Charles Moore v. State of Indiana , 27 N.E.3d 749 ( 2015 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Brian L. Reitz
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court Mar 24 2015, 10:01 am
No. 71S00-1405-LW-361
CHARLES MOORE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the St. Joseph Superior Court, No. 71D02-1201-MR-000002
The Honorable John M. Marnocha, Judge
On Direct Appeal from a Sentence of Life Imprisonment Without Parole
March 24, 2015
David, Justice.
Charles Moore was charged with the murders of Alejandro Tinoco and Jazmin Conlee.
After Moore was found guilty of both murders, the jury recommended a sentence of life without
the possibility of parole for the murder of Conlee. Moore was ultimately sentenced to sixty-five
years for the felony murder of Tinoco and life without parole for the murder of Conlee. Moore
appealed solely on the basis that there was insufficient evidence for his convictions. Specifically,
Moore asserts that the incredible dubiosity rule should be applied. The incredible dubiosity rule
allows the court to impinge upon the jury’s assessment of witness credibility when the testimony
at trial is so contradictory that the verdict reached would be inherently improbable. 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. Moore argues the application of this rule is warranted because no reasonable jury could
have found him guilty beyond a reasonable doubt given the inconsistent testimony among three of
the State’s primary witnesses. We disagree. Here, direct and circumstantial evidence was
presented through the testimony of multiple witnesses and the presentation of physical evidence.
This evidence was sufficient for a reasonable jury to find Moore guilty beyond a reasonable doubt
for both murders. Under the facts of this case, the incredible dubiosity rule is inapplicable, and
the jury’s verdict must stand. Moore’s convictions and sentence are affirmed.
Facts and Procedural History
On January 25, 2012, South Bend Police Officer Joshua Morgan was dispatched to 1101
North Adams Street, where a reported shooting had occurred. Officer Morgan arrived at the scene
at approximately 8:50 p.m., and other patrol officers had already arrived at the scene. Officer
Morgan had to carefully open the front door when entering the house because one of the victims
was lying just inside. The young man, later identified as Alejandro Tinoco, had been shot in the
head. Although he was breathing, he was in critical condition. Upon entering the house, Officer
Morgan also observed a female victim, later identified as Jazmin Conlee, who had also been shot
and was sitting up against the wall behind a couch. Conlee was breathing but in critical condition
as well. Both victims were taken to the hospital, where Tinoco was soon pronounced dead, and
Conlee immediately underwent surgery. Although Conlee underwent multiple surgeries, it was
determined that she would not recover from her wounds, and she was pronounced dead on
February 8, 2012. Both Tinoco and Conlee died as a result of gunshot wounds.
The police were able to discover the identity of four individuals who were suspected of
being involved in these shootings. Those individuals were Jermon Gavin, Joseph Buti, Rakeem
2
White, and Charles Moore. Gavin knew each of these men, but the others were not familiar with
one another. Gavin was also a friend of Tinoco’s. The events leading up to the shooting transpired
with Gavin, Buti, and White meeting up to smoke marijuana. Gavin first picked up White, and
after that picked up Buti. After smoking marijuana, the three went to pick up Moore. The four
men discussed going to get more marijuana. Gavin knew that Tinoco sold marijuana and had
purchased marijuana from him on prior occasions. Gavin drove the vehicle to Adams Street, where
Tinoco lived. 1 At some point during the drive, either Gavin or White passed something wrapped
in a white cloth back to Moore.
After arriving at Tinoco’s house, Buti walked onto the front porch and knocked on the
door. Tinoco had a camera on the porch that displayed on a television inside who was at the front
door. The camera only provided a live feed and did not record. When Buti arrived at the door and
said his name, he was instructed to look at the camera. Tinoco then opened the door and started
talking to Buti. Peter Kagimbi and Jazmin Conlee also lived at the residence and were inside when
Buti arrived. Kagimbi was standing in the main room by the dining room table but saw Buti on
the television screen. Tinoco asked Buti who he was and why he was there, and Buti explained
that he was there to buy marijuana. When Tinoco refused to sell him marijuana, Buti started to
leave. In the meantime, Moore had gotten out of the vehicle and approached the house. When
Buti stepped outside onto the porch, he saw Moore rise up from behind the porch with a mask on
and a gun. Buti kept walking away from the house, and when he turned around to see what was
going on he saw Moore trying to force the door of the house open, while Tinoco was trying to
close it. Kagimbi heard the struggle at the door, then heard a gunshot, and he immediately ran out
of the back door of the house. Buti continued to watch from the sidewalk, and he saw Moore shoot
1
Gavin testified that Buti had wanted to rob Tinoco because Tinoco owed him money, while Buti said it
was Gavin who was angry with Tinoco over what he was being charged for marijuana. It is unclear the real
reason the group initially went to Tinoco’s house, but it is not disputed that the motive involved marijuana
and/or money.
3
Tinoco in the head. Moore pushed Tinoco inside the house, entered, and closed the door behind
him.
Buti saw Kagimbi running out through the back and followed him. Kagimbi confirmed
that when he ran out the back, he recalled seeing the same young man who he had seen on the
television monitor at the front door. Kagimbi only later realized that the person on the television
monitor could not have been the person who shot Tinoco and Conlee because the person he had
seen at the door would not have been able to shoot both victims and already be outside following
him in such a short amount of time.
Dimitri Johnson, a friend of Kagimbi’s, also confirmed seeing two different individuals
around Tinoco’s house that night. Johnson was at the house because he had plans to meet up with
Kagimbi. Johnson remembered seeing a light-skinned man near the house in a red or white jacket,
and not long after he saw another man in dark clothing walk around his vehicle and onto Tinoco’s
porch. Johnson then heard two gunshots and saw Kagimbi run out of the house. Johnson then saw
the man in the dark clothes get into a gray or silver car that was parked near the house. That night,
Gavin was driving his girlfriend’s silver Pontiac Grand Prix.
Shortly after shots were fired, Gavin confirmed that Moore ran back to the car. Once in
the car, Gavin saw Moore pass a gun to White. Gavin noticed that Moore was very sweaty,
nervous, and out of breath when he returned. Gavin then received a phone call from Buti to come
pick him up. When they arrived where Buti had run to, Buti said, “Man, he just ran in there and
got to shooting people.” (Tr. at 546.) Buti was seemingly talking about Moore. Buti got in the car
and saw Moore with a large bag of marijuana. Buti recalled Moore rocking back and forth and
saying, “I shot them, I killed everyone.” (Tr. at 466.) At some point after, each of the four men
went their separate ways. Gavin recalled that soon after he departed from Moore’s company,
Moore called him and threatened that the same thing that happened to Tinoco and Conlee could
happen to them.
4
Meanwhile, Kagimbi had run to Tinoco’s parents’ house, told them what had happened,
and Kagimbi called 9-1-1. Later that evening, Buti also called the police and told them he was a
witness to the shooting. The police investigation ensued. Bloody shoe prints at the scene of the
crime, DNA evidence on the floor mat of the vehicle Gavin was driving the night of the shooting,
and a do-rag left at the scene all connected Moore to the shootings.
On January 30, 2012, Moore was charged with Count I, Class B felony robbery; 2 Count II,
felony murder of Alejandro Tinoco; 3 Count III, murder of Alejandro Tinoco; 4 and Count IV,
attempted murder of Jazmin Conlee. 5 The trial court later granted the State’s motion to vacate
Count IV and add Counts for the murder and felony murder of Jazmin Conlee. 6 On August 22,
2012, the trial court granted the State’s motion to add the sentencing enhancement of life without
parole for the murder of Conlee. 7 Moore’s jury trial commenced on August 19, 2013. At trial,
Buti, Gavin, and a jail mate of Moore’s, Steven Martin, all testified against Moore and implicated
him as the shooter of both victims.
The jury returned guilty verdicts on all five counts as charged. On August 26, 2013, the
sentencing phase of the trial began. The jury recommended a sentence of life without parole for
the murder of Conlee. The trial court only entered convictions for Count II, felony murder of
Tinoco, and Count IV, intentional murder of Conlee, to avoid double jeopardy concerns. Moore
2
Ind. Code § 35-42-5-1 (2008).
3
Ind. Code § 35-42-1-1(2) (2008).
4
Ind. Code § 35-42-1-1(1) (2008).
5
Ind. Code §§ 35-42-1-1; 35-41-5-1 (2008). Jazmin Conlee was still alive at the time this charge was filed,
and was not pronounced dead until February 8, 2012.
6
These Counts were ultimately renumbered as Count IV, murder of Jazmin Conlee, and Count V, felony
murder of Jazmin Conlee.
7
“The state may seek . . . a sentence of life imprisonment without parole for murder by alleging, on a page
separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating
circumstances listed in subsection (b).” Ind. Code § 35-50-2-9 (2008).
5
ultimately received a sixty-five-year sentence for Count II, felony murder of Tinoco, and a
sentence of life without parole for Count IV, murder of Conlee.
Moore appealed, asserting that there was insufficient evidence to support his convictions,
and that the testimony of the prosecution’s three primary witnesses was so contradictory as to be
unbelievable. Moore’s appeal of his conviction comes directly to the Supreme Court pursuant to
Indiana Appellate Rule 4(A)(1)(a). 8
Standard of Review
“When reviewing the sufficiency of the evidence to support a conviction, ‘appellate courts
must consider only the probative evidence and reasonable inferences supporting the
verdict.’” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005)) (emphasis added in Drane). Reviewing courts should not “assess witness
credibility and weigh the evidence to determine whether it is sufficient to support a
conviction.” Drane, 867 N.E.2d at 146 (citing Wright v. State, 828 N.E.2d 904, 905-06 (Ind.
2005)). Convictions should be affirmed 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 (quoting Jenkins
v. State, 726 N.E.2d 268, 270 (Ind. 2000)).
Discussion
In the present case, Moore raises a particular insufficiency of evidence claim. Moore
argues that the State primarily relied upon the testimony of three witnesses at trial: Jermon Gavin,
Joseph Buti, and Steven Martin. Moore asserts that the testimony of these three witnesses was “so
8
“(1) Mandatory review. The Supreme Court shall have mandatory and exclusive jurisdiction over the
following cases: (a) Criminal Appeals in which a sentence of death or life imprisonment without parole is
imposed under Ind. Code § 35-50-2-9. . . .” Ind. Appellate Rule 4(A)(1)(a).
6
contradictory, as to meet the doctrine of incredible dubiosity.” (Appellant’s Br. at 8.) The
incredible dubiosity rule allows the Court to “impinge upon a jury’s responsibility to judge the
credibility of the witnesses only when confronted with ‘inherently improbable’ testimony.”
(Appellant’s Br. at 8 (citing Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)).) The incredible
dubiosity rule is only applied in limited circumstances. Accordingly, we first address the
appropriate scope of the incredible dubiosity rule before reaching a conclusion on its applicability
to Moore’s claim.
I. Incredible Dubiosity Rule
In Gaddis v. State, this Court was confronted with a jury verdict that could not be supported
by the evidence presented at trial. 253 Ind. 73, 81, 251 N.E.2d 658, 662 (1969). In Gaddis, the
defendant was charged and found guilty of robbery. Id. at 74, 658. The defendant contended that
the identification testimony of the State’s eyewitness was insufficient to meet the required standard
of proof for a criminal conviction. Id. at 75, 659. On review, the Court first acknowledged that it
must be “careful not to confuse its function and purpose with that of the trial court,” but it must
also “be equally as careful not to be found in derogation of [its] duties as an appellate tribunal,
monitoring with a watchful eye the administration of justice on the trial court level.” Id. at 76,
659.
In Gaddis, on the night a gas station was robbed, the police arrested a suspect, brought the
suspect back to the gas station, and asked the attendant to identify the suspect. Id. at 75, 659. The
gas station attendant did identify the suspect as the robber and subsequently served as the chief
prosecuting witness at trial. Id. at 77, 660. When asked at trial if the suspect brought in by police
was the same man who had held him up, the witness responded, “He looked like the man, sir.” Id.When asked if the witness believed it was the same man, the witness testified, “Well, I was too
shook up and rattled that night, I couldn’t tell you for sure if it was or not.” Id. The witness
continued to go back and forth regarding whether he was positive that the defendant was the same
man who had held him up, and admitted that authorities had threatened him that he would go to
the penitentiary if he did not testify against the defendant. Id. at 77-79, 660-61. The Court noted
7
that on top of the threats of imprisonment from the police, the witness had also been threatened by
the defendant if he did testify. Id. at 79, 661. Ultimately, the Court found the witness’s testimony
to be “vacillating, contradictory and uncertain.” Id. There was also a lack of any circumstantial
evidence linking the defendant to the crime. Id. And there were additional conflicts between the
witness’s testimony and the evidence produced at trial that were never reconciled. Id. at 79-80,
661. Where the State’s chief witness “by his own admission is unsure as to the identity of the
criminal, and where other evidence or lack thereof would support such uncertainty, this court
would hold that such identification, as a matter of law, is insufficient evidence, by itself,” to convict
the defendant of the crime. Id. at 80, 661-62. As such, the Court concluded that “the evidence of
guilt . . . containing as it does the ingredients of uncredible dubiosity, 9 falls far short of proof
beyond a reasonable doubt.” Id. at 81, 662 (emphasis added).
Since Gaddis, this Court has defined the limited scope of the incredible dubiosity rule.
“Under this rule, a court will impinge on the jury’s responsibility to judge the credibility of the
witnesses only when it has confronted ‘inherently improbable’ testimony or coerced, equivocal,
wholly uncorroborated testimony of ‘incredible dubiosity.’” 10 Tillman, 642 N.E.2d at 223
(citing Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind. 1981)) (internal quotations and citations
omitted). The application of this rule is restricted to facts similar to those in Gaddis. Tillman, 642
N.E.2d at 223 (citing Gaddis, 253 Ind. at 82, 251 N.E.2d at 663)). A court will only impinge upon
the jury’s duty to judge witness credibility “where a sole witness presents inherently contradictory
9
“Dubiety” or “dubiosity” is defined as, “[t]he quality or condition of being dubious” or “an uncertainty.”
WEBSTER’S II NEW COLLEGE DICTIONARY, p.349, (1995). “Dubious” is defined as, “[c]ausing doubt or
uncertainty: Equivocal.” Id.10
As demonstrated in Tillman, precedent that subsequently relied on Gaddis corrected the usage of
“uncredible” to “incredible.”
8
testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial
evidence of the appellant’s guilt.” Id. (emphases added).
A more recent case demonstrates that even when there is a single eyewitness, the incredible
dubiosity rule may not apply. In Murray v. State, the defendant challenged the sufficiency of his
murder conviction as being based upon the incredibly dubious testimony of one witness. 761
N.E.2d 406, 408 (Ind. 2002). The Court recognized that the witness’s testimony had been
inconsistent with pre-trial statements and was at odds with the testimony of corroborating
witnesses, but this did not necessarily make the testimony incredibly dubious. Id. at 409. The
witness’s testimony was not equivocal, no contradictions occurred on the witness stand, and even
though the testimony differed from the defendant’s, “[i]t is for the trier of fact to resolve conflicts
in the evidence and to decide which witnesses to believe or disbelieve.” Id. (quoting Kilpatrick v.
State, 746 N.E.2d 52, 61 (Ind. 2001)). The Court held that the incredible dubiosity rule was
inapplicable. Murray, 761 N.E.2d at 409.
In Edwards v. State, this Court again determined that the incredible dubiosity rule was
inapplicable. 753 N.E.2d 618, 622 (Ind. 2001). In Edwards, the witness’s testimony during trial
was consistent, and although the witness considered changing his testimony during trial, the jury
was made aware of that fact during cross-examination. Id. at 622-23. The potential uncertainty
of the witness’s testimony “was put squarely before the jury, [and] the jury had the ability to
perform its role as a trier of fact and determine the extent to which it affected the integrity of [the
witness’s] testimony.” Id. at 623 (citing Albrecht v. State, 737 N.E.2d 719, 733 (Ind. 2000)).
Accordingly, this Court has explained that while incredible dubiosity provides a standard that is
“not impossible” to meet, it is a “difficult standard to meet, [and] one that requires great ambiguity
and inconsistency in the evidence.” Edwards, 753 N.E.2d at 622. “The testimony must be so
convoluted and/or contrary to human experience that no reasonable person could believe it.” Id.
(citing Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000)).
Other jurisdictions have applied a similar rule, sometimes referred to as the “inherent
improbability doctrine.” See State v. Robbins, 210 P.3d 288, 295 (Utah 2009). In Robbins, the
9
Utah Supreme Court explained that although a court usually must accept a jury’s determination of
witness credibility, “when the witness’s testimony is inherently improbable, the court may choose
to disregard it.” 210 P.3d at 293 (citing State v. Workman, 852 P.2d 981, 984 (Utah 1993)). Under
this standard, the Court held that the definition of “inherently improbable must include
circumstances where a witness’s testimony is incredibly dubious and, as such, apparently
false.” Robbins, 210 P.3d at 293. Similar to the incredible dubiosity rule, the application of this
rule requires that: “(1) there are material inconsistencies in the testimony and (2) there is no other
circumstantial or direct evidence of the defendant’s guilt.” Id. at 294. “The existence of any
additional evidence supporting the verdict prevents the judge from reconsidering the witness’s
credibility.” Id. See also State ex. rel. Mochnick v. Andrioli, 216 Iowa 451, 453, 249 N.W. 379,
380 (1933) (explaining that “[t]he rule that it is for the jury to reconcile the conflicting testimony
of a witness does not apply where the only evidence in support of a controlling fact is that of a
witness who so contradicts himself as to render finding of facts thereon a mere guess”).
Accordingly, the appropriate scope of the incredible dubosity rule 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. Accordingly, this standard will be applied in determining whether
Moore’s convictions merit reversal based upon the testimony offered at his trial.
II. Sufficiency of Evidence for Moore’s Convictions based upon the Incredible
Dubiosity Rule
In the current case, Moore argues the testimony of Gavin, Buti, and Martin cannot be
believed. Even though Moore concedes that each of those men agreed that “Moore was the
shooter,” they disagreed on “several significant matters.” (Appellant’s Br. at 8.) Moore
specifically asserts that the testimony was inconsistent regarding: 1) “who had the problem with
Alex Tinoco”; 2) “who passed the gun to Moore”; 3) “how Buti got home”; 4) “how Moore got
home”; 5) “who ditched the gun and when”; 6) “how proceeds [from the robbery] were split”; and
7) “whether Buti knew Alex.” (Appellant’s Br. at 8-9.) While Moore is able to point out some
10
inconsistencies among the testimonies of the witnesses, he fails to demonstrate that the application
of the incredible dubiosity rule is warranted.
First, the application of this rule has been restricted to cases where there is a single
testifying witness. See Tillman, 642 N.E.2d at 223 (reiterating that the application of this rule “is
limited to cases . . . where a sole witness presents inherently contradictory testimony . . . .”)
(emphasis added). Although Buti was the only eyewitness to the shooting, Gavin’s testimony also
placed Moore at the scene. Gavin drove Moore to Tinoco’s house and saw something wrapped in
a white cloth passed back to Moore. Soon after shots were fired, Gavin recalled Moore running
back to the vehicle. Moore was sweaty, nervous, and out of breath when he got into the car, and
Gavin saw Moore hand White a gun. Gavin also testified that Moore had called him later that
same night and threatened Gavin by stating that the same thing that happened to Tinoco and Conlee
could happen to him, Buti, and White. Additionally, Steven Martin met Moore in jail, and he
testified that Moore confessed to the shootings. Moore explained to Martin that he struggled with
Tinoco at the door, shot him, and then when he saw Conlee upon entering the house, he had to
shoot her too because she was a witness.
There were also corroborating witnesses. Kagimbi identified the person he saw on the
television monitor as the same person who followed him when he fled out the back. Kagimbi was
certain that whoever first came to the door was not the same person who shot Tinoco and Conlee.
Because Kagimbi fled out the back door after the first shot, the person responsible for the shooting
would not have had time to shoot Tinoco, enter the house, shoot Conlee, and already be outside
again by the time Kagimbi was exiting the house. Kagimbi was also certain that Moore was not
the person he had seen on the television monitor. Johnson also saw two different individuals near
Tinoco’s house around the time of the shooting. Johnson saw a man in dark clothes go onto the
porch, he heard two gunshots, and then saw the same man leave the porch and get into a silver
vehicle. Gavin was driving a silver Pontiac Grand Prix that night.
The defense presented two witnesses who testified that someone else was responsible for
the murders. Gavin’s girlfriend, who had been with Gavin after the shooting, testified that she
11
thought that Buti was involved in the shooting. Additionally, Timothy Whitfield, who was a jail
mate of Moore’s and later Gavin’s, testified that Gavin confessed to carrying out the shooting with
Moore. However, Whitfield testified that both Moore and Gavin were the shooters. Thus, even if
Whitfield’s testimony were believed, it still implicated Moore as being directly involved in the
shootings. 11
As discussed above, the first factor of the incredible dubiosity rule has not been met
because there were multiple testifying witnesses that the jury could have relied upon in reaching
its verdict. The testimony of multiple witnesses aligns this case with Murray, where the court
explained, “[i]t is for the trier of fact to resolve conflicts in the evidence and to decide which
witnesses to believe or disbelieve.” 761 N.E.2d at 409 (quoting Kilpatrick, 746 N.E.2d at 61).
The contradictions among testifying witnesses in the present case are indistinguishable from any
other case where the jury has the duty to assess the credibility of witnesses.
Because the testimony of multiple witnesses alone precludes the application of the
incredible dubiosity rule, our analysis could end here. Against the request of Moore, we are not
inclined to expand the rule’s application to situations where there are multiple testifying witnesses.
Even if this Court were to consider applying the incredible dubiosity rule in the context of multiple
witnesses, this case would not be the appropriate case to do so. As explained below, the other two
factors necessary for the application of the incredible dubiosity rule are also lacking. As such,
11
The prosecution also called into question the reliability of Whitfield’s testimony by raising that Whitefild
believed that Moore was involved in the killing of one of Whitfield’s friends, and as a result Moore and
Whitfield had gotten into a physical altercation when in jail together.
12
even if the rule was expanded to encompass cases involving multiple witnesses, Moore’s claim
that incredible dubiosity precludes the guilty verdicts still must fail.12
The second factor is whether the witness’ testimony is inherently improbable,
contradictory, or coerced, resulting in the testimony being incredibly dubious. See Tillman, 642
N.E.2d at 223. Here, there are no inconsistencies in the testimonies of Buti, Gavin, or Martin.
Buti was the prosecution’s primary eyewitness. He consistently testified that he saw Moore shoot
Tinoco and enter the house. Buti acknowledged that when he originally talked to police about the
incident he did not tell the full truth, and he explained that he had lied out of fear. However, when
Buti testified at trial he never changed his story, and he identified Moore as the shooter from the
beginning.
Once again, these facts are similar to those in Murray. In Murray, the witness made
statements prior to trial that were inconsistent with the trial testimony, but there were no
inconsistencies in the witness’s testimony at trial. 761 N.E.2d at 409. The Court concluded that
even if the trial testimony is inconsistent with pre-trial statements, that does not necessarily make
the testimony at trial incredibly dubious. Id. See also Stephenson v. State, 742 N.E.2d 463, 498
(Ind. 2001) (explaining that even though the State’s sole eyewitness had discrepancies in his
statements to police, in depositions, and in his trial testimony, “witness testimony that contradicts
[the] witness’s earlier statements does not make such testimony ‘incredibly dubious,’” when that
witness “unequivocally identified Defendant as the perpetrator who shot the three victims. . . .”)
(internal citation omitted). We agree with the conclusion in Murray. Buti’s testimony at trial
remained consistent, and any inconsistent pre-trial statements were brought to the attention of the
jury. See Edwards, 753 N.E.2d at 623 (concluding that when a witness considered changing his
testimony during the trial, “the jury was made aware of this fact during cross-examination . . .
12
In addition, discussion of the remaining factors demonstrates why Moore would also not have prevailed
had he brought a standard sufficiency of the evidence claim, instead of a claim of incredible dubiosity.
13
[and] the jury had the ability to perform its role as a trier of fact and determine the extent to which
it affected the integrity of his testimony”).
Accordingly, Buti’s testimony does not rise to the level of incredible dubiosity. Gavin and
Martin also did not waiver in their testimony at trial. Both individuals maintained that Moore was
responsible for the shootings. Nothing within these testimonies were factually impossible or even
improbable. To the contrary, the witnesses explain the occurrence of these unfortunate shootings
in an easily comprehensible way: drug dealing gone wrong.
It is not disputed that the three witnesses disagreed on some details, such as who had it in
for Tinoco, who handed Moore the gun, what happened to the gun after the shooting, and where
each person went after the shooting. Again, inconsistencies among the testimonies of the witnesses
merely puts the burden upon the jury to determine which witness to believe. See Ferrell v. State,
746 N.E.2d 48, 51 (Ind. 2001) (explaining that the incredible dubiosity rule was inapplicable even
when the witness’s testimony was inconsistent in several respects with the testimony of other
witnesses, but the testimony was not equivocal and the witness never contradicted himself on the
stand); See also Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (refusing to apply the incredible
dubiosity rule where the witnesses contradicted each other but no single witness contradicted
himself).
Additionally, the prosecution provided a valid explanation of why these witnesses had
some inconsistencies between their testimonies. The prosecution addressed the obvious fact that
each of the witnesses’ memories had likely faded over the year and a half between the night of the
murders and the trial. But more importantly, the prosecution also emphasized that Buti and Gavin
were both motivated to downplay the extent of their own involvement. Both Gavin and Buti
admitted to being at the scene, but both logically want to avoid facing criminal charges themselves.
Thus, it is understandable that Gavin would not admit to being the person who handed Moore a
gun and that neither witness would admit to being the person who initiated a plan to rob Tinoco.
At the time of this trial, Gavin was already being held at St. Joseph County Jail on charges for
14
felony murder and robbery related to this case. Thus, a reasonable jury could have believed that
this was a valid explanation of the inconsistencies between the witnesses’ testimonies.
Finally, as Moore concedes, there is circumstantial evidence in this case. In a case where
there is circumstantial evidence of an individual’s guilt, “reliance on the incredible dubiosity rule
is misplaced.” Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (citing White v. State, 706 N.E.2d
1078, 1080 (Ind. 1999)). In the present case, there were bloody shoeprints at the scene of the
crime, and those prints were narrowed down to seven different tread patterns. Shoes from a variety
of individuals who may have been in the house that night were tested, including firemen, friends,
and family. Moore’s shoes were the same pattern of shoe, same size, and same kind of wear as
prints left inside the house. Furthermore, the shoe patterns collected were not consistent with
either Buti, Gavin, or White’s shoes. Moore’s shoes were also tested for the presence of blood,
and a preliminary test indicated that the shoes may have had blood on them. 13
Additionally, a presumptive test for blood was conducted on the floor mats of the vehicle
Gavin was driving the night of the shooting. A test of the floor mat where only Moore had sat was
positive for potential blood, while all the other floor mats in the vehicle gave no positive indication
for the presence of blood. The floor mat which showed indications of blood was also tested for
DNA. The major DNA profile obtained from testing the floor mat matched Tinoco’s DNA. This
test also excluded Buti, Gavin, and White as possible contributors to the DNA on the floor mats.
Finally, a do-rag was found at the scene, and swabs of the do-rag provided a major DNA profile
that matched Moore. The DNA found on the do-rag excluded Buti, Gavin, and White as potential
contributors.
13
Even though this was a very sensitive test, it could still provide some indication of Moore’s potential
involvement.
15
None of the factors that are necessary to warrant the application of the incredible dubiosity
rule are present in the case before us. Again, two witnesses consistently testified that Moore was
the shooter, other witnesses corroborated this testimony, and circumstantial evidence linked Moore
to the scene. See Turner v. State, 953 N.E.2d 1039, 1060 (Ind. 2011) (holding that the incredible
dubiosity rule did not apply “because (a) [the witness’s] trial testimony was not inherently
contradictory, (b) the evidence was not from a single witness, and (c) there was not an absence of
circumstantial evidence of guilt”). Under the present circumstances, it would be inappropriate for
this Court to “impinge on the jury’s responsibility to judge the credibility of the witnesses. . .
.” Tillman, 642 N.E.2d at 223.
Conclusion
The incredible dubiosity rule is inapplicable in the present case and cannot serve as grounds
for overturning the jury’s verdict. Furthermore, based upon the evidence presented at trial, a
reasonable jury could have found each element of murder and felony murder beyond a reasonable
doubt. Accordingly, there was sufficient evidence for Moore’s convictions. The convictions and
sentences entered by the trial court are affirmed.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
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