Angela Townsell v. State of Indiana (NFP)
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Pursuant to Ind. Appellate Rule 65(D), this 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. FILED Nov 28 2011, 9:53 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JAMES A. EDGAR J. Edgar Law Offices, Prof. Corp. Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana MICHELLE BUMGARNER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ANGELA TOWNSELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1104-CR-343 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc T. Rothenberg , Judge Cause No. 49F09-0909-FD-78274 November 28, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge STATEMENT OF THE CASE Angela Townsell appeals her convictions of intimidation, a class A misdemeanor,1 and battery, a class A misdemeanor.2 We affirm. ISSUES I. Whether the State presented sufficient evidence to support Townsell s conviction of intimidation. II. Whether the State presented sufficient evidence to support Townsell s conviction of battery. FACTS On September 4, 2009, Townsell called an Indianapolis Blockbuster store and complained about a late fee that had been assessed to her account. Townsell believed that she had timely returned the DVD and that she did not owe the late fee. Townsell used foul and abusive language on the phone with Blockbuster employee, Amy Dickinson, and threatened to come to the store to show [Dickinson] who she was. (Tr. 7). Dickinson felt fear over the threatening language and ended the call. After ending the call, Dickinson removed the late fee from Townsell s account. Following the phone call, Townsell and her companion, George Kent, drove to the Blockbuster store. Upon arrival, Townsell became hostile with Dickinson, shoving her, going behind the counter where Dickinson was standing, and grabbing her by the arm. Townsell was yelling and screaming and stated that she was going to fuck [Dickinson] 1 Ind. Code § 35-45-2-1. 2 I.C. § 35-42-2-1. 2 up, causing Dickinson to become fearful and to call 911. At some point during the confrontation, Melody Kelly, a postal worker delivering mail to the store, stepped between Townsell and Dickinson. Dickinson was not hostile toward Townsell, and Townsell eventually left the store with Kent. Kelly followed Townsell to her vehicle in an attempt to record the license plate number, but Townsell covered the license plate with paper and threatened Kelly, causing Kelly to retreat. Indianapolis Police Officer Stacy Lettinga3 was dispatched to the store and found Dickinson crying and kinda shaking, look[ing] miserably upset. (Tr. 41). Officer Lettinga observed redness on Dickinson s arm. Dickinson gave Townsell s address to Officer Lettinga, who went to Townsell s home. After listening to Townsell s explanation of the events, Officer Lettinga arrested her. The State charged Townsell with criminal confinement, a class D felony; intimidation, a class A misdemeanor; and battery, a class A misdemeanor. After a bench trial, the court found Townsell guilty of intimidation and battery. Before sentencing, Townsell voluntarily completed an anger management course. The trial court sentenced her to 180 days, with 176 days suspended and 20 hours community service. 1. Intimidation In order to prove intimidation as charged, the State was required to show that Townsell communicated a threat to Dickinson with the intent that Dickinson be placed in fear of retaliation for a prior lawful act. See I.C. § 35-45-2-1. Here, the prior lawful act was defined in the charging information as assessment of a fine for a late video return. 3 By the time of the trial, Officer Lettinga s surname was Riojas. (Tr. 40). 3 (App. 26). Townsell contends that the State failed to submit sufficient evidence to establish that assessment of the late fee was a lawful act. In support of her contention, she cites cases where fees have been assessed that were later found to be unlawful. Our standard of review for sufficiency claims is well settled. In reviewing sufficiency of the evidence claims, this court does not reweigh the evidence or assess the credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans. denied. We consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences drawn therefrom. Id. at 269-70. The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier of fact. Id. at 270. Here, Townsell did not dispute either the legality of the late fee or of Dickinson s right as a Blockbuster manager to assess the fee pursuant to Blockbuster s policy regarding failure to return a rented DVD. Her argument was that she had timely turned in the DVD and that the late fee was mistakenly assessed. Our supreme court has previously held that [i]t is certainly true that when determining whether an element exists, the jury may rely on its collective common sense and knowledge acquired through everyday experiences. Halsema v. State, 823 N.E.2d 668, 673 (Ind. 2005) (citing 12 Robert Lowell Miller, Jr., Indiana Evidence § 201.101 (1995)). Here, the trial court, like a jury, was free to use its common sense and knowledge. It could have reasonably concluded that the late fee was assessed in accordance with Blockbuster s standard practice. Furthermore, the court could have reasonably assumed that something as commonplace as a late fee on a DVD rental, like other types of rental and library late 4 fees, fell within the commonplace and everyday experience of the trial court and that no direct evidence was required. We conclude that there was sufficient evidence to support the elements of intimidation. 2. Battery In order to prove battery as charged, the State was required to show that Townsell knowingly or intentionally touched Dickinson in a rude, insolent, or angry manner and that the touch caused injury to Dickinson s arm. See I.C. § 35-42-2-1(a)(1). Townsell contends that Dickinson s testimony was incredibly dubious or inherently improbable because she would have us believe that she was calm throughout the process and never gave any cause for provocation and that Townsell became violent without justification. Townsell s Br. at 12. Townsell further contends that if her purpose for traveling to the Blockbuster was satisfied by Dickinson removing the fee, and if Dickinson communicated to Townsell that the fee had been removed, then Townsell s aggression becomes nonsensical. Id. at 13. Townsell s argument lacks merit. The incredible dubiosity rule applies where a sole witness presents testimony that is inherently improbable or coerced, equivocal, or wholly uncorroborated. Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001), cert. denied, 537 U.S. 831 (2002). Incredibly dubious or inherently improbable testimony is that which runs counter to human experience and which no reasonable person could believe. Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000). Here, Townsell s conviction is not based on incredibly dubious testimony. Both Dickinson and Kelly testified to Townsell s demeanor, including her threats and 5 aggressive behavior. Officer Lettinga observed the red marks on Dickinson s arm and her miserably upset state. Testimony from multiple witnesses and circumstantial evidence of Townsell s guilt render the incredible dubiosity exception inapplicable in this case. The evidence was sufficient to support Townsell s conviction of battery. Affirmed. FRIEDLANDER, J., and VAIDIK, J., concur. 6
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