David Fonseca v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
Feb 27 2012, 8:26 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the court of appeals and
tax court
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH JOHNSON GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID FONSECA, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1107-CR-605
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda E. Brown, Judge
Cause No. 49F10-1103-CM-16611
February 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
David Fonseca appeals his conviction of battery, a class A misdemeanor.1
We affirm.
ISSUE
Whether the State presented sufficient evidence to support the conviction.
FACTS
Fonseca lived with his wife, Stacy Beeman, and their three children in an
Indianapolis residence rented by Beeman. Beeman allowed Fonseca to live with her and
the children on the condition that Fonseca not drink alcohol in or around the house or
around the children. On March 9, 2011, J.B., Beeman and Fonseca’s daughter, called
Beeman at work and informed her that Fonseca was drunk. Beeman returned from work,
went into her bedroom, and confronted Fonseca as he lay on Beeman’s bed. Beeman told
Fonseca to leave the house, but he refused. Fonseca told Beeman that he was not going
anywhere and became belligerent.
Seventeen-year-old J.B. came into the room and joined with her mother in telling
Fonseca to leave. Fonseca and J.B.’s relationship was already strained because he did not
approve of J.B.’s child’s father’s failure to support the child. Fonseca called J.B. a
“bitch,” a “whore,” and a “slut,” and moved toward her several times. Beeman stepped
between the two during the argument.
1
Ind. Code § 35-42-2-1.
2
The tension apparently eased, and Beeman went to the kitchen to get a cup of
coffee. Fonseca and J.B. again began to argue, and Fonseca pushed her. Fonseca then
struck J.B. on the upper right shoulder, causing her pain, for which she subsequently took
Tylenol. Beeman heard the noise, and as she walked toward the bedroom, she met J.B.,
who told Beeman that Fonseca had hit her. Beeman told J.B. to call the police, which she
did.
Officer Matthew Coffing of the Indianapolis Metropolitan Police Department
responded to the dispatch and went to Beeman’s residence. Officer Coffing took J.B.’s
statement and observed a red mark on her upper right shoulder.
Fonseca was charged with class A misdemeanor battery. After a bench trial, the
trial court found Fonseca guilty of the charge. The trial court sentenced Fonseca to 365
days incarceration, ordered 20 days executed, and suspended 345 days to supervised
probation.
DECISION
Fonseca contends that the State failed to present sufficient evidence to support the
conviction. Generally, in addressing a claim of insufficient evidence, we must consider
only the probative evidence and reasonable inferences supporting the trier of fact’s
determination. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008), trans. denied.
We will not reweigh the evidence or assess witness credibility in reviewing the
determination. Id. “Reversal is appropriate only when reasonable persons would not be
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able to form inferences as to each material element of the offense.” Alvies v. State, 905
N.E.2d 57, 61 (Ind. Ct. App. 2009). “Not only must the fact-finder determine whom to
believe, but also what portions of conflicting testimony to believe.” In re J.L.T., 712
N.E.2d 7, 11 (Ind. Ct. App. 1999), trans. denied. A conviction may stand on the
uncorroborated evidence of a minor witness. Newsome v. State, 686 N.E.2d 868, 875
(Ind. Ct. App. 1997).
To prove battery as a class A misdemeanor, the State was required to show that
Fonseca knowingly or intentionally touched J.B. in a “rude, insolent, or angry manner,”
causing bodily injury to J.B. See I.C. § 35-42-2-1(a)(1)(A). The term “bodily injury”
includes “any impairment of physical condition, including physical pain.” I.C. § 35-41-
1-4.
Fonseca claims that because of the tension between him and J.B., his drunkenness,
and his name-calling, J.B. “orchestrated this event.” Fonseca’s Br. at 6. He emphasizes
that Beeman’s exit from the room shows that there was no tension at the time of the
battery. He further emphasizes that neither Beeman nor Officer Colling witnessed the
attack. He argues that J.B.’s testimony is “incredibly dubious.”
We will overturn a conviction “when the testimony is so incredibly dubious or
inherently improbable that it runs counter to human experience, and no reasonable person
could believe it.” Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008).
Under the incredible dubiosity rule, “a court will impinge on the [trier of facts’]
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responsibility to judge the credibility of a witness when confronted with inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony of
incredible dubiosity.” Glenn, 884 N.E.2d at 355. Application of this rule is limited to
cases where a sole witness presents inherently contradictory and equivocal testimony and
there is a complete lack of circumstantial evidence of the appellant’s guilt. Id.Here, J.B. initially told the investigating officer and subsequently testified that
Fonseca hit her. She further testified that the blow required her to take Tylenol to lessen
the pain. In addition, Beeman heard a noise that sounded like a blow, and Officer
Coffing observed the red mark that resulted from the blow. These facts are sufficient to
support the conviction. There is no inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony here. Accordingly we will not impinge upon
the trial court’s responsibility to judge J.B.’s credibility.
Affirmed.
BAKER, J., and BAILEY, J., concur.
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