Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-10 | September 18, 2015 Page 1 of 6

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Sean P. Hilgendorf

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Horner,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 18, 2015

Court of Appeals Case No.

71A03-1501-CR-10

Appeal from the St. Joseph 

Superior Court

The Honorable Elizabeth C. 

Hurley, Judge

Trial Court Cause No.

71D08-1408-F6-111

Baker, Judge.
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[1] Robert Horner appeals his convictions for Battery,1 a class A misdemeanor, and 

Intimidation,2 a Level 6 felony. Horner argues that the evidence is insufficient 

to support the convictions. Finding the evidence sufficient, we affirm.

Facts

[2] Around 1:30 a.m. on August 20, 2014, Horner and his friend and next-door 

neighbor, Michelle Stanton, returned to Stanton’s residence after they had been 

out at a bar. Horner said that he was hungry, so Stanton left to get food. When 

she returned with nachos, Horner became upset because he wanted pizza. He 

threw the nachos at Stanton, left her residence, and entered his residence. 

Stanton followed Horner into his residence because she was confused by his 

anger.

[3] Horner and Stanton were arguing when Horner “swooped” her up and threw 

her onto his couch, knocking off her shoe. Tr. p. 107, 119. He pinned 

Stanton’s arms underneath his legs, hit her repeatedly on the head, grabbed her 

around the neck, and told her to shut up. There was a hammer on the end table 

next to the couch. Horner said, “bitch, I’m going to hit you with this hammer 

and nobody is going to care if you live or die,” reaching with his right hand to 

grab the hammer. Id. at 125. While Horner reached for the hammer, Stanton 

was able to free her left hand. She struck Horner with her hand, broke free, and 

 

1

Ind. Code § 35-42-2-1.

2

Ind. Code § 35-45-2-1.
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ran out of his apartment. Stanton ran to the nearby residence of a friend, who 

called the police.

[4] Mishawaka Police Corporal Randy Wisler responded to the call and spoke with 

Stanton about the altercation. Corporal Wisler observed that Stanton had red 

marks on her face and neck. Eventually, medics took Stanton to a hospital, 

where she was diagnosed with a concussion and a shattered ear drum.

[5] Corporal Wisler and other police officers knocked on Horner’s door, identifying 

themselves as police officers. They observed a light being turned off upstairs, 

but no one answered the door. The officers called Horner’s landlord, who let 

them into the residence. They found Horner in bed. Stanton’s shoe was found 

in Horner’s residence.

[6] On August 21, 2014, the State charged Horner with class A misdemeanor 

battery and Level 6 felony intimidation. Following a jury trial, the jury found 

Horner guilty as charged on November 7, 2014. On December 9, 2014, the trial 

court sentenced Horner to concurrent terms of twelve months for battery and 

two years for intimidation. Horner now appeals.

Discussion and Decision

[7] Horner’s sole argument on appeal is that the evidence is insufficient to support 

his convictions. When we review a challenge to the sufficiency of the evidence, 

we neither reweigh the evidence nor assess witness credibility. McClellan v. 

State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Instead, we 

consider only the probative evidence supporting the conviction and the 
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reasonable inferences that may be drawn therefrom. Id. If there is substantial 

evidence of probative value from which a reasonable factfinder could have 

drawn the conclusion that the defendant was guilty beyond a reasonable doubt, 

then the verdict will not be disturbed. Id.

I. Battery

[8] To convict Horner of class A misdemeanor battery, the State was required to 

prove beyond a reasonable doubt that he knowingly or intentionally touched 

Stanton in a rude, insolent, or angry manner, resulting in bodily injury to 

Stanton. I.C. § 35-45-2-1(c).

[9] At Horner’s jury trial, Stanton testified that Horner had grabbed her, thrown 

her on his couch, grabbed her around the neck, and hit her repeatedly on the

head and face. Her testimony was corroborated by Corporal Wisler, who 

observed redness on her face and around her neck, as well as by her later 

diagnoses of a concussion and a shattered eardrum. This evidence is sufficient 

to support Horner’s battery conviction.

[10] Horner argues that Stanton’s testimony is incredibly dubious. Under the 

incredible dubiosity rule, a court will impinge upon the jury’s duty to assess 

witness credibility only “‘where a sole witness presents inherently contradictory 

testimony which is equivocal or the result of coercion and there is a complete lack 

of circumstantial evidence of the appellant’s guilt.’” Moore v. State, 27 N.E.3d 749, 

755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)) 

(emphases original to Moore).
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[11] In this case, in addition to Stanton, Corporal Wisler, Corporal Adam 

Northcutt, and the friend to whose house Stanton fled following the altercation 

all testified. Because Stanton was not the sole witness in this case, the 

incredible dubiosity rule does not apply. Even if it did, there is a wealth of 

circumstantial evidence of Horner’s guilt, including Stanton’s injuries, Stanton’s 

shoe that was found in Horner’s residence, and Horner’s decision to turn off the 

light as though he were not home when the police officers knocked on his door. 

In any event, we do not find Stanton’s testimony to be incredibly dubious, and 

decline to reverse on this basis.

II. Intimidation

[12] To convict Horner of Level 6 felony intimidation, the State was required to 

prove beyond a reasonable doubt that he communicated a threat to commit a 

forcible felony, with the intent that Stanton be placed in fear of retaliation for a 

prior lawful act. I.C. § 35-45-2-1(b)(1)(A).

[13] The State presented evidence that Horner said to Stanton, “bitch, I’m going to 

hit you with this hammer and nobody is going to care if you live or die[.]” Tr. 

p. 125. This unquestionably constitutes a threat to commit a forcible felony—to 

hit Stanton with a hammer. Furthermore, a reasonable juror could infer from 

this evidence that Horner was threatening Stanton to place her in fear of a prior 

lawful act, which could be either her decision to purchase nachos instead of 

pizza, or her decision to discuss the basis for the anger he directed at her. We 

find this evidence suffices to support Horner’s intimidation conviction.
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[14] As with the battery conviction, we do not find that the incredible dubiosity rule 

applies to Stanton’s testimony.3 Consequently, we find the evidence sufficient 

to support the intimidation conviction.

[15] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

 

3 Horner’s only argument with respect to either conviction is that the incredible dubiosity rule applies to 

Stanton’s testimony. He makes no other arguments with respect to the intimidation charge.