MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Aug 25 2017, 8:45 am

the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Martin,                                         August 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-503
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow-
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1605-F6-20076



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017        Page 1 of 6
                                                  Case Summary
[1]   Nicholas Martin appeals his conviction for Level 6 felony strangulation. We

      affirm.


                                                          Issue
[2]   The issue before us is whether there is sufficient evidence to support Martin’s

      conviction.


                                                          Facts
[3]   The evidence most favorable to the conviction is that on the evening of May 8,

      2016, Martin, Dinisha Harris, Shilia Giles, Cilitha, and Patrice met for drinks at

      Cilitha’s house in Indianapolis.1 Martin drove the group to Tiki Bob’s bar, from

      which they proceeded to a nightclub, Blue. Approximately twenty minutes

      later, Harris and Giles left the group behind at Blue and went to meet someone

      at a venue across the street. Martin, who had driven the group, sent belligerent

      text messages to Harris and Giles demanding to know their whereabouts and

      insisting that it was time to leave.


[4]   When Harris and Giles reunited with the group, Martin berated them and

      called them “b******” and “s****” for leaving him at Blue. Tr. p. 11. En route

      to Cilitha’s house, Martin, Giles, and Harris started fighting in the car. When




      1
          The record does not include surnames for Cilitha or Patrice.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017   Page 2 of 6
      they arrived at Cilitha’s house, Giles remained outside. Inside, Harris packed

      her belongings and prepared to leave.


[5]   Martin apologized and tried to persuade Harris to stay. As Harris walked away

      with her belongings, Martin struck the back of her head with his fist. A

      physical altercation ensued between Martin and Harris, with Cilitha trying to

      intervene. Harris ran for the door, but Martin caught her and “threw [her] on

      the couch and . . . choked [her].” Id. at 13. “He used both of his hands and he

      wrapped them around [her] neck and he squoze [sic].” Id. At trial, Harris

      testified that Martin hurt her and restricted her breathing.


[6]   Concerned that Harris was taking too long to emerge from the house, Giles

      knocked at the front door. When Cilitha unlocked the door, Giles entered and

      observed Harris crying.


[7]   Harris suffered an “extreme, extreme migraine” after the incident and sought

      medical treatment. Id. at 14. The following day, she reported the incident to

      police, who photographed her injuries – a split lip and a bruised arm – in the

      course of their investigation.


[8]   On May 31, 2016, the State charged Martin with Level 6 felony strangulation

      and class A misdemeanor battery. After a bench trial on February 9, 2017,

      Martin was found guilty on both counts, but the trial court merged the battery

      conviction with the strangulation conviction. He was sentenced to 365 days in

      jail, suspended to probation. The court also imposed a no-contact order and



      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017   Page 3 of 6
       ordered domestic violence counseling and electronic monitoring. Martin now

       appeals.


                                                      Analysis
[9]    Martin argues there is insufficient evidence to support his conviction. We

       neither reweigh the evidence nor judge the credibility of witnesses. Willis v.

       State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation marks

       omitted). We only consider the evidence supporting the judgment and any

       reasonable inferences that can be drawn from such evidence. Id. A conviction

       will be affirmed if there is substantial evidence of probative value supporting

       each element of the offense such that a reasonable trier of fact could have found

       the defendant guilty beyond a reasonable doubt. Id. It is the job of the fact-

       finder to determine whether the evidence in a particular case sufficiently proves

       each element of an offense, and we consider conflicting evidence most

       favorably to the judgment. Id.


[10]   To convict Martin of strangulation as a Level 6 felony, the State was required to

       prove that he, in a rude, angry, or insolent manner, knowingly or intentionally

       applied pressure to Harris’s throat or neck; or (2) obstructed Harris’s nose or

       mouth in a manner that impeded her normal breathing or blood circulation. See

       Ind. Code § 35-42-2-9(b)(2016).2 Martin argues that there was insufficient




       2
        The legislature amended Indiana Code section 35-42-2-9, effective as of July 1, 2017, to provide that a
       person commits Level 6 felony strangulation if the person applies pressure to the torso of another person.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017              Page 4 of 6
       reliable evidence to sustain his conviction, given the parties’ alcohol

       consumption, heightened emotions, and the lack of corroborating physical

       evidence – namely, the alleged inconsistency of Harris’s injuries with

       strangulation of the neck and throat.


[11]   Martin essentially asks us to reweigh the evidence, to assess the credibility of

       witnesses, and to favor his testimony over that of Harris and Giles. We cannot

       do so. Harris testified that, when she attempted to leave Cilitha’s house, Martin

       placed his hands on her throat and squeezed, causing her pain and rendering

       her unable to breathe. She also testified that she suffered a migraine afterwards.

       Giles testified that she saw Harris crying immediately after the incident. In his

       testimony, Martin conceded that he insulted and tried to grab Harris, but he

       denied “know[ing] where any of the strangulation stuff [allegations] came

       from.” Tr. p. 45.


[12]   The trial court was in the best position to weigh the evidence and to assess the

       witnesses’ credibility, and it was unpersuaded by Martin’s testimony. Nor are

       we persuaded that Harris’s testimony was unreliable because of alcohol use,

       heightened emotions, and the alleged lack of corroborating physical evidence of

       strangulation.       The lack of corroborating evidence bears on the victim’s

       credibility, and we treat the issue like any other issue concerning the credibility

       of witnesses; we do not judge the credibility of witnesses. Griffith v. State, 59

       N.E.3d 947, 958 (Ind. 2016). Moreover, the State presented testimony of more

       than one witness. Giles’s testimony that Harris was crying after the incident

       certainly bolsters Harris’s testimony.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017   Page 5 of 6
[13]   The State presented substantial evidence of probative value that Martin squeezed

       Harris’s throat such that she could not breathe. Sufficient evidence exists to

       sustain Martin’s conviction for strangulation.


                                                 Conclusion
[14]   Sufficient evidence supported Martin’s conviction. We affirm his conviction for

       Level 6 felony strangulation.


[15]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-503 | August 25, 2017   Page 6 of 6
