MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 27 2019, 8:45 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan                               Curtis T. Hill, Jr.
Wilson & Wilson                                         Attorney General of Indiana
Greenwood, Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Alfredo Ortiz,                                          November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-656
        v.                                              Appeal from the Johnson Superior
                                                        Court
State of Indiana,                                       The Honorable Lance D. Hamner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        41D03-1811-CM-970



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019                   Page 1 of 8
                                     Statement of the Case
[1]   Alfredo Ortiz appeals his conviction of domestic battery, a Class A

      misdemeanor. Ind. Code § 35-42-2-1.3(a)(1) (2016). We affirm.


                                                    Issue
[2]   Ortiz presents one issue for our review, which we restate as: whether there was

      sufficient evidence to support Ortiz’s conviction of domestic battery.


                               Facts and Procedural History
[3]   Ortiz had agreed to meet his estranged wife, Kanesha Young, at Walmart on

      November 18, 2018, so that he could give her a crib mattress for one of their

      children. On that date, Young was driven to Walmart by her friend, Connie

      Fox. When Ortiz failed to arrive at Walmart as planned, Fox drove Young to

      Ortiz’s house. Ortiz was not home when they arrived, so they waited for him

      to return. When Ortiz arrived, he was upset that Young was at his house and

      not at Walmart as agreed. He and Young immediately started arguing. At

      trial, Young testified that the verbal altercation turned into a physical

      altercation in which Ortiz choked Young with one hand, causing her

      discomfort and pain. She also testified that Ortiz struck her on the side of her

      face with a closed fist.


[4]   Meanwhile, Fox, who had remained in her car, testified that she could hear

      Ortiz and Young yelling at each other, but she did not know what they were

      saying because they were speaking Spanish. Fox further testified that she heard


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 2 of 8
      what sounded like a slap, but it was dark outside, and she was looking at her

      phone so she was unable to determine what had caused the sound. At that

      point, Young or Fox called the police, and Ortiz was arrested.


[5]   A bench trial was held on February 5, 2019, at which the State introduced

      photos taken on the night of the altercation showing a scratch on Young’s wrist

      and a bruise on her neck/collar bone area. Ortiz testified on his own behalf

      that Young hit him and pushed him that night. In addition, he testified that he

      did not touch Young but merely put his hands over his own face. Officer

      Harris, one of the responding officers, testified that he saw no signs of an injury

      on Ortiz. Ortiz was found guilty as charged and was sentenced to 206 days

      executed, with credit for 103 days. This appeal ensued.


                                   Discussion and Decision
[6]   Ortiz contends there is insufficient evidence to support his conviction. When

      we review a challenge to the sufficiency of the evidence, we neither reweigh the

      evidence nor judge the credibility of the witnesses. Sandleben v. State, 29 N.E.3d

      126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the

      evidence most favorable to the judgment and any reasonable inferences drawn

      therefrom. Id. If there is substantial evidence of probative value from which a

      reasonable factfinder could have found the defendant guilty beyond a

      reasonable doubt, the judgment will not be disturbed. Labarr v. State, 36 N.E.3d

      501, 502 (Ind. Ct. App. 2015).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 3 of 8
[7]   Ortiz was charged under Indiana Code section 35-42-2-1.3(a)(1), which

      provides that a person who knowingly or intentionally touches a family or

      household member in a rude, insolent, or angry manner commits domestic

      battery. In challenging only the touching element of his charge, Ortiz asserts

      that his conviction cannot stand because it “relies on a single witness[’s]

      testimony, specifically that of Young,” and that “Young’s testimony is

      improbable, uncorroborated and equivocal.” Appellant’s Br. p. 7.


[8]   We first note that a conviction may be sustained by the uncorroborated

      testimony of a victim. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App.

      2007), trans. denied. Further, appellate courts may apply the incredible dubiosity

      rule to impinge upon a factfinder’s function to judge the credibility of a witness

      when confronted with inherently improbable testimony or coerced, equivocal,

      wholly uncorroborated testimony of incredible dubiosity. Whatley v. State, 908

      N.E.2d 276, 282 (Ind. Ct. App. 2009), trans. denied. Application of this rule is

      rare and is limited to cases where a single witness presents inherently

      contradictory testimony which is equivocal or the result of coercion and there is

      a complete lack of circumstantial evidence of guilt. Id. In using this rule, the

      standard to be applied is whether the testimony is so incredibly dubious or

      inherently improbable that no reasonable person could believe it. Fancher v.

      State, 918 N.E.2d 16, 22 (Ind. Ct. App. 2009).


[9]   At trial, Young testified unequivocally that during the altercation, when she

      was pushing an aggressive Ortiz off of her, Ortiz put one of his hands around

      her throat and choked her, causing her pain and discomfort. In addition,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 4 of 8
       Young unambiguously testified that Ortiz struck her on the side of her face with

       a closed fist. Furthermore, Fox testified she heard what she described as a slap.


[10]   Ortiz claims that Young’s testimony is incredibly dubious because the

       photograph of Young’s wrist does not support her version of the events that

       Ortiz hit her and choked her. First, it is not improbable that Young could have

       easily received a scratch on her wrist during her struggle with Ortiz; she testified

       that she was pushing Ortiz off of her. Moreover, simply because she was

       scratched on her wrist does not negate the fact that she was also choked and hit

       with a closed fist; the actions are not mutually exclusive. Thus, contrary to

       Ortiz’s argument, the photograph of Young’s wrist does not render her

       testimony inherently improbable, coerced, or equivocal.


[11]   Without any supporting argument, Ortiz also notes that the State did not

       introduce photographic evidence to support Young’s claim that Ortiz hit her on

       the side of her face with a closed fist. However, photographic evidence is not

       required. As we stated previously, a conviction may be sustained by the

       uncorroborated testimony of a victim. Baltimore, 878 N.E.2d at 258. Moreover,

       Young testified that her wrist and neck were the areas where she had pain at the

       time she spoke with the officers. In addition, we cannot overlook the testimony

       of Fox that she heard what she described as being the sound of a slap during the

       altercation.


[12]   Ortiz further asserts that Young’s testimony is incredibly dubious because the

       photograph of her neck/collar bone area shows an injury in a different location


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 5 of 8
       on her body from where she testified to having been touched. In support of this

       argument, Ortiz states that Young testified that he put his hand around her

       “throat,” yet the photo depicts a small bruise approximately one and one-half

       inches below her “neck.” Tr. Vol. 2, p. 7; Appellant’s Br. p. 10. First, we note

       that Young actually testified that Ortiz was “choking” her. Tr. Vol. 2, p. 6.

       “Throat” was counsel’s word choice in describing for the record the action

       Young was demonstrating when asked what Ortiz did to her. Id. at 7. Ortiz is

       attempting to create an argument on mere semantics using, not Young’s actual

       testimony, but the words of her counsel. Young’s testimony cannot be found to

       be incredibly dubious based on statements that were not hers. Furthermore,

       Young testified that Ortiz used one hand to choke her. She was not asked to

       state with exact specificity the area where he placed his hand, and it is certainly

       not improbable that a bruise in the general area of one’s neck/collar bone could

       be caused by being choked. The photo of a bruise on Young’s lower

       neck/collar bone area does not render her testimony inherently improbable or

       equivocal.


[13]   Next, Ortiz avers that Young’s recent conviction of felony auto theft, evidence

       of which was introduced at trial, causes her testimony to be incredibly dubious.

       In addition, he claims that Young was motivated to present an improbable story

       to benefit herself in any divorce proceedings, thus causing her testimony to be

       incredibly dubious. Neither Young’s conviction nor her separation from her

       husband make her trial testimony inherently contradictory or equivocal; rather,

       the fact of her conviction and any motivation to fabricate a story go to her


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 6 of 8
       credibility, which we are not to evaluate on appeal. It is within the factfinder’s

       province to judge the credibility of the witnesses. Brasher v. State, 746 N.E.2d

       71, 73 (Ind. 2001). In doing so, the trier of fact is entitled to determine which

       version of the incident to credit. Schmid v. State, 804 N.E.2d 174, 179 (Ind. Ct.

       App. 2004), trans. denied. Here, the trial court heard the evidence, including

       that of Young’s conviction and separation, and found her version of the

       altercation to be credible. We will not and cannot disturb the trial court’s

       credibility determination.


[14]   Ortiz also argues that Young’s testimony is incredibly dubious because there is

       a lack of circumstantial evidence. A lack of circumstantial evidence does not

       cause a witness’s testimony to be incredibly dubious; rather, a witness’s

       testimony may be found to be incredibly dubious when he or she presents

       inherently contradictory testimony which is equivocal or the result of coercion

       and there is a complete lack of circumstantial evidence of guilt. Here, it has not

       been shown that Young’s testimony was inherently contradictory, equivocal, or

       the result of coercion. The State presented direct evidence, in the form of

       Young’s testimony, that Ortiz choked her and hit her on the side of her face

       with a closed fist; no circumstantial evidence was needed. A conviction may be

       sustained by the uncorroborated testimony of a victim, Baltimore, 878 N.E.2d at

       258.


[15]   Ortiz has failed to demonstrate that Young’s testimony is so incredibly dubious

       or inherently improbable that no reasonable person could believe it. His

       argument is merely an invitation for this Court to invade the province of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 7 of 8
       trier of fact by reweighing the evidence and reassessing witness credibility. We

       decline the invitation.


                                                Conclusion
[16]   For the reasons stated, we conclude there was sufficient evidence to support

       Ortiz’s conviction of domestic battery.


[17]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-656 | November 27, 2019   Page 8 of 8
