Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2895 | September 6, 2017 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

Anthony S. Churchward

Deputy Public Defender

Anthony S. Churchward, PC

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Daveaun D. Carson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 6, 2017

Court of Appeals Case No.

02A03-1612-CR-2895

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D05-1608-F3-48

May, Judge.
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[1] Daveaun D. Carson appeals his conviction of Level 3 felony robbery,1 arguing 

the evidence was insufficient to sustain the conviction. We affirm.

Facts and Procedural History

[2] On July 28, 2016, John Burley was trying to buy a used television through a

mobile device application called LetGo.2

 He located a television that interested 

him and entered into negotiations with a user calling himself “Brian,” (see, e.g., 

Tr. Vol. 1 at 35), later identified as Carson. Burley agreed to buy the television 

for $250. After some confusion about the address where Burley could obtain 

the television, Burley and his two small children arrived at the location Carson 

indicated. 

[3] Carson met Burley at his car and told Burley the television was inside the 

apartment. Burley agreed to follow Carson inside and locked his children in the 

car. Burley followed Carson around the building. Another man was sitting 

outside the apartment. Carson then pulled a gun on Burley and ordered him to 

hand over the money for the television. Burley told the men the money was in 

the car. “With the gun still [pointed] at [him],” the men walked Burley back to 

his car where he unlocked his car and retrieved the $250. (Id. at 41.) Carson 

took Burley’s money, phone, and car keys. 

 

1 Ind. Code § 35-42-5-1 (2014).

2 LetGo is an application used on mobile devices to “buy and exchange goods with someone.” (Tr. Vol. 1 at 

79.) 
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[4] Burley drove his car to a nearby gas station and requested assistance from a 

bystander.3

 The bystander called 911 for Burley, and the police arrived to take 

Burley’s statement. At the gas station, Burley stated the man with the gun was 

“5’9” to 5’11”, bald, African American with a dark complexion,” (id. at 74), 

and the other man at the scene was “African American, bigger build, 5’7”, 

5’9”ish . . . curly hair.” (Id. at 67.) However, when the police went to the 

apartment complex they were unable to locate either individual and the 

apartment toward which Carson led Burley to get the television was empty. 

[5] The next day, Burley discovered his LetGo account was blocked from viewing 

any posts from “Brian.” Burley created a fake account in the name of 

“Brittney.” (See, e.g., id. at 73.) Using this account, he located “Brian” and 

entered into negotiations to buy an iPhone “Brian” had listed. Burley 

contacted Detective Larry Tague of the Fort Wayne Police Department to tell 

him about his negotiations. Detective Tague asked Burley to arrange a meeting 

between “Brian” and “Brittney.” After warning Burley to stay away from the 

meeting location, Detective Tague and several other officers conducted 

surveillance of the area. Detective Tague observed Carson at the meeting area 

but Carson left when he saw Detective Tague. Uniformed police officers 

conducted a traffic stop of the car Carson was in and arrested the occupants. 

 

3 Burley’s vehicle had a “mechanical malfunction” wherein it was able to run without a key in the ignition. 

(Tr. Vol. 1 at 80.)
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[6] Detective Tague requested Detective Daniel Peters present two photo arrays to 

Burley. Carson’s picture was in the first array and the driver of the car was in 

the second array. Burley identified Carson as the man who had “pointed [a 

gun] at [his] face” and robbed him. (Id. at 63.) Burley did not identify anyone 

in the second array. 

[7] The State charged Carson with Level 3 felony robbery and the case was tried by

jury. The jury found Carson guilty, and the trial court entered the conviction 

and sentenced Carson to twelve years. 

Discussion and Decision

[8] 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 may reasonably be drawn from it to support the verdict. Id. at 

147. 
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[9] Carson was convicted of Level 3 felony robbery. “[A] person who knowingly 

or intentionally takes property from another person . . . by using or threatening 

the use of force . . . or by putting any person in fear . . . while armed with a 

deadly weapon” commits Level 3 felony robbery. Ind. Code § 35-42-5-1 (2014). 

[10] Carson argues the State did not present sufficient evidence because Burley’s 

testimony was incredibly dubious. Specifically, he asserts Burley originally

identified the person who robbed him as bald and between 5’9” to 5’11” tall,

but that Burley’s later identifications of Carson in the photo array and at trial

were of a man who was not bald and stands between 6’3” and 6’4” tall. 

[11] The incredible dubiosity rule allows the appellate court to impinge on the factfinder’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. It is well-settled that “discrepancies between a 

witness’s trial testimony and earlier statements made to police and in 
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depositions do not render such testimony ‘incredibly dubious.’” Holeton v. State, 

853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006).

[12] The incredible dubiosity rule does not apply here because Burley’s testimony 

was supported by circumstantial evidence and his testimony at trial was not 

inherently contradictory, equivocal or the result of coercion. At trial, Burley 

maintained he could “remember [Carson’s] face more than anything.” (Tr. 

Vol. 1 at 44.) He was focusing on Carson’s “nose, his eyes, and just the shape –

what his picture of his face looked like.” (Id.) Thus, although he may have

misconstrued very short hair for bald and did not have Carson’s height correct, 

his identification and subsequent testimony was unequivocal that Carson was 

the man who robbed him. 

[13] Additionally, Burley’s identification of Carson is supported by the fact Carson 

showed up for the fictitious sale of the iPhone. When questioned by Detective 

Marc Deshaies, Carson indicated “he was there to meet a female in order to 

buy an IPhone [sic] 6S plus.” (Id. at 130.) Thus, Burley’s testimony was not 

inherently contradictory, equivocal, or the result of coercion, nor was there a 

complete absence of circumstantial evidence. As such, the incredible dubiosity 

rule does not apply. See Moore, 27 N.E.3d at 760 (holding incredible dubiosity 

rule inapplicable where factors necessary to warrant application of the rule were 

not present). Carson’s arguments to the contrary are an invitation for us to 

reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146. 

Carson does not assert any other grounds to support his claim of insufficient 

evidence, and we therefore hold the State presented sufficient evidence to prove
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Level 3 felony robbery. See Wilburn v. State, 515 N.E.2d 1109, 1110 (Ind. 1987) 

(“The uncorroborated testimony of [robbery] victim was sufficient to convict 

the appellant.”). 

Conclusion

[14] The State presented sufficient evidence of Level 3 felony robbery as Burley’s 

testimony was not incredibly dubious. Accordingly, we affirm.

[15] Affirmed. 

Brown, J., and Pyle, J., concur.