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: ATTORNEYS FOR APPELLEE:

EUGENE C. HOLLANDER GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

GARY R. ROM

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TOMMY JOE DOUBLIN, )

)

Appellant-Defendant, )

)

vs. ) No. 90A05-1110-CR-521

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE WELLS CIRCUIT COURT

The Honorable Kenton W. Kiracofe, Judge

Cause No. 90C01-1103-FB-3

July 31, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
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STATEMENT OF THE CASE

Appellant-Defendant, Tommy Doublin (Doublin), appeals his conviction for

burglary, a Class B felony, Ind. Code § 35-43-2-1 and his adjudication as a habitual 

offender, I.C. § 35-50-2-8.

We affirm.

ISSUES

Doublin raises three issues on appeal, which we restate as:

(1) Whether the testimony of the single witness was incredibly dubious;

(2) Whether the State committed misconduct during its final argument; and

(3) Whether the trial court properly instructed the jury.

FACTS AND PROCEDURAL HISTROY

On February 16, 2011, Tim Kleinknight (Kleinknight) gave his ex-wife, Tricia 

Shutt-Lewis (Lewis), a key to his home so that Lewis could store ice cream in 

Kleinknight’s freezer for their daughter’s upcoming birthday party. Kleinknight and 

Lewis were married for four years and had been divorced for three years, but Lewis still 

came to Kleinknight’s home about once a week to see and pick up their minor daughter

who continued to live with Kleinknight after their divorce. Lewis was familiar with the 

layout of Kleinknight’s home and was aware that he kept money under his waterbed 

mattress in his bedroom as well as in a safe. After receiving Kleinknight’s key that day, 

Lewis went to a hardware store and had a duplicate key made. 
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On February 21, 2011, Lewis drove Doublin, her then boyfriend, to Kleinknight’s 

home and Doublin used the duplicate key to enter the house. Lewis drove around the 

block while Doublin was inside the home. After about five minutes of being inside, 

Lewis returned and Doublin entered the vehicle with a handful of cash. 

After returning home, Kleinknight did not notice any signs of forced entry, but 

noticed seven hundred fifty dollars missing from under his mattress and that the handle 

on his safe was broken. Kleinknight suspected his former wife was responsible for the 

burglary and contacted the Bluffton City Police Department and spoke to Sergeant James 

Mettler (Sergeant Mettler). Sergeant Mettler interviewed Lewis and Doublin regarding 

the burglary, and both denied any knowledge of it. Days later, Sergeant Mettler received 

a telephone call from Lewis telling him that she had lied to him during her interview. 

Lewis then told Sergeant Mettler that Doublin had talked her into making a duplicate key 

to Kleinknight’s home and that they had mutually agreed the key would later be used to 

enter the house and steal his money. 

Lewis was charged with burglary. In return for her signing a plea agreement that 

required her to testify against Doublin, Lewis was sentenced to house arrest.

On March 21, 2011, the State filed an Information charging Doublin with 

burglary, a Class B felony, I.C. § 35-43-2-1. On March 28, 2011, the State submitted a 

notice to seek habitual offender status, I.C. § 35-50-2-8. On September 6, 2011, a

bifurcated jury trial was held. At the close of the evidence Doublin was found guilty. 

After Doublin was convicted of burglary, he pled guilty to the habitual offender 
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enhancement. On September 20, 2011, a sentencing hearing was held and the trial court 

sentenced Doublin to fifteen years executed with an additional twenty year term under 

the habitual offender status. 

Doublin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECSION

I. Incredible Dubiosity Rule

Doublin first contends that his burglary conviction was not supported by sufficient 

evidence. Doublin argues that there was no evidentiary connection or independent proof 

linking him to the burglary other than Lewis’ testimony. He claims that such testimony 

of Lewis was inherently improbable and totally uncorroborated by any other item of 

evidence and should therefore not be considered credible. When reviewing the 

sufficiency of the evidence needed to support a criminal conviction, we neither reweigh 

the evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 

2009). “We consider only the evidence supporting the judgment and any reasonable 

inferences that can be drawn from such evidence.” Id. We will affirm if there is 

substantial evidence of probative value such that a reasonable trier of fact could have 

concluded the defendant was guilty beyond a reasonable doubt. Id. Evidence is 

insufficient to convict when no rational fact finder could have found the defendant guilty 

beyond a reasonable doubt. Clark v. State, 728 N.E.2d 880, 887 (Ind. Ct. App. 2000).

This court may impinge upon the jury’s responsibility to judge the credibility of 

witnesses only when confronted with inherently improbable testimony or coerced, 
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equivocal, wholly uncorroborated testimony. Lawson v. State, 966 N.E.2d 1273, 1281 

(Ind. Ct. App. 2012). If a sole witness presents inherently improbable testimony and 

there is a complete lack of circumstantial evidence, a defendant’s conviction may be 

reversed. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). This is appropriate only 

where the court has confronted inherently improbable testimony or coerced, equivocal, 

and wholly uncorroborated testimony of incredible dubiosity. 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 incredibly dubiosity rule applies only when a witness contradicts 

himself in a single statement or while testifying, and does not apply to conflicts between 

multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. 

denied. 

Lewis’ testimony was consistent and un-contradicted on both her direct and cross 

examination. Doublin gave no examples of Lewis’ testimony being inherently 

contradictory and instead spent seven pages attempting to persuade this court to reweigh 

her testimony and credibility, which we cannot do. Although Lewis’ testimony as the

sole witness was unsupported, a reasonable fact-finder found Lewis’ testimony credible 

and Doublin guilty beyond a reasonable doubt. Thus, we conclude that Lewis’ testimony 

was not incredibly dubious, and the State did present sufficient evidence to support 

Doublin’s conviction.

II. Prosecutorial Misconduct
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Doublin also contends that the State’s statements during closing argument 

amounted to prosecutorial misconduct. In reviewing whether prosecutorial misconduct 

occurred, we consider (1) whether the prosecutor engaged in misconduct, and if so, (2) 

whether the misconduct, under all of the circumstances, placed the defendant in a 

position of grave peril. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans. 

denied. The gravity of the peril turns on the probable persuasive effect of the misconduct 

on the jury’s decision, not on the degree of impropriety. Id. In judging the propriety of a 

prosecutor’s remarks, we consider statements made in the context of the argument. Weis 

v. State, 825N.E.2d 896, 907 Ind. Ct. App. 2005). 

A claim of prosecutorial misconduct presented on appeal without a 

contemporaneous trial objection, as here, will not succeed unless the defendant 

establishes not only prosecutorial misconduct but also fundamental error. Carter, 956 

N.E.2d at 170. To rise to the level of fundamental error, the error “must constitute a 

blatant violation of basic principles, the harm or potential for harm must be substantial, 

and the resulting error must deny the defendant fundamental due process. Etienne v. 

State, 716 N.E.2d 457, 462 (Ind. 1999).

Although Doublin’s specific argument is difficult to discern, it appears that he 

complains about the State’s references to “innuendo and subterfuge” and the State’s 

mention of “community standards” in its closing argument. (Appellant Br. pp. 23, 26). 

The State emphasized to the jury that Lewis’ testimony was uncontroverted and 

recommended that they follow their common sense. We conclude that these actions did
7

not amount to prosecutorial misconduct nor did it place Doublin in a position of peril

because it was not improper for the prosecutor to ask the jurors to use common sense in 

deciding their verdict. See Staton v. State, 853 N.E.2d 470, 475 (Ind. 2006) (referencing 

Charles A. Wright & Victor J. Gold, Federal Practice & Procedures § 6075 at 450 

(1990) (obviously, no juror can or should approach deliberations with an entirely clean 

cognitive slate. Humans can make intelligent decisions only by drawing upon their 

accumulated background knowledge and experience. Jurors are not only permitted to 

make decisions in this manner, it is expected of them)). Therefore, we conclude that the 

State’s statements during closing argument did not amount t prosecutorial misconduct.

III. Jury Instruction

Finally, Doublin contends the trial court erred by not instructing the jury as to the 

reasonable theory of innocence. Specifically, he asserts that because the evidence against 

him solely consisted of circumstantial evidence, the jury should have been instructed on 

the difference between circumstantial and direct evidence. Instructing the jury is a matter 

assigned to the sound discretion of the trial court, and we review a trial court’s decisions 

only for an abuse of discretion. Smith v. State, 668 N.E.2d 661, 662 (Ind. 1996). In 

reviewing a challenge to a jury instruction, “this court considers: (1) whether the 

instruction correctly stated the law; (2) whether there was evidence in the record to 

support the giving of the instruction; and (3) whether the substance of the tendered 

instruction was covered by the instruction. Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 

2001). 
8

Because Doublin failed to object at trial, he now contends that it was fundamental 

error when the jury was not given an instruction on the reasonable theory of innocence. 

Our supreme court concluded that this instruction should not be used unless the trial court 

determines that the actus reus of a crime may only be established by circumstantial 

evidence; and if so the jury should be instructed with a requirement that proof be so 

conclusive and sure as to exclude every reasonable theory of innocence. Hampton v. 

State, 961 N.E.2d 480, 491 (Ind. 2012). In formulating this position, the court reasoned 

that requiring the instruction in cases where there is any direct evidence of the fact that a 

criminal offense has occurred would result in the instruction rarely being used and 

requiring the instruction in cases where direct evidence is lacking for any single element 

would necessitate the instruction’s use in almost all criminal cases because mens rea is 

often shown only by circumstantial evidence. Id. at 490-91. Thus, the court required the 

instruction’s use when the trial court determines that the actus reus of a crime was 

established only by circumstantial evidence. Id. at 491. 

Doublin argues that all the evidence of his guilt was entirely circumstantial and 

this court should require that proof of his guilt should be so conclusive and sure that it 

excluded every reasonable theory of innocence. Direct evidence is evidence that is based 

on personal knowledge or observation and that, if true, proves a fact without inference or 

presumption. Id. at 489. Circumstantial evidence is evidence based on inference and not 

on personal knowledge or observation. Id. Witness testimony to an alleged crime can be 

direct evidence. See Chapman v. State, 556 N.E.2d 927, 931(Ind. 1990) (testimony of 
9

bank teller was considered direct evidence when the teller identified the unmasked man 

she saw outside bank and the masked man who robbed the bank as the same person). 

Lewis was a direct witness and testified to Doublin’s crime. She testified that Doublin 

used her duplicate key to gain unauthorized access to Kleinknight’s home and steal his 

money. Lewis drove Doublin to Kleinknight’s, picked him up, and observed him with 

the money in his hand when leaving Kleinknight’s home. Because direct evidence

established evidence of Doublin’s guilt, the trial court did not err, let alone make a 

fundamental error, by not offering a jury instruction on the reasonable theory of 

innocence. 

CONCLUSION

Based on the foregoing, we conclude that: (1) Lewis’ testimony was not 

incredibly dubious and sufficient to convict Doublin; (2) statements by the State during 

its closing argument did not amount to fundamental error; and (3) the trial court did not 

commit fundamental error by not giving a jury instruction on the reasonable theory of 

innocence jury instruction. 

Affirmed.

NAJAM, J. and DARDEN, S. J. concur