Gary S. Kirkwood v. State of Indiana (mem. dec.)
20A04-1612-CR-2779
| Ind. Ct. App. | Jun 8, 2017Background
- On March 27, 2016, Gary S. Kirkwood and Jamie Dunfee argued at Dunfee’s father's home; Dunfee handed Kirkwood her car keys and let him drive despite his forfeited driving privileges (HTV status).
- While driving home, Kirkwood abruptly braked; shortly thereafter both were outside the car, Kirkwood on the driver’s side and Dunfee on the passenger side, and Kirkwood was holding Dunfee’s keys then threw them into a yard.
- Bystander Jeremy Troyer observed the pair outside the vehicle; motorist Jeffery Norton stopped after seeing an apparent assault and saw Kirkwood dragging/striking Dunfee, then Kirkwood crossed the road and struck Norton in the right eye/cheek area.
- Officer(s) responded; Corporal Milovich detained Kirkwood nearby, ran BMV records showing Kirkwood’s driving privileges were forfeited for life, and transported him to the county jail. Photographs documented redness/swelling on Norton’s face.
- Kirkwood was charged with Level 5 felony operating while a habitual traffic violator (HTV), Class A misdemeanor battery (against Norton), and Class B misdemeanor battery (against Dunfee). The jury acquitted on the Class B charge but convicted on the HTV felony and Class A battery; the convictions were affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove Kirkwood operated a vehicle after forfeiture for life (Level 5 HTV) | State: Dunfee testified Kirkwood drove her car; circumstantial evidence (position by car, keys in his possession and thrown) supports operation after forfeiture. | Kirkwood: Dunfee’s testimony was unreliable/incredibly dubious (only witness that he drove, inconsistent memory, intoxication), so evidence insufficient. | Court: Testimony was not "incredibly dubious," circumstantial evidence supported Dunfee’s account; conviction affirmed. |
| Whether evidence was sufficient to prove Kirkwood caused bodily injury to Norton (Class A battery) | State: Photographs and officer testimony showed redness/swelling after the blow; human experience supports that a punch to the eye/cheek causes at least minimal physical impairment. | Kirkwood: Norton testified he did not feel pain and did not notice swelling, so bodily injury not proven beyond a reasonable doubt. | Court: Redness/swelling constituted bodily injury even if victim did not feel pain; evidence sufficient and conviction affirmed. |
Key Cases Cited
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard for sufficiency review and deference to fact-finder on credibility)
- Moore v. State, 27 N.E.3d 749 (Ind. 2015) (defines limits of the incredible-dubiosity rule)
- Rose v. State, 36 N.E.3d 1055 (Ind. Ct. App. 2015) (incredibly dubious testimony must be such that no reasonable person could believe it)
- Campbell v. State, 732 N.E.2d 197 (Ind. Ct. App. 2000) (testimony must run counter to human experience to trigger incredible-dubiosity)
- Lewis v. State, 726 N.E.2d 836 (Ind. Ct. App. 2000) (unclear details do not automatically make testimony incredible)
- Fonner v. State, 876 N.E.2d 340 (Ind. Ct. App. 2007) (sufficiency upheld where officer testimony was not incredibly dubious)
- Tucker v. State, 725 N.E.2d 894 (Ind. Ct. App. 2000) (bodily injury can be shown by physical impairment even absent subjective pain)
- Delahanty v. State, 658 N.E.2d 660 (Ind. Ct. App. 1995) (redness and bruising can satisfy bodily injury element)
- Murray v. State, 761 N.E.2d 406 (Ind. 2002) (acquittal on some charges does not render a witness’s favorable testimony for other charges incredible)