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COA: Rule of incredible dubiosity not applicable

June 4, 2009

The Indiana Court of Appeals affirmed a man's domestic battery conviction and sentence, concluding his wife's testimony about the altercation wasn't subject to the rule of incredible dubiosity.

In Shean West v. State of Indiana, No. 49A02-0812-CR-1084, Shean West argued because his wife's testimony contained some discrepancies compared to the police officer who testified at West's trial, the rule of incredible dubiosity should discredit Peggy West's testimony.

The appellate court concluded the rule of incredible dubiosity isn't necessarily rendered inapplicable merely because there is more than one witness who testifies for the state, wrote Senior Judge Patrick Sullivan. Peggy testified the altercation with her husband escalated from inside their apartment to outside near his truck and that he pushed her with such force she hit her head on the top of the truck and it hurt badly. The police officer testified Peggy knocked on his car window and told him that West had pushed her and she hit her head. He stated she didn't have visible injuries and she didn't want medical attention.

Peggy's testimony wasn't so incredibly dubious or inherently improbable that no reasonable trier of fact could believe it and her testimony shouldn't be disregarded merely because it doesn't precisely match other evidence or contains some discrepancies, wrote the senior judge.

"The standard for the rule is 'inherent contradiction' in the testimony of the witness under consideration, not whether that testimony may be in contradiction to the testimony of other witnesses," wrote Judge Sullivan.

The fact the police officer didn't see any visible injuries or bruises on Peggy doesn't detract from her testimony regarding hitting her head on the truck when West pushed her.

The appellate court declined to view Peggy's testimony in light of the officer's because that would be reweighing the evidence and assessing her credibility.

"Even were we to do so and note that Peggy West's trial testimony was more extensive as to the events which transpired than what she specifically told Officer Gates, such difference or differences do not indicate that her testimony is in contradiction to the testimony of the Officer," he wrote.

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