Dontay Foster v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 3, 2012
• Docket: 49A02-1111-CR-1036
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 03 2012, 9:44 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court,

collateral estoppel, or the law of the case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LAURA M. TAYLOR GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DONTAY FOSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1111-CR-1036 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Valerie C. Horvath, Commissioner Cause No. 49G17-1105-FD-31248

July 3, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge Appellant-defendant Dontay Foster appeals his convictions for Criminal

Confinement,1 a class D felony; Criminal Confinement by Removal,2 a class D felony;

Residential Entry,3 a class D felony; and Battery,4 a class A misdemeanor, arguing the

evidence was insufficient to sustain his convictions. Finding sufficient evidence, we

affirm.

FACTS

In May 2011, Sherri Clark lived alone in a ground-floor apartment in Indianapolis.

Clark and Foster had been in a romantic relationship beginning in early March 2011, but

the relationship had ended approximately two weeks before May 1, 2011. Foster was

never on Clark’s lease and had not paid rent, but he did live with her for about one month

during their relationship.

Clark worked as a bartender and manager at Sun’s Lounge. On May 1, 2011, her

shift ended at 3:00 a.m., and she arrived home between 3:15 and 3:30 a.m. When Clark

entered her apartment, she saw her living room blinds moving and walked over to the

window and said, “D*mn my window’s broke.” Tr. p. 10. She then heard a noise

coming from her bedroom, turned, and saw someone coming out of her closet and

running towards her.

1 Ind. Code § 35-42-3-3(a)(1). 2 I.C. § 35-42-3-3(a)(2). 3 Ind. Code § 35-43-2-1.5. 4 I.C. § 35-42-2-1(a)(1)(A). 2 Clark tried to flee her apartment, but the person, who she later discovered was

Foster, grabbed her, threw her on the floor, and began yelling and “cussing [her] out.”

Tr. p. 10-11. Foster held her on the ground for two or three minutes and, because he was

so big, she could not move or say much. Clark finally managed to ask him, “what is

wrong with you? Why are you doing this?” Id. at 11. When Foster stood up, she asked

him again why he was “doing this,” and then stated, “You broke my window. You broke

in my house. Now they gonna make me pay for this window.” Id.

Clark ran from Foster again, this time making it outside, but Foster caught her

again, threw her on the ground, and held her down for several more minutes. Foster held

his arm over her neck. As a result of this struggle, Clark suffered bruises on her arm and

knee. Clark thought that if she would “agree with him” that he would “calm down and

leave [her] alone,” so when Foster moved off of her, she went back inside her apartment.

Tr. p. 11. Clark again asked Foster why he was “doing this,” to which he responded,

“Don’t worry about it. I’m gonna fix your window.” Id. Foster explained that he was

going to go to an empty apartment and find another window to replace her broken

window.

When Foster left, Clark tried to go to two different friends’ homes in neighboring

buildings, but neither of them was home. Because Clark thought that Foster might find

her if she stayed at her friend’s apartment, she went to the top floor of the building and

called the police.

3 As Clark came down the stairs, she saw Foster. Clark ran back up the stairs, but

Foster caught her when she reached the top floor, held onto her leg, and dragged her back

down the stairs. Although Clark was too scared during the incident to notice, she later

realized that as the result of the attack, she had bruises on her arm and leg. The police

arrived at that time, and Foster fled.

Meanwhile, Officer Dustin Greathouse of the Indianapolis Metropolitan Police

Department (IMPD), had received a dispatch regarding a disturbance between a male and

female. Other officers had already arrived, and when Officer Greathouse arrived, he

found Clark in her apartment building crying and upset. Officer Greathouse talked with

Clark and asked her what she needed. Clark showed him into her apartment where he

saw the missing window. Clark asked Officer Greathouse to check all of her closets and

to look throughout her home and the common hallway. Officer Greathouse did not see

Foster. Once it was determined that Foster was no longer on the scene, the other officers

left while Officer Greathouse stayed to prepare a report.

Detective Rebecca Popcheff of the IMPD was assigned to the case on May 2,

2011. Detective Popcheff spoke with Clark by telephone that same day and went to

Clark’s home to speak to her in person the next day. Detective Popcheff took

photographs of Clark’s bruises from the attack and talked to the office manager of the

apartment complex about the window that had been replaced. The office manager had

not charged Clark to replace the window.

4 On May 6, 2011, the State charged Foster with class D felony criminal

confinement, class D felony criminal confinement by removal, class D felony residential

entry, class A misdemeanor battery, and class A misdemeanor criminal mischief.

Foster’s bench trial commenced on October 12, 2011. In entering its guilty verdict, the

trial court found that:

the witness’s testimony was extremely credible. She was very emotional when she was testifying. She had trouble catching her breath. She’d pause while remembering things. She made the comment that when she discovered her window was broken she said, “D*mn, someone broke my window. Now I’m going to have to pay for it,” which seems like something you would say when you see something like that. She stated that she saw someone charging towards her out of the closet. She didn’t say she saw [Foster] charging towards her out of the closet. She stated that she didn’t know who it was immediately until he was on top of her, that her testimony today has been corroborated by two officers. It’s been corroborated by pictures. It was corroborated in part by the apartment manager who fixed the window immediately and didn’t charge her for it, that one of the pictures shows the screen broken and off to the side and shows the grill that was below the window.

Tr. p. 59-60. By contrast, the trial court noted that the “defendant’s testimony was

somewhat confused,” and concluded that “[f]or those reasons this Court finds the State’s

witness, her credibility more persuasive. . . .” Id. at 60.

On October 26, 2011, the trial court held a sentencing hearing during which it

imposed two years on each of Foster’s convictions for criminal confinement, criminal

confinement by removal, and residential entry, and one year for the battery conviction.

The trial court ordered that the sentences run concurrently with each other, for a total

executed term of two years in the Department of Correction. Foster now appeals.

5 DISCUSSION AND DECISION

Foster’s sole argument on appeal is that there was insufficient evidence to support

his convictions for two counts of criminal confinement, residential entry and battery.

When considering a challenge to the sufficiency of the evidence, this Court neither

reweighs the evidence nor judges the credibility of witnesses. Drane v. State, 867 N.E.2d

144, 146 (Ind. 2007). Rather, this Court considers “‘only the probative evidence and the

reasonable inferences supporting the verdict.’” Id. (quoting McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005)). When the reviewing court is confronted with conflicting

evidence, it will consider the evidence “‘most favorably to the trial court’s ruling.’” Id.

The conviction will be affirmed unless “no reasonable fact-finder could find the elements

of the crime proven beyond a reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270

(Ind. 2000).

I. Criminal Confinement

To secure a conviction for class D felony criminal confinement as alleged in

Count I, the State was required to prove beyond a reasonable doubt that Foster did

knowingly confine Clark without her consent. Appellant’s App. p. 13; see also Ind. Code

§ 35-42-3-3(a)(1). Confinement under subsection (a)(1) is defined “as non-consensual

restraint in one place.” Idle v. State, 587 N.E.2d 712, 715 (Ind. Ct. App. 1992).

Here, Clark testified that Foster grabbed her and threw her down while “screaming

and cussing [her] out.” Tr. p. 10. Clark stated that “he had me down on the ground and

he’s big and so when he had me down I couldn’t really move or say anything. . . .” Id. at

6 11. In light of Clark’s testimony, we cannot say the evidence was insufficient to sustain

Foster’s conviction for criminal confinement as alleged in Count I.

Nevertheless, Foster contends that “[t]here was simply no evidence other than

Clark’s self-serving testimony that Foster confined her in the Apartment.” Appellant’s

Br. p. 5. More particularly, Foster points out that he had recently ended their relationship

and that “in a misguided effort to extract revenge upon him, she fabricated the story about

Foster attacking and confining her in the Apartment.” Id.

First, “[i]t is well-established that ‘the uncorroborated testimony of one witness

may be sufficient by itself to sustain a conviction on appeal.’” Scott v. State, 871 N.E.2d

341, 343 (Ind. Ct. App. 2007) (quoting Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999)).

Additionally, it is unclear from the record who ended the relationship. Although Foster

testified that he decided to “le[ave] the relationship alone,” he later testified that he

offered Clark a drink that she declined. Tr. p. 47. Moreover, Clark’s testimony was

corroborated by the injuries she sustained during the scuffle with Foster. State’s Ex. 3, 4.

In any event, it is the function of the trier of fact to determine the credibility of witnesses.

Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008). Accordingly, this argument

fails.

Moving on to Count II, to secure a conviction for criminal confinement by

removal, the State was required to prove beyond a reasonable doubt that Foster

knowingly removed Clark by fraud, enticement, force, or threat of force from upstairs to

downstairs. Appellant’s App. p. 14; see also I.C. § 35-42-3-3(a)(2).

7 In this case, Clark testified that when she came downstairs after calling 911, she

saw Foster. Tr. p. 14. Clark ran back upstairs, but Foster “dragged [her] back

downstairs” “[b]y pulling [her] leg.” Id. Clark’s testimony was sufficient to secure

Foster’s conviction for criminal confinement as alleged in Count II.

However, Foster counters that he testified that he was at a cousin’s house the

morning of the alleged incident. Additionally, Foster points out that Officer Greathouse

testified that he did not see Foster at Clark’s apartment complex.

Here, the trial court explicitly found Clark to be the more persuasive witness. Tr.

p. 59-60. And Clark testified that Foster ran when the police arrived. Id. at 14.

Moreover, Foster’s argument that the trial court should have believed him rather than

Clark is simply a request that this Court reweigh the evidence, which we will not do. See

Drane, 867 N.E.2d at 146. Consequently, the State presented sufficient evidence to

support Foster’s convictions for criminal confinement.

II. Residential Entry

Foster next challenges the sufficiency of the evidence supporting his conviction

for residential entry. To establish class D felony residential entry, the State was required

to prove beyond a reasonable doubt that Foster “did knowingly break and enter the

dwelling of Sherri Clark.” Appellant’s App. p. 15; see also Ind. Code § 35-43-2-1.5.

In the instant case, Clark testified that when she arrived home from work between

3:15 and 3:30 a.m., she noticed her living room “blinds moving.” Tr. p. 10. Clark

walked over to her living room window and said, “D*mn my window’s broke.” Id. The

8 State entered into evidence a photograph showing the broken screen. State’s Ex. 1.

Clark further testified that Foster appeared from her closet, running towards her. Tr. p.

10. Foster was not on the lease, no longer lived with Clark, and Clark had not given

Foster permission to enter her apartment. Tr. p. 17. In light of this evidence, we cannot

say that there was insufficient evidence supporting Foster’s conviction.

Notwithstanding the above, Foster once again argues that Clark was merely

fabricating the story because she was upset with Foster for allegedly ending the

relationship. Additionally, Foster argues that he testified that he was at his cousin’s

house on the morning of the incident. As stated above, this a request that we reweigh the

evidence and reassess the credibility of witnesses, which we will not do. See Drane, 867

N.E.2d at 146. Therefore, this argument also fails.

III. Battery

Foster challenges the sufficiency of the evidence supporting his conviction for

class A misdemeanor battery, arguing that there is conflicting evidence such that the State

failed to prove beyond a reasonable doubt that he committed the offense. Specifically,

Foster points out that there is contradictory evidence regarding his whereabouts, that

Officer Greathouse testified that he did not observe any injuries on Clark, that Clark did

not request medical care, and that there is no evidence that Foster “knowingly or

intentionally committed the alleged touching.” Appellant’s Br. p. 8.

The secure a conviction for class A misdemeanor battery, the State was required to

prove that Foster knowingly touched Clark in a rude, insolent, or angry manner and that

9 the touching resulted in bodily injury, specifically, “pain and/or bruising.” Appellant’s

App. p. 16; see also I.C. § 35-42-2-1(a)(1)(A).

Here, Clark testified that she ran outside in an attempt to escape from Foster, but

he caught her and had her on the ground. Tr. p. 11. Clark stated that she was on the

ground for “about two or three minutes,” and Foster had his forearm across her neck. Id.

at 16. As a result of this struggle, Clark testified that she sustained bruises on her arm

and knee. Id. at 19-20. Likewise, Detective Popcheff testified that she took photographs

of Clark’s injuries and saw bruising to Clark’s forearm and knee. Id. at 42-43; State’s

Ex. 3, 4. Under these facts and circumstances, we cannot say that the evidence was

insufficient to sustain Foster’s conviction for class A misdemeanor battery, and we

decline Foster’s invitation to reweigh the evidence.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.