Joshua Tarazona v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 19, 2015
• Docket: 49A05-1503-CR-92
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Nov 19 2015, 8:26 am 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 Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Tarazona, November 19, 2015

Appellant-Defendant, Court of Appeals Case No. 49A05-1503-CR-92 v. Appeal from the Marion Superior Court. The Honorable Marc Rothenberg, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 49G02-1402-FB-8997

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 1 of 10 Statement of the Case [1] Joshua Tarazona appeals from his conviction of Class B felony criminal 1 confinement, contending that there is insufficient evidence to support his

conviction. We affirm.

Issue [2] The sole issue presented for our review is whether the incredible dubiosity rule

applies such that Tarazona’s conviction must be reversed.

Facts and Procedural History [3] Tarazona, who was twenty-one years old, and H.P., who was twenty years old,

had been in a relationship for approximately three years when they broke up

after Tarazona’s admission of infidelity. The two had shared an apartment,

which Tarazona continued to live in after the break up, and the two continued

to contribute to the remaining rental expense obligation. H.P. stayed with her

mother or with friends, but per an agreement with Tarazona, left her belongings

at the apartment as she was still paying her share of the rent there. They

communicated via telephone after the break up, but H.P. remained steadfast in

her decision not to reconcile with Tarazona, although he wished otherwise.

[4] On the evening of February 21, 2014, H.P. stayed at a friend’s house. The next

day when she charged her cell phone, she discovered approximately ten text

1 Ind. Code § 35-42-3-3(b)(2)(A) (2006).

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 2 of 10 messages from Tarazona. In the messages, Tarazona demanded to know where

H.P. was; asked her to talk to him; and, after H.P. failed to respond, threatened

to shoot himself. H.P. took Tarazona’s threat seriously because she knew

Tarazona owned two handguns he had purchased during their relationship and

was trained on their proper use. Tarazona was actively enlisted in the Army

National Guard assigned as a military police officer. Tarazona had also trained

H.P. on the proper use of a handgun, and he frequently kept one holstered. The

two used some of their limited financial resources to go to the shooting range

for practice with the handguns.

[5] H.P. went to the apartment at approximately noon on February 22, 2014.

When she entered the apartment, she found Tarazona sitting on the bed and sat

down next to him. H.P. noticed that Tarazona seemed anxious. He asked her

if they could reconcile their relationship. H.P. told him that she did not want to

do so and instead wanted to get her things and leave. The two talked for

approximately ten minutes before H.P. got up to take a shower to prepare for

the rest of her day.

[6] Tarazona followed H.P. into the bathroom. As H.P. undressed and showered

Tarazona continued to ask her about resolving their issues in order to maintain

their relationship. After H.P. finished showering, she attempted to leave the

bathroom, but could not because Tarazona blocked the way. H.P. could not

get around Tarazona to leave the bathroom, although she asked him numerous

times to move. Tarazona refused. After approximately ten minutes, during

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 3 of 10 which Tarazona continued to ask about resolving their issues, H.P. ultimately

pushed past Tarazona to move toward the bedroom.

[7] H.P. entered the bedroom with Tarazona following her there and plugged her

cell phone into the wall charger. At one point while H.P. was sitting on the bed

dressing, Tarazona sat down next to her. He persisted in his requests to resolve

their differences in order to reconcile. However, H.P. refused to reconcile and

the conversation became more heated and the two began to argue. Once

dressed, H.P. stood up and attempted to leave the bedroom. Tarazona blocked

her exit standing face-to-face with her and insisting that they continue the

conversation. For the next fifteen minutes, Tarazona either blocked or pushed

H.P. back to prevent her from leaving the room.

[8] After a number of failed attempts to leave the bedroom, H.P. returned to the

bed. Tarazona then grabbed a handgun he kept on a nightstand near the

bedroom door where he stood. Tarazona began pacing back and forth in front

of the doorway holding the handgun, which was pointed down toward the

floor, crying, breathing hard, and telling H.P. that they could work out their

differences. He pleaded for her to give him another chance.

[9] H.P. told Tarazona that she had spent the previous night at a male friend’s

house. Tarazona raised the handgun and pointed it at H.P. for a few seconds

before pointing the handgun towards the floor again. H.P. attempted to take

her cell phone off the charger to call her mother, but Tarazona grabbed the

phone, threw it on the floor, and stomped on it. H.P. repeatedly asked

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 4 of 10 Tarazona to put the handgun down as she became more upset. Tarazona

pointed the handgun to his head and asked H.P. how she would feel if he killed

himself, and began a countdown as if ready to pull the trigger. H.P. repeated

her cries for him to put down the handgun.

[10] Tarazona threw the handgun on the bed next to where H.P. was seated. She

immediately got up, went to the other side of the bed to grab her jacket to leave

the bedroom but was again blocked by Tarazona. The two continued to

quarrel. Again, as she walked toward the bedroom door, Tarazona blocked the

exit by holding onto furniture to prevent her from having access to the door.

H.P. was unable to get through the doorway and the two began to push each

other. Finally, Tarazona told H.P. if she wanted to leave, she would have to

kill him. H.P. grabbed the other handgun from a nightstand, holding it in her

right hand and pointing it downward. Tarazona grabbed and briefly choked

her. The two struggled with the trigger of the handgun; Tarazona trying to

place H.P.’s finger on it, and H.P. trying to avoid having her finger on the

trigger. During the struggle, ultimately, H.P. shot Tarazona in the foot. He fell

to the floor and crawled into the living room.

[11] H.P. called 911, telling the operator that she had shot Tarazona because he had

tried to hurt her. Indianapolis Metropolitan Police Officers Josh Fritsche and

Noel Gudat responded to the 911 dispatch. When they arrived at the

apartment, the officers observed that H.P. was outside crying hysterically and

talking with her mother on the cell phone. The officers located Tarazona inside

the apartment on the living room floor with his foot elevated. The officers gave

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 5 of 10 Tarazona his Miranda warnings after which he told them that he made H.P.

shoot him. At that point, since H.P. had been identified as the alleged shooter

in a domestic dispute, the officers read the Miranda warnings to H.P.,

handcuffed her, and escorted her to a domestic violence detective for

questioning.

[12] The State charged Tarazona with one count of Class D felony strangulation and

one count of Class B felony criminal confinement. At the conclusion of his jury

trial, Tarazona was found guilty of criminal confinement, but not guilty of

strangulation. The trial court sentenced Tarazona to nine years of

imprisonment, with three years suspended, two of which were to be served on

probation. Tarazona now appeals.

Discussion and Decision [13] Tarazona argues that his conviction should be vacated because H.P.’s

testimony was so dubious and contrary to the facts that it must be disregarded,

leaving insufficient evidence to sustain his conviction. He contends that H.P.

accused him of the offenses solely to avoid prosecution for her own actions.

[14] In order to convict Tarazona of criminal confinement as a Class B felony, the

State was required to establish beyond a reasonable doubt that Tarazona

knowingly or intentionally confined H.P. without her consent while armed with

a deadly weapon. Ind. Code § 35-42-3-3. When reviewing a claim of

insufficient evidence, we must consider only the probative evidence and

reasonable inferences that support the judgment without reweighing the

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 6 of 10 evidence or assessing witness credibility, and determine whether a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt.

Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). We may impinge upon the

jury’s function of judging the credibility of a witness through the use of the

incredible dubiosity rule. Id.

[15] As our supreme court has stated, “Application of the incredible dubiosity rule is

limited to cases with very specific circumstances because we are extremely

hesitant to invade the province of the jury.” Id. Quoting a summarization from

Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015), the Supreme Court

acknowledged that “to warrant application of the incredible dubiosity rule,

there must be: ‘1) a sole testifying witness; 2) testimony that is inherently

contradictory, equivocal, or the result of coercion; and 3) a complete absence of

circumstantial evidence.’” Id.

[16] H.P. testified that after she was finished dressing in the bedroom, Tarazona

physically blocked her exit from the bedroom. As she sat on the bed, Tarazona

grabbed a handgun that was on a nightstand near where he stood and began

pacing back and forth in front of the doorway. At one point, Tarazona pointed

the handgun at H.P. All of this occurred while H.P. repeatedly requested to

leave and Tarazona refused to allow her to do so without first agreeing to

reconcile with him. There was sufficient evidence to support Tarazona’s

conviction of Class B felony criminal confinement.

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 7 of 10 [17] Tarazona’s claim that H.P.’s testimony was incredibly dubious fails in several

respects. When first questioned by police officers, Tarazona stated that he

made H.P. shoot him, corroborating a part of H.P.’s account. H.P.’s version of

the events remained consistent from the time she called 911 through her

testimony at trial. She claimed that she and Tarazona had been in the first

significant romantic relationship for both of them for a period of three years

before breaking up. In his own testimony, Tarazona acknowledged that his

relationship with H.P. had become rocky. Further, Tarazona acknowledged

that he was needy, irritating, and constant in his requests that H.P. reconcile

with him, thus corroborating in part H.P.’s version of the events. H.P.

explained that Tarazona wished to reconcile while she did not. Therefore, it is

not inherently improbable that there would be a dispute between the two

following the end of their relationship. H.P.’s account does not run counter to

human experience such that no reasonable person could believe it. See Campbell

v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000) (incredibly dubious

testimony runs counter to human experience).

[18] She testified that Tarazona refused to allow her to leave the bedroom and as

they struggled over the handgun, he was shot in the foot. Officers saw red

marks around H.P.’s neck, which were consistent with her claim that he had

briefly choked her. H.P. stated that Tarazona had held a handgun while

blocking her exit from the bedroom and had pointed it at her before throwing

the handgun on the bed. Officers photographed a handgun on the bed in the

bedroom at the apartment. Therefore, H.P.’s testimony was not inherently

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 8 of 10 improbable or contradictory and was corroborated in part by the testimony of

what the officers observed and were told.

[19] Tarazona argues that H.P.’s testimony should be discredited because she had a

motive to lie—avoiding prosecution for her own actions by fabricating that she

was a victim of domestic violence. However, Tarazona had the opportunity to

cross-examine H.P. and challenge her motivation to lie. Tarazona also claims

that her testimony must have been coerced because she sought to avoid

criminal charges. That argument is relevant to a challenge of H.P.’s credibility,

but does not establish that she was coerced by anyone.

[20] Moreover, the fact that H.P. did not repeat her account of the struggle between

the two over the handgun does not render her testimony incredibly dubious.

H.P. gave her account of that struggle when asked about it on direct

examination. However, on cross-examination, H.P. specifically responded to

questions that were asked of her by the defense which did not include

questioning about the struggle.

[21] Last, Tarazona argues that since the jury acquitted him of the strangulation

charge, H.P.’s testimony as a whole must be incredibly dubious. We disagree.

An acquittal on one count and a conviction on another count survives a claim

of inconsistency if there is sufficient evidence to support the conviction. Hoover

v. State, 918 N.E.2d 724, 730 (Ind. Ct. App. 2009), trans. denied. H.P. testified

that when Tarazona had his hands around her throat and she was pinned

against the wall, she could not breathe. However, she also stated that he

Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015 Page 9 of 10 released her after only a few seconds and, that while his hands were around her

throat she was yelling at him. Tarazona claimed that he did not choke her.

Therefore, the discrepancy in the testimony was an issue for the trier of fact to

resolve. Here, the jury found that the State did not meet its burden of proving

beyond a reasonable doubt that Tarazona was guilty of strangulation. The fact

that the jury may have believed H.P.’s testimony, but did not find that what she

described rose beyond a reasonable doubt to the criminal offense of

strangulation, does not render her testimony as a whole incredibly dubious.

Conclusion [22] In light of the foregoing, we affirm the trial court’s judgment.

[23] Affirmed.

[24] Vaidik, C.J., and Robb, J., concur.

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