’s testimony was not wholly uncorroborated. Even

though Greeson recanted his previous statements at trial, Detective Yarnell testified that

                                              10
Greeson admitted that he and Matney walked over to the car lot together, and that Matney

had a copy of the key with a white tag that said “Mustang Cobra.” Tr. p. 231. This

information corroborated Adams’s testimony that Matney informed her that he made a

copy of the key to the Mustang during a prior test drive of the vehicle. Id. at 194.

Greeson also admitted at trial that he was with Matney earlier in the day when the vehicle

was stolen from the lot. Id. at 159-60.

       In sum, Adams’s testimony does not fall within the narrow confines of testimony

that has been found to be incredibly dubious by this Court. Adams was not equivocal

about her identification of Matney in the surveillance videotape or her conversation with

Matney to the extent that her testimony could be considered “riddled with doubt about its

trustworthiness.” Feyka, 972 N.E.2d at 392. For all of these reasons, the incredible

dubiosity rule does not apply here. Thus, Matney’s claim fails, and we conclude that the

evidence was sufficient to support Matney’s conviction.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




                                            11
