Larry D. Newkirk v. State of Indiana (mem. dec.)

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).

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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

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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)

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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.

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