                                                                         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).

       Court of Appeals of Indiana | Memorandum Decision 46A04-1504-CR-277 | June 15, 2016            Page 21 of 21
