Opinion
24A-CR-959
08-20-2024
Emiliano Garcia Varrios, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark D. Altenhof Elkhart County Public Defender's Office Elkhart, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Tyler G. Banks Deputy Attorney General Timothy M. Hamilton Certified Legal Intern Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-1903-F6-421
ATTORNEY FOR APPELLANT Mark D. Altenhof Elkhart County Public Defender's Office Elkhart, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Tyler G. Banks Deputy Attorney General Timothy M. Hamilton Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Emiliano Garcia Varrios, Jr. ("Garcia") appeals his conviction of domestic battery, enhanced to a Level 6 felony, following a jury trial. The only issue he raises on appeal is whether the State presented sufficient evidence to support the conviction. We affirm.
Ind. Code § 35-24-2-1.3(a)(1) and (b)(1)(A).
Facts and Procedural History
[¶2] On July 15, 2018, Cassondra Varrios ("Cassondra") called 9-1-1 and requested that police come to her home. Over yelling in the background, Cassondra told 9-1-1 dispatch, "[M]y husband is drunk. I need an officer. He's [ ] assaulted our son." Ex. 1B at 00:15-00:20. As Cassondra finished her sentence, a man's voice said "what," and Garcia ended the call. Id. at 00:20-00:30; Ex. 2A at 01:38-01:46. Law enforcement was dispatched to the home at 12:03 a.m., and Officer Lee Brooks with the Elkhart Police Department arrived four minutes later.
[¶3] After arriving, Officer Brooks knocked on the front door, and Cassondra answered. Her hair was "messed up," and she appeared to be "kind of out of breath" and "to be still be [sic] kind of in shock." Tr. at 97; Ex. 2A at 00:30 00:34. Cassondra informed Officer Brooks that Garica had already left the home. After inviting Officer Brooks inside, Cassondra explained that Garcia had been "drinking, [ ] got violent, and my son tried helping me, and he got violent with him as well." Ex. 2A at 00:34-00:40. Garcia had held Cassondra down, struck her in the leg, and "slapped her in the face." Tr. at 97. During the altercation "things were being thrown," including chairs. Ex. 2A at 00:4400:55.
[¶4] Emiliano Barrios ("Barrios"), Garcia's 19-year-old son, was sitting in the back of the room on the floor in the home when Officer Brooks arrived. Barrios was out of breath when he spoke with Officer Brooks, and his shirt neck was torn, and his chest was exposed. Barrios's left shoulder and left side torso near his back had red marks and scratches. He was also bleeding from his left ear and had a mark on his jaw. Barrios stated that he "didn't like how [Garcia] was treating [Cassondra]" and had attempted to intervene. Ex. 2A at 1:13-1:37. Garcia then grabbed Barrios and started "punch[ing] him in the face," and Barrios threw a chair at Garcia. Tr. at 101. Garcia fled the home after ending Cassondra's 9-1-1 call, leaving her and Barrios as the only adults in the home when Officer Brooks arrived.
[¶5] The State charged Garcia with Class A misdemeanor domestic battery and filed a Level 6 felony enhancement because Garcia had a prior domestic battery conviction. At the March 18, 2024, jury trial, Officer Brooks testified, and recordings of the 9-1-1 call and Officer Brooks' body camera were entered into evidence and published to the jury. Cassondra and Barrios also testified and recanted their prior statements that Garcia had been violent with Cassondra and Barrios.
[¶6] The jury found Garcia guilty of domestic battery. Garcia admitted to having a prior domestic battery conviction, and the trial court imposed a two and one-half year sentence for the enhanced Level 6 felony conviction. This appeal ensued.
Discussion and Decision
[¶7] Garcia contends that the evidence is insufficient to support his conviction of domestic battery as a Class A misdemeanor.
Garcia admits that he had a prior domestic battery conviction, and he does not dispute that, if the Class A misdemeanor domestic battery conviction were supported by sufficient evidence, it was properly enhanced to a Level 6 felony pursuant to Indiana Code Section 35-42-2-1.3(b)(1)(A).
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. We 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. 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) (internal quotations and citations omitted).
[¶8] To convict Garcia of domestic battery as a Class A misdemeanor, the State was required to prove that: (1) Garcia (2) knowingly or intentionally (3) touched a family or household member (4) in a rude, insolent, or angry manner. See Ind. Code § 35-42-2-1.3(a)(1). Garcia maintains that there was not sufficient evidence that he touched Barrios or Cassondra in a rude, insolent, or angry manner because Barrios and Cassondra recanted their initial statements to Officer Brooks.
[¶9] Where a victim recants a prior out-of-court statement, "a conviction may not rest on [the] repudiated out-of-court statement unless there is substantial independent evidence of probative value from which the jury could find that the repudiated statement is credible." Chambless v. State, 119 N.E.3d 182, 193 (Ind.Ct.App. 2019) (citing Peckinpaugh v. State, 447 N.E.2d 576, 581 (Ind. 1983)), trans. denied. However, "[w]hen a witness's trial testimony contradicts a statement she made before trial, it is [within] the jury's province to decide which statement to believe. Discrepancies between pretrial statements and trial testimony go to the weight of testimony and credibility of the witness." Id. (citations omitted); see also Perry v. State, 78 N.E.3d 1, 8 (Ind.Ct.App. 2017) (internal quotations and citation omitted) ("The factfinder is obliged to determine not only whom to believe, but also what portions of conflicting testimony to believe, and is not required to believe a witness'[s] testimony even when it is uncontradicted.").
Moreover, "we will not second guess a jury's assessment of witness credibility unless the witness's testimony is inherently improbable" or "coerced, equivocal, [and] wholly uncorroborated testimony of incredible dubiosity." Chambless, 119 N.E.3d at 193. Garcia does not raise an "incredible dubiosity" argument, nor could he since that rule "applies only when a witness contradicts herself in a single statement or while testifying," not when there are conflicts between multiple statements, as is the case here. Id.
[¶10] Here there was substantial independent evidence of probative value from which the jury court find that Barrios's and Cassandra's repudiated statements were credible; namely, Officer Brooks's testimony regarding his observations of Barrios and Cassondra immediately following the 9-1-1 call, the recordings of the 9-1-1 call and Officer Brooks's body camera, and photographs of Barrios's injuries. Garcia's arguments to the contrary are simply requests that we reweigh the evidence and judge witness credibility, which we may not do. See Bailey, 979 N.E.2d at 135.
Conclusion
[¶11] The State presented sufficient evidence to support the jury's verdict finding Garcia guilty of domestic battery, as a Class A misdemeanor.
[¶12] Affirmed.
Altice, C.J., and Mathias, J., concur.