Kevin Perry v. State of Indiana ( 2012 )

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: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Jun 18 2012, 9:49 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
KEVIN PERRY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1111-CR-575
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clark H. Rogers, Judge
Cause No. 49G17-1106-FD-45993
June 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Kevin Perry beat and bruised Trisha Parish and wrecked her car. The trial court found
Perry guilty of class A misdemeanor battery. On appeal, Perry challenges the sufficiency of
evidence to support his conviction, claiming that the testimony of Parish, his ex-girlfriend,
was incredibly dubious. We affirm.
Facts and Procedural History
Around 3:30 a.m. on June 24, 2011, Parish was visiting her cousin when she began
receiving phone calls from Perry. After receiving several calls Parish answered, and Perry
told her to come to her home because he was waiting for her there. When Parish returned,
Perry told her to give his friend a ride to 42nd Street and Arlington Avenue in Indianapolis;
when she refused, he slapped her. Perry, Parish, and Perry‟s friend subsequently entered
Parish‟s car, and she began driving toward 42nd Street and Arlington Avenue. While in the
car, Perry threw soda pop on Parish and struck her in the face several times. After Parish
dropped Perry‟s friend off, Perry forced Parish to get into the passenger seat while he drove,
and he continued striking her. Perry then decided to drive Parish‟s car into other parked cars,
causing it to crash and finally break down in front of a home on East 13th Street. Parish
and Perry exited the car, and Perry tried to force Parish to flee the accident, but she refused.
Perry then began to angrily strike Parish and drag her down the alley by her hair. Parish
managed to get away from Perry briefly, but he caught her and continued beating her and
dragging her down the alley by her hair. The beating and forceful pulling of her hair caused
pain to Parish, and she screamed.
2
Willie Colwell and Sharonda Cooks, the occupants of the home in front of which
Parish‟s car broke down, were awakened by a male‟s voice and screams coming from outside
the residence. Colwell and Cooks saw a black male dragging Parish by her hair down the
alley, and Cooks saw Perry‟s hands “wrapped in her hair.” Tr. at 8, 14. Colwell yelled at
Perry and chased him as he began to run northbound through the alley. Cooks called 911 and
reported the incident.
As a result of Perry‟s actions, Parish suffered two black eyes, bruising and swelling in
the face and head, and a knot over her eye, which remained the next day. Many of Parish‟s
corn rows had been pulled out of her hair. The State charged Perry with class D felony
criminal confinement, class A misdemeanor domestic battery, and class A misdemeanor
battery.
At a bench trial on October 13, 2011, Parish testified to the foregoing events, and
Colwell identified Perry as the male who attacked Parish. At the conclusion of trial, the court
granted Perry‟s motion for judgment on the evidence with respect to the criminal
confinement charge, found him not guilty of domestic battery, and found him guilty of
battery. Perry now appeals.
Discussion and Decision
On appeal, Perry contends that Parish possessed a motive to lie, and therefore her
testimony is “inherently improbable and unworthy of the credibility necessary to sustain a
conviction of battery.” Appellant‟s Br. at 9. Perry maintains that because Parish‟s testimony
3
is improbable and must be discounted, the State‟s remaining evidence is insufficient to
sustain his conviction.
Our supreme court has stated:
[A] reviewing court does not reweigh the evidence or judge the credibility of
the witnesses…. We have often emphasized that appellate courts must consider
only the probative evidence and reasonable inferences supporting the verdict.
Expressed another way, we have stated that appellate courts must affirm if the
probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (citations and quotation marks omitted).
However, “within the narrow limits of the „incredible dubiosity‟ rule, a court may
impinge upon” the function of a lower court to judge the credibility of a witness. Love v.
State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is stated as follows:
[I]f a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant‟s conviction may be
reversed. This is appropriate only where the court has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.
Id.We find that the “incredible dubiosity” rule does not apply here. Perry contends that
Parish‟s testimony was inherently improbable because she possessed a motive to lie.
“[I]nherently improbable testimony is that which runs counter to human experience, and
which no reasonable person could believe.” Campell v. State, 732 N.E.2d 197, 207 (Ind. Ct.
App. 2000). Parish‟s testimony did not run counter to human experience. Neither was it
4
coerced, equivocal, or uncorroborated. Her testimony was corroborated by Colwell, who
testified that he witnessed Perry dragging Parish down the alley by her hair. Perry‟s argument
is nothing more than an invitation to judge Parish‟s credibility, which we may not do on
appeal. Therefore, we affirm his conviction.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
5