Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              FILED
                                                            Feb 27 2012, 8:26 am
any court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
collateral estoppel, or the law of the                           court of appeals and
                                                                        tax court

case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                     GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID FONSECA,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 49A02-1107-CR-605
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda E. Brown, Judge
                          Cause No. 49F10-1103-CM-16611


                                     February 27, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                STATEMENT OF THE CASE

          David Fonseca appeals his conviction of battery, a class A misdemeanor.1

          We affirm.

                                            ISSUE

          Whether the State presented sufficient evidence to support the conviction.

                                            FACTS

          Fonseca lived with his wife, Stacy Beeman, and their three children in an

Indianapolis residence rented by Beeman. Beeman allowed Fonseca to live with her and

the children on the condition that Fonseca not drink alcohol in or around the house or

around the children. On March 9, 2011, J.B., Beeman and Fonseca’s daughter, called

Beeman at work and informed her that Fonseca was drunk. Beeman returned from work,

went into her bedroom, and confronted Fonseca as he lay on Beeman’s bed. Beeman told

Fonseca to leave the house, but he refused. Fonseca told Beeman that he was not going

anywhere and became belligerent.

          Seventeen-year-old J.B. came into the room and joined with her mother in telling

Fonseca to leave. Fonseca and J.B.’s relationship was already strained because he did not

approve of J.B.’s child’s father’s failure to support the child. Fonseca called J.B. a

“bitch,” a “whore,” and a “slut,” and moved toward her several times. Beeman stepped

between the two during the argument.


1
    Ind. Code § 35-42-2-1.
                                               2
       The tension apparently eased, and Beeman went to the kitchen to get a cup of

coffee. Fonseca and J.B. again began to argue, and Fonseca pushed her. Fonseca then

struck J.B. on the upper right shoulder, causing her pain, for which she subsequently took

Tylenol. Beeman heard the noise, and as she walked toward the bedroom, she met J.B.,

who told Beeman that Fonseca had hit her. Beeman told J.B. to call the police, which she

did.

       Officer Matthew Coffing of the Indianapolis Metropolitan Police Department

responded to the dispatch and went to Beeman’s residence. Officer Coffing took J.B.’s

statement and observed a red mark on her upper right shoulder.

       Fonseca was charged with class A misdemeanor battery. After a bench trial, the

trial court found Fonseca guilty of the charge. The trial court sentenced Fonseca to 365

days incarceration, ordered 20 days executed, and suspended 345 days to supervised

probation.

                                       DECISION

       Fonseca contends that the State failed to present sufficient evidence to support the

conviction. Generally, in addressing a claim of insufficient evidence, we must consider

only the probative evidence and reasonable inferences supporting the trier of fact’s

determination. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008), trans. denied.

We will not reweigh the evidence or assess witness credibility in reviewing the

determination. Id. “Reversal is appropriate only when reasonable persons would not be

                                            3
able to form inferences as to each material element of the offense.” Alvies v. State, 905

N.E.2d 57, 61 (Ind. Ct. App. 2009). “Not only must the fact-finder determine whom to

believe, but also what portions of conflicting testimony to believe.” In re J.L.T., 712

N.E.2d 7, 11 (Ind. Ct. App. 1999), trans. denied.       A conviction may stand on the

uncorroborated evidence of a minor witness. Newsome v. State, 686 N.E.2d 868, 875

(Ind. Ct. App. 1997).

       To prove battery as a class A misdemeanor, the State was required to show that

Fonseca knowingly or intentionally touched J.B. in a “rude, insolent, or angry manner,”

causing bodily injury to J.B. See I.C. § 35-42-2-1(a)(1)(A). The term “bodily injury”

includes “any impairment of physical condition, including physical pain.” I.C. § 35-41-

1-4.

       Fonseca claims that because of the tension between him and J.B., his drunkenness,

and his name-calling, J.B. “orchestrated this event.” Fonseca’s Br. at 6. He emphasizes

that Beeman’s exit from the room shows that there was no tension at the time of the

battery. He further emphasizes that neither Beeman nor Officer Colling witnessed the

attack. He argues that J.B.’s testimony is “incredibly dubious.”

       We will overturn a conviction “when the testimony is so incredibly dubious or

inherently improbable that it runs counter to human experience, and no reasonable person

could believe it.” Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008).

Under the incredible dubiosity rule, “a court will impinge on the [trier of facts’]

                                            4
responsibility to judge the credibility of a witness when confronted with inherently

improbable testimony or coerced, equivocal, wholly uncorroborated testimony of

incredible dubiosity.” Glenn, 884 N.E.2d at 355. Application of this rule is limited to

cases where a sole witness presents inherently contradictory and equivocal testimony and

there is a complete lack of circumstantial evidence of the appellant’s guilt. Id.

        Here, J.B. initially told the investigating officer and subsequently testified that

Fonseca hit her. She further testified that the blow required her to take Tylenol to lessen

the pain. In addition, Beeman heard a noise that sounded like a blow, and Officer

Coffing observed the red mark that resulted from the blow. These facts are sufficient to

support the conviction.       There is no inherently improbable testimony or coerced,

equivocal, wholly uncorroborated testimony here. Accordingly we will not impinge upon

the trial court’s responsibility to judge J.B.’s credibility.

       Affirmed.

BAKER, J., and BAILEY, J., concur.




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