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:

KURT A. YOUNG GREGORY F. ZOELLER

Nashville, Indiana Attorney General of Indiana

JAMES B. MARTIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CYNTHIA M. ALVEY, )

)

Appellant-Defendant, )

)

vs. ) No. 07A01-1307-CR-328

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE BROWN CIRCUIT COURT

The Honorable Judith A. Stewart, Judge

Cause No. 07C01-1207-CM-250

February 7, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Cynthia M. Alvey challenges the sufficiency of the evidence supporting her conviction 

for class C misdemeanor operating while intoxicated (“OWI”). In so doing, she invokes the 

“incredible dubiosity” rule – which has customarily been used to dispute the veracity of other 

witnesses – in order to dispute the veracity of her own statements to police officers. Alvey’s 

approach, while unorthodox, is ultimately unavailing, and therefore we affirm her OWI 

conviction.

The relevant facts most favorable to the jury’s verdict are that around 11:30 p.m. on 

July 13, 2012, Brown County Reserve Deputy Sheriff Mark Stargell responded to a dispatch 

and found a car with its lights off parked on the side of State Road 135 near a wooded area. 

Alvey was unconscious in the front passenger seat, and the keys were in the ignition. Deputy 

Stargell reached through the open window and shook Alvey, who was unresponsive. He

checked Alvey’s pulse and shone his flashlight on the woods to see if anyone was “maybe 

out of the car using the restroom or [] something like that.” Tr. at 71. He saw no one and 

again attempted to awaken Alvey. After several minutes, she woke up. Her eyes were red, 

her speech was slurred, and she smelled of an alcoholic beverage. Deputy Stargell did not 

see any alcoholic beverage containers in or around the car. Alvey gave Deputy Stargell her 

driver’s license. He checked the license, which was suspended, and the car, which was 

registered to Alvey, and turned the investigation over to Deputy Chad Williams, who had 

since arrived at the scene.

Deputy Williams asked Alvey what she was doing there. She said that she had fought 

with her boyfriend and then gone to her property on Lake Lemon “to try to cool off.” Id. at 
3

126. Alvey’s property was slightly over a twelve-minute drive from where her car was 

parked. According to Alvey, she was returning home to Indianapolis when she was pulled 

over by two female officers wearing uniforms like the one Deputy Williams was wearing, 

who told her that she could park on the side of the road and “sleep it off” and “sober up.” Id. 

at 127. No female Brown County sheriff’s deputies were working that evening. Deputy 

Williams asked Alvey how her car got there, and she replied, “I drove it.” Id. She said that 

she had not had anything to drink since she parked there and that her last drink was about 

four hours ago. Deputy Williams recorded this conversation on a digital audio recorder. He

then administered three field sobriety tests, which were recorded on video, and Alvey failed 

them all. She agreed to submit to a chemical breath test, which indicated an alcohol 

concentration of .26.

The State charged Alvey with class A misdemeanor operating with an alcohol 

concentration equivalent of .15 or greater, class C misdemeanor OWI, and class A 

misdemeanor driving while suspended. The trial court entered a directed verdict on the first 

count, and the jury found Alvey guilty of the other two counts.

On appeal, Alvey challenges the sufficiency of the evidence supporting her OWI 

conviction. In reviewing a sufficiency claim, we do not reweigh evidence or judge witness 

credibility. Lay v. State, 933 N.E.2d 38, 41 (Ind. Ct. App. 2010), trans. denied. We consider 

only the evidence most favorable to the verdict and all reasonable inferences therefrom and 

will affirm if the evidence and inferences constitute substantial evidence of probative value 

to support the verdict. Id. “It is not necessary that the evidence overcome every reasonable 
4

hypothesis of innocence.” Id. at 41-42. “We will affirm if evidence of probative value exists 

from which a jury could find the defendant guilty beyond a reasonable doubt.” Id. at 42.

Alvey invokes the “incredible dubiosity” rule, which our supreme court explained as 

follows:

Within the narrow limits of the “incredible dubiosity” rule, a court may 

impinge upon a jury’s function to judge the credibility of a witness. If 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.

Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).

The statute under which Alvey was prosecuted, Indiana Code Section 9-30-5-2, states 

that “a person who operates a vehicle while intoxicated commits a Class C misdemeanor.” 

“Intoxicated” means under the influence of alcohol “so that there is an impaired condition of 

thought and action and the loss of normal control of a person’s faculties.” Ind. Code § 9-13-

2-86. Alvey notes that the issue at trial was whether she was intoxicated when she operated 

her vehicle, and she argues that her “statements concerning driving and timing were those of 

a highly intoxicated individual, whose other statements had been disregarded as untrue or 

impossible. Her statements were inherently improbable and wholly uncorroborated and, had 

they been proffered as testimony, would clearly constitute testimony of incredible dubiosity.”

Appellant’s Br. at 8.
5

On the contrary, Alvey’s statements regarding “driving and timing” were corroborated

by other evidence. Alvey was found unconscious and unresponsive in her car on the side of 

the road approximately twelve minutes from her Lake Lemon property, and no other persons 

or alcoholic beverage containers were found in the vicinity. Her eyes were red, her speech 

was slurred, she smelled of an alcoholic beverage, she failed three field sobriety tests, and her 

alcohol concentration was .26. In light of this evidence, a juror reasonably could infer that 

Alvey consumed a large amount of alcohol before she started driving, that she operated her 

vehicle while intoxicated, and that she pulled over to the side of the road to “sleep it off” and 

“sober up.” Tr. at 127. Moreover, other than her apparent lie about the female officers, the 

rest of Alvey’s statements are neither incredibly dubious nor inherently improbable. As such, 

we conclude that the “incredible dubiosity” rule is inapplicable, and we must reject her 

invitation to reweigh evidence and judge witness credibility in her favor. Therefore, we 

affirm her OWI conviction.

Affirmed.

BAKER, J., and NAJAM, J., concur.