Rodrigo Hernandez v. State of Indiana

Over the course of seven to ten years, Hernandez and a woman named

Gabriela Plata (“Plata”) were involved in an “on and off” relationship,

although during that time Hernandez was married to another woman. Tr. at 4

5, 27. According to Plata, she and Hernandez lived together, at one point, for a

couple of months. She also maintains that they have one daughter together, a

fact which Hernandez neither admits nor denies. That child, who was age six



1 See Ind. Code § 35-42-3-3(a)(1). We note that the statutes under which Hernandez was convicted were amended effective July 1, 2014; however, we apply the statutes that were in effect at the time he committed his offenses in May 2014. 2 See Ind. Code § 35-42-2-1.3(a). 3 Hernandez was also convicted of Class D felony battery resulting in bodily injury, Class A misdemeanor domestic battery, and Class A misdemeanor battery resulting in bodily injury, but those three convictions were merged into the Class D felony domestic battery conviction.

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at the time of the incident at issue, lived with Plata and Plata’s other minor

daughter (together, “Daughters”) in an Indianapolis apartment.

[4] On May 30, 2014, around 7:00 or 8:00 p.m., Plata went to Hernandez’s place of

employment, a night club where Hernandez worked as a disc jockey, and she

brought Daughters with her. According to Plata, she went there to confront

Hernandez about a rude and vulgar voicemail that he had left her earlier in the

day; however, Hernandez asserted that she came to his employment to confront

him because he had ignored texts that Plata had sent to him earlier in the day.

Plata and Daughters did not ever leave the car, but Plata exchanged words with

Hernandez, and then she left.

[5] Later that night, at around 2:00 a.m. on May 31, Plata was home and asleep in

her bed. Daughters were also there, sleeping with Plata in her bed. Plata was

awakened by the sound of loud knocking at her front door. She got up, went to

another room, looked out, and upon seeing that it was Hernandez, she started

walking back to her bedroom. However, the knocking continued and was loud,

so she went to the door and opened it slightly. She told him, “[T]here is no

reason for you to be here knocking at my door.” Tr. at 9. She tried to shut the

door, but Hernandez pushed the door open with one hand and pushed her with

the other. Plata fell to the floor, and “at the same time . . . he shut[ ] the door

behind him.” Id. at 11.

[6] When Plata tried to stand up, Hernandez held her to the floor by pushing with

his hand or arm on her left arm. He hit and kicked her while she was on the

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ground. She struggled, and when she was able to get herself up, she told

Hernandez to leave, but he sat down in her nearby dining room and laughed at

her, saying, “Look at you, always thinking you’re so tough.” Id. at 13. Plata

could not call the police, as her cell phone remained in her bedroom, and she

was “trying to prevent . . . all of that ending up happening in my room in front

of my [D]aughters.” Id. at 14. Hernandez warned Plata to “be careful,”

stating, “I can kill you myself.” Id. After running his finger across her neck, in

a slicing motion, he left her apartment.

[7] Plata immediately contacted police, who responded and spoke with her, but did

not take any photographs because the officer did not see any visible signs of

injury. After police left, Plata returned to bed, and when she woke in the

morning, Plata was sore. She noticed some scratch marks, redness, and

bruising on her arms and legs, so she took pictures. On Tuesday, June 2, 2014,

Plata applied for and obtained a protective order against Hernandez. While

applying for the protective order, the employee assisting her noticed bruising.

Police thereafter arrived and took pictures of Plata’s arms, back, and legs.

[8] On July 7, 2014, the State charged Hernandez with the following five counts:

Count I, Class D felony criminal confinement; Count II, Class D felony

domestic battery; Count III, Class D felony battery resulting in bodily injury;

Count IV, Class A misdemeanor domestic battery; and Count V, Class A

misdemeanor battery resulting in bodily injury. Hernandez waived his right to

a jury trial.

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[9] At the July 24, 2015 bench trial, Plata testified that Hernandez’s knocking at

her door was loud, and she did not want to wake the neighbors or Daughters,

so she opened the door enough to allow her to tell him to leave. She said that,

after he pushed the door open and she fell, he held her to the ground. She

described, “He’s holding me down,” and “I can’t get up.” Id. at 12. Hernandez

kicked Plata in her back, arms, and legs. Plata testified that Hernandez was

“mad and loud.” Id. at 10. She said she was “praying for” Daughters and was

trying to prevent the altercation “from happening in my room,” where

Daughters were asleep. Id. at 13. The pictures that Plata took of herself that

morning when she awoke were admitted into evidence, as were the ones taken

by police on June 2.

[10] Thereafter, Hernandez testified in his defense.4 He explained that Plata came to

his place of employment because she was angry that he had not answered her

earlier text messages. He stated that Daughters were in the car with Plata at his

place of employment, as she angrily spoke to him, and they exchanged heated

words. As to why he went to her apartment at about 2:00 a.m., after he left

work, Hernandez testified, “[B]ecause she left when she was angry and she

drinks and I was worried about her drinking and driving and I was worried

about the [D]aughters.” Id. at 32. Hernandez testified that, contrary to what

Plata had said while testifying, he knocked quietly at her door, one time. He



4 The record reflects that a Spanish interpreter was used during Hernandez’s testimony. Tr. at 34; Appellant’s App. at 28 (“Interpreter services used”).

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said that she answered the door quickly, which indicated to him that she had

been awake. Hernandez told her that he “just want[ed] to talk.” Id. at 33. He

testified that he did not enter her apartment right away, explaining that initially

he “waited outside[,]” but then went “into her house [] because she got

aggressive and she was yelling loudly.” Id. Hernandez stated that Plata was

gesturing at him and then “collapsed” or “fell” at the door. Id. at 36. He lifted

her up, they went inside, and he closed the door and sat down. When Plata

started insulting “my wife and daughters,” Hernandez left, slamming the door.

Id. at 37. Hernandez denied ever pushing Plata, holding her down, or kicking

or hitting her. He said that Plata “was the one that was upset” and that he tried

to calm her. Id. at 41.

[11] The trial court took the matter under advisement, later issuing an order, finding,

among other things, “The court finds Mr. Hernandez’[s] testimony not credible

and Ms. Plata’s testimony credible.” Appellant’s App. at 8. The trial court found

Hernandez guilty of all charges, but ordered that Counts II through V merge,

and it entered judgment of conviction on Counts I and II. Hernandez filed a

motion to correct error, alleging that the evidence was insufficient to prove the

charged offenses because Plata’s testimony was not credible, and her pictured

injuries were not consistent with her testimony that Hernandez kicked and hit

her; the trial court denied the motion. Hernandez now appeals.

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Discussion and Decision

I. Sufficiency of the Evidence

[12] Hernandez claims the evidence was insufficient to convict him of criminal

confinement and felony domestic battery. When reviewing the sufficiency of

the evidence to support a conviction, we must consider only the probative

evidence and reasonable inferences supporting the verdict. Boyd v. State, 889

N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied. We do not assess witness

credibility or reweigh the evidence. Id. We consider conflicting evidence most

favorably to the trial court’s ruling. Id. We affirm the conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Id. It is not necessary that the evidence overcome every

reasonable hypothesis of innocence. Id. The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id.

A. Criminal Confinement

[13] Hernandez was convicted of Class D felony criminal confinement. Indiana’s

criminal confinement statute provides, in pertinent part, that:

(a) [a] person who knowingly or intentionally:

(1) confines another person without the other person’s consent; or

(2) removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;

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commits criminal confinement. Except as provided in subsection (b), the offense of criminal confinement is a Class D felony.

Ind. Code § 35-42-3-3; State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014). The

statute encompasses two distinct types of criminal confinement: confinement

by non-consensual restraint and confinement by forcible removal. Greene, 16

N.E.3d at 420-21. Hernandez was charged with and convicted of confinement

by non-consensual restraint.

[14] Hernandez argues that the evidence was insufficient to convict him because

“the State offered no direct evidence that Hernandez restrained Plata’s liberty,”

noting that “at no time did Plata ever testify that she felt confined.” Appellant’s

Br. at 17-18. He suggests that there was no evidence to establish confinement

beyond or separate from the evidence that was used to establish the battery. Id.

at 17. We disagree.

[15] While Plata may not have expressly used the phrase “I felt confined,” she

expressed the confinement by describing it. She testified that Hernandez, after

pushing his way inside her home, shut the door behind him. She asked him to

leave, multiple times, and he would not. He held her down on the floor by

pressing on her left arm, which, because she was positioned on her side, pinned

the right side of her body to the floor. She tried to stand “and pull herself to

safety,” but Hernandez held her down. Tr. at 12. From Plata’s testimony, the

trial court could have reasonably inferred that she was confined. To the extent

that Hernandez argues that that the act of holding down Plata to the floor was

“necessary to effectuate the crime of battery,” we reject that claim. Id. at 18.

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He could have kicked, hit, and otherwise battered her without pinning her to

the floor. We find the evidence was sufficient to convict Hernandez of Class D

felony criminal confinement.

B. Felony Domestic Battery

[16] Hernandez was charged with and convicted of Class D felony domestic

battery.5 The offense of domestic battery is governed by Indiana Code section

35-42-2-1.3, which provides:

A person who knowingly or intentionally touches an individual who:

(1) is or was a spouse of the other person;

(2) is or was living as if a spouse of the other person as provided in subsection (c); or

(3) has a child in common with the other person;

in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.

The offense “is a Class D felony if the person who committed the offense . . .

committed the offense in the physical presence of a child less than sixteen (16)



5 Hernandez claims that the evidence was insufficient to convict him on counts II and III (Class D felony domestic battery and Class D felony battery resulting in bodily injury, respectively); however, judgment of conviction was only entered on Count II, and thus, our analysis only concerns that conviction.

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years of age, knowing that the child was present and might be able to see or

hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). “Presence” is defined as

knowingly being within either the possible sight or hearing of a child.” True v.

State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011). That is, the child does not

have to actually sense the battery; there only need be the possibility that the

child “might” see or hear it. Id. This court has noted that the word “might”

generally represents a weaker possibility or probability than the word “may.”

Boyd, 889 N.E.2d at 325 (citing American Heritage Dictionary of the English

Language at 1113).

[17] Initially, Hernandez argues that the evidence was not sufficient to convict him

of felony domestic battery because Plata’s testimony was incredibly dubious.6

Under the incredible dubiosity rule,

[i]f a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. 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.



6 Hernandez does not expressly contest that he was in a domestic relationship with Plata or that they have a child together. We further note that this court has recognized that a defendant may be convicted of domestic battery on an individual with whom he or she was in an extramarital relationship. Bowling v. State, 995 N.E.2d 715, 718 (Ind. Ct. App. 2013).

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Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010) (quotations and

citations omitted). “[T]he standard for dubious testimony is inherent

contradiction, not contradiction between the testimony of witnesses.” Id.

[18] Hernandez points to nothing inherently improbable or contradictory about

Plata’s testimony. Rather, he claims that Plata’s version of events, describing

what transpired at the apartment, was completely false, maintaining that,

contrary to what she said, he knocked quietly once, she came to the door right

away, they spoke, she collapsed, he lifted her up and got her inside, and he shut

the door only because she was loud and angry. The trial court determined that

Hernandez’s version was not credible and Plata’s version was credible, and we

will not reweigh the evidence or assess witness credibility. Palacios v. State, 926

N.E.2d 1026, 1034 (Ind. Ct. App. 2010). Furthermore, the incredibly dubiosity

rule applies only where “there is a complete lack of circumstantial evidence.”

Id. Here, the State presented pictures taken by Plata the morning after the

incident as well as pictures taken two days later by police, which showed

bruising to Plata’s upper left arm and her left leg and scratches to her neck that

corroborated her testimony. State’s Exs. 8-13. Based on the foregoing, we find

that the incredible dubiosity rule is inapplicable.

[19] Next, Hernandez asserts that the State failed to demonstrate that Daughters

were present in the apartment. However, Plata testified the girls lived with her

at the apartment and were asleep with Plata in her bed that night. Plata

described that she was afraid Hernandez’s knocking and subsequent behavior in

her apartment were going to wake them, and she was “praying for” Daughters

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and hoping the altercation would not move to the bedroom where they were

sleeping. Tr. at 13. To the extent that Hernandez argues that there was no

evidence that he knew Daughters were present, we again are not persuaded.

Plata testified that the girls lived with her and that she had an ongoing

relationship with Hernandez for up to ten years; thus it was reasonable for the

trial court to infer that Hernandez knew the girls lived with Plata. Furthermore,

Hernandez explained that the reason he went to Plata’s apartment in the early

morning hours after he got off work was to check on Daughters, stating, “I was

worried about [Plata] drinking and driving and I was worried about the

[D]aughters.” Id. at 32. From these facts, it was reasonable for the trier of fact

to infer that Hernandez knew Daughters, who were under age sixteen, were

present at the apartment at 2:00 a.m.

[20] Hernandez next argues that “the record is void of any evidence that there was

the possibility that the children might see or hear the battery,” as is necessary

for the Class D felony domestic battery conviction. Appellant’s Br. at 11. While

there was no direct evidence of the exact distance from the apartment’s

bedroom, where Daughters were in bed, to the area inside the front door, where

the altercation with Hernandez took place, there was other evidence presented

from which the trial court could have inferred Daughters might have seen or

heard the altercation. Plata and Daughters lived in an apartment. Plata, asleep

in her room, was awakened by Hernandez’s loud and repeated knocking at the

front door, the volume of which was loud enough that it not only woke her up,

but she feared that it might wake up her neighbors as well as Daughters. The

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altercation began near the front door and moved to or near the dining room.

Plata testified that after Hernandez was inside, he held her to the ground, while

she struggled to get up and told him repeatedly to leave. After he released his

hold on Plata, he sat in a chair and laughed at her for thinking she was “tough.”

Tr. at 13. According to Hernandez, he “slammed” the door when he left

because Plata was speaking negatively about his wife and children. Id. at 37.

We find that, from the evidence presented, the trial court could have inferred

that Daughters “might be able to see or hear the offense” as required under the

statute.

[21] Hernandez urges that this case is similar to Young v. State, 980 N.E.2d 412, 423

(Ind. Ct. App. 2012), where this court determined that the evidence presented

was insufficient for the jury to conclude that Young committed domestic

battery “knowing that the child was present and might be able to see or hear the

offense” and reversed Young’s Class D felony domestic battery conviction and

remanded with instructions to enter judgment of conviction for Class A

misdemeanor domestic battery. Id. Hernandez asks us to do the same.

However, we find that the facts of Young are distinguishable from those before

us today.

[22] Young and Blanca Medrano (“Mother”) were the parents of two minor

children, a two-year-old and an infant. While at their apartment one morning,

they argued. At the time, a friend named Dulce Gomez (“Gomez”) was at the

apartment, and she saw Young and Mother argue, but she did not observe any

physical contact between Mother and Young. Gomez left the apartment

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around 10:30 a.m. About noon, Mother walked to a nearby fire station, crying

and holding an infant. Acting Lieutenant Michael Hochstetler (“Hochstetler”)

spoke with Mother and inquired what was wrong, and he observed she had

bruising on her body. Mother told Hochstetler that her husband, Young, had

beaten her and left with their other child. Mother told Hochstetler that her

bruises were from her husband beating her “at their apartment across the street”

about “15 minutes ago.” Id. at 416. Young was charged with, among other

things, Class D felony domestic battery.

[23] At trial, Mother could not be found and, consequently, did not testify. Gomez

testified that she saw the parties argue, but did not see any physical contact, and

she left at 10:30 a.m. Hochstetler testified that Mother, who arrived at the fire

station around noon, did not tell him where the children were when the

incident happened, nor did he ask her. Id. at 423. The jury found Young

guilty.

[24] On appeal, Young argued that the evidence was insufficient to prove that he

committed the domestic battery “knowing that the child was present and might

be able to see or hear the offense.” Id. This court agreed, observing that

“Gomez left, at the very least, a full hour before the incident occurred,” and

while Hochstetler testified that Mother told him the incident happened about

fifteen minutes prior “at their apartment,” there was no evidence as to precisely

where the incident took place and where the children were during the incident.

Id. Given that “the only evidence as to the location of the incident and of the

children during the incident is the vague preposition ‘at,’” this court held that

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the evidence was insufficient for the jury to conclude that Young committed

domestic battery knowing that the child was present and might be able to see or

hear the offense, as is required to elevate the offense to a Class D felony under

Indiana Code 35-42-2-1.3(b)(2). Id.

[25] In contrast to Young, where there was a complete lack of testimony concerning

“where the incident took place and where the children were during the

incident,” the trial court in this case heard Mother testify that she was in her

apartment, asleep in her bed with Daughters, when she was awakened by

Hernandez’s loud knocking at the front door. After Hernandez pushed his way

inside the apartment, a physical struggle ensued. Plata testified that she tried to

prevent the situation from moving to the bedroom. Again, under our standard

of review, we examine whether an inference may reasonably be drawn from the

evidence to support the verdict. Palacios, 926 N.E.2d at 1034. We find that,

here, the trial court reasonably could have inferred that Daughters, who were

asleep in a bedroom of the apartment, “might be able to see or hear the

offense.” Accordingly, the State presented sufficient evidence to support

Hernandez’s Class D felony domestic battery conviction.

II. Double Jeopardy

[26] Hernandez argues his convictions violate Indiana’s constitutional prohibition

against double jeopardy. Indiana’s Double Jeopardy Clause (“the Double

Jeopardy Clause”), found in Article 1, Section 14 of the Indiana Constitution,

“was intended to prevent the State from being able to proceed against a person

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twice for the same criminal transgression.” Jones v. State, 976 N.E.2d 1271,

1275 (Ind. Ct. App. 2012) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind.

1999)), trans. denied. Two or more offenses are the “same offense” in violation

of the Double Jeopardy Clause, if, with respect to either the statutory elements

of the challenged crimes or the actual evidence used to convict, the essential

elements of one challenged offense also establish the essential elements of

another challenged offense. Id.

[27] Under the “actual evidence” test, the evidence presented at trial is examined to

determine whether each challenged offense was established by separate and

distinct facts. Id. To show that two challenged offenses constitute the “same

offense” in a claim of double jeopardy, a defendant must demonstrate a

reasonable possibility that the evidentiary facts used by the fact-finder to

establish the essential elements of one offense may also have been used to

establish all of the essential elements of a second challenged offense. Id. at

1275-76. The “reasonable possibility” that the fact-finder used the same facts to

support two convictions must be more than a “logical possibility,” and rather, it

“turns on a practical assessment of whether the jury may have latched on to

exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d 1231,

1236 (Ind. 2008). If there is “no sufficiently substantial likelihood” that the jury

used the same evidentiary facts to establish the essential elements of the two

offenses, then the possibility is remote and not reasonable. Hopkins v. State, 759

N.E.2d 633, 640 (Ind. 2001).

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[28] The fact that the same evidence may have been used to establish a single

element of each of two offenses does not constitute a double jeopardy violation.

Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). As long as each conviction

requires proof of at least one unique evidentiary fact, the convictions are not

barred by double jeopardy. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).

Whether a conviction violates Indiana’s prohibition against double jeopardy is

a question of law and is reviewed de novo. Jones, 976 N.E.2d at 1275.

[29] The State charged Hernandez with Class D felony criminal confinement by

alleging that he “did knowingly confine [] Plata without the consent of said

person[.]” Appellant’s App. at 4. It charged him with Class D felony domestic

battery by alleging that Hernandez “did knowingly in a rude, insolent, or angry

manner touch [] Plata . . . and further said touching result[ed] in bodily injury

to the other person, specifically: bruising and/or scratch and/or pain” and that

Hernandez “committed said offense in the presence of [either Daughter],” a

child less than sixteen years of age “knowing that the child was present and

might be able to see or hear the offense.” Id. As our Supreme Court has

observed, where the confinement of a victim is greater than that which is

inherently necessary to commit a crime, the confinement is a separate criminal

transgression. See Hopkins, 759 N.E.2d at 641 (where defendant’s confinement

of victims extended beyond what was necessary to rob them, convictions for

robbery and confinement were based on separate facts and did not constitute

double jeopardy).

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[30] In this case, the two charged offenses do not share any common essential

elements. Rather, Hernandez claims that his convictions violate the “actual

evidence” test, contending that the evidence used by the trial court to establish

that he touched and injured Plata in a “rude, insolent, or angry manner” was

the same evidence used to establish the offense of criminal confinement.

Appellant’s Br. at 19. However, the State maintains that the evidence used to

support each of Hernandez’s convictions was distinct. We agree.

[31] Here, criminal confinement was proved by evidence that Hernandez pushed

Plata down and pinned her to the floor by putting pressure on her left arm, such

that her right side was pressed to the floor; she attempted to get up, but he

would not release her. Domestic battery was proved by evidence that

Hernandez kicked Plata and also hit her with his hand or hands, which caused

bruising, redness, and injury. That is, the evidence that Hernandez pinned

down Plata and held her to the floor was not necessary to support the battery

conviction.

[