Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 1 of 8

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

Susan D. Rayl

Smith Rayl Law Office, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Kelly A. Loy

Supervising Deputy 

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Javier Garcia,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 29, 2018

Court of Appeals Case No.

18A-CR-1286

Appeal from the Marion Superior 

Court

The Honorable Peggy Hart, Judge 

Pro Tem

Trial Court Cause Nos.

49G05-1706-F5-24176

49G05-1706-F6-20831

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 2 of 8

Case Summary and Issue

[1] Following a bench trial, Javier Garcia was convicted of strangulation, a Level 6 

felony; criminal confinement, a Level 5 felony; and domestic battery, a Class A 

misdemeanor, and sentenced to three years. Garcia appeals his convictions, 

raising the sole issue of whether the evidence was insufficient to support his 

convictions because the testimony of the complaining witness was incredibly 

dubious. Concluding the incredible dubiosity rule does not apply in this case, 

we affirm.

Facts and Procedural History

[2] Garcia and Amanda Ruiz met at work. Eventually their relationship turned 

romantic and they moved in together. During their relationship, they started a 

landscaping business together. For various reasons, they opened a business 

banking account in Ruiz’s name alone, purchased the mobile home in which 

they lived in Ruiz’s name alone, and bought a truck for the company in Ruiz’s 

name alone, although she later signed the title over to Garcia. 

[3] In November 2016, Garcia moved to “another house he had” but would 

occasionally return to the trailer the two had shared. Transcript, Volume II at 

27. On the morning of May 20, 2017, Ruiz was at the trailer and a friend came 

over. Garcia arrived, uninvited, a few minutes later and began attacking Ruiz’s 

friend. Ruiz tried to separate them, but Garcia pushed her to the side. Ruiz’s 

friend was able to flee the trailer and Garcia then turned to Ruiz, pushed her to 
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the bed, put his hand on her throat and exerted pressure, held a knife to her 

throat, and smacked her on the leg, causing her pain. He then left the trailer 

and Ruiz called 9-1-1. Photographs taken following the incident and later 

admitted into evidence at trial show red marks on Ruiz’s throat and thigh.

[4] Two weeks later, on June 3, 2017, Ruiz was at the trailer cleaning when Garcia 

again arrived uninvited and entered the house through the front door. Ruiz told 

him to leave but instead he pushed her into the bedroom, pushed her onto the 

bed, and took her shorts off as she kicked at him and asked him to leave her 

alone. They heard a noise at the front door and Garcia got up and left the 

trailer. Ruiz called 9-1-1. Officer Stuart Bishop of the Lawrence Police 

Department responded and found Ruiz “visually upset” and “in a panicked 

demeanor.” Tr., Vol. II at 162. Officer Bishop observed “a scratch or some 

skin peeled off on [Ruiz’s] foot and then a scratch on her inner thigh.” Id. 

Photographs admitted into evidence at trial from this incident show a scratch 

on Ruiz’s leg and an injury to her foot.

[5] For the incident on May 20, 2017, the State charged Garcia with strangulation, 

a Level 6 felony; residential entry, a Level 6 felony; domestic battery, a Class A 

misdemeanor; and battery, a Class A misdemeanor. For the incident on June 

3, 2017, the State charged Garcia with criminal confinement, a Level 5 felony,

and battery resulting in bodily injury, a Class A misdemeanor. Garcia waived 

his right to a trial by jury and the two cases were tried together. At the close of 

the State’s case-in-chief, Garcia moved for a directed verdict with respect to all 

counts. The trial court granted a directed verdict and dismissed the residential 
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entry count but denied a directed verdict as to the remaining counts. Garcia 

testified on his own behalf and denied the May 20 incident occurred at all. He 

asserted the June 3 incident was actually between himself and Ruiz’s husband 

who had recently returned. He also asserted that $2,000 in the business account 

in Ruiz’s name disappeared after his arrest. At the conclusion of the evidence, 

the trial court found Garcia guilty of all remaining counts, entering judgment of 

conviction only as to strangulation, criminal confinement, and domestic 

battery. The trial court sentenced Garcia to an aggregate of three years

executed.1 Garcia now appeals.

Discussion and Decision

I. Standard of Review

[6] Our standard of review for sufficiency of the evidence claims is well settled: we 

do not reweigh the evidence or judge the credibility of the witnesses. Purvis v. 

State, 87 N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the 

evidence most favorable to the verdict and the reasonable inferences drawn 

therefrom. Id. We will affirm a defendant’s conviction “if there is substantial 

evidence of probative value supporting each element of the crime from which a 

 

1 The trial court sentenced Garcia to one year each for the strangulation and domestic battery convictions 

and three years for the criminal confinement conviction, all to be served concurrently.
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reasonable trier of fact could have found the defendant guilty beyond a 

reasonable doubt.” Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).

II. Sufficiency of the Evidence

[7] Garcia does not specifically contend that Ruiz’s testimony did not prove the 

elements of the charges against him. Instead, he argues Ruiz’s testimony is not 

sufficient to support his convictions because Ruiz’s “statements to police and 

her testimony were evasive, inherently contradictory, and demonstrate that she 

was not a credible witness.” Appellant’s Brief at 14. In general, the 

uncorroborated testimony of the victim is sufficient to sustain a conviction. 

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an exception, 

however, when that testimony is incredibly dubious. The incredible dubiosity 

rule allows the reviewing court to impinge upon a fact finder’s responsibility to 

judge the credibility of the witnesses when confronted with evidence that is “so 

unbelievable, incredible, or improbable that no reasonable person could ever 

reach a guilty verdict based upon that evidence alone.” Moore v. State, 27 

N.E.3d 749, 751 (Ind. 2015). The rule is applied in limited circumstances,

namely where there is “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.” Id. at 756. Application of the incredible 

dubiosity 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). “[W]hile incredible 

dubiosity provides a standard that is ‘not impossible’ to meet, it is a ‘difficult 
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standard to meet, [and] one that requires great ambiguity and inconsistency in 

the evidence.’” Moore, 27 N.E.3d at 756 (quoting Edwards v. State 753 N.E.2d 

618, 622 (Ind. 2001)).

[8] Garcia contends that Ruiz was “the sole witness to testify to the incidents she 

claimed occurred,” discounting the testimony of two police officers because 

they were not present for the alleged incidents. Appellant’s Br. at 15. He also 

focuses on alleged inconsistencies between what Ruiz told police at the time of 

the incidents and what she testified to in court. And finally, he alleges the 

photographs are not corroborating evidence because “[a]ny marks on on [sic] 

her she could have made herself.” Id. at 17. 

[9] In applying the Moore factors, we conclude the incredible dubiosity rule is 

inapplicable to the present case. With respect to the first factor, although there 

were three testifying witnesses, the testimony of the two police officers alone 

would likely have been insufficient to find Garcia guilty because they were not 

eyewitnesses to the incidents, leaving only Ruiz’s testimony to prove the 

elements of the crimes. See Smith v. State, 34 N.E.2d 1211, 1221-22 (Ind. 2015) 

(noting that although three witnesses testified, without the allegedly incredibly 

dubious testimony of one witness, the remaining witnesses’ testimony would 

have been an insufficient basis for the jury to find the defendant guilty; 

therefore, the first factor was satisfied). However, each of the three factors must 

be shown in order to invoke the incredible dubiosity rule. See Moore, 27 N.E.3d 

at 758 (noting the appellant had failed to satisfy factor one because multiple 

witnesses had testified, and therefore “our analysis could here”). Therefore, 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1286 | November 29, 2018 Page 7 of 8

even if the first factor is satisfied when multiple witnesses testify but only one is 

an eyewitness, Garcia must still show the remaining Moore factors are satisfied. 

[10] As to the second factor, the incredible dubiosity rule applies only to conflicts in 

trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006). 

Although Garcia focuses on differences between Ruiz’s statements to police 

after the incidents and her trial testimony, her trial testimony was not internally 

inconsistent or inherently contradictory regarding the elements of the crimes 

alleged. The second prong is satisfied “only when the witness’s trial testimony 

was inconsistent within itself, not [when] it was inconsistent with other 

evidence or prior testimony.” Smith, 34 N.E.3d at 1221. In other words, 

discrepancies between a witness’ testimony and earlier statements do not render 

testimony incredibly dubious. Holeton v. State, 853 N.E.2d 539, 541-42 (Ind. Ct. 

App. 2006). Ruiz’s testimony on the important facts regarding what Garcia did 

to her was consistent. 

[11] And as to the third factor, “[i]n a case where there is circumstantial evidence of 

an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” 

Smith, 34 N.E.3d at 1222 (quotation omitted). Here, there was not a complete 

lack of circumstantial evidence. Moreover, the circumstantial evidence is not 

required to independently establish guilt. Id. at 1221. Officers photographed 

Ruiz’s injuries after each incident. Officer Bishop described Ruiz’s demeanor 

in the aftermath of the June 3 incident as “visually upset” and “panicked,” and 

he observed the scratches on her leg and foot. Tr., Vol. II at 162. 
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[12] Garcia has failed to establish the limited exception of the incredible dubiosity 

rule applies, and we decline to disturb the finder of fact’s determination that 

Ruiz’s testimony was more credible than Garcia’s regarding what occurred on 

May 20 and June 3, 2017. The State presented direct testimony and 

circumstantial evidence that was sufficient for a reasonable finder of fact to find 

Garcia guilty beyond a reasonable doubt of the crimes charged.

Conclusion

[13] The incredible dubiosity rule does not apply in the circumstances of this case. 

The victim’s testimony and corroborating evidence are sufficient to support 

Garcia’s convictions. Therefore, we affirm.

[14] Affirmed.

Baker, J., and May, J., concur.