FILED Jun 15 2016, 10:03 am MEMORANDUM DECISION CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court 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 Kristina J. Jacobucci Gregory F. Zoeller Newby Lewis Kaminski & Jones, LLP Attorney General of Indiana LaPorte, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William McGrath, June 15, 2016 Appellant-Defendant, Court of Appeals Cause No. 46A04-1504-CR-277 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas Alevizos, Appellee-Plaintiff. Judge Trial Court Cause No. 46C01-1309-FB-305
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 1 of 21 Case Summary [1] William McGrath appeals his convictions for Class B felony attempted rape,
Class B felony aggravated battery, Class C felony sexual battery, Class C felony
battery resulting in serious bodily injury, Class D felony intimidation, and Class
D felony strangulation. We affirm in part and reverse in part.
Issues [2] McGrath raises the following issues for our review:
I. whether the State committed prosecutorial misconduct by referring to McGrath’s purported silence during an interview with police;
II. whether there is sufficient evidence to support his convictions; and
III. whether McGrath’s convictions for aggravated battery, battery resulting in serious bodily injury, and sexual battery violate double jeopardy principles.
Facts [3] The evidence most favorable to the convictions is that, at approximately 4:45
a.m. on September 22, 2013, McGrath went to the LaPorte home of an
acquaintance, M.F., and rang her doorbell. McGrath told M.F. that he was
drunk and needed a place to stay for a few hours, and M.F. reluctantly allowed
McGrath inside. M.F. tried to get McGrath to lie down on her couch, but he
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 2 of 21 insisted on lying on her bed. M.F. finally allowed him to do so while she took a
shower and got ready for the day.
[4] At about 7:30 a.m., M.F. went into her bedroom to tell McGrath that he
needed to leave because she was leaving soon. As M.F. began to shake
McGrath’s arm to wake him, he grabbed M.F.’s arms and dragged her across
the bed and pulled her on top of him while he held her. M.F. said “don’t rape
me” repeatedly. Tr. p. 360. McGrath released her temporarily, and she rolled
off the bed onto the floor and onto her back. McGrath then sat on top of M.F.
and pinned her to the floor with her arms above her head. McGrath put his
hand under M.F.’s neck and forced her to turn her head to the left and held it
with such force that she struggled to breathe, although McGrath did not put his
hands on her throat. McGrath also punched M.F. two or three times in the face
and said to her, “If you move I will kill you.” Id. at 362.
[5] McGrath then allowed M.F. to free her arms, pulled down his underwear, and
demanded that she stroke his penis until he became erect. M.F. was wearing an
ankle-length gown and house coat. At no point did McGrath say he wanted to
perform any other sex acts with M.F., nor did he attempt to penetrate her or
touch her or remove her gown. After M.F. had fondled McGrath’s penis for
five to eight minutes, he still was not erect, and M.F. told him someone would
be coming to pick her up soon to go to an auction. At this time, around 7:50
a.m., McGrath got up and began getting dressed, saying he had to go to work.
He allowed M.F. to get dressed and left the house while she was doing so.
M.F. left the house at about 8:15 a.m.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 3 of 21 [6] M.F. did not immediately report the incident to police or call 911. She also did
not tell the friend who picked her up at the house what had happened, nor other
people she saw that day at the auction she attended, despite the noticeable
bruising on her face and questions as to what had happened. M.F. would later
tell some acquaintances that she had injured herself falling down the stairs. At
about 4:30 p.m., M.F. finally allowed a friend to drive her to the emergency
room. M.F. had extensive bruising on her face and left hand and the bridge of
her nose was fractured. M.F. also spoke with police at the hospital about the
attack and indicated she may have engaged in some consensual hugging and
kissing with McGrath on an earlier date. No rape kit was performed.
McGrath’s DNA later was discovered on M.F.’s bedsheets. During an
interview with police, after McGrath had been advised of his right to remain
silent, he was asked if he had ever visited M.F. at her residence and he
responded, “let me think about it. I’ve been really busy.” Id. at 527.
[7] M.F. injured her left thumb during the altercation with McGrath. Due to a
completely torn ligament in the thumb, M.F. was unable to grip anything with
it “because it just flopped.” Id. at 391. The precise nature of M.F.’s injury was
not determined until November 12, 2013, after which M.F. underwent surgery.
M.F.’s thumb was in a cast for six to seven weeks after surgery, and thereafter
she could not use the thumb until June 1, 2014, while it continued healing.
[8] The State charged McGrath with Class B felony attempted rape, Class B felony
aggravated battery, Class C felony sexual battery, Class C felony battery
resulting in serious bodily injury, Class D felony intimidation, and Class D
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 4 of 21 felony strangulation.1 During closing argument, the prosecutor referred to
McGrath’s evasive statement in response to the question of whether he had ever
been to M.F.’s apartment and said,
And he never answers that question. He avoids it. What does that tell you, if you have to avoid a question? You really don’t want to tell the truth about it. He just avoids it.
Well, let me think. I’ve been working so much. Those are the answers he’s giving. It was just a week earlier that he would have been at her house just having coffee, pop, watching TV. He couldn’t say, well, I did meet this lady and that same day I remember calling her, went over to her house. Why not offer that up? Because, again at this point he doesn’t know what the acquisition [sic] is. Again, it could have been something as simple as, well, you know, you bumped her bar out in front of her house. Who knows? It could have been something as simple as that.
Id. at 698-99. At this point, defense counsel approached the bench and said,
“Judge, I think we’re starting to get right to the right to remain silent.” Id. at
699. The trial court told the prosecutor, “Be careful there.” Id. Defense
counsel did not request that the jury be admonished or request a mistrial, and
the prosecutor resumed closing argument.
[9] The jury found McGrath guilty of all six counts as charged. The trial court
entered judgments of conviction and imposed sentences for all counts, despite
1 The original charging information alleged that McGrath had threatened to kill M.F. if he did not have sex with her; this allegation later was removed in an amended charging information.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 5 of 21 the State conceding that the sexual battery charge could be merged with the
other offenses. McGrath now appeals.
Analysis I. Prosecutorial Misconduct
[10] We first address McGrath’s claim that the State committed misconduct during
closing argument by referring to his statement during police questioning, “let
me think about it,” when asked whether he had ever been to M.F.’s residence.
Tr. p. 527. When faced with a claim of prosecutorial misconduct, we must
determine: (1) whether misconduct occurred; and if so, (2) whether the
misconduct placed the defendant in a position of grave peril to which he or she
should not have been subjected in light of all the circumstances. Ryan v. State, 9
N.E.3d 663, 667 (Ind. 2014). We measure whether a prosecutor’s argument
amounted to misconduct by referring to case law and the Rules of Professional
Conduct. Id. The gravity of peril is measured by the probable persuasive effect
of misconduct on a jury, rather the degree of impropriety of the conduct. Id.
“To preserve a claim of prosecutorial misconduct, the defendant must—at the
time the alleged misconduct occurs—request an admonishment to the jury, and
if further relief is desired, move for a mistrial.” Id.
[11] If a defendant fails to preserve a claim of prosecutorial misconduct, he or she
must establish not only the grounds for prosecutorial misconduct, but also that
the misconduct amounted to fundamental error. Id. “Fundamental error is an
extremely narrow exception to the waiver rule where the defendant faces the
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 6 of 21 heavy burden of showing that the alleged errors are so prejudicial to the
defendant’s rights as to ‘make a fair trial impossible.’” Id. (quoting Benson v.
State, 762 N.E.2d 748, 756 (Ind. 2002)). The defendant must show the trial
court erred in not sua sponte raising an issue because it constituted a clearly
blatant violation of basic and elementary principles of due process, and the
error presented an undeniable and substantial potential for harm. Id. In
evaluating a claim of fundamental error, we must consider the alleged
misconduct in light of all that happened and all relevant information given to a
jury, including evidence admitted at trial, closing argument, and jury
instructions. Id.
[12] Here, McGrath acknowledges that trial counsel failed to properly preserve any
claim of prosecutorial misconduct for appeal. Although trial counsel
interrupted the State’s closing argument to raise concerns about comments on
McGrath’s right to remain silent, counsel neither requested an admonishment
to the jury nor a mistrial. Thus, McGrath must establish that the prosecutor’s
closing argument amounted to fundamental error.
[13] McGrath has not met that burden. It is clear under the Fifth and Fourteenth
Amendments to the United States Constitution that the prosecution cannot
comment on a defendant’s decision not to testify at trial. Owens v. State, 937
N.E.2d 880, 886 (Ind. Ct. App. 2010) (citing Griffin v. California, 380 U.S. 609,
614, 85 S. Ct. 1229, 1232 (1965)), trans. denied. Similarly, the prosecution
cannot use a defendant’s post-arrest, post-Miranda silence to impeach a
defendant. Id. (citing Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 2244-
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 7 of 21 45 (1976)). There is a split of authority in the federal courts as to the propriety
of the prosecution referring to a defendant’s pre-arrest silence. See id. at 887-
889. After carefully reviewing cases on both sides, this court has held that it
violates the Fifth Amendment for the prosecution to make substantive use of a
defendant’s pre-arrest silence against the defendant. Id. at 891.
[14] In order to be entitled to the protection of the Fifth Amendment’s right to
silence, a defendant must clearly invoke that right. Id. at 891-92. “An assertion
of the Miranda right to remain silent must be clear and unequivocal.” Wilkes v.
State, 917 N.E.2d 675, 682 (Ind. 2009), cert. denied. “Mere expressions of
reluctance to talk do not invoke the right to remain silent.” Id. Raising doubts
or expressing concern about speaking followed by continued dialogue do not
unambiguously assert the right to remain silent. Id.
[15] Here, McGrath commented to police during a pre-arrest interview, “let me
think about it,” when asked whether he had ever been to M.F.’s house. Tr. p.
527. It was this evasive answer to which the State was referring during its
closing argument. This was not a clear invocation by McGrath of his right to
remain silent, and McGrath does not direct us to any other statements prior to
this one indicating he had invoked that right. Referring to that statement and
expounding upon it did not clearly violate McGrath’s Fifth Amendment right
to remain silent.
[16] McGrath nonetheless argues that the State was referring in closing argument
not only to his police interrogation, but also his decision not to testify during
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 8 of 21 trial. In addition to being prohibited from directly commenting upon a
defendant’s decision not to testify, the prosecution also cannot indirectly do so
by indicating that the defendant failed to controvert the State’s evidence. See id.
at 893-94 (citing Davis v. State, 685 N.E.2d 1095, 1098 (Ind. Ct. App. 1997)).
To the extent the prosecutor here began to approach this line in commenting on
McGrath’s evasion of the question of whether he had ever been to M.F.’s
house, trial counsel interrupted the argument and prevented the crossing of that
line. In any case, there was no clear violation of McGrath’s right not to testify
that could amount to fundamental error. This is particularly true in light of
M.F.’s testimony identifying McGrath as her assailant and that the prosecutor’s
comments were relatively brief in comparison to the remainder of her
argument, as well as instructions given to the jury.
II. Sufficiency of the Evidence
[17] Next, we address McGrath’s challenge to the sufficiency of the evidence
supporting his convictions. In conducting such a review, we must consider
only the probative evidence and reasonable inferences therefrom supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “It is the fact-finder’s
role, not that of appellate courts, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction.” Id. We
will affirm unless no reasonable fact-finder could have found the elements of the
crime proven beyond a reasonable doubt. Id. The evidence need not overcome
every reasonable hypothesis of innocence. Id.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 9 of 21 A. Identity
[18] McGrath first claims there is insufficient evidence to identify him as M.F.’s
assailant and, therefore, all of his convictions should be reversed. He contends
M.F.’s testimony was incredibly dubious and that an alibi witness placed him at
his residence and not M.F.’s residence at the time of the attack. Regarding the
incredible dubiosity claim, an appellate court may impinge upon the fact-
finder’s responsibility to judge the credibility of witnesses, but only if
confronted with inherently improbable testimony or coerced, equivocal, and
wholly uncorroborated testimony of incredible dubiosity. Moore v. State, 27
N.E.3d 749, 755 (Ind. 2015). Application of the rule is limited to instances
where: (1) there is a sole testifying witness; (2) the testimony is inherently
contradictory, equivocal, or the result of coercion; and (3) there is a complete
absence of circumstantial evidence. Id. at 756. “The fact that a witness gives
trial testimony that contradicts earlier pre-trial statements does not necessarily
render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406,
409 (Ind. 2002).
[19] McGrath primarily directs us to purported inconsistencies between M.F.’s trial
testimony and statements she made before trial. For example, McGrath notes
that M.F. failed to seek any medical attention for injuries for several hours after
the incident occurred and that she gave varying explanations to police as to why
she waited so long, and also gave differing stories to other persons regarding
how she had sustained her injuries, such as by falling down the stairs.
Embarrassment or shock over what occurred all too often inhibits a sexual
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 10 of 21 assault victim from being completely truthful about what happened with
everyone he or she talks to, or leads to a delay in reporting what happened to
authorities. Other alleged inconsistencies McGrath notes are inconsequential,
such as whether she and McGrath had ever previously hugged and kissed and
whether she went to work after the attack occurred or went to an auction.
McGrath also points out that, in the original charging information, the State
alleged that McGrath had threatened to kill M.F. if she did not have sex with
him, while in the amended information the threat regarding sex was not
mentioned, nor did M.F. mention any such threat at trial. The charging
information was amended and reflected the evidence presented. McGrath has
no legal basis to quibble here.
[20] M.F.’s actual trial testimony was clear, unequivocal, and uncoerced with
respect to identifying McGrath as her assailant and what he did to her. This
case is unlike Gaddis v. State, 253 Ind. 73, 251 N.E.2d 658 (1969). In Gaddis,
our supreme court reversed a robbery conviction where the single eyewitness to
the crime vacillated at trial regarding his identification of the defendant, there
was evidence of coercion by both the police and the defendant, and there was a
lack of circumstantial evidence corroborating the witness’s testimony. Gaddis,
253 Ind. at 80-81, 251 N.E.2d at 661-62. M.F.’s testimony was not at all like
the witness’s in Gaddis; her testimony does not fall within the parameters of the
incredible dubiosity rule. Additionally, there was some circumstantial evidence
tying McGrath to the assault, including his DNA on M.F.’s bedsheets. Any
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 11 of 21 discrepancies regarding M.F.’s testimony was for the jury to weigh and
consider.
[21] We now address McGrath’s contention regarding his alibi defense. 2 “The State
is not required to rebut directly a defendant’s alibi but may disprove the alibi by
proving its own case-in-chief beyond a reasonable doubt.” Carr v. State, 728
N.E.2d 125, 130 (Ind. 2000). A fact-finder may reject alibi witnesses if the
State’s evidence makes such rejection reasonable. Id.
[22] At trial, McGrath called Steve Burgess, his landlord, neighbor, and long-time
friend, to testify that he recalled seeing McGrath’s vehicle outside his
(McGrath’s) residence at about 7:50 a.m., and recalled seeing McGrath in
person at around 8:15 to 8:30 a.m., on September 22, 2013.3 Burgess also
testified that McGrath never went anywhere without his vehicle. An officer
who drove between M.F.’s and McGrath’s residence testified that it took eleven
minutes to do so. McGrath insists that Burgess’s testimony discredits M.F.’s
timeline of events, given that she said McGrath did not stop his attack until
7:50 a.m. and left her home sometime thereafter.
[23] We believe any discrepancies between Burgess and M.F. were a matter for the
jury to resolve. Certainly, the jury was entitled to believe that either M.F. or
2 The State failed to address this argument in its brief. 3 The witness’s testimony originally was that he saw McGrath around 8:15 but on redirect the witness stated that it was “[a]round 8:30.” Tr. p. 668.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 12 of 21 Burgess were slightly mistaken in their recollection of precisely what they saw
and what occurred when. We also note that Burgess’s recollection of when he
saw McGrath in person is consistent with M.F.’s recollection of when McGrath
ended the attack and left her residence. The jury also was not mandated to
believe Burgess’s testimony over M.F.’s. The State’s own evidence would
disprove Burgess’s version of events, and the jury was entitled to accept that
M.F. had a better recollection of the morning of September 22, 2013, and the
timing of McGrath’s assault. There is sufficient evidence to identify McGrath
as M.F.’s assailant.
B. Attempted Rape
[24] Next, McGrath argues that, even if he was M.F.’s assailant, there is insufficient
evidence to convict him of attempted rape. At the time of the offense, Indiana
Code Section 35-42-4-1(a)(1) provided that a person who knowingly or
intentionally has sexual intercourse with a member of the opposite sex when
the other person is compelled by force or imminent threat of force commits
Class B felony rape.4 “‘Sexual intercourse’ means an act that includes any
penetration of the female sex organ by the male sex organ.” Ind. Code § 35-
31.5-2-302. “A person attempts to commit a crime when, acting with
culpability required for commission of the crime, the person engages in conduct
that constitutes a substantial step toward commission of the crime.” I.C. § 35-
4 Currently, Indiana Code Section 35-42-4-1 classifies rape as a Level 3 felony, and includes forcibly committing “other sexual conduct” in addition to sexual intercourse. “Other sexual conduct” includes oral and anal sex, or penetrating the sex organ or anus of a person with an object. Ind. Code § 35-31.5-2-221.5.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 13 of 21 41-5-1(a). Thus, in order to convict McGrath of Class B felony attempted rape
as charged, the State was required to prove that he knowingly or intentionally
took a substantial step toward having sexual intercourse with M.F. while she
was compelled by force or imminent threat of force. See Oeth v. State, 775
N.E.2d 696, 700 (Ind. Ct. App. 2002), trans. denied. “What constitutes a
‘substantial step’ toward the commission of a crime is dependent upon the facts
of the case, but the requirement is a minimal one and is often defined as any
overt act in furtherance of the crime.” Id.
[25] Here, McGrath argues there is no evidence that he ever stated an intention to
have sexual intercourse with M.F., no evidence that he ever actually attempted
to penetrate her, no evidence that he attempted to disrobe her, and no evidence
that he touched her sexually; he only demanded that she masturbate his penis
and she stopped doing so after several minutes when he failed to become erect.
Regardless, both our supreme court and this court have affirmed convictions for
attempted rape in the absence of any evidence of a stated intention to have
sexual intercourse with the victim, any attempt at actual penetration, or any
attempt to disrobe the victim.
[26] In Underwood v. State, 515 N.E.2d 503 (Ind. 1987), our supreme court affirmed
an attempted rape conviction with less evidence of overt sexual conduct than
occurred here. In Underwood, the defendant grabbed the victim by the throat as
she was jogging and held a knife to her face and demanded that the victim come
with him. After a struggle, he dragged her into the woods, sat on top of her,
stabbed her hand, and punched her in the face. The victim managed to get up,
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 14 of 21 and the defendant first grabbed her hair, then pulled on her shorts as she
attempted to get away; she finally managed to escape after punching him in the
groin. There was no evidence the defendant ever stated his intention to have
sex with the victim. Our supreme court concluded, “it was for the jury to weigh
the pertinent facts . . . and to determine whether or not there was competent
evidence beyond a reasonable doubt that appellant intended his attack to
culminate in the rape of the victim.” Underwood, 515 N.E.2d at 507.
[27] Similarly, in Tatum v. State, 485 N.E.2d 138 (Ind. Ct. App. 1985), trans. denied,
this court affirmed an attempted rape conviction where the defendant went into
a thirteen-year-old’s bedroom, sat on top of her, pushed her shoulders down,
and put his hand over her mouth, then ran out of the room with his pants down
after the victim kicked him. We observed:
The fact that a defendant may not attempt to, or is ultimately unsuccessful in, removing his victim’s clothing, removing his own clothing, or removing his penis from his clothing does not lead to the conclusion that such defendant lacked the requisite intent or that he did not take a substantial step toward committing the offense of rape. Moreover, the fact that a defendant does not specifically inform his victim of his intent to rape her, or the fact that a defendant does not actually attempt penetration does not render the evidence insufficient.
Tatum, 485 N.E.2d at 139.
[28] In light of cases such as Underwood and Tatum, we cannot say there was
insufficient evidence to convict McGrath of Class B felony attempted rape.
Given the manner of McGrath’s attack upon M.F., the jury reasonably could Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 15 of 21 have concluded that he would have attempted to have sexual intercourse with
her if he had become erect. We affirm McGrath’s conviction on this count.
C. Aggravated Battery
[29] McGrath also contends there is insufficient evidence he injured M.F.’s thumb
during the attack on September 22, 2013, or that such injury was serious
enough to warrant a Class B felony aggravated battery conviction. On the date
of the offense, a person was guilty of Class B felony aggravated battery if he or
she knowingly or intentionally inflicted injury on a person that caused
protracted loss or impairment of the function of a bodily member or organ. I.C.
§ 35-42-2-1.5(2) (2013).5 “‘[P]rotracted’ means to ‘draw out or lengthen in
time,’ and . . . ‘impairment’ means the ‘fact or state of being damaged,
weakened, or diminished.’” Grundy v. State, 38 N.E.3d 675, 682 (Ind. Ct. App.
2015) (quoting Mann v. State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008)), trans.
denied. “Expert testimony is not required to prove that a victim suffered a
protracted impairment.” Id. We generally exercise great deference to the fact-
finder when it comes to questions of the severity of an injury, though such
deference is not absolute. Mendenhall v. State, 963 N.E.2d 553, 569 (Ind. Ct.
App. 2012), trans. denied.
[30] We first conclude there is sufficient evidence that M.F. sustained her left thumb
injury during the assault McGrath committed. McGrath focuses on the fact
5 Aggravated battery is now classified as a Level 3 felony.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 16 of 21 that M.F. did not seek medical treatment for her thumb until several weeks after
the attack. However, M.F. testified that during the attack, McGrath held her
hands tight above her head and that her left hand hurt immediately afterwards.
It was noted during McGrath’s emergency room visit that her left hand was
very bruised, swollen, and painful. And, although an x-ray at the time failed to
reveal any fractures in her thumb, there is no evidence that the x-ray necessarily
would have revealed a torn ligament. The emergency room nurse testified that
she was not surprised to learn that M.F. had a torn thumb ligament, and indeed
it would have been difficult to diagnose such a tear at the time of her emergency
room visit. McGrath speculates that it is possible M.F. injured her thumb
sometime before or after the assault. There is no evidence of any other incident
in which M.F. could have injured her thumb; for us to accept McGrath’s
speculation that she could have sustained the injury at a different time is an
invitation to reweigh the evidence, which we must refuse. The evidence is
sufficient that McGrath injured M.F.’s thumb.
[31] We also reject McGrath’s argument that the thumb injury did not amount to
the protracted loss or impairment of a bodily member. M.F. described how she
was unable to grip anything using her left thumb for months because it was
basically useless, both before she had surgery on the thumb and for months
afterward. It should be self-evident that the loss of one’s thumb and the ability
to grip items using it is a substantial impairment not only of the thumb, but of
the whole hand. M.F. suffered from such impairment for months; indeed, she
testified at trial that her thumb still was not completely normal. In light of this
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 17 of 21 evidence, we decline to reverse the jury’s determination that M.F. suffered a
sufficient injury so as to sustain McGrath’s conviction for Class B felony
aggravated battery.
D. Strangulation
[32] Finally, McGrath argues there is insufficient evidence to support his conviction
for strangulation. In order to convict McGrath of Class D felony strangulation
as charged, the State was required to prove that he, in a rude, angry, or insolent
manner, knowingly or intentionally applied pressure to M.F.’s throat or neck in
a manner that impeded her normal breathing or blood circulation. See I.C. §
35-42-2-9 (2013).6
[33] McGrath asserts that M.F.’s testimony was vague as to whether he actually
choked her or put his hands around her neck. Indeed, it does not appear that
McGrath actually choked M.F. by putting his hands around her neck.
However, the strangulation statute does not limit the methods a defendant may
use in order to cut off another person’s breathing. It prohibits any rude,
insolent, or angry application of pressure to the throat or neck of another person
that impedes normal breathing. Here, although it is unclear exactly where and
how McGrath placed his arms and hands,7 M.F.’s testimony was clear that he
placed her in a “headlock” that twisted her neck to such a degree that she could
6 Strangulation is now a Level 6 felony. 7 M.F. apparently gave a visual demonstration to the jury of how McGrath applied pressure to her neck, which we cannot see.
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 18 of 21 not breathe and was gasping for air. Tr. p. 362. It is evident that the purpose of
the strangulation statute is to penalize the extremely dangerous act of cutting off
a person’s breathing. McGrath did that to M.F. There is sufficient evidence to
support his conviction for Class D felony strangulation.
III. Double Jeopardy
[34] The final issue is whether McGrath’s convictions for Class B felony aggravated
battery, Class C felony battery resulting in serious bodily injury, and Class C
felony sexual battery violate double jeopardy principles. Convictions for two or
more offenses violate the Double Jeopardy Clause of the Indiana Constitution
if, “‘with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.’” Sistrunk v.
State, 36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State, 717 N.E.2d
32, 49 (Ind. 1999)).
[35] In addition, even if the constitutional double jeopardy rule is not violated,
Indiana law may nevertheless prohibit convictions for multiple offenses under
certain rules of statutory interpretation and common law. Id. Among the non-
constitutional situations in which multiple convictions are barred include
conviction and punishment for a lesser-included offense of another crime for
which the defendant has been convicted and punished; and conviction and
punishment for a crime consisting of the very same act as another crime for
which the defendant has been convicted and punished. Vandergriff v. State, 812
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 19 of 21 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Richardson, 717 N.E.2d at 55-
56 (Sullivan, J., concurring)), trans. denied.
[36] In order to convict McGrath of aggravated battery as charged, the State was
required to prove that he knowingly or intentionally inflicted injury on M.F.
that caused protracted loss or impairment of the function of a bodily member or
organ. See I.C. § 35-42-2-1.5(2) (2013). As noted, the particular injury the State
relied on to prove this charge was the injury to M.F.’s left thumb. In order to
convict McGrath of Class C felony battery, the State was required to prove that
he knowingly or intentionally touched M.F. in a rude, insolent, or angry
manner, and that such touching resulted in serious bodily injury to M.F. See
I.C. § 35-42-2-1(a)(3) (2013). To convict McGrath of Class C felony sexual
battery, the State was required to prove that he touched M.F. with the intent to
arouse his own or another person’s sexual desires, that he compelled M.F. to
submit to the touching by force or the imminent threat of force, and that such
threat included the threat of deadly force. See I.C. § 35-42-4-8 (2013).
[37] Here, the State concedes that it violates double jeopardy principles to convict
McGrath of aggravated battery, battery resulting in serious bodily injury, and
sexual battery. The assault upon M.F. was one continuous incident that was
sexual in nature, and the primary serious bodily injury relied upon by the State
was the one to M.F.’s left thumb. In accordance with the State’s concession,
we direct that the convictions with the less severe penal consequences—Class C
Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016 Page 20 of 21 felony battery and Class C felony sexual battery—be vacated.8 See Richardson,
717 N.E.2d at 55.
Conclusion [38] The State’s reference to McGrath’s evasive answer to a question during police
interrogation did not constitute fundamentally erroneous prosecutorial
misconduct. There is sufficient evidence to support all of McGrath’s
convictions. However, his convictions for Class C felony battery resulting in
serious bodily injury and Class C felony sexual battery must be vacated on
double jeopardy grounds.
[39] Affirmed in part and reversed in part.
Vaidik, C.J., and Mathias, J., concur.
8 Because McGrath’s sentences all were ordered to be served concurrently, his aggregate sentence will not be affected by vacation of these offenses. The imposition of concurrent sentences does not cure a double jeopardy violation, however. Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015).
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