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.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-92 | November 19, 2015   Page 10 of 10
