MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Jan 23 2018, 10:05 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric Reed Johnson, Sr.,                                  January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1708-CR-1855
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1704-F6-12280



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018             Page 1 of 8
[1]   Eric Reed Johnson, Sr., appeals his conviction for strangulation as a level 6

      felony. Johnson raises one issue which we revise and restate as whether the

      evidence is sufficient to support his conviction. We affirm.


                                      Facts and Procedural History

[2]   On April 1, 2017, Johnson was at the apartment of Lori Harris while she went

      out to eat with a friend. Johnson and Harris had met using a dating site just

      before Christmas and he stayed at her home sometimes. Harris returned home

      and slept on the couch. The following morning, Johnson asked Harris what

      was going on, and Harris told him that things were not fine and asked him if he

      remembered telling her that, if she did not feel comfortable, she could take him

      back to the house of a woman with whom he used to stay. Johnson became

      upset, stated he “was sick and tired of women always doing this to him because

      he doesn’t have a car.” Transcript Volume 2 at 9. Harris asked Johnson if his

      mother would appreciate him saying that and later if his son would respect him

      like this, and Johnson said “[d]on’t you dare ever mention my son” and struck

      Harris on the side of her face. Id. at 10. Harris felt extreme pain and “thought

      something broke in there.” Id. Johnson stated “I’ll shut your mouth” and

      forced an entire cigar into Harris’s mouth and broke and crumbled it in her

      mouth. Id. at 13. He also said that he would shatter her teeth.


[3]   Harris went into the bedroom, started to remove Johnson’s things from a

      dresser, and told him that she wanted him to leave, and Johnson told Harris not

      to touch his stuff and pushed her on the bed. Harris then exited the bedroom


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 2 of 8
      and went toward the front door. At some point, Johnson said “[y]ou’re not

      going anywhere until we get this straightened out, and I’m not going anywhere

      either.” Id. at 14. Johnson grabbed Harris, placed his arm around her neck

      from behind her, and started to choke her. It was difficult for Harris to swallow

      or breathe and she urinated on herself and “everything was going black.” Id. at

      12. She ended up on the ground. Johnson said “[y]ou’re not gonna [] do this to

      me.” Id. at 13. He smacked her with his foot on the side of her leg. At some

      point, Johnson left the apartment, and Harris drove to the hospital where

      photographs were taken of her injuries.


[4]   On April 6, 2017, the State charged Johnson with strangulation and

      confinement as level 6 felonies and domestic battery and battery resulting in

      bodily injury as class A misdemeanors. The court held a bench trial at which it

      heard testimony from Harris, Johnson, and the police officer who took an

      initial report from Harris and admitted photographs of her injuries taken at the

      hospital. Harris testified that she had been diagnosed with leukemia in August

      of 2016, that treatment had stopped and she was in remission as of April 1,

      2017, and that her injuries as depicted in the admitted photographs were caused

      by Johnson and not by leukemia.


[5]   Johnson testified that “the whole thing predicated on a sexual encounter and

      then it escalated into a bit of both of our pasts and drugs were involved.” Id. at

      37-38. He testified that, every payday for ten weeks, Harris spent money on

      crack cocaine. He testified that Harris was upset with him on the night of the

      incident because he would not find crack cocaine for her. Johnson indicated

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 3 of 8
      that he did not place his hands on Harris. He testified that Harris had gone to

      the doctor two weeks before the incident for the bruising on her cheek and jaw.

      The trial court stated that it did not find Johnson’s “story to be reasonable or

      credible” and found “it all to be completely fabricated.” Id. at 55. It found

      Johnson guilty as charged and sentenced him to concurrent one-year terms for

      each of his convictions with credit for time served and the balance suspended to

      probation.


                                                       Discussion

[6]   The issue is whether the evidence is sufficient to support Johnson’s conviction

      for strangulation as a level 6 felony.1 When reviewing the sufficiency of the

      evidence to support a conviction, we must consider only the probative evidence

      and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

      144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the

      evidence. Id. We consider conflicting evidence most favorably to the trial

      court’s ruling. Id. We affirm the conviction unless no reasonable factfinder

      could find the elements of the crime proven beyond a reasonable doubt. Id.

      The evidence is sufficient if an inference may reasonably be drawn from it to

      support the verdict. Id. at 147. The uncorroborated testimony of one witness

      can be sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-

      1073 (Ind. 1991).




      1
          Johnson does not challenge his other convictions.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 4 of 8
[7]   Ind. Code § 35-42-2-9 provided in part at the time of the offense that a person

      who, in a rude, angry, or insolent manner, knowingly or intentionally “applies

      pressure to the throat or neck of another person” or “obstructs the nose or

      mouth of the another [sic] person . . . in a manner that impedes the normal

      breathing or the blood circulation of the other person” commits strangulation as

      a level 6 felony. (Subsequently amended by Pub. L. No. 252-2017, § 11 (eff.

      Jul. 1, 2017)). The State alleged that Johnson, in a rude, insolent or angry

      manner, did knowingly apply pressure to the throat or neck, or obstruct the

      nose or mouth, of Harris in a manner that impeded her normal breathing or

      blood circulation.


[8]   Johnson asserts the evidence is insufficient to support his conviction for

      strangulation due to the incredibly dubious testimony provided by Harris. He

      argues Harris was the only person to testify as to the events giving rise to the

      charges and that the officer who obtained Harris’s report testified that she did

      not mention urinating on herself, the cigar, or that Johnson had strangled her.

      He also argues that Harris’s bruising could have been the result of her leukemia

      or treatment.


[9]   The State maintains that Harris’s testimony was corroborated by the existence

      of her injuries, it was internally consistent, and notes that the trial court found

      Johnson’s testimony to be completely fabricated. The State further argues that

      it is irrelevant whether Harris mentioned at the earlie st opportunity that she

      had been strangled, that the officer who took the initial report from Harris

      testified that he transferred the case to a detective for further investigation, and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 5 of 8
       that the probable cause affidavit reveals that Harris told law enforcement about

       the chokehold and strangulation in a more detailed interview on April 3, 2017.


[10]   “[W]hen appellate courts are confronted with conflicting evidence, they must

       consider it most favorably to the trial court’s ruling,” Drane, 867 N.E.2d at 146

       (internal quotation marks omitted), and the uncorroborated testimony of one

       witness is sufficient to sustain a conviction. Ferrell, 565 N.E.2d at 1072-1073.

       To the extent Johnson asserts that the incredible dubiosity rule requires reversal

       of his conviction, we note that the rule applies only in very narrow

       circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is

       expressed as follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.

       Id.


[11]   Johnson fails to show that Harris’s testimony was inherently contradictory or so

       inherently improbable that no reasonable person could believe it. To the extent

       her testimony conflicted with Johnson’s testimony, this is an issue of witness

       credibility. The court heard testimony from Harris and Johnson and admitted

       photographic evidence of Harris’s injuries, and the witnesses were thoroughly

       examined and cross-examined. Harris testified that Johnson grabbed her,
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 6 of 8
placed his arm around her neck from behind her, and choked her. When asked

if Johnson applied pressure, she testified “[s]o much pressure that it was hard to

swallow, hard to breathe” and “I urinated all over myself because of the

pressure and everything was going black.” Transcript Volume 2 at 12. She

testified that her neck hurt and it was difficult to swallow her own saliva. She

testified that she was in remission for leukemia, she no longer received

treatment at the time of the offense, and her injuries were caused by Johnson.

We also note that, although the officer who took an initial report at the hospital

indicated that Harris did not mention urinating, a cigar, or that Johnson had

strangled her, the officer testified that after he files his report the case is assigned

to a detective, and the probable cause affidavit indicated a detective interviewed

Harris on April 3, 2017. At that time Harris reported that she had urinated on

herself and that Johnson had placed her in a chokehold and choked her so hard

that she was struggling to breathe. The trial court as the trier of fact was free to

believe the testimony of Harris and disbelieve the testimony of Johnson.

Further, the trier of fact was able to assess Harris’s testimony in light of the

testimony regarding her prior medical diagnosis and treatment and the

photographic evidence. The trial court specifically found that Johnson’s story

was not reasonable or credible and found that his testimony was completely

fabricated. Johnson does not show how the testimony against him was

somehow internally inconsistent and has not shown Harris’s testimony to be

incredibly dubious.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 7 of 8
[12]   Based upon the evidence most favorable to the trial court’s ruling as set forth

       above and in the record, we conclude that the trial court as the trier of fact

       could find beyond a reasonable doubt that Johnson committed the offense of

       strangulation as a level 6 felony.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Johnson’s conviction.


[14]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1855 | January 23, 2018   Page 8 of 8
