author: BRADFORD, Judge.

text:
    N.B., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1111-JV-574.
    Court of Appeals of Indiana.
    Aug. 2, 2012.

      Glen E. Koch II, Boren, Oliver & Coffey, LLP, Martinsville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant N.B. appeals following the juvenile court’s determination that he committed the delinquent act of Reckless Homicide, a Class C felony if committed by an adult. Specifically, N.B. contends that the juvenile court abused its discretion in admitting his statement to the investigating officer at the evidentiary hearing. We affirm.

FACTS AND PROCEDURAL HISTORY

Eleven-year-old N.B. and six-year-old A.F. were brothers who lived together with Mother, Step-Father, a nine-year-old sister, and a three-year-old brother in Morgan County. N.B. and his siblings were often left home alone with N.B. in charge. On a couple of occasions, N.B. had pointed a firearm belonging to Mother and Step-Father at his siblings to scare them into complying with his requests.

N.B.’s previous step-father had begun teaching N.B. about firearms and firearm safety .when N.B. was nine years old. N.B. was taught never to touch a firearm without an adult present, always to assume that a firearm is loaded, always to check to make sure that the firearm is empty, and always to ensure that the safety mechanism is on. While hunting with his previous step-father, N.B. had witnessed animals being shot and killed by a firearm.

On June 30, 2011, N.B. and A.F. were left home alone. Mother told the boys that they would be able to get pizza for dinner if they cleaned the bedroom they shared while the rest of the family was gone. N.B. became upset when A.F. refused to clean their room. N.B. retrieved Mother and Step-Father’s .22 caliber rifle from the master bedroom and again instructed A.F. to clean their bedroom. When A.F. again refused, N.B. pulled the trigger, shooting A.F. between the eyes.

After shooting A.F., N.B. returned the rifle to the master bedroom and called 911. N.B. told the 911 dispatcher that his brother had shot himself in the head. A.F. later died as a result of the gunshot wound to the head.

Morgan County Sheriffs Detective Dan Downing spoke with N.B. briefly after arriving at N.B.’s home. During this conversation, N.B. again indicated that A.F. had shot himself. In light of N.B.’s emotional state, N.B. was taken to Susie’s Place, an independent, child-friendly advocacy center in Hendricks County, to be more fully interviewed in a less traumatic location. During this interview, N.B. again stated that A.F. had shot himself.

During their investigation, police officers recovered a .22 caliber rifle from inside the master bedroom. The rifle was in good working order, the safety was off, and there was a casing inside the gun. The officers also found two boxes of .22 caliber cartridges lying on a dresser in the master bedroom and a spent .22 caliber casing on the floor. The casing was fired from the rifle. The officers also discovered a latent print of N.B.’s left ring Anger on the magazine, as well as prints of N.B.’s- right thumb and right middle Anger on the box of cartridges.

An autopsy was conducted on A.F. the following morning, after which it was determined that it would have been physically impossible for the fatal gunshot wound to have been self-inflicted with the rifle in question. After reviewing the autopsy results, Detective Downing contacted Mother, told her that there were discrepancies in N.B.’s statement that needed to be cleared up, and requested permission to re-interview N.B. Mother took Detective Downing’s request to mean that he did not believe that N.B. had been truthful in his earlier statement. Mother agreed to allow N.B. to talk to Detective Downing. Later that afternoon, N.B. arrived at the sheriffs department with his maternal grandmother (“Grandmother”) and was met by Mother and Step-Father. Mother, Step-Father, Grandmother, and, at the family’s request, a chaplain were present during Detective Downing’s interview with N.B.

After N.B. and his family arrived at the sheriffs department, Detective Downing again indicated that he wished to discuss certain discrepancies in N.B.’s prior, statement and the autopsy results with N.B. Detective Downing gave Mother and N.B. papers setting forth N.B.’s rights. After ascertaining that N.B. could read, Detective Downing instructed Mother and N.B. to read the papers and inquired as to whether each understood N.B.’s constitutional rights. Both responded in the affirmative and signed the acknowledgment and waiver forms.

Detective Downing then informed the family that he was going to leave the room and turn off all recording devices to provide the family with an opportunity to discuss amongst themselves whether they believed that N.B. should answer his questions. Fifteen to twenty minutes later, Detective Downing returned to the room and asked N.B., “Okay. Well, do you want to tell me what happened?” State’s Ex. 69A, p. 2. N.B. responded by telling Detective Downing that he had shot A.F. N.B.’s family demonstrated love and concern for N.B. At no time did Mother, or any other family member, indicate that they did not want N.B. to speak to Detective Downing.

On July 1, 2011, the State Aled a delinquency petition alleging that N.B. had engaged in conduct that would constitute murder and Class C felony reckless homicide if committed by an adult. On August 10, 2011, N.B. filed a “motion to quash” his July 1, 2011 statement to Detective Downing. The juvenile court conducted a suppression hearing on N.B.’s motion on August 23, 2011. The juvenile court denied N.B.’s motion on August 24, 2011.

The juvenile court conducted an eviden-tiary hearing on September 6-7, 2011. On September 9, 2011, the juvenile court issued an order adjudicating N.B. delinquent for committing what would be Class C reckless homicide if committed by an adult. The juvenile court determined that the State had failed to prove that N.B. committed what would be murder if committed by an adult. At the dispositional hearing, which was conducted on November 14, 2011, the juvenile court ordered that N.B. be placed in the Children’s Bureau Program. This appeal follows.

DISCUSSION AND DECISION

N.B. contends that the juvenile court erred in admitting his statement to Detective Downing because the procedural safeguards for the waiver of a juvenile’s constitutional rights, as required by Indiana Code section 31-32-5-1(2010) (the “juvenile waiver statute”), were not followed. Specifically, N.B. claims that Mother was not an appropriate custodian to join in the waiver of his rights because she had an adverse interest to N.B. and that his waiver was not knowing or voluntary because he executed the written waiver before being afforded an opportunity for meaningful consultation with Mother. For its part, the State argues that the juvenile court properly admitted N.B.’s statement because N.B. was not in custody at the time he spoke to Detective Downing, and, alternatively, because the procedural safeguards set forth by the juvenile waiver statute were met.

I. Whether N.B. was Subjected to a Custodial Interrogation

As a general rule, when a juvenile who is not in custody gives a statement to police, neither the safeguards of a Miranda warning nor the juvenile waiver statute is implicated. A.A. v. State, 706 N.E.2d 259, 261 (Ind.Ct.App.1999). Thus, the threshold issue is whether N.B. was subject to a custodial interrogation when he gave his statement. Id. “For an interrogation to be custodial in nature, one does not necessarily have to be under arrest.” Id. “To be custodial in the non-arrest context, the interrogation must commence after the person’s freedom of action has been deprived in any significant way.” Id. This is determined by examining whether a reasonable person in similar circumstances would believe he is not free to leave. S.D. v. State, 937 N.E.2d 425, 430 (Ind.Ct.App.2010).

The parties do not discuss whether N.B. was interrogated. “The term ‘interrogation’ has been defined as a process of questioning by law enforcement officials which lends itself to obtaining incriminating statements.” A.A., 706 N.E.2d at 261 (citing Jenkins v. State, 627 N.E.2d 789, 796 (Ind.1993)). The record shows that Detective Downing requested permission for N.B. to appear at the sheriffs department to clarify certain discrepancies in his prior statement which came to light following the autopsy of A.F. The line of questioning posed by Detective Downing elicited an incriminating response from N.B., ie., that N.B. had shot A.F. Thus, we conclude that N.B. was interrogated by Detective Downing.

Here, the trial court found that N.B. was in custody at the time he was interviewed by Detective Downing. The parties dispute this finding with N.B. arguing that the trial court properly found that N.B. was in custody and the State arguing that N.B. was not in custody when he was interviewed by Detective Downing. However, we need not determine whether N.B. was in custody because, as will be discussed below, we conclude that the procedural safeguards set forth in the juvenile waiver statute were met.

II. Whether the Procedural Safeguards Set Forth in the Juvenile Waiver Statute Were Followed

We next consider whether the procedural safeguards for the waiver of a juvenile’s constitutional rights, as required by the juvenile waiver statute, were followed. Indiana Code section 31-32-5-1 provides, in relevant part, as follows:

Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:
(2) by the child’s custodial parent, guardian, custodian, or guardian ad li-tem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver[.]

Thus, in Indiana, there are four requirements that must be satisfied before a juvenile’s statements made during a custodial interrogation can be used in the State’s case-in-chief. D.M. v. State, 949 N.E.2d 327, 333-34 (Ind.2011).

First, both the juvenile and his or her parent must be adequately advised of the juvenile’s rights. Miranda, 384 U.S. at 444-45, 467-74, 478-79, 86 S.Ct. 1602; [Lewis v. State, 259 Ind. 431, 439, 288 N.E.2d 138, 142 (1972)]. Second, the juvenile must be given an opportunity for meaningful consultation with his or her parent. I.C. § 31-32-5-1(2); Lewis, 259 Ind. at 439, 288 N.E.2d at 142.
Third, both the juvenile and his or her parent must knowingly, intelligently, and voluntarily waive the juvenile’s rights. I.C. § 31-32-5-1(2); Miranda, 384 U.S. at 475-76, 86 S.Ct. 1602. Finally, the juvenile’s statements must be voluntary and not the result of coercive police activity. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Id. at 334.

Here, N.B. challenges the juvenile court’s denial of his motion to suppress on two fronts. First, he contends that Mother was not an appropriate custodian to join in the waiver of his rights because she had an interest adverse to N.B.’s. Second, he contends that his waiver was not knowing or voluntary because he executed the written waiver before being afforded an opportunity for meaningful consultation with Mother.

The State bears the burden of proving beyond a reasonable doubt that the juvenile received all of the protections of Indiana Code section 31-32-5-1, Brown v. State, 751 N.E.2d 664, 670 (Ind.2001), and that both the juvenile and his or her parent knowingly, intelligently, and voluntarily waived the juvenile’s rights, Stewart v. State, 754 N.E.2d 492, 494-95 (Ind.2001). Cf. Douglas v. State, 481 N.E.2d 107, 111-12 (Ind.1985) (procedural safeguards judged by same standard as voluntariness). In reviewing a court’s denial of a motion to suppress a confession, we do not reweigh the evidence but instead examine the record to determine whether there is substantial evidence of probative value to support that decision. Willsey v. State, 698 N.E.2d 784, 789 (Ind.1998). We consider any conflicting evidence in a light most favorable to the juvenile court’s decision, Brown, 751 N.E.2d at 670, along with any substantial uncontested evidence, Douglas, 481 N.E.2d at 11—12. And we will uphold the decision if it is supported by “a reasonable view of the evidence.” Willsey, 698 N.E.2d at 789.

Id. at 334-35.

A. Adverse Interests

N.B. claims that Mother was not an appropriate custodian to join in the waiver of his constitutional rights because she had an interest adverse to N.B.’s. Specifically, N.B. argues that Mother had an adverse interest because, at the time N.B. spoke to Detective Downing, Mother potentially faced criminal charges for neglect of a dependent resulting in death. However, the mere fact that Mother faced potential criminal liability relating to A.F.’s death does not create an interest adverse to N.B.’s. Here, Mother faced potential criminal liability regardless of how A.F. was shot, whether at N.B.’s hands or by his own.

Indiana Code section 35-46-1^ (2010) provides, in relevant part, that “[a] person having the care of a dependent ... who knowingly or intentionally ... places the dependent in a situation that endangers the dependent’s life or health ... commits a Class A felony if it is committed ... by a person at least eighteen (18) years of age and results in the death of a dependent who is less than fourteen (14) years of age.” In the instant matter, the record demonstrates that Mother, who had responsibility for the care and control of N.B. and A.F., left an eleven-year-old and a six-year-old at home alone, unsupervised, with ready access to an unsecured and loaded firearm, and the six-year-old ended up fatally shot in the head by that firearm. Mother’s potential liability under Indiana Code section 35-46-1-4 would not be dependent upon which of the children actually fired the fatal shot but rather upon whether she knowingly or intentionally left N.B. and A.F. alone in a home with access to an unsecured and loaded firearm, placing the children in a situation that resulted in the death of a child under the age of fourteen. See Ind.Code § 35^46-1-4. N.B. fails to show how Mother’s potential criminal liability for any neglect of N.B. and A.F., which again was not dependent upon whether N.B. or A.F. actually fired the fatal shot, affected her ability to act in accordance with N.B.’s interests.

Furthermore, to the extent that N.B. relies upon this court’s conclusion in Borum v. State, 434 N.E.2d 581 (Ind.Ct.App.1982), to support his claim that Mother had an interest adverse to N.B.’s, we conclude that Borum is readily distinguishable from the instant matter. In Borum, the juvenile’s legal guardian, a caseworker for the Department of Public Welfare, initiated the proceedings against the juvenile by filing a charging petition. 434 N.E.2d at 583. In concluding that the caseworker could not appropriately waive the juvenile’s rights, the court determined that the juvenile’s caseworker “had not only filed the petition initiating the proceedings, but was also an employee of the state agency which had effectively assumed the role of an adverse party.” Id. at 584. As such, the caseworker’s interests were adverse to those of the juvenile. Id.

No such conflict exists here. When Mother encouraged N.B. to waive his rights and tell the truth, she was neither acting as an agent for the police or prosecutor nor acting as a key witness against N.B. in any of the potential charges he might face. To the contrary, Mother, in addition to the other family members present, expressed her love and concern for N.B. during the interview with Detective Downing. This court’s holding in Borum in inapplicable to the instant matter.

Further still, to the extent that N.B. claims that Mother was not an appropriate custodian to join in the waiver of his constitutional rights because she is the parent of both N.B. and the victim, the Indiana Supreme Court has held that the parent of an alleged juvenile delinquent does not have a conflict of interest by virtue of being a parent of both the juvenile and the victim. See K.S v. State, 849 N.E.2d 538, 543 (Ind.2006) (providing that the alleged juvenile delinquent’s mother did not have an adverse interest to the juvenile merely because she was also the victim’s mother); Whipple v. State, 523 N.E.2d 1363, 1369-70 (Ind.1988) (providing that a grandfather who, acting as his grandson’s custodian, advised his grandson to waive his right to remain silent did not have interests adverse to grandson who murdered his mother and father-the grandfather’s daughter and son-in-law). As such, Mother was not an inappropriate custodian merely because she was both N.B. and A.F.’s mother.

B. Knowing and Voluntary Waiver and the Reasonable Opportunity for Meaningful Consultation

N.B. also claims that his waiver was neither knowing nor voluntary. Specifically, N.B. argues that his written waiver was defective because it occurred before he had an opportunity for a meaningful consultation and that the record does not support the finding that he impliedly waived his rights. The State, for its part, argues that the record demonstrates that N.B. impliedly waived his rights after receiving the opportunity to engage in meaningful consultation with Mother, Step-Father, and Grandmother.

Indiana Code section 31-32-5-1 requires that, before a juvenile’s rights are waived, he or she must be afforded an opportunity for meaningful consultation with a parent. D.M., 949 N.E.2d at 335.

The mere presence of a parent, standing alone, does not satisfy the statute. Hall v. State, 264 Ind. 448, 451, 346 N.E.2d 584, 587 (1976). Rather, the consultation requirement is satisfied “when the State demonstrates ‘actual consultation of a meaningful nature or ... the express opportunity for such consultation, which is then forsaken in the presence of the proper authority by the juvenile, so long as the juvenile knowingly and voluntarily waives his [or her] constitutional. rights.’” Brown, 751 N.E.2d at 670 (ellipsis in original) (quoting Williams v. State, 433 N.E.2d 769, 772 (Ind.1982)). Additionally, the opportunity for the juvenile and the parent to counsel with each other must occur before the juvenile’s rights are waived because the purpose of consultation is to allow the juvenile to make a decision on whether to waive his or her rights in a comparatively relaxed and stable atmosphere. Patton v. State, 588 N.E.2d 494, 496 (Ind.1992); cf. Lewis v. State, 259 Ind. at 439-40, 288 N.E.2d at 142.
To prove that “actual consultation of a meaningful nature” occurred, the State needs only to prove that the police provided a relatively private atmosphere that was free from police pressure in which the juvenile and the parent could have had a meaningful discussion about the “allegations, the circumstances of the case, and the ramifications of their responses to police questioning and confessions.” Trowbridge v. State, 717 N.E.2d 138, 148 (Ind.1999); see also Hall, 264 Ind. at 452, 346 N.E.2d at 587 (providing that “meaningful consultation can only occur in the absence of the neutralizing pressures which result from police presence”). The interrogating officer cannot dictate or even recommend how they should use this time. Trowbridge, 717 N.E.2d at 148; Patton, 588 N.E.2d at 495 n. 3; [Whipple, 523 N.E.2d at 1371]; Buchanan v. State, 268 Ind. 503, 506-07, 376 N.E.2d 1131, 1134 (1978). “What is important is that the child and adult be aware of and understand the child’s rights in order to discuss them intelligently.” Patton, 588 N.E.2d at 496. Once such an opportunity is provided, it is up to the juvenile and the parent to use this opportunity to their advantage. Id. at 495 n. 3; Whipple, 523 N.E.2d at 1371. The State need not show that the consultation was beneficial in helping the juvenile and his or her parent decide whether to waive or stand on the juvenile’s rights. Fortson v. State, 270 Ind. 289, 298-99, 385 N.E.2d 429, 436 (1979); cf. Trowbridge, 717 N.E.2d at 148; Fowler v. State, 483 N.E.2d 739, 743 (Ind.1985); Buchanan, 268 Ind. at 506-07, 376 N.E.2d at 1134. Rather, the extent to which the conversation aids in the waiver decision “is a circumstance among many others which the trial court may consider in arriving at its decision as to whether the waiver is voluntary and knowing.” Fortson, 270 Ind. at 299, 385 N.E.2d at 436.

Id. at 335-36 (bracketed material supplied).

It is uncontested that N.B. signed the waiver form acknowledging and waiving his rights before he was afforded approximately fifteen to twenty minutes of meaningful consultation with Mother, Step-Father, and Grandmother. As such, the written waiver form alone is insufficient to satisfy the requirements of Indiana Code section 31-32-5-1. However, the requirements of Indiana Code section 31-32-5-1 may still be met and N.B.’s waiver found knowing and voluntary if the record demonstrates that N.B. impliedly waived his rights after being afforded the opportunity to engage in meaningful consultation with Mother.

The Indiana Supreme Court has held that while a written waiver is certainly strong proof that a valid waiver occurred, “an express oral or written statement is not required to establish a knowing and voluntary waiver of rights-valid waivers may be implied.” Id. at 339. “Generally, a valid implied waiver occurs where a suspect who has been advised of his or her Miranda rights and has acknowledged an understanding of those rights makes an uncoerced statement without taking advantage of them.” Id.

In determining the voluntariness of a Miranda waiver, we examine the totality of the circumstances surrounding the interrogation to determine whether the suspect’s choice “was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and whether the waiver was “made with a full awareness of both the nature of the rightfs] being abandoned and the consequences of the decision to abandon [them].” [Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)]; see also [Crain v. State, 736 N.E.2d 1223, 1230 (Ind.2000)] (reviewing totality of the circumstances to ensure that waiver was “not induced by violence, threats, or other improper influences that overcame the defendant’s free will”); cf. [Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)] (holding that the totality-of-the-circumstances test applies to juvenile waivers). Relevant considerations include the juvenile’s physical, mental, and emotional maturity; whether the juvenile or his or her parent understood the consequences of the juvenile’s statements; whether the juvenile and his or her parent were informed of the delinquent act for which the juvenile was suspected; the length of time the juvenile was held in custody before consulting with his or her parent; whether there was any force, coercion, or inducement; and whether the juvenile and his or her parent had been advised of the juvenile’s Miranda rights. I.C. § 31-32-5-4; see also Michael C., 442 U.S. at 725-27, 99 S.Ct. 2560.

D.M., 949 N.E.2d at 339-40 (first two sets of bracketed material in the original, all other bracketed material supplied).

The totality of the circumstances surrounding the interrogation of N.B. supports the juvenile court’s conclusion that he knowingly, intelligently, and voluntarily waived his rights. Shortly after the conclusion of A.F.’s autopsy, Detective Downing contacted Mother and requested permission to re-interview N.B. regarding certain discrepancies between his prior statement and the autopsy results. Mother agreed. Grandmother transported N.B. to the sheriffs department where she and N.B. were met by Mother and StepFather. After N.B. and his family arrived at the sheriff’s department, Detective Downing again indicated that he wished to discuss certain discrepancies between N.B.’s prior statement and the autopsy results. Detective Downing gave Mother and N.B. papers setting forth and explaining N.B.’s rights, including his rights to remain silent and to an attorney. After ascertaining that N.B. could read, Detective Downing instructed Mother and N.B. to read the papers and inquired as to whether each understood N.B.’s constitutional rights. Both responded in the affirmative and signed the acknowledgment and waiver forms.

Detective Downing then informed the family that he was going to leave the room and turn off all recording devices to provide the family with an opportunity to discuss amongst themselves whether they believed that N.B. should answer his questions. Fifteen to twenty minutes later, Detective Downing returned to the room and asked N.B. “Okay. Well, do you want to tell me what happened?” State’s Ex. 69A, p. 2. N.B.’s actions immediately thereafter indicated that he wished to waive his rights as he then told Detective Downing what happened the day before, including the fact that he had shot A.F. At no time did Mother, or any other family member, indicate that they did not want N.B. to continue, and Mother, as well as Step-Father and Grandmother, encouraged N.B. to tell the truth. Further, N.B. did not indicate at any point that he did not wish to talk to Detective Downing and nothing in the record indicates that Detective Downing coerced N.B. to talk.

N.B. was not held in police custody prior to being brought to the sheriffs department for the purpose of giving the statement, and the record does not demonstrate that he was coerced to talk in any way. He was surrounded at all times by family members who demonstrated love and concern for him and encouraged him to tell the truth. Based on the totality of the circumstances, we agree with the trial court’s determination that while “the signing of the waiver form should, under best practices, occur after the parent and child have had an opportunity for meaningful consultation,” Appellant’s App. p. 81 (emphasis omitted), under the facts of this case, N.B. impliedly waived his rights after engaging in meaningful consultation with Mother, and that both N.B.’s and Mother’s waiver was knowing and voluntary.

The judgment of the juvenile court is affirmed.

VAIDIK, J., and CRONE, J., concur.

      . It is unclear from the record whether Mother and Step-Father were married or merely living together. It is clear from the record, however, that N.B. viewed Step-Father as a father-figure and referred to him as "Dad.” Therefore, for the purposes of this opinion, we will refer to him as Step-Father.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We do not believe that the fact that a reasonable person might not believe that he was free to go without permission from Detective Downing or his adult chaperones would impact N.B.’s ability to knowingly or voluntarily waive his rights to an attorney or to remain silent after being encouraged to tell the truth by these same adult chaperones.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    Naveed GULZAR, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 20A03-1202-PC-88.
    Court of Appeals of Indiana.
    Aug. 7, 2012.
    Scott H. Duerring, Duerring Law Offices, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Naveed Gulzar pled guilty to theft in 2006. In 2011, he sought post-conviction relief on the grounds of ineffective assistance of counsel. Specifically, Gulzar argued that his trial counsel was ineffective for failing to advise him that automatic deportation was a consequence of his pleading guilty to theft. The post-conviction court denied relief. We affirm.

Facts and Procedural History

Gulzar was born in Pakistan and entered the United States in 2000, when he was approximately fourteen years old. Gulzar immigrated to the United States with his mother, father, brother, and sister, all with the intent of staying in this country and becoming naturalized citizens.

In January 2006, Gulzar and Adnan Ha-kin stole a credit card from a customer at a convenience store where Hakin worked. Gulzar and Hakin used the stolen card to make purchases on four occasions at several different stores. During their investigation into the theft of the credit card, the Goshen Police Department obtained video evidence from Meijer showing Gulzar using the stolen credit card. The police also secured a signed consent to search Gul-zar’s apartment, where the items purchased with the stolen card were found. The State charged Gulzar with one count of theft and two counts of fraud, all Class D felonies. In March 2006, Gulzar, represented by counsel, entered into a plea agreement. The agreement provided that Gulzar would plead guilty to one count of Class D felony theft and the State would dismiss the two remaining counts. Sentencing was left to the trial court’s discretion. The plea agreement contained several advisements of rights, each of which Gulzar initialed. Appellant’s App. p. 55-57. One provided, “the defendant understands that if he/she is not a legal citizen of the United States, he/she may be deported as a result of his/her plea of guilty.” Id. at 56. The trial court sentenced Gulzar to eighteen months in the Department of Correction, all suspended to probation. Gulzar successfully completed his probation and was released satisfactorily.

Between 2006 and 2011, Gulzar filed numerous motions to modify his sentence, but his requests were denied by the trial court. In November 2011, Gulzar filed a petition for post-conviction relief, alleging that his trial counsel was ineffective for not advising him that pleading guilty to theft would maké him automatically de-portable under two federal immigration laws. Specifically, since pleading guilty to theft, Gulzar was deportable because he was a lawful permanent resident who committed a crime of moral turpitude within ten years after the date of admission, for which a sentence of more than one year was imposed under 8 U.S.C. § 1227(a)(2) (A) (i). Gulzar was also deport-able because he committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).

At the post-conviction hearing, Gulzar testified that when entering his plea, he informed trial counsel that he was only a legal permanent resident and not a citizen of the United States. Tr. p. 11-12. Trial counsel testified that he informed Gulzar that his guilty plea “could [a]ffect” his status as a citizen in this country. Id. at 8. However, trial counsel admitted that he failed to inform Gulzar that his guilty plea to felony theft would make him automatically deportable. Id. at 12. After the guilty plea hearing, Gulzar had consulted with an immigration attorney who explained that because of his theft conviction, Gulzar would be unable to renew his green card or become a natural citizen. Id. at 13. Gulzar testified that if he had been advised by trial counsel that his guilty plea would subject him to automatic deportation, he would not have pled guilty because it would prevent him from becoming a natural citizen and require him to go back to Pakistan. Id. at 12.

In January 2012, the post-conviction court entered a written order finding that although trial counsel’s advice was incompetent, Gulzar failed to establish prejudice from trial counsel’s failure to advise him of the risk of deportation and therefore denied relief.

Gulzar now appeals.

Discussion and Decision

Gulzar contends that his trial counsel was ineffective for failing to advise him that pleading guilty to theft would subject him to automatic deportation under federal immigration laws.

In post-conviction proceedings, the petitioner bears the burden of proving grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). “The standard of review for a petitioner denied post-conviction relief is rigorous.” Trujillo v. State, 962 N.E.2d 110, 113 (Ind.Ct.App.2011). A petitioner must show that the evidence, when taken as a whole, “leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court.” Matheney v. State, 688 N.E.2d 883, 890-91 (Ind.1997) (quotation omitted). “We will disturb the post-conviction court’s decision only if the evidence is without conflict and leads to but one conclusion and the post-conviction court has reached the opposite conclusion.” Emerson v. State, 695 N.E.2d 912, 915 (Ind.1998).

When evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 674, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a petitioner must establish that his counsel’s performance was deficient. Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008). “Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms.” French v. State, 778 N.E.2d 816, 824 (Ind.2002). Second, a petitioner must establish that as a result of the deficient performance the petitioner was prejudiced. Lee, 892 N.E.2d at 1233. To show prejudice the petitioner must establish a reasonable probability that, but for counsel’s unprofessional mistakes, the result of the proceedings would have been different. French, 778 N.E.2d at 824. Failure to satisfy either of the two prongs will cause the claim to fail. Id. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.” Trujillo, 962 N.E.2d at 114 (citing Landis v. State, 749 N.E.2d 1130, 1134 (Ind.2001)).

On appeal, Gulzar contends that he was prejudiced by his trial counsel’s failure to explain the risk of automatic deportation. Gulzar claims that this failure caused him to accept a plea agreement that he would have rejected if he had been properly advised. Because Gulzar was convicted pursuant to a guilty plea, we examine this particular claim under Segura v. State, 749 N.E.2d 496 (Ind.2001). Trujillo, 962 N.E.2d at 114.

Segura categorizes two main types of ineffective assistance of counsel eases, the second of which is at issue here. Id. This second category relates to “an improper advisement of penal consequences” and is further divided into two subcategories: (1) “claims of intimidation by exaggerated penalty or enticement by an understated maximum exposure” and (2) “claims of incorrect advice as to the law.” Id. (quotation omitted). Therefore, Gulzar’s challenge falls under subsection (2) of the second category—an improper advisement of penal consequences relating to incorrect advice as to the law.

In Segura, our Supreme Court held that to state a claim for post-conviction relief under this subcategory, a petitioner must “establish, by objective facts, circumstances that support the conclusion that counsel’s errors in advice as to penal consequences were material to the decision to plead.” Segura, 749 N.E.2d at 507. Simply alleging that the petitioner would not have pled will not be sufficient. Id. “Rather, specific facts, in addition to the petitioner’s conelusory allegation, must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea.” Id.; see also Trujillo, 962 N.E.2d at 114-15. The failure to advise a client of the possibility of deportation in the event of a conviction may, under some circumstances, constitute ineffective assistance of counsel. Segura, 749 N.E.2d at 500.

Gulzar testified that he would not have pled guilty had trial counsel advised him that his guilty plea would have resulted in automatic deportation. Tr. p. 12. Under the analysis in Segura, Gulzar’s conelusory testimony to that effect is insufficient. He must also show special circumstances or present specific facts that warrant post-conviction relief. Segura, 749 N.E.2d at 507; see also Sial v. State, 862 N.E.2d 702, 706 (Ind.Ct.App.2007).

Gulzar argues that special circumstances are present in this case. Specifically, he argues that the members of his nuclear family—his mother, father, brother, and sister—live in the United States, and for that reason, his deportation would be especially difficult for him and them. Thus, Gulzar argues that his case is like Sial. In Sial, the defendant had lived in the United States for twenty years and had a wife and a thirteen-year-old daughter who was an American citizen. Sial, 862 N.E.2d at 706. In Sial, we found that the defendant had shown “sufficient special circumstances and specific facts” to support his claim that he would not have pled guilty had he been informed of the immigration consequences. Id. Here, we acknowledge that Gulzar’s parents and siblings are his nuclear family; they immigrated together in hopes of becoming naturalized citizens and have lived in this country for almost twelve years. In fact, Gulzar’s mother, father, brother, and sister have all become naturalized citizens. Tr. p. 10. If deported, Gulzar would be forced either to leave his family behind or to uproot them from the country that has been their home for more than a decade.

While these may indeed be special circumstances, as our Supreme Court acknowledged in Segura, .“We see no reason to require revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the same sentence.” 749 N.E.2d at 507. That is, the Court acknowledged that it is only in “extreme cases” that “a truly innocent defendant” pleads guilty “because of incorrect advice as to the consequences.” Id. This is not one of those extreme cases. Gulzar was charged with three Class D felonies. His participation in the underlying crimes was documented on surveillance video, and the items purchased with the stolen credit card were found in his apartment. Notably, Gulzar has never denied his involvement in these crimes. Gulzar thus had few choices: plead guilty or not guilty, both of which left sentencing to the trial court’s discretion. In light of the evidence establishing Gulzar’s guilt, pleading guilty allowed Gulzar to secure a significant benefit by reducing his liability to only one Class D felony in hopes that the trial court would give him a reduced sentence. In fact, Gulzar received a completely suspended sentence.

While Gulzar may have shown special circumstances related to his family, in light of the evidence establishing his guilt, he has failed to demonstrate prejudice as a result of trial counsel’s failure to advise him that his guilty plea would result in automatic deportation. We therefore affirm the post-conviction court.

Affirmed.

CRONE, J., and BRADFORD, J., concur.

      . "Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B).

      . Theft is an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G).

      . We question whether the post-conviction court found that trial counsel was incompetent. The order of tire post-conviction court states, “The court finds that [trial counsel’s] advice was ineffective within the meaning of Padilla v. Kentucky and the court further finds that the advice given in 2006 was not incompetent and was not below a reasonable standard of an attorney practicing in Elkhart County, Indiana, as attorneys in that time period routinely gave advice of a potential for immigration consequences.” Appellant’s App. p. 18-19 (emphasis added). We note that because the parties interpret the post-conviction court’s order to have found trial counsel incompetent, we follow the course taken by the parties. We do not reach the issue of whether trial counsel’s advice that Gulzar may be deported is sufficient under Padilla, (emphasis added).

      . The State cross-appeals, arguing that trial counsel was not deficient. Specifically, the State claims that Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which holds that the failure to advise a defendant of the possible adverse immigration consequences of a guilty plea constitutes deficient performance, does not apply retroactively. We need not address whether Padilla applies retroactively because we resolve this issue on the grounds of lack of prejudice. See Trujillo v. State, 962 N.E.2d 110, 114 (Ind.Ct.App.2011) (holding that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.”) (citing Landis v. State, 749 N.E.2d 1130, 1134 (Ind.2001)).


author: RILEY, Judge.

text:
    Matthew MANUEL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1112-CR-1135.
    Court of Appeals of Indiana.
    Aug. 7, 2012.

      Danielle L. Gregory, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Matthew Manuel (Manuel), appeals his conviction for domestic battery, a Class D felony, Ind.Code § 35-42-2-1.3, after a bench trial.

We affirm.

ISSUES

Manuel raises three issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion when it denied him the opportunity to cross-examine a witness about a past incident;
(2) Whether the trial court abused its discretion when it allowed the State to ask one of its witnesses whether she had testified truthfully; and
(3) Whether the State produced sufficient evidence to prove beyond a reasonable doubt that Manuel committed domestic battery as a Class D felony.

FACTS AND PROCEDURAL HISTORY

Manuel and D.S. lived together for eight years in a home in Indianapolis, Indiana, and had one child together named D.M. D.S. also had one child from a previous relationship, whom Manuel helped raise during their eight year relationship. On the evening of September 28, 2011, D.S. went out to play Bingo to celebrate her birthday. While D.S. was away, Manuel put the two children to bed in their rooms, although D.M. did not go to sleep right away. D.S. returned home from playing Bingo around 10:30 p.m. and sat down to watch television with Manuel. At one point, Manuel began to talk about his desire to visit Madagascar, so they looked up Madagascar online on D.S.’ laptop computer. Later, Manuel went into another room and D.S. began to check her e-mails. When Manuel came back into the room, he saw D.S. delete an e-mail. He demanded to know what she had deleted, but D.S. would not tell him and Manuel hit her on the forehead with a cell phone. They began to argue loudly and Manuel proceeded to examine the files on D.S.’ laptop until its battery died and it automatically shut down.

Manuel plugged the laptop’s battery charger in and turned the laptop back on, but discovered that it required a password to log in. He asked D.S. for the password, but she refused to give it to him. Manuel began “complaining and yelling and screaming walking through the house.” (Transcript p. 38). When D.S. still refused to give him her password, he walked outside and put their daughter’s net book computer, which was their second computer, into his car. While Manuel was outside, D.S. called 911 on her cell phone and then put the phone under a pillow on her bed. Manuel returned to the house and continued “yelling and screaming” at D.S. while she was standing in the doorway of their bedroom. (Tr. p. 42). Manuel threw D.S.’ laptop on the floor and broke it. He then picked the laptop back up and hit D.S. on the head with it twice before grabbing her from behind and choking her.

D.S. managed to separate herself from Manuel, and shortly thereafter police officers arrived as a result of D.S.’ 911 phone call. When the officers arrived, they knocked for about four or five minutes before anyone answered the door. However, they saw a person peek out from the bedroom window through the blinds. Eventually, Manuel answered the door with D.S. standing next to him. The officers noticed that D.S. was “visibly upset” and was “crying and shaking,” but did not have any visible injuries. (Tr. p. 13).

On September 29, 2011, the State filed an Information charging Manuel with Count I, domestic battery, a Class D felony, Ind.Code § 35-42-2-1.3; Count II, battery of a family or household member, a Class D felony, I.C. § 35-42-2-1; Count III, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3; and Count IV, battery, a Class A misdemeanor, I.C. § 35-42-2-1. On November 17, 2011, a bench trial was held, and the trial court found Manuel guilty as charged. On December 1, 2011, the trial court held a sentencing hearing and sentenced Manuel to 365 days on Count I, with 128 days executed and 237 days suspended. The trial court merged Count II with Count I to avoid double jeopardy prohibitions and merged Counts III and IV with Count I as they were lesser included offenses.

Manuel now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Exclusion of Evidence

During Manuel’s cross-examination of D.S. at trial, Manuel elicited testimony that he had been arrested and charged with domestic battery of D.S. in 2005, but that the charges were dropped after D.S. talked to the State. After eliciting this testimony, Manuel asked D.S. whether she had filed a recantation admitting that the abuse had never happened. The State objected to the question, arguing that it was irrelevant and unduly prejudicial to the State because the State did not know the specifics of the incident without a supplemental statement from that case. In response, Manuel argued that the relevance of the question related to D.S.’ credibility as a witness. The trial court sustained the objection, and Manuel requested to make an offer to prove. The trial court allowed the offer, and Manuel asked D.S. whether she had filed a recantation. In response, D.S. admitted that she had. Now, Manuel argues that the trial court abused its discretion when it denied him the opportunity to question D.S. about her recantation at trial.

Preliminarily, we note that the scope and extent of cross-examination is within the discretion of the trial court, and we will reverse only upon finding an abuse of that discretion. Palmer v. State, 654 N.E.2d 844, 848 (Ind.Ct.App.1995). We will find an abuse of discretion where a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Parker v. State, 965 N.E.2d 50, 53 (Ind.Ct.App.2012). Although a defendant’s right to present a defense is of the utmost importance, it is not absolute. Id. “The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id.

Under Indiana Evidence Rule 607, “The credibility of a witness may be attacked by any party, including the party calling the witness.” However, pursuant to Evid. R. 608(a), a party may only attack the credibility of a witness through evidence in the form of opinion or reputation. Evidence regarding specific instances is inadmissible, other than evidence of a conviction of a crime as provided in Evid. R. 609 and evidence concerning the character for truthfulness or untruthfulness of another witness as to which the witness has testified. Evid. R. 608(b).

In a similar vein, the defendant in Nunley v. State, 916 N.E.2d 712, 720 (Ind.Ct.App.2009), trans. denied, tried to introduce evidence at trial that the child who claimed that he had molested her had made a false accusation of misconduct on another occasion. The trial court found that the evidence was inadmissible under Evid. R. 608(b) as evidence of a specific instance, and we affirmed. Id. As D.S.’ 2005 accusation and then recantation were specific instances of conduct similar to the false accusation at issue in Nunley, we conclude that evidence of D.S.’ recantation here was likewise precluded under Evid. R. 608(b), and the trial court did not abuse its discretion when it did not permit Manuel to cross-examine D.S. about the 2005 charges.

II. Character Testimony

Next, Manuel argues that the trial court improperly allowed the State to bolster the truthfulness of D.S.’ testimony. At trial, the following exchange occurred:

[STATE]: [D.S.,] as you sit here today[,] has your testimony been truthful about what happened on September 29th?
[DEFENSE COUNSEL]: Judge[,] I am going to object to any bolstering of the witness. She’s under oath. She knows that she’s supposed to tell the truth.
[STATE]: It wasn’t my case in chief, Judge. I think that it’s ... the door’s been opened. She’s ... her credibility’s been attacked and I have an opportunity to rehabilitate her so it’s not bolstering. It’s rehabilitation.
[TRIAL COURT]: The objection will be overruled.
[STATE]: Are you ... are you testifying truthfully about the incident that we’re here about today?
[D.S.]: Yes.

(Tr. pp. 69-70). According to Manuel, this exchange was prohibited under our rules of evidence.

We review a trial court’s decisions regarding the scope and extent of cross-examination for an abuse of discretion. See Parker, 965 N.E.2d at 53. We will find an abuse of discretion only where a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

As Manuel argues, Evid. R. 704(b) provides that “[witnesses may not testify to [ ] whether a witness has testified truthfully....” However, we have held that “[a] witness may be rehabilitated on redirect examination if [she] was discredited by [her] testimony on cross-examination.” Embry v. State, 923 N.E.2d 1, 7 (Ind.Ct.App.2010), tram, denied. Indiana courts have recognized two general rules with respect to witness rehabilitation:

The first rule is that evidence supporting credibility is admissible only if credibility has been or certainly will be attacked. This is based on the conclusion that, without such an attack, evidence supporting credibility is of insufficient probative value to warrant the time necessary to consider it....
The second principle is that, even if credibility is attacked, evidence supporting credibility is admissible only if it logically refutes the specific focus of the attack....

Id. The second principle is generally the more difficult one to apply, as its application requires determining what will logically refute the attack on credibility. Id. The answer usually varies depending on the basis for that attack. Id.

Here, many of Manuel’s questions throughout his cross-examination were intended to impeach D.S.’ credibility. The following exchanges occurred:

[DEFENSE COUNSEL]: Okay so before you called 911 your testimony is that there was no contact between the two of you?
[D.S.]: Yelling and screaming, yes.
[DEFENSE COUNSEL]: Okay but there was nothing else ... he hadn’t touched you before you called 911?
[D.S.]: No.
[DEFENSE COUNSEL]: Okay do you remember me asking you that same exact question out in the hall?
[D.S.]: Outside[?]
[DEFENSE COUNSEL]: Yes.
[D.S.]: Yes he hit me in the head.
[DEFENSE COUNSEL]: And what was your answer?
[D.S.]: He hit me in the head with the laptop.
[DEFENSE COUNSEL]: Okay did you also tell me that he hit you with the cell phone before you called 911?
[D.S.]: Up front in the living room, yes. Yes, he hit me in the front when we were in the front room living room.
[DEFENSE COUNSEL]: And this is the first you remember of that just now?
[D.S.]: No we were busy talking about the issue in the hall—in the hallway and in the bedroom with the laptop.
[DEFENSE COUNSEL]: But you didn’t understand what I just said a second ago that the first time—
[D.S.]: Did he hit me before?
[DEFENSE COUNSEL]: I just want to be clear. What you just testified—
[D.S.]: Okay, I didn’t mention it. Okay that’s what you’re saying.
[DEFENSE COUNSEL]: So those three times that I just asked you that whether there was any contact before you called 911 you said no. Is that true or not true?
[D.S.]: When you asked me that you were trying to confuse me, that’s why but yes go ahead. We’ll just go with that. He hit me once in the head. That’s what you’re trying to say.
[DEFENSE COUNSEL]: No I’m not trying to say anything. I’m actually trying to figure out what you’re saying. Did he or did he not hit you before you called 911?
[D.S.]: Yes in the living room.
[DEFENSE COUNSEL]: And all those times that I just asked you that you didn’t understand the question?
[D.S.]: Because I wasn’t thinking about that stuff. I was worried about the 911 call and him hitting me in the head with the laptop.
[DEFENSE COUNSEL]: Okay so your testimony now is that you didn’t understand what I was asking you—
[D.S.]: No I understood what you asked me.
[DEFENSE COUNSEL]: Okay so it was only a verbal fight before you called 911?
[D.S.]: No he also hit me with the cell phone.
[DEFENSE COUNSEL]: Okay but you never told the police that?
[D.S.]: That wasn’t even important. The cell phone part wasn’t the important thing. Him hitting me on the head with the laptop ... he could’ve choked me. He choked me before. He’s done it in the house. I’m not even it. My issue’s not with the ... with him being hit me on the ... on the head with the cell phone. I’m worried about everything else. He’s done this before.

(Tr. pp. 53-55).

[DEFENSE COUNSEL]: And during that entire 911 call that we just listened to he didn’t leave, did he? [D.S.]: No he was still in the house.
[DEFENSE COUNSEL]: Okay do you remember when I spoke to you in the hallway ... ?
[D.S.]: Yeah.
[DEFENSE]: And do you remember telling me that—
[D.S.]: The net book was in the car.
[DEFENSE COUNSEL]: That wasn’t my question but do you remember me asking you ... I’m sorry. Do you remember telling me that he went out to the car twice?
[D.S.]: Yeah.
[DEFENSE COUNSEL]: Okay one time he went out there to take the net book out. That’s what you told me.
[D.S.]: No he was already walking out there and he had his jacket on. He went out there and put something out there ... came back in—
[DEFENSE COUNSEL]: And that’s when you called 911.
[D.S.]: Because.I looked out the door and I saw him out there. I came back and called 911 and set my phone under the pillow.
[DEFENSE COUNSEL]: Okay and then you told me he left again.
[D.S.]: He walked out towards the car. I didn’t say he left out of the house. He left ... outside and went out towards the car.
[DEFENSE COUNSEL]: Out in the hallway you didn’t tell me that he went outside twice?
[STATE]: Judge I believe that’s what she did just say. She said he went out twice. Once to the car and once outside. I mean that’s ... consistent with what she’s testifying to now [ ].
[TRIAL COURT]: Right and I believe that [defense counsel’s] question is, when you discussed the matter in the hallway did you tell [defense counsel] that he had gone out to the car twice like you are saying here currently now?
[D.S.]: I think she had said that I only said once because he had went outside.
[TRIAL COURT]: Does that answer your question? The objection will be overruled.
[DEFENSE COUNSEL]: Judge I can move on from that. That’s fine.

(Tr. pp. 60-62). In light of this testimony, we find that Manuel attempted to impeach D.S. as a witness with-respect to her truthfulness. Because the impeachment related to truthfulness, we further conclude that questioning D.S. on re-direct regarding whether she had testified truthfully logically refuted the specific focus of Manuel’s attack. See Embry, 923 N.E.2d at 7. Thus, the State’s question was properly intended to rehabilitate its witness, rather than bolster her testimony, and the trial court did not abuse its discretion in allowing the question.

III. Sufficiency

Finally, Manuel argues that the State failed to provide sufficient evidence that he committed domestic battery as a Class D felony. When reviewing a sufficiency of the evidence claim, we will only reverse a conviction when reasonable persons would not be able to form inferences as to each material element of the offense. Perez v. State, 872 N.E.2d 208, 212-213 (Ind.Ct.App.2007), trans. denied. We do not reweigh evidence or judge the credibility of witnesses. Id. at 213. In addition, we only consider the evidence most favorable to the bench trial and the reasonable inferences stemming from that evidence. Id.

A person commits domestic battery if that person: “knowingly or intentionally touches an individual who ... is or was a spouse of the other person; [ ] is or was living as if a spouse of the other person as provided in subsection (c); or [] has a child in common with another person; in a rude, insolent, or angry manner that results in bodily injury [ ].” I.C. § 35-42-2-1.3. The offense is a Class D felony if the person commits the offense “in the physical presence of a child less than sixteen (16) years of age, knowing that the child [is] present and might be able to see or hear the offense.” I.C. § 35-42-2-1.3.

Manuel’s argument has two prongs: (1) that the State did not prove that he committed domestic battery as a Class D felony because it failed to provide sufficient evidence that the battery occurred in the presence of the children; and (2) that the evidence was insufficient because D.S.’ testimony was incredibly dubious. We will address each of these assertions separately.

[8] With respect to Manuel’s first argument, he claims that he committed the battery within the “proximity” of the children rather than in their “presence” because the children were in their bedroom. We addressed the meaning of “presence” under I.C. § 35-42-2-1.3 in Boyd v. State, 889 N.E.2d 321 (Ind.Ct.App.2008), trans. denied, and True v. State, 954 N.E.2d 1105 (Ind.Ct.App.2011). Neither case is directly on point because in both cases a child was located in the room where the battery occurred. However, in Boyd we held that “presence” under I.C. § 35-42—2—1 -3(b)(2) does not require that a child actually sense the battery; it is sufficient that the child might see or hear the battery. Boyd, 889 N.E.2d at 325. In True we further clarified that “presence” for purposes of I.C. § 35-42—2—1.3(b)(2) is “defined as knowingly being within either the possible sight or hearing of a child.” True, 954 N.E.2d at 1111. From this precedent, we conclude that the critical question in determining whether a child is “present” for purposes of the statute is whether a reasonable person would conclude that the child might see or . hear the offense; not whether the child is in the same room as where the offense is taking place.

In the instant case, although both children were in their bedroom and were supposedly asleep, much of the parents’ argument occurred in the hallway outside of their room, and seven year old D.M. testified that her door was open and that she could hear her father asking her mother for the laptop password. According to D.M., her father was “this loud,” and hearing the argument made her “sad.” (Tr. p. 25). Further, Manuel was aware that the children might hear him. On the 911 tape, D.S. repeatedly requested Manuel to lower his voice to avoid waking the children, and he responded “I don’t care if the kids wake up.” (State’s Exh. 7). In light of these facts and our precedent, we conclude that the State did produce sufficient evidence that Manuel committed domestic battery as a Class D felony in the presence of the children.

Next, Manuel argues that the State did not present sufficient evidence that he committed domestic battery because D.S.’ testimony was incredibly dubious and inherently improbable due to inconsistencies. Specifically, Manuel notes that D.S. testified that Manuel was intoxicated, but D.M. and Manuel’s sister testified that he had not been drinking that day. Also, D.S. left for work at 6:30 in the morning and did not return until around 4:00 p.m. She left again at 5:00 p.m. to play Bingo and did not return to the house until 10:30 p.m. Based on D.S.’ minimal time at home, Manuel claims that she could not have known whether he was drinking.

In addition, Manuel claims that D.S.’ testimony was incredibly dubious because the 911 recording of the incident did not indicate that Manuel smashed the laptop or hit her. Instead, about five minutes into the recording, Manuel yelled “get off me,” and about two minutes later he yelled “fall back” two times. (State’s Exh. 7). About eight minutes into the recording, Manuel asked D.S. why she was screaming, and then when D.S. yelled “why are you hitting me[?]” Manuel responded “I ain’t touched you” and continued to ask why D.S. was screaming. (State’s Exh. 7). D.S. again asked Manuel why he was hitting her, and he responded “ain’t nobody whipped your ass” and then, in response to D.S. sobs, “save that fake shit for somebody else.” (State’s Exh. 7).

Finally, Manuel argues that D.S.’ testimony was incredibly dubious because although D.S. initially reported that the only physical acts against her occurred after she called 911, she later testified that Manuel had hit her on the head with the cell phone prior to the 911 call. Also, according to Manuel, it was impossible for him to hit D.S. with the laptop when evidence indicated that he had placed the laptop into his vehicle before D.S. called 911.

Under the “incredible dubiosity rule,” this court may impinge upon the jury’s responsibility to judge the credibility of witnesses when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony. Lawson v. State, 966 N.E.2d 1273, 1281 (Ind.Ct.App.2012). If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007). Application of this rule is rare, though, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Morell v. State, 933 N.E.2d 484, 492 (Ind.Ct.App.2010). This incredibly dubiosity rule applies only when a witness contradicts himself or herself in a single statement or while testifying, and does not apply to conflicts between multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind.Ct.App.2008), trans. denied. Inconsistencies in the testimonies of two or more witnesses go to the weight of the evidence and do not make the evidence “incredible” as a matter of law. Morell, 933 N.E.2d at 492-93.

In light of this standard, three of Manuel’s arguments fail because he requests us to reweigh inconsistencies between witness testimony and the evidence or between the testimonies of multiple witnesses, which we may not do under the “incredible dubiosity rule.” See Glenn, 884 N.E.2d at 356. D.S. and Manuel’s sister disagreed about Manuel’s intoxication, but inconsistencies between two witnesses’ testimonies do not make the evidence “incredible.” See Morell, 933 N.E.2d at 492-93. Similarly, we cannot compare inconsistencies between D.S.’ testimony and the 911 recording because they are not a single statement or testimony. See Glenn, 884 N.E.2d at 356. Likewise, Manuel does not identify contradictions in D.S.’ testimony concerning the computer in Manuel’s vehicle. D.S. testified that the computer was her daughter’s net book, not Manuel’s laptop, and she never deviated from that testimony. As a result, it was consistent for her to claim that Manuel hit her with a computer after he took the net book to the vehicle.

Manuel’s only claim that we can review under the “incredible dubiosity rule” is that D.S. was inconsistent in her testimony concerning Manuel hitting her in the head with his cell phone. D.S. did seemingly contradict herself because initially she testified that the first time Manuel hit her was with the laptop, and then she later testified that Manuel first hit her with the cell phone. However, we do not find this testimony incredible because it is evident based on the following exchange that D.S. was confused:

[DEFENSE COUNSEL]: Okay did you also tell me that he hit you with the cell phone before you called 911?
[D.S.]: Up front in the living room, yes. Yes, he hit me in the front when we were in the front room living room.
[DEFENSE COUNSEL]: And this is the first you remember of that just now?
[D.S.]: No we were busy talking about the issue in the hall—in the hallway and in the bedroom "with the laptop.
[DEFENSE COUNSEL]: But you didn’t understand what I just said a second ago that the first time—
[D.S.]: Did he hit me before?
[DEFENSE COUNSEL]: I just, want to be clear. What you just testified—
[D.S.]: Okay, I didn’t mention it. Okay that’s what you’re saying.
[DEFENSE COUNSEL]: So those three times that I just asked you that whether there was any contact before you called 911 you said no. Is that true or not true?
[D.S.]: When you asked me that you were trying to confuse me, that’s why but yes go ahead. We’ll just go with that. He hit me once in the head. That’s what you’re trying to say.
[DEFENSE COUNSEL]: No I’m not trying to say anything. I’m actually trying to figure out what you’re saying. Did he or did he not hit you before you called 911?
[D.S.]: Yes in the living room.
[DEFENSE COUNSEL]: And all those times that I just asked you that you didn’t understand the question?
[D.S.]: Because I wasn’t thinking about that stuff. I was worried about the 911 call and him hitting me in the head with the laptop.
[DEFENSE COUNSEL]: Okay so your testimony now is that you didn’t understand what I was asking you—
[D.S.]: No I understood what you asked me.
[DEFENSE COUNSEL]: Okay so it was only a verbal fight before you called 911?
[D.S.]: No he also hit me with the cell phone.
[DEFENSE COUNSEL]: Okay but you never told the police that?
[D.S.]: That wasn’t even important. The cell phone part wasn’t the important thing. Him hitting me on the head with the laptop ... he could’ve choked me. He choked me before. He’s done it in the house. I’m not even it. My issue’s not with the ... with him being hit me on the ... on the head with the cell phone. I’m worried about everything else. He’s done this before.

(Tr. pp. 53-55). We do not find it incredible that a reasonable person would believe that D.S. was telling the truth and was merely confused or initially forgot to mention the phone. It is clear from her testimony that the cell phone was not the most important thing on her mind; rather, she testified that at that point she was afraid for her life. Thus, we conclude that the State provided sufficient evidence to support Manuel’s conviction of domestic battery as a Class D felony.

CONCLUSION

Based on the foregoing, we conclude that: (1) the trial court did not abuse its discretion when it denied Manuel the opportunity to cross-examine D.S. about a past incident; (2) the trial court did not abuse its discretion when allowed the State to ask D.S. whether she had testified truthfully; and (3) the State produced sufficient evidence to prove beyond a reasonable doubt that Manuel committed domestic battery as a Class D felony.

Affirmed.

NAJAM, J. and DARDEN, S.J. concur.

      . As we have already concluded that the trial court did not abuse its discretion in finding that D.S.' testimony regarding the 2005 domestic abuse charges was inadmissible, we will not address Manuel’s remaining claim under the "incredible dubiosity rule” that D.S. contradicted herself in that testimony.