 Pursuant to Ind.Appellate Rule 65(D), this                                Aug 11 2014, 10:30 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:

GARY L. GRINER                                       GREGORY F. ZOELLER
Griner & Company                                     Attorney General of Indiana
Mishawaka, Indiana
                                                     RICHARD C. WEBSTER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT HOFFMAN,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 71A03-1401-CR-041
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable Roland Chamblee, Judge
                              Cause No. 71D08-1208-FD-750


                                          August 11, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        Following a jury trial, Robert Hoffman was convicted of Strangulation1 as a class D

felony. Hoffman now appeals, presenting two issues for our review:

        1. Did the State present sufficient evidence to sustain Hoffman’s conviction?

        2. Did the trial court properly assess a domestic violence fee?

        We affirm in part, reverse in part, and remand with instructions.

        On the night of August 14, 2012, Hoffman was at the residence of his girlfriend,

A.S. Hoffman and A.S. were drinking that night. Hoffman became intoxicated and began

behaving belligerently. At one point, Hoffman broke A.S.’s lamp and vacuum cleaner and

vomited on the floor. When A.S. attempted to help Hoffman get up from the ground, he

forcibly held A.S.’s head and upper body to his chest for over a minute, restricting A.S.’s

breathing. A.S. was eventually able to free herself. At this time, Hoffman made his way

to the backyard, fell against the fence, and broke it. A.S. went outside and attempted to

pull Hoffman away from the fence at which point Hoffman began hitting her in the face

and head. As A.S. attempted to leave the scene, Hoffman grabbed and squeezed her throat,

cutting off her breathing. A.S. was able to escape Hoffman’s grasp and re-enter the house.

A.S. called the police and reported Hoffman’s actions. Two police officers arrived at the

house, both of whom observed marks on A.S.’s neck.

        Hoffman was arrested and charged with strangulation as a class D felony. A jury


1
  The version of the governing statute, i.e Ind. Code Ann. § 35-42-2-9 (West, Westlaw 2012) in effect at
the time this offense was committed classified it as a class D felony. This statute has since been revised
and in its current form reclassifies the offense as a Level 6 felony. See I.C. § 35-42-2-9 (West, Westlaw
current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical
Session of the 118th General Assembly). The new classification, however, applies only to offenses
committed on or after July 1, 2014. See id. Because this offense was committed on August 14, 2012, it
retains the former classification.
                                                    2
found Hoffman guilty as charged. At the sentencing hearing, the trial court sentenced

Hoffman to eighteen months imprisonment and suspended the entirety of the sentence to

supervised probation. The trial court also assessed a $50.00 domestic violence fee against

Hoffman. Hoffman now appeals.

                                            1.

       Hoffman argues that the State presented insufficient evidence to support his

strangulation conviction. To convict Hoffman of strangulation, the State was required to

prove beyond a reasonable doubt that Hoffman, in a rude, angry, or insolent manner,

knowingly or intentionally applied pressure to A.S.’s throat or neck in a manner that

impeded her normal breathing or blood circulation. See I.C. § 35-42-2-9. Hoffman argues

there is insufficient evidence to prove that A.S.’s normal breathing was impeded.

       Our standard of reviewing challenges to the sufficiency of the evidence supporting

a criminal conviction is well settled.

       When reviewing a challenge to the sufficiency of the evidence underlying a
       criminal conviction, we neither reweigh the evidence nor assess the
       credibility of witnesses. The evidence—even if conflicting—and all
       reasonable inferences drawn from it are viewed in a light most favorable to
       the conviction. “[W]e affirm if there is substantial evidence of probative
       value supporting each element of the crime from which a reasonable trier of
       fact could have found the defendant guilty beyond a reasonable doubt.”
       Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). A conviction can be
       sustained on only the uncorroborated testimony of a single witness, even
       when that witness is the victim.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

       Under the incredible dubiosity rule, which Hoffman asks us to invoke here, a

                                            3
defendant’s conviction may be reversed if a sole witness presents inherently improbable

testimony, and there is a complete lack of circumstantial evidence. Love v. State, 761

N.E.2d 806 (Ind.2002). The rule is applicable only where the court has confronted

inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony

of incredible dubiosity. Id. 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.

       Hoffman argues that the State’s sole evidence that A.S.’s normal breathing was

impeded came from A.S.’s testimony and without her testimony there would be insufficient

evidence to sustain a conviction. We find nothing inherently incredible about A.S.’s

testimony. A.S. testified that as she attempted to leave, Hoffman grabbed her throat and

“gripped [her] with all of his force, and [she] couldn’t breathe.” Transcript at 12.

Moreover, A.S.’s claims were corroborated by the officers who saw red marks on her neck

when they arrived at the house.      In summary, A.S.’s testimony was not inherently

improbable and Hoffman’s argument is nothing more than an invitation to reweigh the

evidence and judge the credibility of the witness, which we will not do. The State presented

sufficient evidence to support Hoffman’s conviction.

                                             2.

       Finally, Hoffman argues that the trial court erred by imposing the domestic violence

fee as a term of Hoffman’s sentence. The State correctly concedes that the imposition of

the domestic violence fee was erroneous.

       Ind. Code Ann. § 33-37-5-13 (West, Westlaw current with all 2014 Public Laws of

                                             4
the 2014 Second Regular Session and Second Regular Technical Session of the 118th

General Assembly) provides that:

       The court shall order a person to pay a domestic violence prevention and
       treatment fee of 50 dollars to the clerk in each criminal action in which:
       (1) the person is found to have committed the offense of:
               (A) murder (IC 35-42-1-1);
               (B) causing suicide (IC 35-42-1-2);
               (C) voluntary manslaughter (IC 35-42-1-3);
               (D) reckless homicide (IC 35-42-1-5);
               (E) battery (IC 35-42-2-1);
               (F) domestic battery (IC 35-42-2-1.3); or
               (G) rape (IC 35-42-4-1); and
       (2) the victim:
               (A) is a spouse or former spouse of the person who committed an
               offense under subdivision (1);
               (B) is or was living as if a spouse of the person who committed the
               offense of domestic battery under subdivision (1)(F); or
               (C) has a child in common with the person who committed the offense
               of domestic battery under subdivision (1)(F).

       Hoffman was convicted of class D felony strangulation, which is not a qualifying

offense set out in the statute. Therefore, Hoffman was improperly ordered to pay the

domestic violence fee. We reverse the trial court’s imposition of the fee and remand with

instructions to vacate that portion of the judgment.

       Judgment affirmed in part, reversed in part, and remanded with instructions.

VAIDIK, C.J., and MAY, J., concur.




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