Andrew Lee Barnett v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Mar 31 2014, 9:26 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
YVETTE M. LAPLANTE GREGORY F. ZOELLER
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW LEE BARNETT, )
)
Appellant-Defendant, )
)
vs. ) No. 82A04-1309-CR-444
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Pigman, Judge
Cause No. 82D02-1304-FB-511
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Following a jury trial, Andrew Barnett was convicted of attempted armed robbery,
a Class B felony; attempted burglary, a Class B felony; intimidation, a Class C felony;
carrying a handgun without a license, a Class A misdemeanor; and resisting law
enforcement, a Class A misdemeanor. He appeals his convictions, raising one issue for
our review: whether sufficient evidence supports his convictions. Concluding the State
presented sufficient evidence, we affirm.
Facts and Procedural History
The facts most favorable to the judgment indicate that for three months in 2013
Barnett lived with his friends Derrick Hickerson, Terry Adams, and Adams’s wife and
daughter. Hickerson’s name was on the lease, and he paid all of the bills. Hickerson
asked the people staying with him to contribute to living expenses but no one did. By the
end of March or early April, the Sheriff had placed an eviction notice on Hickerson’s
door. Hickerson moved out.
Hickerson moved in with Latarius Watkins and did not share his new address with
Adams or Barnett. Late on the night of April 5, 2013, while Hickerson was putting
together a television stand at his new residence, Barnett, Adams, Adams’s family, and
Cassandra Kalbarchick opened Hickerson’s unlocked door and walked into Hickerson’s
apartment.
The women were intoxicated and sat down inside Hickerson’s apartment. Adams
demanded money or the television from Hickerson. Adams showed Hickerson a knife
while Barnett called Hickerson names and told Adams they should just take the
television. Adams’s wife took the knife away from her husband and everyone, including
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Hickerson, left the apartment and went outside. At that point, Watkins returned home
and entered the apartment with Barnett following him in. Inside, Watkins and Barnett
fought and later returned outside where Barnett drew a gun and pointed it at both Watkins
and Hickerson. He again called Hickerson names, told Adams they should just take the
television, and threatened to shoot. The group eventually left in their vehicle and
Hickerson called 911.
Officer Jackie Lowe, who was patrolling the area, was advised of a home invasion
involving a possible weapon from which the suspects fled in a maroon car. She came
upon a vehicle matching that description and initiated her overhead lights. The car came
to a nearly complete stop, and a man exited from the rear driver’s side door and ran.
Barnett stipulated at trial that he was the man who fled. Additional officers and a K-9
unit were called to the scene and tracked Barnett to a nearby home from which they
recovered Barnett’s hat and a loaded .380 caliber pistol. The gun’s safety was off and the
hammer was cocked as if ready to fire. Barnett did not have a license to carry a handgun.
A jury found Barnett guilty of attempted armed robbery and attempted burglary,
both Class B felonies; intimidation, a Class C felony; and carrying a handgun without a
license and resisting law enforcement, both Class A misdemeanors. Barnett was
sentenced to concurrent terms totaling ten years. Barnett now appeals his convictions.
Discussion and Decision
I. Standard of Review
In reviewing claims for sufficiency of evidence, we do not reweigh evidence or
judge the credibility of the witnesses. Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind.
Ct. App. 2012), trans. denied. We only consider the evidence most favorable to the
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verdict and the reasonable inferences that may be drawn from it. Id. As long as each
element of the charged crime may be satisfied beyond a reasonable doubt, the verdict will
be affirmed. Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013).
II. Sufficiency of Evidence
Barnett points to several instances where Hickerson’s deposition statements differ
from his testimony at trial regarding Barnett’s involvement in the crime and the nature of
the relationship between Hickerson and Barnett. He argues that Hickerson’s testimony is
therefore inconsistent and inherently contradictory and under the incredible dubiosity
rule, insufficient to support his convictions.1
Under the “incredible dubiosity rule,” this court may impinge upon the jury’s
responsibility to judge the credibility of witnesses only when confronted with inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony. Manuel
v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012). Application of this rule is rare, and
the standard applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it. Id. Further, this rule “applies only
when a witness contradicts himself or herself in a single statement or while testifying,
and does not apply to conflicts between multiple statements.” Livers v. State, 994 N.E.2d
1251, 1256 (Ind. Ct. App. 2013).
1
Barnett’s Appellant’s Brief does not include a Statement of Issues as required by Indiana Appellate Rule
46(A)(4). His Summary of Argument is that Hickerson’s “testimony is inherently contradictory, [and] this Court
should overturn [Barnett’s] conviction.” Appellant’s Brief at 4 (emphasis added). He states at the outset of his
standard of review that “[t]he evidence is insufficient to support the conviction for attempted armed robbery.” Id. It
may be that Barnett challenges only the single conviction of attempted armed robbery, but because Barnett
challenges Hickerson’s testimony which was offered to prove the crimes of attempted armed robbery, attempted
burglary, and intimidation, we address all three crimes. We assume Barnett concedes his convictions of carrying a
handgun without a license and resisting law enforcement are supported by the evidence.
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Equivocal phrases during testimony do not necessarily make the testimony
incredible. In Livers, the victim of a battery testified the defendant hit her in three
different ways: through a car door window, over the door, and through the door itself.
These accounts, while equivocal, did not make the testimony incredible because the
victim “consistently testified” that Livers struck her on the left side of her jaw and “never
deviated from that testimony.” Id.Here, Barnett argues that Hickerson’s testimony is equivocal and inconsistent at
trial when compared to his deposition. Yet the incredible dubiosity rule “does not apply
to conflicts between multiple statements.” Id.; see also Buckner v. State, 857 N.E.2d
1011, 1018 (Ind. Ct. App. 2006) (“The incredible dubiosity rule applies to conflicts in
trial testimony rather than conflicts that exist between trial testimony and statements
made to the police before trial.”). Therefore, any inconsistences between Hickerson’s
deposition and trial testimony are irrelevant. Further, Hickerson, like the victim in
Livers, consistently made the same claim: Barnett entered Hickerson’s home uninvited,
encouraged Adams to take Hickerson’s television, and pointed a gun at him. Any minor
inconsistencies or equivocal statements in his trial testimony fail to rise to the level of
incredible dubiosity, and we will not substitute our judgment for that of the jury’s.
Conclusion
The State presented sufficient evidence to support Barnett’s convictions of
attempted armed robbery, attempted burglary, and intimidation. We therefore affirm the
convictions.
Affirmed.
BARNES, J, and BROWN, J., concur.
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