Daveaun D. Carson v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION FILED
09/06/2017, 9:44 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Anthony S. Churchward Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Anthony S. Churchward, PC
Fort Wayne, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daveaun D. Carson, September 6, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1612-CR-2895
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
02D05-1608-F3-48
May, Judge.
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[1] Daveaun D. Carson appeals his conviction of Level 3 felony robbery, 1 arguing
the evidence was insufficient to sustain the conviction. We affirm.
Facts and Procedural History
[2] On July 28, 2016, John Burley was trying to buy a used television through a
mobile device application called LetGo. 2 He located a television that interested
him and entered into negotiations with a user calling himself “Brian,” (see, e.g.,
Tr. Vol. 1 at 35), later identified as Carson. Burley agreed to buy the television
for $250. After some confusion about the address where Burley could obtain
the television, Burley and his two small children arrived at the location Carson
indicated.
[3] Carson met Burley at his car and told Burley the television was inside the
apartment. Burley agreed to follow Carson inside and locked his children in the
car. Burley followed Carson around the building. Another man was sitting
outside the apartment. Carson then pulled a gun on Burley and ordered him to
hand over the money for the television. Burley told the men the money was in
the car. “With the gun still [pointed] at [him],” the men walked Burley back to
his car where he unlocked his car and retrieved the $250. (Id. at 41.) Carson
took Burley’s money, phone, and car keys.
1
Ind. Code § 35-42-5-1 (2014).
2
LetGo is an application used on mobile devices to “buy and exchange goods with someone.” (Tr. Vol. 1 at
79.)
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[4] Burley drove his car to a nearby gas station and requested assistance from a
bystander. 3 The bystander called 911 for Burley, and the police arrived to take
Burley’s statement. At the gas station, Burley stated the man with the gun was
“5’9” to 5’11”, bald, African American with a dark complexion,” (id. at 74),
and the other man at the scene was “African American, bigger build, 5’7”,
5’9”ish . . . curly hair.” (Id. at 67.) However, when the police went to the
apartment complex they were unable to locate either individual and the
apartment toward which Carson led Burley to get the television was empty.
[5] The next day, Burley discovered his LetGo account was blocked from viewing
any posts from “Brian.” Burley created a fake account in the name of
“Brittney.” (See, e.g., id. at 73.) Using this account, he located “Brian” and
entered into negotiations to buy an iPhone “Brian” had listed. Burley
contacted Detective Larry Tague of the Fort Wayne Police Department to tell
him about his negotiations. Detective Tague asked Burley to arrange a meeting
between “Brian” and “Brittney.” After warning Burley to stay away from the
meeting location, Detective Tague and several other officers conducted
surveillance of the area. Detective Tague observed Carson at the meeting area
but Carson left when he saw Detective Tague. Uniformed police officers
conducted a traffic stop of the car Carson was in and arrested the occupants.
3
Burley’s vehicle had a “mechanical malfunction” wherein it was able to run without a key in the ignition.
(Tr. Vol. 1 at 80.)
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[6] Detective Tague requested Detective Daniel Peters present two photo arrays to
Burley. Carson’s picture was in the first array and the driver of the car was in
the second array. Burley identified Carson as the man who had “pointed [a
gun] at [his] face” and robbed him. (Id. at 63.) Burley did not identify anyone
in the second array.
[7] The State charged Carson with Level 3 felony robbery and the case was tried by
jury. The jury found Carson guilty, and the trial court entered the conviction
and sentenced Carson to twelve years.
Discussion and Decision
[8] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference may reasonably be drawn from it to support the verdict. Id. at
147.
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[9] Carson was convicted of Level 3 felony robbery. “[A] person who knowingly
or intentionally takes property from another person . . . by using or threatening
the use of force . . . or by putting any person in fear . . . while armed with a
deadly weapon” commits Level 3 felony robbery. Ind. Code § 35-42-5-1 (2014).
[10] Carson argues the State did not present sufficient evidence because Burley’s
testimony was incredibly dubious. Specifically, he asserts Burley originally
identified the person who robbed him as bald and between 5’9” to 5’11” tall,
but that Burley’s later identifications of Carson in the photo array and at trial
were of a man who was not bald and stands between 6’3” and 6’4” tall.
[11] The incredible dubiosity rule allows the appellate court to impinge on the fact-
finder’s assessment of witness credibility when the testimony at trial was “so
contradictory that the verdict reached would be inherently improbable.” Moore
v. State, 27 N.E.3d 749, 751 (Ind. 2015). “For the incredible dubiosity rule to
apply, the evidence presented must be so unbelievable, incredible, or
improbable that no reasonable person could ever reach a guilty verdict based
upon that evidence alone.” Id. “Incredibly dubious or inherently improbable
testimony is that which runs counter to human experience, and which no
reasonable person could believe.” Campbell v. State, 732 N.E.2d 197, 207 (Ind.
Ct. App. 2000). This is a high standard to meet. There must be: (1) a sole
testifying witness; (2) whose testimony is inherently contradictory, equivocal, or
the result of coercion; and (3) a complete absence of circumstantial evidence.
Moore, 27 N.E.3d at 756. It is well-settled that “discrepancies between a
witness’s trial testimony and earlier statements made to police and in
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depositions do not render such testimony ‘incredibly dubious.’” Holeton v. State,
853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006).
[12] The incredible dubiosity rule does not apply here because Burley’s testimony
was supported by circumstantial evidence and his testimony at trial was not
inherently contradictory, equivocal or the result of coercion. At trial, Burley
maintained he could “remember [Carson’s] face more than anything.” (Tr.
Vol. 1 at 44.) He was focusing on Carson’s “nose, his eyes, and just the shape –
what his picture of his face looked like.” (Id.) Thus, although he may have
misconstrued very short hair for bald and did not have Carson’s height correct,
his identification and subsequent testimony was unequivocal that Carson was
the man who robbed him.
[13] Additionally, Burley’s identification of Carson is supported by the fact Carson
showed up for the fictitious sale of the iPhone. When questioned by Detective
Marc Deshaies, Carson indicated “he was there to meet a female in order to
buy an IPhone [sic] 6S plus.” (Id. at 130.) Thus, Burley’s testimony was not
inherently contradictory, equivocal, or the result of coercion, nor was there a
complete absence of circumstantial evidence. As such, the incredible dubiosity
rule does not apply. See Moore, 27 N.E.3d at 760 (holding incredible dubiosity
rule inapplicable where factors necessary to warrant application of the rule were
not present). Carson’s arguments to the contrary are an invitation for us to
reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146.
Carson does not assert any other grounds to support his claim of insufficient
evidence, and we therefore hold the State presented sufficient evidence to prove
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Level 3 felony robbery. See Wilburn v. State, 515 N.E.2d 1109, 1110 (Ind. 1987)
(“The uncorroborated testimony of [robbery] victim was sufficient to convict
the appellant.”).
Conclusion
[14] The State presented sufficient evidence of Level 3 felony robbery as Burley’s
testimony was not incredibly dubious. Accordingly, we affirm.
[15] Affirmed.
Brown, J., and Pyle, J., concur.
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