James Denning v. State of Indiana
991 N.E.2d 160
Ind. Ct. App.2013Background
- On Sept. 16, 2011, James Denning and Derek Schaffer went to a residence; Schaffer was shot in the head during a struggle over Denning’s gun. Denning demanded money and fled after running out of bullets.
- Denning was convicted after a bench trial of Class A felony attempted robbery and adjudicated an habitual offender; sentenced to 50 years.
- At sentencing the State asked restitution be determined later; the court orally said it would “leave restitution open,” but the final written sentencing order did not impose or mention restitution and advised Denning of appeal rights.
- Denning filed a notice of appeal before any separate restitution order was entered.
- Denning challenged (1) the sufficiency of the evidence under the "incredible dubiosity" rule based on the victim’s credibility, and (2) that he should have been convicted only of the lesser-included Class C felony (battery causing serious bodily injury).
- The trial court found the victim’s testimony credible despite being at times evasive, and the bench trial court convicted on the Class A attempted robbery charge the State prosecuted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: whether appeal is premature because restitution was unresolved | State: appeal should be dismissed until restitution determined | Denning: sentencing order was final; no restitution order was entered | Court: jurisdiction exists; written sentence was final and contained no restitution |
| Incredible-dubiosity credibility challenge | State: victim's testimony was credible and corroborated by circumstances | Denning: victim was evasive, inconsistent, and testimony was inherently dubious | Court: testimony not "incredibly dubious"; conflicts/ evasiveness insufficient to overturn credibility |
| Lesser-included offense (should be Class C battery rather than Class A attempted robbery) | State: charged and proved attempted robbery; court need not reduce conviction | Denning: battery causing serious bodily injury is lesser-included and should have been applied | Court: no error—bench convicted on charged Class A attempted robbery supported by evidence |
| Trial-court obligations on lesser-inclusion in bench trial | State: N/A | Denning: Porter instruction framework requires consideration | Court: Porter jury-instruction analysis not applied to bench trial; presumed court knows law |
Key Cases Cited
- Haste v. State, 967 N.E.2d 576 (Ind. Ct. App. 2012) (appeal dismissed where sentencing order expressly took restitution under advisement and was not final)
- Alexander v. State, 987 N.E.2d 182 (Ind. Ct. App. 2013) (best practice: enter restitution at sentencing to avoid uncertainty about finality and appeals)
- Murray v. State, 761 N.E.2d 406 (Ind. 2002) (scope of "incredible dubiosity" rule limited to inherently improbable or coerced, wholly uncorroborated testimony)
- Edwards v. State, 753 N.E.2d 618 (Ind. 2001) (testimony must "run counter to human experience" to invoke incredible-dubiosity relief)
- Wilson v. State, 688 N.E.2d 1293 (Ind. Ct. App. 1997) (trial court should enter restitution at sentencing; court lacks authority to later impose restitution absent reservation of jurisdiction)
- Dixey v. State, 956 N.E.2d 776 (Ind. Ct. App. 2011) (State has discretion to charge the offense it chooses)