Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 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.

A TTORNEY FOR A PPELLANT Talisha Griffin Indianapolis , Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Marjorie Lawyer

- Smith Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Andriosha M. Brown , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. July 8, 2020 Court of Appeals Ca se No. 19A

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- 3069 Appeal from the Marion Superior Court The Honorable Clayton Graham, Judge Trial Court Cause No. 49G07

- 1907

- CM

- 27477

Tavitas , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 2 of 7 

### Summary

[1] Andriosha Brown appeals her conviction for criminal mischief, a Class B misdemeanor. We affirm.



### Issue

[2] Brown presents one issue for our review, which we re state as whether the evidence is sufficient to convict Brown for criminal mischief , a Class B misdemeanor

. 

### Facts

[3] Brown and Deondre 1 have four children together and have been in an open relationship for e ight or nine years. Tr. Vol. II p. 31

. On June 2, 2019, Brandi Ingram (“Ingram”) was visiting Deondr e at another friend’s apartment in Marion County. During the visit , Ingram heard a noise outside the apartment

. Ingram then went to the window of the apartment where she witnessed Brown repeatedly striking the windows of Ingram’s 2014 Mazda with a short pole. Ingram recognized Brown because Ingram and Brown went to high school together and grew up in the same neigh borhood.

[4] According to Ingram , the incident lasted approximately five minutes; Brown first broke the front windshield and subsequently broke the passenger side and driver side windows. Ingram also witnessed Brown attempt to unsuccessfully

1 Deondre’s last name was not provided in the court record.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 3 of 7 break the back wi ndow. After Brown left, Ingram called her mother, Sarah Fitzgerald (“Fitzgerald”) , and her cousin. Ingram observed Brown le ave the

scene , but Brown kept returning

. Ingram’s cousin arrived approximately fifteen minutes later and followed Ingram to Fitzgerald’s house. While at Fitzgerald’s home, Ingram called the police. According to Fitzgerald : (1) the windshield and the back window of the 2014 Mazda were both broken ; and (2) the back window, located be hind her grandson’s car seat in the back seat , was broken and the car seat was covered with broken glass fragments

.

[5] O fficer Turner 2 with the Indianapolis Metropolitan Police Department arrived at Fitzgerald’s residence

. O fficer Turner took photographs and spoke with Ingram

. Ingram later spoke to Detective Richard Eldridge and emailed him a video 3 depicting Brown by Ingram’s car
.

[6] The State charged Brown with criminal mischief, a Class A misdemeanor. A bench trial was held in December 2019. At the close of the presentation of the State’s evidence, Brown moved to dismiss under Indiana Trial Rule 41( B ) , which the trial court denied

.

[7] Brown testified that , in the afternoon on June 2, 2019, she took her children to a waterpark

. Brown denied that she damaged Ingram’s car windows

. At the

2 Officer Turner’s first name was not provided in the record.

3 Ingram testified she attempted to record the incident but testified she “recorded [Brown] moments after she bust (sic) the last windo w”. Tr. Vol

. II p. 17.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 4 of 7 bench trial , t he State did not introduce the police report, photographs , or Ingram’s vide o into evidence

. During closing arguments, the State contended the police report did not “ add any merit to the case . . .” Id

. a t 35

- 36

.

[8] The trial c ourt entered judgment on the lesser

- included offense of criminal mischief, a Class B misdemeanor , and stated: “

. . . it wa s not made clear to the Court through the testimony at trial that [the damage] was at least $750. ” Id. at 37. The trial court sentence d Brown to 180 days , with 174 days suspended to probation

. Brown now appeals her conviction

. 

### Analysis

[9] Brown argues the evidence is insufficient to support h er conviction

. When there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985) , cert. denied ), cert. denied . Instead, “we ‘consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84 )

. “We will affirm the judgment if it is supported by ‘substantial evidence of probative value even if there is some conflict in that evidence.’” Id. ; see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting evide nce, it was “beside the point” because that argument “misapprehend[s] our limited role as a reviewing court”). “We will affirm the conviction unless no reasonable fact

finder could find the elements of the crime proven beyond a reasonable doubt.”Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 5 of 7 Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) ).

[10] Brown was found guilty of criminal mischief, a Class B misdemeanor, pursuant
to Indiana Code Section 35

- 43

- 1

- 2 (a), which provides 4 : “A person who recklessly, knowingly, or intentionally damages or defaces property of another person without the other person ’ s consent commits criminal mischief . . . .” Brown’s specific argument is that the evidence is insufficient to prove Brown damaged or defaced In gram’s 2014 Mazda because : (1) there is a lack of evidence presented to prove the damage was caused by Brown ; and (2) Ingram’s testimony is incredibly dubious

.

[11] The incredible dubiosity rule “allows an appellate court to impinge upon the fact

- finder’s asses sment of witness credibility when the testimony at trial was so ‘unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.’” Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App. 2015) ( quoting Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015) ). “Incredible dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent testimony that ‘runs counter to human experience.’” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001) ). In Moore , our Supreme Court held that “the appropriate scope of the incredible dubiosity rule

4 The Class A misdemeanor statute has a pecuniary loss requirement of “at least seven hundred fifty dollars ($750) but less than fifty thousand dollars ($50,000).” Ind. Code § 35

- 43

- 1

- 2. Although Brown was charged with a Class A misdemeanor, the trial court convicted her of a Class B misdemeanor. Accordingly, we will not discuss the pecuniary loss requirement.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 6 of 7 as utilized in Indiana and other jurisdictions requires that there be : 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.” Moore, 27 N.E.3d at 756

.

[12] Brown’s reliance on the incredible dubiosity rule is misplaced. Importantly, Ingram’s testimony was consistent througho ut

. Ingram claimed Brown was present at the scene and broke the windows of the 2014 Mazda. The fact that Ingram testified that Brown and Deondr e also had an altercation that day does not render the incredible dubiosity rule applicable. See Berry v. Stat e, 703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the incredible dubiosity rule to defendant’s argument that the testimony of the State’s witnesses conflicted, because no witness contradicted himself ).

[13] Brown also argues that Ingram’s testimony regar ding the extent of the damage conflicted with Fitzgerald’s testimony. Ingram testified she could clearly see
Brown striking the Mazda windows with a short pole. Ingram then testified that, after B rown broke the fron t , driver

- side , and passenger windows, Brown attempt ed to break the rear window of the vehicle. Similarly, although she was not present when the damage occurred, Fitzgerald testified that when she saw the vehicle, the fron t windshield , driver

- side and passenger - side window s , and the r ear window of the Mazda were broken

. Brown contends there is an inconsistency between Ingram ’s and Fitzgerald’s testimony concerning the damage incurred to the rear window

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3069 | Ju ly 8, 2020 Page 7 of 7 [14] This difference in Ingram’s and Fitzgerald’s testimony presents a mere credibility question for the trial court , and the incredible dubiosity doctrine does not apply

. Ingram’s testimony was not inherently contradictory, equivocal, or the result of coercion ; accordingly, Brown fails to satisfy the se cond prong of the incredib le dubiosity rule. Brown’s argument that Ingram’s testimony is insufficient because it conflicts with Fitzgerald’s testimony is simply a request for us to reweigh the evidence, which we cannot do. See Gibson, 51 N.E.3d at
210

.

[15] Ultimately, Ingram testif ied that she saw Brown strike the Mazda with a short pole , and the trial court found Ingram to be a credible witness. The State presented evidence that Brown recklessly, knowingly, or intentionally damage d the vehicle without the owner’s consent. Accordi ngly, th e S tate introduced sufficient evidence to convict Brown of criminal mischief , a Class B misdemeanor.


### Conclusion

[16] The evidence is sufficient to support Brown’s conviction. We affirm.

[17] Affirmed

.

Riley, J., and Mathias, J., co ncur.