Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-28 | September 17, 2015 Page 1 of 9

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

Douglas R. Long

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marvin Hester,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 17, 2015

Court of Appeals Case No.

48A02-1501-CR-28

Appeal from the Madison Circuit 

Court

The Honorable Angela Warner 

Sims, Judge

Trial Court Cause No.

48C01-1309-FD-1712

Robb, Judge.
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Case Summary and Issue

[1] Following a bench trial, Marvin Hester was convicted of pointing a firearm at 

another person, a Class D felony. He raises two issues for our review, which 

we consolidate and restate as whether the evidence is sufficient to sustain his 

conviction. Concluding the evidence was sufficient to prove Hester’s guilt 

beyond a reasonable doubt, we affirm.

Facts and Procedural History

[2] In August of 2013, Hester lived with his mother, Deborah Hester, in her

residence in Anderson, Indiana. On August 31, police were called to the 

residence following a report of a son pointing a firearm at his mother. When 

police arrived, Deborah explained Hester pointed a firearm at her while she was 

in the home office. Further, after learning the police had been called, Hester

took the firearm apart and then wiped it clean, leaving “bullets on the floor

. . . .” Transcript at 138. Hester denied the presence of a firearm in the 

residence, but police discovered five .25 caliber bullets—four being found in the 

hallway “just outside the door of the office”— a firearm magazine, and an 

unloaded .25 caliber firearm located “underneath a reclining-type sofa in the 

living room or family room of the home.” Id. at 184, 189. Hester was arrested.

[3] The State charged Hester with pointing a firearm at another person, and a

bench trial was held. On direct examination, Deborah consistently testified

Hester pointed a firearm at her: 
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[State:] [A]nd after this point in time . . . you talked about the

. . . handgun. Can you go back to that and . . . tell the court what 

happened?

[Deborah:] After I threw the things at him, he left the room, and 

he came back and he had a hand gun [sic], and he pointed it at 

me. 

* * *

[State:] And when he pointed the handgun at you, was he 

standing up?

[Deborah:] Yes.

* * *

[State:] Uh, what do you recall seeing of the handgun that you 

can talk about now in court?

[Deborah:] That it was being pointed at me.

Id. at 133, 135, 136. On cross-examination, Hester’s counsel attempted to 

impeach Deborah’s credibility by addressing her history of mental illness and 

ability to accurately recall the altercation. Specifically, counsel questioned

whether the firearm was pointed directly at her:

[Defense Counsel:] You told the police that, um, [Hester] had a 

gun and was pointing it at you. When . . . you told the police 

that he was pointing the gun at you, was it pointed in your 

direction?

[Deborah:] Um, I don’t recall. I just recall the gun pointing into 

the room.

[Defense Counsel:] But you don’t recall if it was pointed at you?

[Deborah:] I recall it being pointed into the room.

Id. at 164. However, when questioned on re-direct, Deborah recalled telling

police Hester pointed a firearm at her. Moreover, Deborah appeared conflicted 

about testifying against her son:
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[State:] [D]id you indicate to me, um, that you didn’t want to 

testify against your son?

[Deborah:] Yes, I did.

[State:] And is that still how you feel?

[Deborah:] Yes, it is.

[State:] And you don’t want to see anything happen to your son, 

is that correct?

[Deborah:] That’s the truth.

[State:] And when I say “anything happen” I mean . . . through 

the legal process.

[Deborah:] That’s the truth.

Id. at 170-71. 

[4] Responding Officer Jon Bell testified that when police arrived, Deborah 

explained there had been a heated altercation resulting in Hester pointing a 

firearm at her. Upon learning of the firearm, Officer Bell began a search of the 

residence. According to Officer Bell, Deborah was so adamant the firearm 

remained in the residence, she crawled through a bedroom window to gain 

access to Hester’s room, which had been locked. Officer Bell testified that after

discovering the firearm, bullets, and magazine scattered throughout the 

residence, he recognized the firearm and bullets were of the same caliber.

[5] The trial court found Hester guilty of pointing a firearm at another person. 

Hester was sentenced to 1,095 days, with 180 days executed in the Indiana 

Department of Correction and the remainder served through a community 

corrections program. Hester now appeals his conviction.
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Discussion and Decision

I. Standard of Review

[6] When reviewing the sufficiency of the evidence to support a conviction, a 

reviewing court shall consider only the probative evidence and reasonable 

inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 

2007). The court neither reweighs the evidence nor reassesses the credibility of 

witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Instead, the 

court should affirm the conviction unless “no reasonable fact-finder could find 

the elements of the crime proven beyond a reasonable doubt.” Drane, 867 

N.E.2d at 146-47 (citation omitted).

II. Sufficiency of the Evidence

A. Incredibly Dubious Testimony

[7] Hester claims Deborah’s testimony was insufficient to support his conviction

because the testimony was inherently contradictory and equivocal. Specifically, 

Hester cites his mother’s poor memory, history of mental illness, and

inconsistent statements as to whether the firearm was pointed at her. 

[8] The incredible dubiosity rule allows a reviewing court to “impinge upon a [fact 

finder’s] responsibility to judge the credibility of the witnesses only when 

confronted with inherently improbable testimony.” Moore v. State, 27 N.E.3d 

749, 755 (Ind. 2015) (citations and internal quotation marks omitted). 

Therefore, “[a]pplication of this rule is rare and the standard to be applied is 
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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). In Moore, our supreme court stated the appropriate scope of the 

incredible dubiosity rule, which requires: “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.” 27 N.E.3d at 756. If 

any one factor is lacking, application of the incredible dubiosity rule is 

precluded. Id. at 758.

[9] As noted above, Deborah initially told the police and later testified Hester

pointed a firearm at her. On cross-examination, however, Deborah became 

unsure, testifying she only remembered the firearm being pointed into the room 

where she sat. Hester claims this testimony is inherently contradictory, but we 

disagree. Deborah told the police Hester pointed a firearm at her. She testified 

Hester pointed a firearm at her. Deborah never testified the firearm was not

pointed at her; on-cross examination, she simply stated she could not recall. As 

the trial court noted in its decision, the statements were merely different

“characterizations as to what happened that were crafted by . . . counsel in the 

way questions were posed.” Tr. at 270. Further, a reasonable person could 

believe Deborah’s varying characterizations were due to her poor memory, 

history of mental illness, and reluctance to see her son suffer any legal 

consequences. Ultimately, the trial court deemed Deborah’s testimony 

credible, noting she “never relinquished from the fact” she told police Hester 
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pointed a firearm at her, and, at trial, “never indicated that’s not what 

happened.” Id. at 270.

[10] We conclude Deborah’s testimony is not so “inherently improbable that no 

reasonable person could believe it.” Love, 761 N.E.2d at 810. Accordingly, it 

would be inappropriate for this court to impinge on the trial court’s 

responsibility to judge the credibility of a witness. See Moore, 27 N.E.3d at 760. 

Deborah’s testimony is neither inherently contradictory nor equivocal. Because 

at least one Moore factor is not satisfied, Deborah’s testimony is not incredibly 

dubious.

B. Loaded Firearm

[11] Hester claims the evidence is insufficient to support his conviction because the 

State failed to prove beyond a reasonable doubt the firearm was loaded. “A

person who knowingly or intentionally points a firearm at another person 

commits a Class D felony. However, the offense is a Class A misdemeanor if 

the firearm was not loaded.” Ind. Code § 35-47-4-3(b) (2013). Obtaining a 

Class D felony conviction does not necessarily require the State to prove the 

firearm was loaded. Adkins v. State, 887 N.E.2d 934, 937 (Ind. 2008).

[12] If a defendant is charged with the Class D felony, but seeks to be convicted of 

the Class A misdemeanor, “the defendant must place the fact of the gun having 

been unloaded at issue if the State’s evidence has not done so.” Id. at 938 

(holding the fact that a gun is unloaded is a “mitigating factor” rather than an 

affirmative defense). The fact “is at issue if there is some evidence from which 
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the jury can draw a conclusion that the weapon was unloaded.” Scott v. State, 

924 N.E.2d 169, 176 (Ind. Ct. App. 2010), trans. denied, cert. denied, 562 U.S. 

1152 (2011). Once at issue, the State must prove the firearm was loaded 

beyond a reasonable doubt. Adkins, 887 N.E.2d at 938. 

[13] In the present case, it is not necessary to determine whether the fact that the 

firearm was loaded was at issue. Hester fails to cite to any part of the record 

indicating where the fact comes into question. Nonetheless, assuming the fact 

was at issue, and the State was required to prove the firearm was loaded beyond 

a reasonable doubt, there is ample evidence in the record to support such a 

finding. Deborah testified that Hester pointed a firearm at her while she was in 

the home office. After she threatened to call police, Hester took the firearm

apart—leaving “bullets on the floor”—and wiped it clean with a rag. Tr. at 

138. Hester told police there was no firearm in the residence, but police 

discovered a hidden firearm, bullets, and magazine in, and near, the home 

office. The bullets were the same caliber as the firearm. These facts, taken 

together with the entirety of the record, would support a finding beyond a 

reasonable doubt the firearm was loaded when pointed at Deborah.

[14] Hester’s arguments merely invite this court to reweigh the evidence and reassess 

the credibility of witnesses. In accordance with our standard of reviewing 

sufficiency claims, we credit the trial court’s findings as to the evidence and 

credibility of witnesses. Accordingly, the evidence is sufficient to sustain 

Hester’s conviction as a Class D felony.
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Conclusion

[15] Application of the incredible dubiosity rule is precluded because Deborah’s 

testimony was not inherently contradictory. Additionally, regardless of 

whether the firearm being loaded was at issue, the evidence was sufficient to 

show the firearm was loaded when Hester pointed it at his mother. 

Accordingly, we conclude a reasonable fact-finder could find beyond a 

reasonable doubt the elements of pointing a firearm at another person. Hester’s 

conviction is affirmed.

[16] Affirmed.

Vaidik, C.J., and Pyle, J., concur.