Court of Appeals of Indiana | Memorandum Decision 49A02-1405-JV-362| January 28, 2015 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

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

Joel M. Schumm

Rory Gallagher

Certified Legal Intern

Appellate Clinic

Indiana University

Robert H. McKinney School of Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General of Indiana

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

T.M.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner

January 28, 2015

Court of Appeals Cause No.

49A02-1405-JV-362

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. Moores, 

Judge

The Honorable Geoffrey Gaither, 

Magistrate

Cause No. 49D09-1402-JD-393

Crone, Judge.

Case Summary

[1] T.M. appeals his adjudication as a delinquent for committing an act that would 

constitute class B felony robbery with a deadly weapon if committed by an 
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adult. He contends that the victim’s testimony is incredibly dubious, and 

therefore the evidence is insufficient to support the true finding. Given that the 

victim was not the sole witness testifying to T.M.’s guilt, we conclude that the 

incredible dubiosity rule is inapplicable and affirm T.M.’s delinquency 

adjudication.

Facts and Procedural History

[2] The facts most favorable to the true finding are as follows. In February 2012, 

around 7:00 p.m., sixteen-year-old C.C. was walking to an Indianapolis store to 

meet his nineteen-year-old brother Austin. It was dark. C.C. was listening to 

music on his cell phone, and three boys approached him. One boy was wearing 

a red jacket with the hood pulled over his head. He pointed a gun at C.C. and 

told him that he would shoot C.C. if C.C. did not hand over his phone. C.C. 

did not know who this boy was, but he found out later. Tr. at 5. The gun was 

black with a silver rod that C.C. could see through an opening at the top. The 

police later told C.C. that it was a BB gun. Another boy wearing a grey and 

black jacket with the hood pulled over his head knocked C.C.’s cell phone out 

of his hand, and it fell to the ground. The boy wearing the red jacket picked it 

up, and the three boys ran away.

[3] C.C. met Austin. Austin saw that C.C. was teary eyed, so he asked him what 

happened. C.C. told him what happened and that one of the boys was wearing 

a red jacket. Austin and C.C. walked around looking for someone with a red 

jacket. 
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[4] About fifteen to twenty minutes after the robbery, Austin and C.C. saw six or 

seven boys in an alley about three and a half blocks from where the robbery had 

occurred. None of the boys in the alley was wearing a red jacket. 

[5] Austin went up to the boys to talk to them “to see what was going on.” Id. at 

30. C.C. did not approach the boys, but remained where they could probably 

not see him. Id. at 20. C.C. recognized two of the boys because he had seen 

them in the neighborhood before. Id. at 8. C.C. recognized T.M., who went by 

the name “Buddy.” Id. at 9. C.C. was friends with T.M.’s sister and had seen 

T.M. four or five times. C.C. did not know the name of the other boy he 

recognized. That boy was later identified as I.D.

[6] The group of boys told Austin that they did not know what was going on with 

the phone and did not have it. Austin tried to call C.C.’s phone and thought 

that he heard it ring. T.M. privately told Austin that he had been involved in 

the robbery, but he did not say that he pulled the gun. Id. at 30-31. Austin 

asked T.M. if anyone else was involved, but T.M. would not tell him. Austin 

searched T.M. but did not find the phone or a gun. Austin had never seen T.M.

or I.D. before. At some point, C.C. told Austin that T.M. looked like the boy 

who had pointed the gun at him, but “he wasn’t for sure” and “he didn’t think 

that Buddy would do it, because ... they were friends.” Id. at 35.

[7] Austin told the boys that they had to return the phone or the police would be 

called. The boys led Austin to a house purportedly to recover the phone. 

Austin searched the house but did not find the phone.
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[8] C.C.’s mother called the police. They came to the house where C.C. and 

Austin were and identified everyone that was there. The police created a lineup 

of ten to twelve people, including Austin and four other people that C.C. knew. 

Id. at 12. C.C. identified T.M. and I.D. as two of the perpetrators, but did not 

identify the third. The phone was never recovered.

[9] The juvenile court found probable cause to approve the filing of a delinquency 

petition against T.M. alleging that he was a delinquent child for committing an 

act constituting a class B felony robbery with a deadly weapon if committed by 

an adult. A factfinding hearing was held for T.M. and his codefendant I.D. 

C.C. and Austin testified. T.M. submitted the probable cause affidavit filed 

against him, which stated that a BB gun had been recovered from I.D.’s yard. 

T.M.’s Ex. A. The probable cause affidavit also stated that the BB gun was 

depicted in two Facebook photographs of I.D. and two other boys. I.D. 

submitted the two Facebook photographs. I.D.’s Ex. A. C.C. testified that the 

BB gun in the Facebook photos was the same gun that T.M. had pointed at 

him. The BB gun was not submitted. The trial court entered a true finding

against T.M. and placed him on probation with a suspended commitment to 

the Indiana Department of Correction. T.M. appeals.

Discussion and Decision

[10] Our standard of review for claims of insufficient evidence with respect to 

juvenile delinquency adjudications is well settled:

We neither reweigh the evidence nor judge the credibility of witnesses. 

The State must prove beyond a reasonable doubt that the juvenile 
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committed the charged offense. We examine only the evidence most 

favorable to the judgment along with all reasonable inferences to be 

drawn therefrom. We will affirm if there exists substantive evidence of 

probative value to establish every material element of the offense. 

Further, it is the function of the trier of fact to resolve conflicts in 

testimony and to determine the weight of the evidence and the 

credibility of the witnesses.

K.D. v. State, 754 N.E.2d 36, 38-39 (Ind. Ct. App. 2001) (citations omitted).

[11] To sustain a true finding that T.M. committed class B felony robbery, the State 

was required to prove beyond a reasonable doubt that he knowingly or 

intentionally took property from another person by using or threating the use of 

force on any person or putting any person in fear while armed with a deadly 

weapon. Ind. Code § 35-42-5-1. T.M. argues that C.C.’s identification of him 

as one of the assailants is incredibly dubious and is therefore insufficient as a 

matter of law. Generally, appellate courts do not judge witness credibility, but 

we may apply the “incredible dubiosity” rule to impinge upon the factfinder’s

function to judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208 

(Ind. 2007). Under the incredible dubiosity rule, 

[i]f 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.

[12] Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
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[13] The fact that the sole witness gives inconsistent testimony does not render such 

testimony incredibly dubious. See Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct.

App. 2007) (concluding that officer’s testimony contained inconsistencies but 

was not incredibly dubious); see also Moore v. State, 827 N.E.2d 631, 640-41 (Ind.

Ct. App. 2005) (stating that minor inconsistencies did not render sole witness’s 

testimony incredibly dubious but rather went to its weight and that was a matter 

for factfinder), trans. denied. “The incredible dubiosity rule applies only when a 

witness contradicts himself in a single statement or while testifying, not to 

conflicts between multiple statements.” Glenn v. State, 884 N.E.2d 347, 356 

(Ind. Ct. App. 2008), trans. denied; see also Buckner v. State, 857 N.E.2d 1011, 

1018 (Ind. Ct. App. 2006) (“The incredible dubiosity rule applies to conflicts in 

trial testimony rather than conflicts that exist between trial testimony and 

statements made to the police before trial.”).

[14] T.M. argues that we should apply the incredible dubiosity rule because C.C.’s 

testimony was equivocal and appears to have been coerced by his older 

brother’s self-help investigation into the robbery. However, C.C. was not the 

only witness to testify to T.M.’s identity as one of the assailants. Austin 

testified that T.M. told him that he was involved in the robbery. Thus, there is 

independent evidence of T.M.’s guilt such that the incredible dubiosity rule is 

inapplicable. See Cox v. State, 780 N.E.2d 1150, 1154 (Ind. Ct. App. 2002) 

(declining to address Cox’s incredible dubiosity claim because more than one 

witness testified as to events surrounding crime).
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[15] Nevertheless, T.M. argues that Austin’s testimony should not bar the 

application of the incredible dubiosity rule because Austin is his older brother 

and was the primary source of coercion. Whether the incredible dubiosity rule 

should be extended to situations involving more than one witness is a question 

that we may leave for another day because we cannot agree with T.M. that the 

record establishes that C.C. was coerced by Austin. Cf. Gaddis v. State, 253 Ind. 

73, 77-82, 251 N.E.2d 658, 660-62 (1969) (sole witness testified that he was 

threatened with prison if he did not testify against Gaddis and his testimony 

regarding his identification of Gaddis as assailant was vacillating, 

contradictory, and uncertain and therefore incredibly dubious). Accordingly, 

we affirm T.M.’s delinquency adjudication.

[16] Affirmed.

Friedlander, J., and Kirsch, J., concur.