Michael Berthiaume v. State of Indiana ( 2012 )

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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW J. BORLAND GREGORY F. ZOELLER
Borland & Gaerte Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
RUTH JOHNSON Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL BERTHIAUME, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1111-CR-1018
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Teresa Hall. Commissioner
Cause No. 49G16-1107-FD-53323
July 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Following a bench trial, Michael Berthiaume appeals his convictions of
strangulation, a Class D felony, and battery, a Class A misdemeanor. Berthiaume raises
one issue for our review, which we restate as: whether sufficient evidence was presented
to support his convictions for strangulation and battery. Concluding the evidence was
sufficient, we affirm.
Facts and Procedural History
Berthiaume and Lisa Spangler lived together in Indianapolis, Indiana, for
approximately two months. On July 27, 2011, Spangler returned to the house from
selling a ring at a pawn shop to Berthiaume’s yelling, screaming, threats, and accusations
of stealing Berthiaume’s pills and money. Berthiaume told Spangler that she was not
going anywhere until she gave him his pills and money. Spangler eluded Berthiaume and
ran out the back door to the driveway. Berthiaume ran after Spangler, wrapped his arm
around her throat, and began to choke her. Spangler could not breathe and became
lightheaded. She panicked and bit into Berthiaume’s arm which caused him to release
her. Berthiaume retaliated by punching Spangler in the mouth, knocking out her right
front tooth, and causing her to fall to the ground and become unconscious. Her right arm
was injured in the fall.
Spangler regained consciousness to Berthiaume kicking her in the ribs, breast, and
stomach. She got up, ran back to the house, and attempted to close the door when
Berthiaume entered behind her. Spangler escaped and ran to her car, which was parked
in front of the house. She got into the car, locked the doors, and started the car.
Berthiaume ran after her, and started hitting the driver’s window as he yelled at Spangler
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to get out of the car. Spangler drove away, went to work where Berthiaume also worked,
and told the employees what Berthiaume had done to her. Berthiaume arrived at work
within a few minutes after Spangler and entered the building yelling that he was going to
send Spangler back to jail. One of the employees called the police but Berthiaume left
before the police arrived.
A police officer arrived, took Spangler’s statement, and had an evidence
technician take photos of Spangler’s injuries, including bruising and injury on her right
arm; bruises and marks on her neck; and loss of her right-front tooth. The State charged
Berthiaume with four counts: strangulation, criminal confinement, domestic battery, and
battery. The domestic battery charge was dismissed before trial. 1 The trial court found
Berthiaume guilty of strangulation, a Class B felony, and battery, a Class A
misdemeanor, and not guilty of criminal confinement. He was sentenced to 730 days for
strangulation, to be served concurrently with 365 days for battery. Berthiaume now
appeals his convictions.
Discussion and Decision
I. Standard of Review
Berthiaume contends there was insufficient evidence to support his convictions of
strangulation and battery because his convictions were based on the incredibly dubious
testimony of Spangler, the sole witness and victim. In general, when reviewing a
challenge to the sufficiency of the evidence to support a conviction, we neither reweigh
the evidence nor judge the credibility of witnesses. Ware v. State, 859 N.E.2d 708, 724
1
The domestic battery charge was dismissed once the State established that Spangler and Berthiaume were
just roommates and not involved in a domestic relationship.
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(Ind. Ct. App. 2007), trans. denied. We consider the evidence in a light most favorable to
the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We must affirm the
conviction if the evidence of probative value and reasonable inferences drawn therefrom
could have allowed a reasonable trier of fact to find all elements of the crime proven
beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
Pursuant to the narrow limits of the “incredible dubiosity” rule, however, “[i]f a
sole witness presents inherently improbable testimony and there is a complete lack of
circumstantial evidence,” we may impinge upon a fact finder’s role to judge the
credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). “Application of
this rule is rare and . . . applied [if] the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.” Id.II. Evidence of Strangulation and Battery
To convict Berthiaume of strangulation, the State was required to prove beyond a
reasonable doubt that Berthiaume knowingly or intentionally, in a rude, angry, or
insolent manner, impeded Spangler’s normal breathing or blood circulation by applying
pressure to her throat or neck. See Ind. Code § 35-42-2-9(b). Further, to convict
Berthiaume of battery as a Class A misdemeanor, the State was required to prove beyond
a reasonable doubt that Berthiaume knowingly or intentionally touched Spangler in a
rude, insolent, or angry manner, resulting in bodily injury to Spangler. See Ind. Code §
35-42-2-1(a) (1)(A).
Berthiaume argues that Spangler’s testimony was incredibly dubious because her
testimony was a disorganized and rambling version of the incidents. Berthiaume further
claims that because the trial court found Spangler’s testimony about the alleged criminal
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confinement to be inconsistent, all of her testimony should be discounted. He also asserts
that Spangler’s testimony is the only evidence that he committed battery and
strangulation against Spangler.
We disagree and conclude that the incredible dubiosity rule is not applicable in
this case. As previously stated, we will only apply the incredible dubiosity rule when the
sole witness’s testimony is inherently contradictory and there is a complete lack of
circumstantial evidence proving the offender’s guilt. Here, in addition to Spangler’s
testimony, there is circumstantial evidence from the pictures taken by the evidence
technician after the incident illustrating bruises and marks around Spangler’s neck which
is consistent with strangulation; blood, bruising, and a missing tooth which is consistent
with being punched in the mouth by Berthiaume; and bruises and injury to Spangler’s
arm which is consistent with her claim that she fell after being punched and losing
consciousness. Further, Berthiaume’s own testimony corroborates Spangler’s testimony
by confirming the altercation and providing pictures of a mark on his arm, minor bruising
on his leg, and a red mark on the left side of his neck.
We acknowledge, as Berthiaume points out, that the trial court found him not
guilty of the criminal confinement charge because there were “holes” in Spangler’s
testimony about that charge. Transcript at 111. That Spangler’s testimony was
insufficient to prove the required elements of criminal confinement does not render her
testimony inherently improbable as a whole. The trial court also found that Spangler’s
testimony regarding the strangulation and battery was supported by the photographic
evidence of her physical condition following the incident and that Berthiaume’s
testimony attempting to portray Spangler as the aggressor “just went too far” and was
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“not . . . credible whatsoever.” Id. The trial court carefully parsed and evaluated the
testimony and it was within its province to do so. We conclude sufficient evidence was
presented to support Berthiaume’s convictions of battery and strangulation.
Conclusion
The incredible dubiosity rule is not applicable in this case. Sufficient evidence
supports Berthiaume’s convictions of battery and strangulation and his convictions are
therefore affirmed.
Affirmed.
BAILEY, J., and BAKER, J., concur.
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