Eric Reed Johnson, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jan 23 2018, 10:05 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric Reed Johnson, Sr., January 23, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1708-CR-1855
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1704-F6-12280
Brown, Judge.
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[1] Eric Reed Johnson, Sr., appeals his conviction for strangulation as a level 6
felony. Johnson raises one issue which we revise and restate as whether the
evidence is sufficient to support his conviction. We affirm.
Facts and Procedural History
[2] On April 1, 2017, Johnson was at the apartment of Lori Harris while she went
out to eat with a friend. Johnson and Harris had met using a dating site just
before Christmas and he stayed at her home sometimes. Harris returned home
and slept on the couch. The following morning, Johnson asked Harris what
was going on, and Harris told him that things were not fine and asked him if he
remembered telling her that, if she did not feel comfortable, she could take him
back to the house of a woman with whom he used to stay. Johnson became
upset, stated he “was sick and tired of women always doing this to him because
he doesn’t have a car.” Transcript Volume 2 at 9. Harris asked Johnson if his
mother would appreciate him saying that and later if his son would respect him
like this, and Johnson said “[d]on’t you dare ever mention my son” and struck
Harris on the side of her face. Id. at 10. Harris felt extreme pain and “thought
something broke in there.” Id. Johnson stated “I’ll shut your mouth” and
forced an entire cigar into Harris’s mouth and broke and crumbled it in her
mouth. Id. at 13. He also said that he would shatter her teeth.
[3] Harris went into the bedroom, started to remove Johnson’s things from a
dresser, and told him that she wanted him to leave, and Johnson told Harris not
to touch his stuff and pushed her on the bed. Harris then exited the bedroom
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and went toward the front door. At some point, Johnson said “[y]ou’re not
going anywhere until we get this straightened out, and I’m not going anywhere
either.” Id. at 14. Johnson grabbed Harris, placed his arm around her neck
from behind her, and started to choke her. It was difficult for Harris to swallow
or breathe and she urinated on herself and “everything was going black.” Id. at
12. She ended up on the ground. Johnson said “[y]ou’re not gonna [] do this to
me.” Id. at 13. He smacked her with his foot on the side of her leg. At some
point, Johnson left the apartment, and Harris drove to the hospital where
photographs were taken of her injuries.
[4] On April 6, 2017, the State charged Johnson with strangulation and
confinement as level 6 felonies and domestic battery and battery resulting in
bodily injury as class A misdemeanors. The court held a bench trial at which it
heard testimony from Harris, Johnson, and the police officer who took an
initial report from Harris and admitted photographs of her injuries taken at the
hospital. Harris testified that she had been diagnosed with leukemia in August
of 2016, that treatment had stopped and she was in remission as of April 1,
2017, and that her injuries as depicted in the admitted photographs were caused
by Johnson and not by leukemia.
[5] Johnson testified that “the whole thing predicated on a sexual encounter and
then it escalated into a bit of both of our pasts and drugs were involved.” Id. at
37-38. He testified that, every payday for ten weeks, Harris spent money on
crack cocaine. He testified that Harris was upset with him on the night of the
incident because he would not find crack cocaine for her. Johnson indicated
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that he did not place his hands on Harris. He testified that Harris had gone to
the doctor two weeks before the incident for the bruising on her cheek and jaw.
The trial court stated that it did not find Johnson’s “story to be reasonable or
credible” and found “it all to be completely fabricated.” Id. at 55. It found
Johnson guilty as charged and sentenced him to concurrent one-year terms for
each of his convictions with credit for time served and the balance suspended to
probation.
Discussion
[6] The issue is whether the evidence is sufficient to support Johnson’s conviction
for strangulation as a level 6 felony.1 When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the
evidence. Id. We consider conflicting evidence most favorably to the trial
court’s ruling. Id. We affirm the conviction unless no reasonable factfinder
could find the elements of the crime proven beyond a reasonable doubt. Id.The evidence is sufficient if an inference may reasonably be drawn from it to
support the verdict. Id. at 147. The uncorroborated testimony of one witness
can be sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-
1073 (Ind. 1991).
1
Johnson does not challenge his other convictions.
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[7] Ind. Code § 35-42-2-9 provided in part at the time of the offense that a person
who, in a rude, angry, or insolent manner, knowingly or intentionally “applies
pressure to the throat or neck of another person” or “obstructs the nose or
mouth of the another [sic] person . . . in a manner that impedes the normal
breathing or the blood circulation of the other person” commits strangulation as
a level 6 felony. (Subsequently amended by Pub. L. No. 252-2017, § 11 (eff.
Jul. 1, 2017)). The State alleged that Johnson, in a rude, insolent or angry
manner, did knowingly apply pressure to the throat or neck, or obstruct the
nose or mouth, of Harris in a manner that impeded her normal breathing or
blood circulation.
[8] Johnson asserts the evidence is insufficient to support his conviction for
strangulation due to the incredibly dubious testimony provided by Harris. He
argues Harris was the only person to testify as to the events giving rise to the
charges and that the officer who obtained Harris’s report testified that she did
not mention urinating on herself, the cigar, or that Johnson had strangled her.
He also argues that Harris’s bruising could have been the result of her leukemia
or treatment.
[9] The State maintains that Harris’s testimony was corroborated by the existence
of her injuries, it was internally consistent, and notes that the trial court found
Johnson’s testimony to be completely fabricated. The State further argues that
it is irrelevant whether Harris mentioned at the earlie st opportunity that she
had been strangled, that the officer who took the initial report from Harris
testified that he transferred the case to a detective for further investigation, and
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that the probable cause affidavit reveals that Harris told law enforcement about
the chokehold and strangulation in a more detailed interview on April 3, 2017.
[10] “[W]hen appellate courts are confronted with conflicting evidence, they must
consider it most favorably to the trial court’s ruling,” Drane, 867 N.E.2d at 146
(internal quotation marks omitted), and the uncorroborated testimony of one
witness is sufficient to sustain a conviction. Ferrell, 565 N.E.2d at 1072-1073.
To the extent Johnson asserts that the incredible dubiosity rule requires reversal
of his conviction, 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 incredibly dubious or
inherently improbable that no reasonable person could believe it.
Id.[11] Johnson fails to show that Harris’s testimony was inherently contradictory or so
inherently improbable that no reasonable person could believe it. To the extent
her testimony conflicted with Johnson’s testimony, this is an issue of witness
credibility. The court heard testimony from Harris and Johnson and admitted
photographic evidence of Harris’s injuries, and the witnesses were thoroughly
examined and cross-examined. Harris testified that Johnson grabbed her,
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placed his arm around her neck from behind her, and choked her. When asked
if Johnson applied pressure, she testified “[s]o much pressure that it was hard to
swallow, hard to breathe” and “I urinated all over myself because of the
pressure and everything was going black.” Transcript Volume 2 at 12. She
testified that her neck hurt and it was difficult to swallow her own saliva. She
testified that she was in remission for leukemia, she no longer received
treatment at the time of the offense, and her injuries were caused by Johnson.
We also note that, although the officer who took an initial report at the hospital
indicated that Harris did not mention urinating, a cigar, or that Johnson had
strangled her, the officer testified that after he files his report the case is assigned
to a detective, and the probable cause affidavit indicated a detective interviewed
Harris on April 3, 2017. At that time Harris reported that she had urinated on
herself and that Johnson had placed her in a chokehold and choked her so hard
that she was struggling to breathe. The trial court as the trier of fact was free to
believe the testimony of Harris and disbelieve the testimony of Johnson.
Further, the trier of fact was able to assess Harris’s testimony in light of the
testimony regarding her prior medical diagnosis and treatment and the
photographic evidence. The trial court specifically found that Johnson’s story
was not reasonable or credible and found that his testimony was completely
fabricated. Johnson does not show how the testimony against him was
somehow internally inconsistent and has not shown Harris’s testimony to be
incredibly dubious.
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[12] Based upon the evidence most favorable to the trial court’s ruling as set forth
above and in the record, we conclude that the trial court as the trier of fact
could find beyond a reasonable doubt that Johnson committed the offense of
strangulation as a level 6 felony.
Conclusion
[13] For the foregoing reasons, we affirm Johnson’s conviction.
[14] Affirmed.
Baker, J., and Riley, J., concur.
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