Jason Johnson v. State of Indiana

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:
DAVID BECSEY GREGORY F. ZOELLER
ZEIGLER COHEN & KOCH Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
May 28 2014, 9:44 am
IN THE
COURT OF APPEALS OF INDIANA
JASON JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-CR-891
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Hooper, Commissioner
Cause No. 49G16-1112-FD-89980
May 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Jason Johnson appeals his convictions for residential entry, interference with
reporting a crime, and conversion. He raises one issue on appeal, which we restate as:
whether there was sufficient evidence to support Johnson’s convictions. Concluding
sufficient evidence was presented at trial, we affirm.
Facts and Procedural History
Johnson and Tia Hughes have seven children together. On December 24, 2011,
the two had an argument, and Emily Wareham, Hughes’s friend, picked up Hughes and
left with her. Wareham and Hughes spent the day together, attended a party, and
eventually returned to Wareham’s apartment, where Hughes intended to stay the night.
At approximately three o’clock in the morning, Johnson arrived at Wareham’s
apartment and knocked on the door. Wareham observed Johnson through the peephole
but did not respond or open the door for him. Wareham went back to bed. Shortly after,
she heard noise coming from the patio and then heard the door pop open. Johnson
entered the apartment through the patio door. Johnson walked into the bedroom, and
Wareham began yelling at Johnson. Johnson attempted to force Hughes to leave the
apartment, and Hughes told Wareham to call 911. Wareham ran to her phone and began
dialing 911, but Johnson took the cell phone out of Wareham’s hand and ran out of the
apartment. Johnson later returned the phone to Wareham.
Johnson was charged with nine counts: Count 1, residential entry as a Class D
felony; Count 2, attempted criminal confinement as a Class D felony; Count 3, domestic
battery as a Class D felony; Count 4, battery of a household member as a Class D felony;
Count 5, domestic battery as a Class A misdemeanor; Count 6, battery as a Class A
2
misdemeanor; Count 7, interference with reporting a crime as a Class A misdemeanor;
Count 8, conversion as a Class A misdemeanor; and Count 9, harassment as a Class B
misdemeanor. A bench trial was held at which Wareham testified Johnson did not have
permission to enter her apartment or permission to take her cell phone. Johnson was
found guilty of Counts 1, 7, and 8. Count 1 was reduced to a Class A misdemeanor, and
Johnson was sentenced to concurrent sentences of 365 days—minus eighteen days of
time served—all of which was suspended to probation.
Discussion and Decision
I. Standard of Review
When reviewing a claim of insufficient evidence, the appellate court will neither
reweigh the evidence nor judge the credibility of the witnesses. McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005). We consider only the probative evidence and reasonable
inferences supporting the verdict. Id. And we 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.” Id. (citation omitted).
II. Sufficiency of Evidence
Johnson presents us with two arguments contesting his convictions, both of which
amount to a claim of insufficient evidence. First, he contends his convictions cannot
stand because they are based on unreliable testimony given by the State’s witness at trial.
Second, Johnson argues that the State failed to disprove his defense that he entered
Wareham’s residence with consent. We address each argument below.
3
A. Incredible Dubiosity
As mentioned above, we are not ordinarily permitted to invade the fact finder’s
prerogative to weigh evidence and judge witness credibility. A limited exception is made
for what is known as the “incredible dubiosity” rule, which permits the reversal of a
defendant’s conviction if a lone witness gives inherently improbable testimony and there
is a complete lack of circumstantial evidence. Love v. State, 761 N.E.2d 806, 810 (Ind.
2002). Application of the rule is “appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity.” Id. The rule is to be used sparingly and only when the
testimony in question is “so incredibly dubious or inherently improbable that no
reasonable person could believe it.” Id.We do not agree with Johnson’s contention that the incredible dubiosity rule is
applicable to the present case. Wareham was the State’s sole witness against Johnson,
but her testimony was not incredibly dubious. She testified that Johnson entered her
apartment without permission, took her phone while she was attempting to call 911, and
ran away. Johnson does not demonstrate that Wareham’s testimony is in any way
equivocal, inherently contradictory, or patently unbelievable. Rather, Johnson merely
provides argument that Wareham was a biased witness and implies that her memory of
the events is unreliable. In sum, Johnson has failed to show that Wareham’s testimony
was incredibly dubious.
4
B. Consent to Enter Residence
Second, Johnson argues the State failed to meet its burden of proving Johnson was
guilty of residential entry. Specifically, Johnson claims the State failed to disprove his
defense of consent to enter the residence.
Lack of consent is not an element to the crime of residential entry. See Ind. Code
§ 35-43-2-1.5. Rather, the defendant must raise consent as a defense, and the State then
has the burden of disproving the defense beyond a reasonable doubt. Holman v. State,
816 N.E.2d 78, 81 (Ind. Ct. App. 2004), trans. denied.
Johnson relies on testimony given by Hughes that she opened the apartment door
and allowed Johnson to enter.1 This testimony, of course, contradicts testimony given by
Wareham that the trial court apparently credited. Wareham testified that Johnson broke
into the apartment through the patio door and that he did not have consent to enter her
apartment. Johnson’s argument is merely a request that we reweigh the evidence and
credit Hughes’s version of events rather than Wareham’s. Our standard of review does
not permit this. We conclude the State offered sufficient evidence to disprove Johnson’s
defense of consent beyond a reasonable doubt.
Conclusion
Concluding the State presented sufficient evidence to sustain Johnson’s
convictions for residential entry, interference with reporting a crime, and conversion, we
affirm.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
1
Hughes testified as a witness for the defense.
5