Tyrone Jeffrey Toles v. State of Indiana

FILED Aug 18 2020, 9:27 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tyrone Jeffrey Toles, August 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3017 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff Grant Hawkins, Judge Trial Court Cause No. 49G05-1803-F1-9123

Vaidik, Judge.

Case Summary [1] Tyrone Toles was convicted of attempted murder in connection with a

shooting. He appeals, arguing that the victim’s testimony identifying him as the

shooter was not “reliable.” But we do not judge the credibility of witnesses. The

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only exception to this rule is the incredible-dubiosity doctrine. Tyrone1 does not

frame his argument as an incredible-dubiosity argument, but we treat it as such.

Concluding that the victim’s testimony was not incredibly dubious, we affirm

Tyrone’s conviction. To the extent Tyrone would have us adopt a separate

“reliability” or “unreliability” test as an alternative to the incredible-dubiosity

doctrine, we decline to do so.

Facts and Procedural History [2] On February 28, 2018, Tyrone was moving his belongings out of his house in

Indianapolis. He asked his friend, Mike Mahone, to help him lift the heavier

objects out of the house. Tyrone also asked his cousin, Terrence Toles, to help.

Terrence arrived later that evening, around 8:00 p.m., accompanied by his

girlfriend, Channel Tyler. When Terrence and Channel arrived, Tyrone and

Mike had finished moving. All four then participated in some combination of

drinking beer and tequila, smoking marijuana, and snorting cocaine. Terrence,

Mike, and Channel all consumed alcohol, marijuana, and cocaine while Tyrone

drank only beer. The four stayed at Tyrone’s house, partying late into the night.

At some point, Terrence, Channel, and Mike drove to a gas station. Mike was

looking for a ride home but ultimately decided not to have Terrence drive him

home. All three individuals returned to Tyrone’s house, and Terrence asked

1 Because Tyrone Toles shares a last name with one of the other people involved, we refer to the individuals involved by their first names.

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Channel to get more alcohol. While she was away, Terrence took her chair at

the table in the living room. When Channel returned, she sat in the chair closest

to the front door. More alcohol was consumed, and Channel asked Tyrone for

more cocaine. She told Tyrone she would pay him later and consumed the

cocaine. There were no arguments, but there were “words or something”

exchanged between Terrence and Tyrone. Tr. p. 131. According to Channel,

around 5:00 a.m., Tyrone attacked her, beating her and shooting her multiple

times. Terrence fled the house through the back door. Channel crawled from

the front door of Tyrone’s house to a neighbor’s house, and the police were

called. When the police arrived on scene, Channel was rushed to the hospital.

Her injuries included a broken jaw and gunshot wounds to her head, torso,

arm, buttocks, and thigh. Terrence was later found at the back door of another

neighbor’s house with gunshot wounds to his abdomen and thigh. [3] Evidence was collected immediately after the victims were sent to the hospital.

There were spent shell casings on the floor of the living room, metal fragments

collected from the living room and front porch, a shoebox with Aguila-

manufactured .45 caliber ammunition for a handgun on the living-room table,

and a Glock carrying case in the kitchen. A firearms expert determined that the

shell casings found on the scene were manufactured by Aguila and Winchester.

Three of the spent shell casings were of the Aguila brand, and all of the spent

shell casings matched the caliber of the rounds found in the shoebox. The

firearms expert also determined that the bullet jackets had the polygonal

markings of a Bersa or Glock handgun.

Court of Appeals of Indiana | Opinion 19A-CR-3017 | August 18, 2020 Page 3 of 9 [4] The State charged Tyrone with two counts of Level 1 felony attempted murder

(one for Terrence and one for Channel), Level 4 felony unlawful possession of a

firearm, and Level 6 felony escape.2 A trial was held in July 2019. Tyrone and

Channel testified, but Terrence and Mike did not. Ultimately, Tyrone was

found guilty of unlawful possession of a firearm and escape. However, the jury

hung on the two attempted-murder charges. [5] A second trial on the attempted-murder charges was held in November 2019.

Terrence again chose not to testify. Channel and Mike testified, and Tyrone’s

testimony from the first trial was introduced as an exhibit. All three presented

different versions of what happened on the morning of March 1. Channel

testified that around 1:00 or 2:00 a.m., Mike had someone pick him up to take

him home. Then, at around 5:00 a.m., Tyrone pulled out a black handgun, shot

it into the air, jumped on top of Channel, and began beating her and shooting

her with the gun. Channel testified that during this incident, Terrence fled the

room, heading toward the kitchen and out the back door of the house. At some

point, Tyrone chased after Terrence and left her in the front room of the house.

She was then able to open the front door, crawl to a neighbor’s house, and get

the neighbor to call the police. She testified, “I do not have any doubt in my

mind that Tyrone Toles was the one that shot me.” Id. at 121.

2 In the escape count, the State alleged that on the day of the shootings, Tyrone knowingly removed a GPS tracking device.

Court of Appeals of Indiana | Opinion 19A-CR-3017 | August 18, 2020 Page 4 of 9 [6] Mike testified that Terrence and Tyrone had fallen asleep and Channel was

sitting in the middle of the room mumbling to herself. Mike stated that while he

was outside relieving himself on the side of the house and making calls to get a

ride home, he heard the screen door at the front of Tyrone’s house slam. He

returned to the front of the house a minute or two later. Mike testified that once

inside, he saw Tyrone wrestling with another man in a hoodie. Mike stated that

after a minute or two of wrestling in the front room, Tyrone ran toward the

kitchen and the back of the house. Less than a minute later, Mike heard

gunshots, prompting him to flee the scene. He testified that lights were on in the

house, but he never saw a gun, could not see where Channel or Terrence were

during the wrestling incident between Tyrone and the man in the hoodie, and

could not identify the man in the hoodie. [7] Tyrone testified that he had fallen asleep by the time of the incident. He said

that he was woken up by a heavy thump and saw two people wrestling. He

stated that upon seeing this, he chose to flee, only reaching the back door of the

house when he heard the gunshots coming from the front of his house. He fled

out the back door and ran away from the scene. He testified that he came back

later that morning and saw ambulances and police on the scene but did not

make contact with any of the authorities. [8] The jury found Tyrone guilty of attempting to murder Channel but not guilty of

attempting to murder Terrence. The trial court imposed an aggregate sentence

of thirty-five years in the Department of Correction.

Court of Appeals of Indiana | Opinion 19A-CR-3017 | August 18, 2020 Page 5 of 9 [9] Tyrone now appeals.

Discussion and Decision [10] Tyrone contends that the evidence is insufficient to support his attempted-

murder conviction. When reviewing sufficiency-of-the-evidence claims, we

neither reweigh the evidence nor judge the credibility of witnesses. Willis v.

State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the evidence

supporting the verdict and any reasonable inferences that can be drawn from

the evidence. Id. A conviction will be affirmed if there is substantial evidence of

probative value to support each element of the offense such that a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt.

Id. [11] Tyrone does not dispute that Channel’s testimony, if believed, would be

sufficient to support his conviction. However, he argues that her testimony was

not “reliable.” Appellant’s Br. pp. 4, 10, 11, 12, 15. But we do not judge witness

credibility. Willis, 27 N.E.3d at 1066. There is only one exception to this rule:

the incredible-dubiosity doctrine, under which we can impinge upon a

factfinder’s responsibility to judge the credibility of the witnesses when “the

testimony is so incredibly dubious or inherently improbable that no reasonable

person could believe it.” Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App.

2010), trans. denied. Tyrone does not make an argument under that doctrine.

Nonetheless, we will treat his argument as an incredible-dubiosity argument. To

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the extent Tyrone wants us to adopt a separate “reliability” or “unreliability”

test in addition to the incredible-dubiosity doctrine, we decline to do so. [12] According to our Supreme Court, the incredible-dubiosity doctrine “requires

that there be: 1) a sole testifying witness; 2) testimony that is inherently

contradictory, equivocal, or the result of coercion; and 3) a complete absence of

circumstantial evidence.” Moore v .State, 27 N.E.3d 749, 756 (Ind. 2015). The

first element is satisfied—Channel was the sole testifying witness on the issue of

identity. However, the second and third elements are not. [13] Regarding the second element, Tyrone’s and Mike’s stories about what

happened are different than Channel’s, but nothing about her testimony is

inherently contradictory, equivocal, or coerced. On the contrary, she was very

unequivocal. Channel testified that she did “not have any doubt in [her] mind

that Tyrone Toles was the one that shot me.” Tr. p. 121. Tyrone argues that

Channel’s intoxication “certainly impacted her perceptions, her experiences,

and her ability to recall.” Appellant’s Br. p. 15. He also argues that Channel

had an “enmity towards him,” “did not view him favorably,” and “imagined

that he did not want her in the house.” Id. at 15. However, Channel’s

intoxication and alleged “enmity” do not necessarily render her testimony

incredibly dubious. The jury was made well aware of these facts and weighed

Channel’s testimony. [14] Moreover, there is physical evidence corroborating Channel’s testimony that

Tyrone was the shooter. The spent shell casings found in the living room were

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manufactured by Aguila and Winchester. All the rounds fired on the scene were

.45 caliber rounds. On the living-room table, the same table that everyone was

sitting at, was a shoebox containing more .45 caliber rounds manufactured by

Aguila. A Glock carrying case, minus the actual weapon, was found in the

kitchen. And a firearms expert testified that the bullet jackets found on the

scene were likely fired by a Bersa or Glock handgun. [15] Tyrone also argues there are inconsistencies in Channel’s testimony that are

exposed by the physical evidence. He argues that “[Channel] asserted that

Tyrone Toles pointed a gun towards or at the ceiling, but the evidence does not

support that action,” id., because there were no bullet holes in the ceiling of

Tyrone’s living room. But Channel clarified this point testifying that when she

said “in the air,” she meant “just pull it out, shoot randomly. We’re not gonna

aim.” Tr. p. 129. Tyrone also argues that Channel “said she was shot while

Tyrone Toles was on top of her, but no stippling was observed.” Appellant’s Br.

p. 15. Stippling happens when “somebody gets shot at close range, the

gunpowder coming out of the gun is going to burn or put little pock marks in

the skin.” Tr. p. 160. However, this was explained by the trauma surgeon who

worked on Channel. The surgeon noted there was no mention of stippling in

the medical record because “that’s not something we generally comment on.” [16] Because Channel testified that Tyrone was the shooter, and because that

testimony was not incredibly dubious, we affirm Tyrone’s conviction for

attempted murder.

Court of Appeals of Indiana | Opinion 19A-CR-3017 | August 18, 2020 Page 8 of 9 [17] Affirmed.

Bailey, J., and Baker, Sr.J., concur.

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