Alicia Patrice Cleveland v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 19 2017, 10:31 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sally Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alicia Patrice Cleveland, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1610-CR-2389
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Julie Verheye,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
71D08-1507-CM-2460
Bailey, Judge.
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Case Summary
[1] Alicia Cleveland (“Cleveland”) was convicted after a bench trial of Criminal
Mischief, as a Class B misdemeanor,1 and Pointing a Firearm, as a Class A
misdemeanor.2 She now appeals, raising a single issue for our review: whether
the testimony introduced against her at trial was incredibly dubious.
[2] We affirm.
Facts and Procedural History
[3] Cleveland and another woman, Latifa Gillam (“Gillam”), had a long-running
dispute with one another. Cleveland was known to members of Gillam’s
extended family, some of whom had once been friendly with Cleveland.
[4] On the afternoon of May 21, 2015, Gillam’s car was parked outside the South
Bend home of her godmother, Kathy Newcomb (“Newcomb”). Newcomb was
at home that afternoon, looked out her window, and saw Cleveland and an
unidentified man get out of a charcoal-gray Chrysler 200 automobile.
Cleveland and her companion were holding baseball bats. The two approached
Gillam’s car and began to smash its windows with the baseball bats. Cleveland
and her companion shattered the front and rear windshields; put holes in
windows in three of the four doors of Gillam’s car; and struck the car’s roof,
1
Ind. Code § 35-43-1-2(a).
2
I.C. § 35-47-4-3(b).
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creating dents above the driver’s side of the vehicle. Cleveland and her
companion then drove away. Newcomb contacted police, and identified
Cleveland as having been involved in damaging Gillam’s car.
[5] Later that day, around 11:00 p.m., Gillam was a passenger in a car driven by
her cousin, Andrea Evans (“Evans”), as the two were headed to Gillam’s
mother’s home in South Bend. Gillam and Evans observed a charcoal-gray
Chrysler 200 following them, and Gillam recognized Cleveland as the vehicle’s
driver. Gillam and Evans proceeded to Gillam’s mother’s home, and arrived
there at about the same time as Gillam’s sister, Charda Davis (“Davis”).
[6] Gillam, Evans, and Davis were standing outside of Gillam’s and Davis’s
mother’s home and saw the Chrysler 200 driven by Cleveland pull into the
intersection nearest the home. The car stopped. Cleveland got out of the car,
walked to the trunk, and pulled a black pistol out of the trunk. Cleveland then
pointed the gun toward the area where Gillam, Evans, and Davis were
standing. The three women heard several shots and ran inside.
[7] Cleveland had been accompanied by an unidentified male, who moved into the
driver’s seat of the vehicle. Cleveland got back into the car, which drove away.
Police were contacted, and Cleveland was identified as the shooter.
[8] On July 15, 2015, Cleveland was charged with Criminal Mischief and Pointing
a Firearm. A bench trial was conducted on August 18, 2016. At the trial’s
conclusion, the court found Cleveland guilty as charged. On September 23,
2016, the court sentenced Cleveland to 180 days imprisonment for Criminal
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Mischief and 365 days of imprisonment for Pointing a Firearm. The sentences
were run concurrent with one another, and all but four days were suspended to
probation.
[9] This appeal ensued.
Discussion and Decision
[10] Cleveland challenges her convictions with the sole claim that the testimony
supporting the judgment was so contradictory as to be incredibly dubious. Our
supreme court has recently defined and clarified the scope of the incredible
dubiosity rule in Moore v. State, 27 N.E.3d 749 (Ind. 2015). The Indiana
Supreme Court stated: “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.’” Id. at 755 (quoting Tillman
v. State, 642 N.E.2d 221, 223 (Ind. 1994)). The incredible dubiosity rule applies
only “‘where a sole witness presents inherently contradictory testimony which is
equivocal or the result of coercion and there is a complete lack of circumstantial
evidence of the appellant’s guilty.’” Id. (quoting Tillman, 642 N.E.2d at 223)
(emphasis in original).
[11] To convict Cleveland of Criminal Mischief, as charged, the State was required
to prove beyond a reasonable doubt that Cleveland recklessly or knowingly
damaged or defaced Gillam’s property without her permission. See I.C. § 35-
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43-1-2(a); App’x Vol. 2 at 6. To convict Cleveland of Pointing a Firearm, as
charged, the State was required to prove beyond a reasonable doubt that
Cleveland knowingly pointed an unloaded firearm at Gillam. See I.C. § 35-47-
4-3(b); App’x Vol. 2 at 7.
[12] Our review of the record makes it clear that the incredible dubiosity rule has no
application in this case. Here, four different witnesses testified at trial:
Newcomb, Gillam, Evans, and Davis. Gillam, Evans, and Davis each testified
concerning the events surrounding the Pointing a Firearm charge, making the
rule inapplicable as to that conviction. To the extent that Cleveland suggests
that there are inconsistencies among the witnesses’ individual testimonies, we
note that the incredible dubiosity rule has no bearing in such cases.
[13] Newcomb testified as the only direct witness of Cleveland’s damaging of
Gillam’s car, but Newcomb’s testimony includes no inherently contradictory or
equivocal statements as to Cleveland’s identity or conduct, and Cleveland
makes no claim that Newcomb’s testimony was coerced. Thus, the incredible
dubiosity rule does not apply to Cleveland’s conviction for Criminal Mischief.
[14] Cleveland raises no other argument on appeal. We accordingly affirm her
convictions.
[15] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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