Dickson, J.
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[The State charged Defendant and his girlfriend Nicole Greenlee with burglarizing the Dollar General store where she worked, using her keys and codes to the security system and safe.] … At approximately 1:00 a.m. on December 19, three different Dollar General security cameras recorded images of an individual unlocking the front doors, turning off the store alarm, opening the store’s safes, and leaving the store with nearly $3,500 in cash. The individual inside the store can be seen talking on a cell phone, and cell phone records show that Greenlee and the defendant exchanged three phone calls at times that match the time of the burglary as displayed on the security camera footage. … In these recorded images, the perpetrator appears to be Caucasian.
… Eventually, Greenlee entered a guilty plea, and the colloquy to establish a factual basis included [her testimony that she broke into the store and took the money]. … At no point during her plea hearing was Greenlee asked if anyone else was involved in the burglary.
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At [Defendant’s trial] … , Greenlee testified that … the defendant entered the store using her keys and the alarm code that she gave him while she acted as a lookout. …
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At the conclusion of Greenlee’s trial testimony, the defendant moved for a mistrial because she was under oath for the plea hearing and “her testimony today [was] about 180 degrees different than it was . . . [back then] . . . And . . . the State [does not get] to pick . . . which one is the perjury and which one is not the perjury.” [Record citations omitted throughout.] The State characterized her statements as inconsistencies, not perjury. The trial court agreed with the State and denied the defendant’s motion for a mistrial.
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1. State’s Use of Perjury
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It is well established that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217, 1221 (1959) (citations omitted). …
… All of the cases cited by the defendant for the assertion that the use of “Perjury” automatically vacates a decision for violation of due process were decided before the statute was amended to include the expanded definition of perjury that now includes inconsistent, not just false, statements. We find that the presence of such “Perjury” for inconsistent statements, as defined by Indiana Code section 35-44.1-2-1 does not automatically require an appellate court to vacate a resulting conviction.
Rather appellate review must consider whether a defendant’s due process rights are implicated when false testimony is solicited or knowingly used without correction by the State.
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In the present case we find that the State did not impair the defendant’s due process rights by any misuse of Greenlee’s testimony. To the contrary, the State notified opposing counsel and the trial court of Greenlee’s conflicting testimony and proactively drew attention to the discrepancies in Greenlee’s testimony multiple times throughout the trial, thus permitting the jury to fully function as an informed fact finder. And the defense was enabled to, and did, actively emphasize such inconsistencies to the defendant’s advantage. We find no violation of the defendant’s due process rights from the State’s use of Greenlee’s testimony in this case.
2. Incredible Dubiosity
… In essence, the defendant asserts that because the store video images show that the burglar was Caucasian, Greenlee’s testimony identifying the burglar as the defendant, an African American, is incredibly dubious, requiring that his conviction be vacated. …
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… Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury. We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). …
… While at variance with prior statements or arguably with the video images, Greenlee’s trial testimony was not internally contradictory. And there was not a complete absence of circumstantial evidence. “In a case where there is circumstantial evidence of an individual’s guilt, ‘reliance on the incredible dubiosity rule is misplaced.'” Id. at 759 (quoting Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001)). The incredible dubiosity doctrine does not warrant reversal of the defendant’s conviction in this case.
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Rush, C.J., and Rucker, David, and Massa, JJ., concur.
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[The State charged Defendant and his girlfriend Nicole Greenlee with burglarizing the Dollar General store where she worked, using her keys and codes to the security system and safe.] … At approximately 1:00 a.m. on December 19, three different Dollar General security cameras recorded images of an individual unlocking the front doors, turning off the store alarm, opening the store’s safes, and leaving the store with nearly $3,500 in cash. The individual inside the store can be seen talking on a cell phone, and cell phone records show that Greenlee and the defendant exchanged three phone calls at times that match the time of the burglary as displayed on the security camera footage. … In these recorded images, the perpetrator appears to be Caucasian.
… Eventually, Greenlee entered a guilty plea, and the colloquy to establish a factual basis included [her testimony that she broke into the store and took the money]. … At no point during her plea hearing was Greenlee asked if anyone else was involved in the burglary.
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At [Defendant’s trial] … , Greenlee testified that … the defendant entered the store using her keys and the alarm code that she gave him while she acted as a lookout. …
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At the conclusion of Greenlee’s trial testimony, the defendant moved for a mistrial because she was under oath for the plea hearing and “her testimony today [was] about 180 degrees different than it was . . . [back then] . . . And . . . the State [does not get] to pick . . . which one is the perjury and which one is not the perjury.” [Record citations omitted throughout.] The State characterized her statements as inconsistencies, not perjury. The trial court agreed with the State and denied the defendant’s motion for a mistrial.
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1. State’s Use of Perjury
….
It is well established that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217, 1221 (1959) (citations omitted). …
… All of the cases cited by the defendant for the assertion that the use of “Perjury” automatically vacates a decision for violation of due process were decided before the statute was amended to include the expanded definition of perjury that now includes inconsistent, not just false, statements. We find that the presence of such “Perjury” for inconsistent statements, as defined by Indiana Code section 35-44.1-2-1 does not automatically require an appellate court to vacate a resulting conviction.
Rather appellate review must consider whether a defendant’s due process rights are implicated when false testimony is solicited or knowingly used without correction by the State.
….
In the present case we find that the State did not impair the defendant’s due process rights by any misuse of Greenlee’s testimony. To the contrary, the State notified opposing counsel and the trial court of Greenlee’s conflicting testimony and proactively drew attention to the discrepancies in Greenlee’s testimony multiple times throughout the trial, thus permitting the jury to fully function as an informed fact finder. And the defense was enabled to, and did, actively emphasize such inconsistencies to the defendant’s advantage. We find no violation of the defendant’s due process rights from the State’s use of Greenlee’s testimony in this case.
2. Incredible Dubiosity
… In essence, the defendant asserts that because the store video images show that the burglar was Caucasian, Greenlee’s testimony identifying the burglar as the defendant, an African American, is incredibly dubious, requiring that his conviction be vacated. …
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… Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury. We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). …
… While at variance with prior statements or arguably with the video images, Greenlee’s trial testimony was not internally contradictory. And there was not a complete absence of circumstantial evidence. “In a case where there is circumstantial evidence of an individual’s guilt, ‘reliance on the incredible dubiosity rule is misplaced.'” Id. at 759 (quoting Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001)). The incredible dubiosity doctrine does not warrant reversal of the defendant’s conviction in this case.
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Rush, C.J., and Rucker, David, and Massa, JJ., concur.