Nicholas Martin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 25, 2017
• Docket: 49A02-1703-CR-503
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 25 2017, 8:45 am

the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nicholas Martin, August 25, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-503 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow- Appellee-Plaintiff. Davis, Judge Trial Court Cause No. 49G16-1605-F6-20076

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 1 of 6 Case Summary [1] Nicholas Martin appeals his conviction for Level 6 felony strangulation. We

affirm.

Issue [2] The issue before us is whether there is sufficient evidence to support Martin’s

conviction.

Facts [3] The evidence most favorable to the conviction is that on the evening of May 8,

2016, Martin, Dinisha Harris, Shilia Giles, Cilitha, and Patrice met for drinks at

Cilitha’s house in Indianapolis.1 Martin drove the group to Tiki Bob’s bar, from

which they proceeded to a nightclub, Blue. Approximately twenty minutes

later, Harris and Giles left the group behind at Blue and went to meet someone

at a venue across the street. Martin, who had driven the group, sent belligerent

text messages to Harris and Giles demanding to know their whereabouts and

insisting that it was time to leave.

[4] When Harris and Giles reunited with the group, Martin berated them and

called them “b******” and “s****” for leaving him at Blue. Tr. p. 11. En route

to Cilitha’s house, Martin, Giles, and Harris started fighting in the car. When

1 The record does not include surnames for Cilitha or Patrice.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 2 of 6 they arrived at Cilitha’s house, Giles remained outside. Inside, Harris packed

her belongings and prepared to leave.

[5] Martin apologized and tried to persuade Harris to stay. As Harris walked away

with her belongings, Martin struck the back of her head with his fist. A

physical altercation ensued between Martin and Harris, with Cilitha trying to

intervene. Harris ran for the door, but Martin caught her and “threw [her] on

the couch and . . . choked [her].” Id. at 13. “He used both of his hands and he

wrapped them around [her] neck and he squoze [sic].” Id. At trial, Harris

testified that Martin hurt her and restricted her breathing.

[6] Concerned that Harris was taking too long to emerge from the house, Giles

knocked at the front door. When Cilitha unlocked the door, Giles entered and

observed Harris crying.

[7] Harris suffered an “extreme, extreme migraine” after the incident and sought

medical treatment. Id. at 14. The following day, she reported the incident to

police, who photographed her injuries – a split lip and a bruised arm – in the

course of their investigation.

[8] On May 31, 2016, the State charged Martin with Level 6 felony strangulation

and class A misdemeanor battery. After a bench trial on February 9, 2017,

Martin was found guilty on both counts, but the trial court merged the battery

conviction with the strangulation conviction. He was sentenced to 365 days in

jail, suspended to probation. The court also imposed a no-contact order and

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 3 of 6 ordered domestic violence counseling and electronic monitoring. Martin now

appeals.

Analysis [9] Martin argues there is insufficient evidence to support his conviction. We

neither reweigh the evidence nor judge the credibility of witnesses. Willis v.

State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation marks

omitted). We only consider the evidence supporting the judgment and any

reasonable inferences that can be drawn from such evidence. Id. A conviction

will be affirmed if there is substantial evidence of probative value supporting

each element of the offense such that a reasonable trier of fact could have found

the defendant guilty beyond a reasonable doubt. Id. It is the job of the fact-

finder to determine whether the evidence in a particular case sufficiently proves

each element of an offense, and we consider conflicting evidence most

favorably to the judgment. Id.

[10] To convict Martin of strangulation as a Level 6 felony, the State was required to

prove that he, in a rude, angry, or insolent manner, knowingly or intentionally

applied pressure to Harris’s throat or neck; or (2) obstructed Harris’s nose or

mouth in a manner that impeded her normal breathing or blood circulation. See

Ind. Code § 35-42-2-9(b)(2016).2 Martin argues that there was insufficient

2 The legislature amended Indiana Code section 35-42-2-9, effective as of July 1, 2017, to provide that a person commits Level 6 felony strangulation if the person applies pressure to the torso of another person.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 4 of 6 reliable evidence to sustain his conviction, given the parties’ alcohol

consumption, heightened emotions, and the lack of corroborating physical

evidence – namely, the alleged inconsistency of Harris’s injuries with

strangulation of the neck and throat.

[11] Martin essentially asks us to reweigh the evidence, to assess the credibility of

witnesses, and to favor his testimony over that of Harris and Giles. We cannot

do so. Harris testified that, when she attempted to leave Cilitha’s house, Martin

placed his hands on her throat and squeezed, causing her pain and rendering

her unable to breathe. She also testified that she suffered a migraine afterwards.

Giles testified that she saw Harris crying immediately after the incident. In his

testimony, Martin conceded that he insulted and tried to grab Harris, but he

denied “know[ing] where any of the strangulation stuff [allegations] came

from.” Tr. p. 45.

[12] The trial court was in the best position to weigh the evidence and to assess the

witnesses’ credibility, and it was unpersuaded by Martin’s testimony. Nor are

we persuaded that Harris’s testimony was unreliable because of alcohol use,

heightened emotions, and the alleged lack of corroborating physical evidence of

strangulation. The lack of corroborating evidence bears on the victim’s

credibility, and we treat the issue like any other issue concerning the credibility

of witnesses; we do not judge the credibility of witnesses. Griffith v. State, 59

N.E.3d 947, 958 (Ind. 2016). Moreover, the State presented testimony of more

than one witness. Giles’s testimony that Harris was crying after the incident

certainly bolsters Harris’s testimony.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 5 of 6 [13] The State presented substantial evidence of probative value that Martin squeezed

Harris’s throat such that she could not breathe. Sufficient evidence exists to

sustain Martin’s conviction for strangulation.

Conclusion [14] Sufficient evidence supported Martin’s conviction. We affirm his conviction for

Level 6 felony strangulation.

[15] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017 Page 6 of 6