Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                              FILED
before any court except for the                             Jul 17 2012, 9:08 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                          CLERK
                                                                 of the supreme court,

law of the case.                                                 court of appeals and
                                                                        tax court




ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ANDREW J. BORLAND                                 GREGORY F. ZOELLER
Borland & Gaerte                                  Attorney General of Indiana
Indianapolis, Indiana
                                                  RICHARD C. WEBSTER
RUTH JOHNSON                                      Deputy Attorney General
Indianapolis, Indiana                             Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL BERTHIAUME,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 49A02-1111-CR-1018
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Teresa Hall. Commissioner
                               Cause No. 49G16-1107-FD-53323




                                        July 17, 2012



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       Following a bench trial, Michael Berthiaume appeals his convictions of

strangulation, a Class D felony, and battery, a Class A misdemeanor. Berthiaume raises

one issue for our review, which we restate as: whether sufficient evidence was presented

to support his convictions for strangulation and battery. Concluding the evidence was

sufficient, we affirm.

                              Facts and Procedural History

       Berthiaume and Lisa Spangler lived together in Indianapolis, Indiana, for

approximately two months. On July 27, 2011, Spangler returned to the house from

selling a ring at a pawn shop to Berthiaume’s yelling, screaming, threats, and accusations

of stealing Berthiaume’s pills and money. Berthiaume told Spangler that she was not

going anywhere until she gave him his pills and money. Spangler eluded Berthiaume and

ran out the back door to the driveway. Berthiaume ran after Spangler, wrapped his arm

around her throat, and began to choke her. Spangler could not breathe and became

lightheaded. She panicked and bit into Berthiaume’s arm which caused him to release

her. Berthiaume retaliated by punching Spangler in the mouth, knocking out her right

front tooth, and causing her to fall to the ground and become unconscious. Her right arm

was injured in the fall.

       Spangler regained consciousness to Berthiaume kicking her in the ribs, breast, and

stomach. She got up, ran back to the house, and attempted to close the door when

Berthiaume entered behind her. Spangler escaped and ran to her car, which was parked

in front of the house. She got into the car, locked the doors, and started the car.

Berthiaume ran after her, and started hitting the driver’s window as he yelled at Spangler
                                            2
to get out of the car. Spangler drove away, went to work where Berthiaume also worked,

and told the employees what Berthiaume had done to her. Berthiaume arrived at work

within a few minutes after Spangler and entered the building yelling that he was going to

send Spangler back to jail. One of the employees called the police but Berthiaume left

before the police arrived.

        A police officer arrived, took Spangler’s statement, and had an evidence

technician take photos of Spangler’s injuries, including bruising and injury on her right

arm; bruises and marks on her neck; and loss of her right-front tooth. The State charged

Berthiaume with four counts: strangulation, criminal confinement, domestic battery, and

battery. The domestic battery charge was dismissed before trial. 1 The trial court found

Berthiaume guilty of strangulation, a Class B felony, and battery, a Class A

misdemeanor, and not guilty of criminal confinement. He was sentenced to 730 days for

strangulation, to be served concurrently with 365 days for battery. Berthiaume now

appeals his convictions.

                                        Discussion and Decision

                                            I. Standard of Review

        Berthiaume contends there was insufficient evidence to support his convictions of

strangulation and battery because his convictions were based on the incredibly dubious

testimony of Spangler, the sole witness and victim.                     In general, when reviewing a

challenge to the sufficiency of the evidence to support a conviction, we neither reweigh

the evidence nor judge the credibility of witnesses. Ware v. State, 859 N.E.2d 708, 724


        1
         The domestic battery charge was dismissed once the State established that Spangler and Berthiaume were
just roommates and not involved in a domestic relationship.
                                                       3
(Ind. Ct. App. 2007), trans. denied. We consider the evidence in a light most favorable to

the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We must affirm the

conviction if the evidence of probative value and reasonable inferences drawn therefrom

could have allowed a reasonable trier of fact to find all elements of the crime proven

beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

       Pursuant to the narrow limits of the “incredible dubiosity” rule, however, “[i]f a

sole witness presents inherently improbable testimony and there is a complete lack of

circumstantial evidence,” we may impinge upon a fact finder’s role to judge the

credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). “Application of

this rule is rare and . . . applied [if] the testimony is so incredibly dubious or inherently

improbable that no reasonable person could believe it.” Id.

                        II. Evidence of Strangulation and Battery

       To convict Berthiaume of strangulation, the State was required to prove beyond a

reasonable doubt that Berthiaume knowingly or intentionally, in a rude, angry, or

insolent manner, impeded Spangler’s normal breathing or blood circulation by applying

pressure to her throat or neck. See Ind. Code § 35-42-2-9(b). Further, to convict

Berthiaume of battery as a Class A misdemeanor, the State was required to prove beyond

a reasonable doubt that Berthiaume knowingly or intentionally touched Spangler in a

rude, insolent, or angry manner, resulting in bodily injury to Spangler. See Ind. Code §

35-42-2-1(a) (1)(A).

       Berthiaume argues that Spangler’s testimony was incredibly dubious because her

testimony was a disorganized and rambling version of the incidents. Berthiaume further

claims that because the trial court found Spangler’s testimony about the alleged criminal
                                             4
confinement to be inconsistent, all of her testimony should be discounted. He also asserts

that Spangler’s testimony is the only evidence that he committed battery and

strangulation against Spangler.

       We disagree and conclude that the incredible dubiosity rule is not applicable in

this case. As previously stated, we will only apply the incredible dubiosity rule when the

sole witness’s testimony is inherently contradictory and there is a complete lack of

circumstantial evidence proving the offender’s guilt. Here, in addition to Spangler’s

testimony, there is circumstantial evidence from the pictures taken by the evidence

technician after the incident illustrating bruises and marks around Spangler’s neck which

is consistent with strangulation; blood, bruising, and a missing tooth which is consistent

with being punched in the mouth by Berthiaume; and bruises and injury to Spangler’s

arm which is consistent with her claim that she fell after being punched and losing

consciousness. Further, Berthiaume’s own testimony corroborates Spangler’s testimony

by confirming the altercation and providing pictures of a mark on his arm, minor bruising

on his leg, and a red mark on the left side of his neck.

       We acknowledge, as Berthiaume points out, that the trial court found him not

guilty of the criminal confinement charge because there were “holes” in Spangler’s

testimony about that charge.       Transcript at 111.      That Spangler’s testimony was

insufficient to prove the required elements of criminal confinement does not render her

testimony inherently improbable as a whole. The trial court also found that Spangler’s

testimony regarding the strangulation and battery was supported by the photographic

evidence of her physical condition following the incident and that Berthiaume’s

testimony attempting to portray Spangler as the aggressor “just went too far” and was
                                              5
“not . . . credible whatsoever.” Id. The trial court carefully parsed and evaluated the

testimony and it was within its province to do so. We conclude sufficient evidence was

presented to support Berthiaume’s convictions of battery and strangulation.

                                       Conclusion

      The incredible dubiosity rule is not applicable in this case. Sufficient evidence

supports Berthiaume’s convictions of battery and strangulation and his convictions are

therefore affirmed.

      Affirmed.

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




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