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Binion v. State

Court of Appeals of Indiana

February 10, 2014

AGUILA BINION, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT. The Honorable Jane Woodward Miller, Judge. Cause No. 71D01-1302-FD-118.

ATTORNEY FOR APPELLANT: NEIL L. WEISMAN, South Bend, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana.

BROWN, Judge. ROBB, J., and BARNES, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge.

Aguila Binion appeals his conviction for strangulation as a class D felony. Binion raises one issue, which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 8, 2013, Binion was at home in South Bend with his wife Hayah Binion, his children, Hayah's children, and Hayah's cousin. Binion is an amateur mixed martial arts fighter. One of the children, S., who was eight years old, was upstairs in the home and saw a Jello fruit cup fall out of her sister J.'s pocket. S. picked up the fruit cup and gave it to one of her sisters, A., who opened the package and began to eat the Jello. A. took the fruit cup downstairs with her, and Binion, who was in the living room, stated that A. knew that she was not supposed to eat upstairs. A. said that S. already had the food upstairs.

S. came downstairs, and Binion slapped S. in the face. S. started to cry, went outside, and told Hayah what had happened. Hayah entered the home and told Binion that J. had the Jello upstairs because she had been packing. Binion was standing " far" away from Hayah. Transcript at 41. Binion then said: " Well bitch, you already know that they are not supposed to eat upstairs." Id. at 22. Hayah told Binion to " keep his f__ hands out of her daughter's face." Id. at 54. Binion asked " what did [you] say," and Hayah replied " I meant what I said." Id. Binion then " got in [Hayah's] face, and . . . a whole bunch of words [were] going back towards each other. . . . F'ers and B's and stuff like that." Id. at 23.

Binion, who was near the television in the living room, walked over to where Hayah was standing by the living room door, grabbed her by the neck, placed his hands around her throat, and began to choke her. Hayah attempted unsuccessfully to move Binion's hands. She had no air supply, her " legs got numb," and she " start[ed] to fade" or pass out. Id. at 55. Hayah's face turned red and then began to turn purple. S. said " call the police," and Binion let go of Hayah. Id. at 26. Hayah gasped for air several times, could barely speak, and her voice was raspy or hoarse. J. called the police and gave the phone to Hayah, and Hayah went outside and spoke with the police on the phone.

South Bend Police Officer Joshua Morgan arrived at the home and attempted to pat down Binion. Officer Morgan ordered Binion to place his hands on his head and interlock his fingers. As Officer Morgan began to place his hands on Binion's hands, Binion dipped down, spun around, and grabbed Officer Morgan. Officer Morgan attempted to use his foot to sweep Binion off of his feet, but Binion was able to step back and avoid Officer Morgan's sweep. Binion pushed Officer Morgan up against the wall, the two men fell to the floor, and Binion struggled with Officer Morgan for approximately ...


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