Jesse W. Lepley v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 14 2019, 9:39 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse W. Lepley, June 14, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2850
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Robert E. Kirsch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
57D01-1710-F1-1
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 1 of 5
Statement of the Case
[1] Jesse W. Lepley appeals his conviction for battery, as a Level 5 felony,
following a jury trial. 1 Lepley raises a single issue for our review, namely,
whether the State presented sufficient evidence to support his conviction. We
affirm.
Facts and Procedural History
[2] On August 22, 2017, Indiana Department of Child Services Family Case
Manager Marie Kidd (“FCM Kidd”) received a report of potential child abuse
against J.S., who at the time was eight years old. FCM Kidd immediately
observed that J.S. had a black eye. J.S. also showed FCM Kidd other injuries,
namely, scratches and redness on his back, arm, and chin.
[3] J.S. reported to FCM Kidd that his step-father, Lepley, had hit him. 2 FCM
Kidd contacted local law enforcement, and she proceeded to J.S.’s residence
with an officer. Lepley answered the door, and, when asked about the alleged
battery of J.S., he stated that J.S. had fallen down the stairs.
1
Over the course of multiple fact-finding hearings in this same trial court cause number, Lepley was also
convicted of several other offenses, which he does not challenge in this appeal. And, while Lepley filed his
notice of appeal prior to the finalization of all of those proceedings in the trial court, there is no dispute that
those proceedings have since become final and that this Court therefore has jurisdiction over this appeal.
2
Although neither FCM Kidd nor J.S. expressly testified that J.S. had made this report to FCM Kidd, it is
the reasonable and obvious inference from FCM Kidd’s ensuing course of conduct. In any event, we note
this inference here simply for context.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 2 of 5
[4] Meanwhile, a forensic nurse practitioner, Leslie Cook, at the Forensic Medical
Center examined J.S.’s injuries. During that examination, J.S. reported to
Cook that he had had “a bad day at school” that resulted in him being upset at
home. Tr. Vol. 2 at 184. In response to J.S. being upset, Lepley “hit [J.S.] right
in the eye with his hand . . . .” Id.
[5] The State charged Lepley with battery, as a Level 5 felony. During his ensuing
jury trial, FCM Kidd testified, and the State had admitted into the record a
statement from Cook regarding her evaluation of J.S. J.S. also testified. In his
testimony, he stated:
Q [D]id you ever go to school with a black eye?
A Yes.
Q Can you tell the ladies and gentlemen of the jury how you
got your black eye? What happened? I want to hear the whole
story.
A My step dad kicked me in the eye.
Q Why did he do that?
A Because he got angry at me.
Q Why?
A Because I was crying at my desk.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 3 of 5
Id. at 123-24. The jury found Lepley guilty of the battery charge, and this
appeal ensued.
Discussion and Decision
[6] On appeal, Lepley asserts that the State failed to present sufficient evidence that
he committed battery, as a Level 5 felony. When reviewing the sufficiency of
the evidence to support a conviction, we do not reweigh the evidence or judge
witness credibility. E.g., B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We
consider only the evidence favorable to the judgment and the reasonable
inferences supporting it. Id. We will affirm if a reasonable trier of fact could
have concluded that the defendant was guilty beyond a reasonable doubt. Id.
[7] Lepley’s only argument on appeal is that J.S.’s testimony was incredibly
dubious because J.S. testified that Lepley had kicked him in the eye but J.S. told
Cook during the forensic examination that Lepley had hit him in the eye with
Lepley’s hand. As our Supreme Court has made clear:
Under our “incredible dubiosity” rule, we will invade the jury’s
province for judging witness credibility only in exceptionally rare
circumstances. The evidence supporting the conviction must
have been offered by a sole witness; the witness’s testimony must
have been coerced, equivocal, and wholly uncorroborated; it
must have been “inherently improbable” or of dubious
credibility; and there must have been no circumstantial evidence
of the defendant’s guilt.
McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 4 of 5
[8] We conclude that the incredible dubiosity rule does not apply here for at least
two reasons. First, J.S.’s testimony to the jury was not inconsistent. He
testified that Lepley kicked him in the eye, and he gave no other explanation
during his testimony for his black eye. The other, inconsistent evidence, that
Lepley struck J.S. with Lepley’s hand, was contained in Cook’s written report
and admitted into evidence well after J.S. testified. The incredible dubiosity
rule applies only when a sole witness’s testimony is “inherently improbable,”
not when other admissible evidence calls a witness’s credibility into question.
See id.
[9] Second, despite Lepley’s assertions on appeal, the evidence supporting Lepley’s
battery conviction was not based on a sole witness. While FCM Kidd and
Cook did not witness the alleged battery, they did personally observe injuries
that were consistent with, and thus corroborated, the alleged battery.
Accordingly, Lepley’s argument that the State failed to present sufficient
evidence to support his conviction under the incredible dubiosity rule fails, and
we affirm his conviction.
[10] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2850 | June 14, 2019 Page 5 of 5