Court of Appeals of Indiana | Memorandum Decision 48A02

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### 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 Douglas R. Long Anderson, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 48A02

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- 28 Appeal from the Madison Circuit Court The Honorable Angela Warner Sims, Judge Trial Court Cause No. 48C01

- 1309

- FD

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Robb , Judge
.Court of Appeals of Indiana | Memorandum Decision 48A02

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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. Co nclud ing 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 ca lled 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 ou tside th e 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] T he State charged Hester with point ing a firearm at another person , and a bench trial was held. On direct examination, Deborah consistently testified Hester pointed a firearm at her :Court of Appeals of Indiana | Memorandum Decision 48A02

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[State:] [A] nd after this point in time

. . . you talked about the

. . . handgun. Can you go back to tha t 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? [ D eborah :] 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 g un 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 point ing 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 agains t her son :Court of Appeals of Indiana | Memorandum Decision 48A02

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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

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[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. A ccording to Officer Bell , Deborah was so adamant the firearm remained in the residen ce , she crawled through a bedroom window to gain access to Hester’s room, which had been locked. Officer Bell testified that a fter discovering the firearm , bullets, and magazine scattered throughout the residence , he recognized the firearm and bullets wer e of the same caliber.

[5] The trial court found Hester guilty of point ing 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.Court of Appeals of Indiana | Memorandum Decision 48A02

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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). T he court neither rew eighs the evidence nor re assesses 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 reas onable doubt.” Drane , 867 N.E.2d at 146

- 47 ( citation omitted).



## II. S ufficiency 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, 75 5 (Ind. 2015) ( citations and internal quotation marks omitted). Therefore, “[a]pplication of this rule is rare and the standard to be applied isCourt of Appeals of Indiana | Memorandum Decision 48A02

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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 c oercion; 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 to ld the police and later testified Hester pointed a firearm at her

. On cross

- examination , however, Deborah became

unsure , testif

ying she only remembered the firearm being point ed into the room where she sat. Hester claims this testimony is inherently contradictory , but w e 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, t he statements were merely different

“ characterization s 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 wer e due to her poor memory, history of mental illness, and reluctance to see her son suffer any legal consequences. Ultimately, t he trial court deemed Deborah ’s testimony credible, noting she “never relinquished from the fact” she told police HesterCourt of Appeals of Indiana | Memorandum Decision 48A02

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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 n ot 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 i s neither inherently contradictory nor equivocal

. Because at le ast 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 load ed. “ 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] I f a defendant is charged w ith the Class D felony, but seeks to be convicted of the Cla ss A misdemeanor, “the defendant m ust 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 whichCourt of Appeals of Indiana | Memorandum Decision 48A02

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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.
115 2 (2011). Once at issue, the State must prove the firearm was loaded bey ond a reasonable doubt. Adkins, 887 N.E.2d at 93 8

.

[13] In the present case, i t 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 in to question

. Nonetheless , assuming the fact was at issue, and the State was required to prove the firearm was loaded beyond a reasonable doubt , t here 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

. A fter she threaten ed 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 di scovered 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 c ourt to reweigh the evidence and reassess the credibility of witnesses. I n accordance with our standard o f reviewing sufficiency claims, we credit the trial court’s fin dings 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 i nherently 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 f ind 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

.