Robert Horner v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 18 2015, 8:56 am 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 Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Horner, September 18, 2015 Appellant-Defendant, Court of Appeals Case No. 71A03-1501-CR-10 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D08-1408-F6-111

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-10 | September 18, 2015 Page 1 of 6 [1] Robert Horner appeals his convictions for Battery,1 a class A misdemeanor, and

Intimidation,2 a Level 6 felony. Horner argues that the evidence is insufficient

to support the convictions. Finding the evidence sufficient, we affirm.

Facts [2] Around 1:30 a.m. on August 20, 2014, Horner and his friend and next-door

neighbor, Michelle Stanton, returned to Stanton’s residence after they had been

out at a bar. Horner said that he was hungry, so Stanton left to get food. When

she returned with nachos, Horner became upset because he wanted pizza. He

threw the nachos at Stanton, left her residence, and entered his residence.

Stanton followed Horner into his residence because she was confused by his

anger. [3] Horner and Stanton were arguing when Horner “swooped” her up and threw

her onto his couch, knocking off her shoe. Tr. p. 107, 119. He pinned

Stanton’s arms underneath his legs, hit her repeatedly on the head, grabbed her

around the neck, and told her to shut up. There was a hammer on the end table

next to the couch. Horner said, “bitch, I’m going to hit you with this hammer

and nobody is going to care if you live or die,” reaching with his right hand to

grab the hammer. Id. at 125. While Horner reached for the hammer, Stanton

was able to free her left hand. She struck Horner with her hand, broke free, and

1 Ind. Code § 35-42-2-1. 2 Ind. Code § 35-45-2-1.

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ran out of his apartment. Stanton ran to the nearby residence of a friend, who

called the police. [4] Mishawaka Police Corporal Randy Wisler responded to the call and spoke with

Stanton about the altercation. Corporal Wisler observed that Stanton had red

marks on her face and neck. Eventually, medics took Stanton to a hospital,

where she was diagnosed with a concussion and a shattered ear drum. [5] Corporal Wisler and other police officers knocked on Horner’s door, identifying

themselves as police officers. They observed a light being turned off upstairs,

but no one answered the door. The officers called Horner’s landlord, who let

them into the residence. They found Horner in bed. Stanton’s shoe was found

in Horner’s residence. [6] On August 21, 2014, the State charged Horner with class A misdemeanor

battery and Level 6 felony intimidation. Following a jury trial, the jury found

Horner guilty as charged on November 7, 2014. On December 9, 2014, the trial

court sentenced Horner to concurrent terms of twelve months for battery and

two years for intimidation. Horner now appeals.

Discussion and Decision [7] Horner’s sole argument on appeal is that the evidence is insufficient to support

his convictions. When we review a challenge to the sufficiency of the evidence,

we neither reweigh the evidence nor assess witness credibility. McClellan v.

State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Instead, we

consider only the probative evidence supporting the conviction and the Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-10 | September 18, 2015 Page 3 of 6

reasonable inferences that may be drawn therefrom. Id. If there is substantial

evidence of probative value from which a reasonable factfinder could have

drawn the conclusion that the defendant was guilty beyond a reasonable doubt,

then the verdict will not be disturbed. Id.

I. Battery [8] To convict Horner of class A misdemeanor battery, the State was required to

prove beyond a reasonable doubt that he knowingly or intentionally touched

Stanton in a rude, insolent, or angry manner, resulting in bodily injury to

Stanton. I.C. § 35-45-2-1(c). [9] At Horner’s jury trial, Stanton testified that Horner had grabbed her, thrown

her on his couch, grabbed her around the neck, and hit her repeatedly on the

head and face. Her testimony was corroborated by Corporal Wisler, who

observed redness on her face and around her neck, as well as by her later

diagnoses of a concussion and a shattered eardrum. This evidence is sufficient

to support Horner’s battery conviction. [10] Horner argues that Stanton’s testimony is incredibly dubious. Under the

incredible dubiosity rule, a court will impinge upon the jury’s duty to assess

witness credibility only “‘where a sole witness presents inherently contradictory

testimony which is equivocal or the result of coercion and there is a complete lack

of circumstantial evidence of the appellant’s guilt.’” Moore v. State, 27 N.E.3d 749,

755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994))

(emphases original to Moore).

Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-10 | September 18, 2015 Page 4 of 6 [11] In this case, in addition to Stanton, Corporal Wisler, Corporal Adam

Northcutt, and the friend to whose house Stanton fled following the altercation

all testified. Because Stanton was not the sole witness in this case, the

incredible dubiosity rule does not apply. Even if it did, there is a wealth of

circumstantial evidence of Horner’s guilt, including Stanton’s injuries, Stanton’s

shoe that was found in Horner’s residence, and Horner’s decision to turn off the

light as though he were not home when the police officers knocked on his door.

In any event, we do not find Stanton’s testimony to be incredibly dubious, and

decline to reverse on this basis.

II. Intimidation [12] To convict Horner of Level 6 felony intimidation, the State was required to

prove beyond a reasonable doubt that he communicated a threat to commit a

forcible felony, with the intent that Stanton be placed in fear of retaliation for a

prior lawful act. I.C. § 35-45-2-1(b)(1)(A). [13] The State presented evidence that Horner said to Stanton, “bitch, I’m going to

hit you with this hammer and nobody is going to care if you live or die[.]” Tr.

p. 125. This unquestionably constitutes a threat to commit a forcible felony—to

hit Stanton with a hammer. Furthermore, a reasonable juror could infer from

this evidence that Horner was threatening Stanton to place her in fear of a prior

lawful act, which could be either her decision to purchase nachos instead of

pizza, or her decision to discuss the basis for the anger he directed at her. We

find this evidence suffices to support Horner’s intimidation conviction.

Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-10 | September 18, 2015 Page 5 of 6 [14] As with the battery conviction, we do not find that the incredible dubiosity rule

applies to Stanton’s testimony.3 Consequently, we find the evidence sufficient

to support the intimidation conviction. [15] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

3 Horner’s only argument with respect to either conviction is that the incredible dubiosity rule applies to Stanton’s testimony. He makes no other arguments with respect to the intimidation charge.

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