Anthony Henderson v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID W. STONE, IV GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 22 2013, 9:11 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
ANTHONY HENDERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-1207-CR-367
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause No. 48C01-0804-FC-214
January 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Anthony Henderson appeals the revocation of his probation and the reinstatement
of his previously suspended sentence. Henderson raises two issues, which we revise and
restate as:
I. Whether the evidence is sufficient to support the revocation of
Henderson’s probation; and
II. Whether the trial court abused its discretion in ordering that
Henderson serve his previously suspended sentence.
We affirm.
The facts most favorable to the revocation follow. In April 2008, the State
charged Henderson with stalking as a class C felony, and on December 2, 2008,
Henderson pled guilty pursuant to a plea agreement in which he agreed to plead guilty to
the lesser included offense of invasion of privacy as a class A misdemeanor and to a
charge in a separate cause. The court sentenced Henderson to one year suspended to
probation, to be served consecutive to his sentences in two other causes.
On April 12, 2012, while Henderson was serving his probationary term,
Henderson and his wife Erika were at their house in Anderson, Indiana, along with
Erika’s sister Kiara and five children under the age of twelve. At some point, Henderson
was yelling and calling for Erika’s ten-year-old daughter. Erika retrieved a computer
from the back of a car, but could not find the cords. She placed the computer on the
ground and “was getting up there to get the cords” when Henderson said “[y]ou want to
start stuff,” and Erika said “I didn’t throw anything.” Transcript at 7. Henderson then
entered the house and grabbed a television from the room of Erika’s daughter, and Erika
stated “[d]on’t do that.” Id. Henderson said “[y]ou better back up” and then threw her
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on the bed and started hitting her in her mouth. Id. He struck her multiple times with a
closed fist while holding her neck with his other hand. Kiara attempted to pull
Henderson off of Erika and told Henderson to stop and that the children were present.
Henderson stopped striking Erika and carried the television to the garage. Erika
went back outside to find the computer cords and showed Henderson that her “mouth was
all bloody” and stated “look what you have done to my mouth.” Id. at 15. Henderson
said “[w]ell [], you shouldn’t have threw [sic] the computer.” Id.
Henderson followed Erika back inside the house and started going through her
purse. He “got [Erika’s] bank cards out,” Erika “was trying to get [her] wallet from his
hands” and said “[g]ive me my stuff,” and Henderson said “[y]ou better back up.” Id. at
13. Henderson held Erika down on the bed by her throat and struck her in the mouth with
his other hand.
Kiara attempted to call the police using her cell phone, but Henderson slapped the
phone out of her hand and pushed her over a table. Erika’s ten-year-old daughter called
911. Anderson Police Officer Gabe Bailey responded to the 911 call and observed that
Erika had blood on her teeth and a cut to her mouth. Henderson had a red mark on one
side of his body but otherwise showed no injuries.
On April 17, 2012, the State filed a notice of violation of probation alleging that
Henderson violated the conditions of his probation by committing the new criminal
offenses of strangulation, domestic battery, and criminal conversion on April 12, 2012.
On May 31, 2012, the court held a revocation hearing, at which Erika and Kiara testified
as to Henderson’s actions assaulting Erika as set forth above and to Erika’s injuries of
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blood in her mouth and the fact that some of her lower teeth had been loosened. Officer
Bailey also testified regarding his observations of Erika’s injuries. During his testimony,
Henderson stated that Erika had attacked him and in the process caused bleeding to her
mouth. Henderson testified that “[i]f [he] had punched [Erika] in the mouth twelve (12)
times as she stated she wouldn’t have no teeth.” Id. at 46. The court found that
Henderson violated the terms of his probation and ordered that he serve the entirety of his
previously suspended sentence of one year.
I.
The first issue is whether the evidence is sufficient to support the revocation of
Henderson’s probation. A probation revocation hearing is civil in nature, and the State
need only prove the alleged violations by a preponderance of the evidence. Cox v. State,
706 N.E.2d 547, 551 (Ind. 1999), reh’g denied. We will consider all the evidence most
favorable to supporting the judgment of the trial court without reweighing that evidence
or judging the credibility of witnesses. Id. If there is substantial evidence of probative
value to support the trial court’s conclusion that a defendant has violated any terms of
probation, we will affirm its decision to revoke probation. Id. The violation of a single
condition is sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct.
App. 1999).
Henderson argues that the trial court’s findings of violations of the terms of his
probation are not supported by the evidence. He argues that, at the revocation hearing, he
asserted that he acted in self-defense to an attack by his wife, that his wife’s claim “that
he instigated the fight and punched her repeatedly is fatally undercut by the lack of
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injuries that would be present from such a pummeling to the mouth,” and that “[t]he
minor injuries of the wife make her claim of having been punched 12 times in the face
fall under the incredible dubiosity rule.” Appellant’s Brief at 4. He asserts that he
“weighs about 400 pounds and his wife about 220 pounds,” that “[i]t is inherently
improbable that he could hit his wife 12 times with a closed fist with no more damage
than loose teeth and mouth bleeding,” and that “the minor injuries of the wife belie the
administration of the brutal beating that the wife and her sister sought to portray.” Id. at
5.
The State maintains that the evidence was sufficient to show that Henderson
violated the terms of his probation and that both Erika and Kiara testified that, during two
separate incidents, Henderson choked Erika and struck her in the face. The State further
argues that Erika had injuries consistent with being struck in the mouth, including a cut
lip, loosened teeth, and bleeding around her teeth. The State’s position is that the
incredible dubiosity rule is inapplicable in this case because the court is not faced with
the testimony of a sole witness and because the testimony of the witnesses was not
inherently contradictory.
The requirement that a probationer obey federal, state, and local laws is
automatically a condition of probation by operation of law. Williams v. State, 695
N.E.2d 1017, 1019 (Ind. Ct. App. 1998); Ind. Code § 35-38-2-1(b) (“If the person
commits an additional crime, the court may revoke the probation.”).
When, as here, the alleged probation violation is the commission of a new crime,
the State does not need to show that the probationer was convicted of a new crime.
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Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). The allegation that a
probationer has violated probation “only has to be proven by a preponderance of the
evidence.” Id. In other words, the evidence need show only that it is more likely true
than not true that Henderson engaged in criminal activity. See Demmond v. State, 166
Ind. App. 23, 25, 333 N.E.2d 922, 923-924 (1975).
We also note that, in order to prevail on a self-defense claim, a defendant must
demonstrate that he was in a place he had a right to be; did not provoke, instigate, or
participate willingly in the violence; and had a reasonable fear of death or great bodily
harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). The amount of force a person
may use to protect himself depends on the urgency of the situation. Harmon v. State, 849
N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, if a person uses “more force than is
reasonably necessary under the circumstances,” the person’s self-defense claim will fail.
Id. at 731. A mutual combatant, whether or not the initial aggressor, must declare an
armistice before he or she may claim self-defense. Wilson, 770 N.E.2d at 801.
To the extent Henderson asserts that the incredible dubiosity rule requires reversal
of his probation revocation, we note that the rule applies only in very narrow
circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is
expressed as follows:
If a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. Application of this rule
is rare and the standard to be applied is whether the testimony is so
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incredibly dubious or inherently improbable that no reasonable person
could believe it.
Id. We observe that more than one witness testified at Henderson’s revocation hearing,
including Erika, Kiara, and Officer Bailey. Moreover, Henderson fails to show that the
testimony of Erika or Kiara was inherently contradictory. To the extent the testimony of
Erika or Kiara conflicted with the testimony of Henderson or Henderson argues that their
testimony was less believable, we note that this is an issue of witness credibility. The
function of weighing witness credibility lies with the trier of fact, not this court. Whited
v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the evidence
and judge the credibility of the witnesses. See Cox, 706 N.E.2d at 551. Further, we
cannot say that the testimony of Erika and Kiara regarding Henderson’s actions,
including the testimony that he struck Erika on her mouth causing her teeth to be
loosened and her mouth to bleed, was so inherently improbable that no reasonable person
could believe it. Henderson does not show how the testimony against him was somehow
internally inconsistent and has not shown the testimony of Erika or Kiara to be incredibly
dubious.
Further, to the extent Henderson asserted at the revocation hearing that he acted in
self-defense, the testimony of Erika and Kiara indicate that Henderson was the initial and
only aggressor, and we conclude that the State presented evidence of a probative nature
from which a reasonable trier of fact could have found that Henderson did not validly act
in self-defense.
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Based upon the record, we conclude that the evidence presented during the
probation revocation hearing was sufficient to prove by a preponderance of the evidence
that Henderson violated his probation by committing an unrelated criminal offense. See
Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (considering Dokes’s argument
that the testimony that he violated the terms of his probation in committing a new
criminal offense by possessing a firearm was incredibly dubious, concluding that the
incredible dubiosity rule did not apply and that, while only one witness testified that
Dokes possessed the gun, there was nothing inherently improbable in that testimony, and
affirming the revocation of Dokes’s probation).
II.
The next issue is whether the court abused its discretion in ordering that
Henderson serve the entirety of his previously suspended sentence of one year in the
Madison County Jail. Henderson argues that he has been caring for his children, that this
incident was the first violation since his probation began nearly two years earlier, that he
had paid all of his fees and costs, and that there was no claim that he violated the
conditions to abstain from alcohol and illicit drugs. Henderson also argues that he
testified that he had certain medical conditions, namely asthma, sleep apnea, anemia,
obesity, fractures going down his spine, and a slipped disk, that the court did not mention
his health problems in imposing a sanction of full revocation, and that it was
unreasonable for the court to revoke his probation in light of his health needs and the
inability of the local jail to meet those needs. The State argues that the court properly
sanctioned Henderson, that the facts demonstrate that Henderson had the ability to lift a
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television and that he twice used his size to pin his wife so that he could choke and punch
her in the mouth, and that Henderson’s health conditions did not prevent him from
striking his wife.
At the time of Henderson’s violations and the probation revocation hearing, Ind.
Code § 35-38-2-3(g) set forth a trial court’s sentencing options if the trial court finds a
probation violation and provided:
If the court finds that the person has violated a condition at any time before
termination of the period, the court may impose one (1) or more of the
following sanctions:
(1) Continue the person on probation, with or without
modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more
than one (1) year beyond the original probationary
period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(g) (subsequently amended by Pub. L. No. 147-2012 (eff. Jul. 1,
2012) (amending Ind. Code § 35-38-2-3 and setting forth the contents of subsection (g)
under subsection (h))). This provision permits judges to sentence offenders using any
one or any combination of the enumerated options. Prewitt v. State, 878 N.E.2d 184,
187 (Ind. 2007).
The Indiana Supreme Court has held that a trial court’s sentencing decisions for
probation violations are reviewable for abuse of discretion. Id. at 188. The Court
explained that “[o]nce a trial court has exercised its grace by ordering probation rather
than incarceration, the judge should have considerable leeway in deciding how to
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proceed” and that “[i]f this discretion were not afforded to trial courts and sentences were
scrutinized too severely on appeal, trial judges might be less inclined to order probation
to future defendants.” Id. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id. (citation omitted). As
long as the proper procedures have been followed in conducting a probation revocation
hearing, “the trial court may order execution of a suspended sentence upon a finding of a
violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212
(Ind. Ct. App. 1999).
The record reveals that Henderson, by a preponderance of the evidence and for the
purposes of revocation, committed new offenses related to his assault of Erika causing
her lower teeth to loosen and her mouth to bleed. Erika testified that Henderson struck
her multiple times, first in her daughter’s bedroom and later in her bedroom. Officer
Bailey testified that he observed that Erika had blood on her teeth and a cut to her mouth,
that she was upset, and that Henderson’s demeanor “was up and down” and that “[h]e
would calm down for a short period of time and then get angry and then calm and get
angry and back and forth.” Transcript at 29. Henderson testified that he had asthma,
sleep apnea, anemia, obesity, fractures going down his spine, and a slipped disk. In
closing, the prosecutor argued that the State “believe[s] there is more than sufficient
means for [Henderson] to be treated for all of his ailments as he’s testified to today,” that
it “has great concerns for the safety of [Erika], her sister and the children,” and that it did
not feel that Henderson would leave Erika alone. Id. at 57. The court heard testimony
from Erika and Henderson and was able to determine the credibility of the testimony.
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Henderson did not present evidence establishing that his health issues should be a factor
in determining an appropriate period of incarceration or that any of his specific
conditions would require treatment which would be unavailable while incarcerated at the
Madison County Jail. See Henderson v. State, 848 N.E.2d 341, 344-345 (Ind. Ct. App.
2006) (noting, where the appellant argued that the trial court erred in failing to consider
her poor health to be a mitigating circumstance at sentencing, that there was no evidence
in the record establishing that the appellant’s multiple health problems should be a factor
in determining an appropriate period of incarceration or demonstrating that her medical
conditions would be untreatable during incarceration or would render incarceration a
hardship).
Given the circumstances as set forth above and in the record, we cannot say that
the court abused its discretion in ordering Henderson to serve his previously suspended
sentence of one year. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008)
(holding that the trial court did not abuse its discretion in reinstating the probationer’s
entire previously suspended sentence of one year), trans. denied.
For the foregoing reasons, we affirm the trial court’s revocation of Henderson’s
probation and order that Henderson serve his previously suspended sentence.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
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