Mark E. Thevenot, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Jefferson Circuit Court No. 39C01-1612-F3-1156. The
Honorable Darrell M. Auxier, Judge
Attorney for Appellant James C. Spencer Dattilo Law Office
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana George P. Sherman Deputy Attorney General
Mark E. Thevenot appeals his convictions of Level 5 felony
domestic battery and Level 6 felony criminal
confinement. Thevenot alleges the trial court abused
its discretion in the admission of evidence and erred by
allowing the prosecutor to discuss case law in closing
argument. We affirm.
and Procedural History
In December 2016, Thevenot lived with M.B. in a two-bedroom
house in Deputy, Indiana. On December 22, 2016, Thevenot and
M.B. consumed numerous alcoholic beverages, and then Thevenot
when to bed to sleep. M.B. wanted Thevenot to get up and talk
to her, so she pulled the covers from him and started
"joking around and cutting up." (Tr. Vol. 2 at 51.)
Thevenot "got madder than a hornet" and jumped up
out of the bed. (Id.) M.B. tried to leave the room,
but Thevenot got into her face and began cursing at her.
Thevenot, who "had that demon look[, ]"
(id. at 52), pushed M.B. and she fell down. M.B.
stood back up and attempted to walk out of the house, but
Thevenot pursued her, "turned [her] around and slammed
[her] into" a glass-topped coffee table. (Id.)
The coffee table glass shattered and cut M.B.'s back,
which felt like it was "on fire." (Id. at
56.) M.B. was crying and begged Thevenot to help her get up
from the floor. After helping her up, Thevenot went back to
bed. M.B. went to the bathroom to assess the injury to her
back and found she "had two great big old gashes in her
back and needed to go to the hospital to get stitches,"
(id. at 58), but Thevenot refused to take her
because he would "get 40 years in prison for it."
(Id. at 64.) M.B. eventually fell asleep in the bed
and, when she woke, the sheet was stuck to her back by dried
On December 23, 2016, Thevenot took M.B. to a Chinese
restaurant in North Vernon because "he thought if he did
something good it would make up for what he had [done] to me
the night before." (Id. at 70.) After eating,
Thevenot went to a store to obtain peroxide, Neosporin, and
gauze. The couple drove home, and Thevenot cleaned and
bandaged the deepest of the two cuts on M.B.'s back.
On December 24, 2016, M.B. cleaned around the house, and then
Thevenot drove the couple to a liquor store in North Vernon.
M.B. remained in the car, and Thevenot purchased a 30-pack of
beer and a fifth of whiskey. When they returned home, the
couple drank beer and played Yahtzee. Later in the evening,
Thevenot was talking on the telephone with family, and M.B.
went to bed. M.B. was asleep when Thevenot removed her sleep
apnea mask to wake her up. He told M.B. to get out of bed and
drink with him because she had not let him sleep the night
she pulled the covers off him.
M.B. got out of bed, and Thevenot instructed her to bring
them both a beer. She brought the beers to the couch and sat
down with Thevenot, who was drunk and being very loud. M.B.
asked Thevenot why he was yelling when she was next to him,
and he "just snapped[.]" (Id. at 82.)
Thevenot asked M.B. why she had come back into his life, and
he started punching M.B. in the head, cursing at her, calling
her names, and choking her. Thevenot ripped the jacket M.B.
was wearing into two pieces, tearing out part of her hair in
the process. M.B. slipped away from Thevenot and ran into the
kitchen. Thevenot followed her and pushed her down onto a
wooden chair with sufficient force to break the chair. M.B.
landed on the floor, and potted plants fell from a shelf onto
M.B. and the floor. The impact rendered M.B. unable to feel
her legs, and as she tried to lift herself off the floor
using the cabinet door for support, Thevenot told her:
"'You break that cabinet door and I'm going to
give you another beating.'" (Id. at 91.)
M.B. released the cabinet door as Thevenot left the room.
A few minutes later, M.B. was able to get herself off the
floor using the table for leverage, and she stood at the sink
trying to compose herself and allow her legs to recover.
Thevenot returned to the kitchen, and M.B. attempted to leave
the room, but Thevenot "slam[med]" her into another
wooden chair, (id. at 92), which also broke, causing
M.B. to again fall to the floor. As M.B. crawled on the
floor, Thevenot kicked her repeatedly, grabbed a piece of
wood from a broken chair, and began beating M.B. with it,
telling her he was beating her because she "throwed
[sic] him in jail for six months, so he was going to beat six
months[.]" (Id.) Thevenot hit her at least ten
times as he was also kicking her. M.B.'s pain was
"[e]xcruciating. I mean really bad. I mean I
couldn't hardly walk by the time he got done."
(Id. at 101.) Thevenot left M.B. on the kitchen
floor and "went to bed like nothing ever happened."
(Id. at 102.) M.B. eventually made it to the
bathroom and found she had bruises all over her arms, legs,
and back, and the cuts on her back from the glass table had
opened again. She asked Thevenot to take her to the hospital,
but he refused.
Thevenot slept most of December 25, 2016. While he was
asleep, M.B. snuck his telephone and called her sister to
tell her what had happened. M.B. asked her sister to call the
police in two days and ask them to do a welfare check on M.B.
if M.B. had not spoken to her sister again because Thevenot
had threatened to kill her and throw her body in the cellar.
On December 27, 2016, M.B.'s sister called police and
asked them to do a welfare check on M.B. Thevenot and M.B.
were in the kitchen when police knocked on the door, and
Thevenot told M.B. to stay in the kitchen. When Thevenot
answered the door, police inquired about M.B. because her
sister in Kentucky was worried about her. Thevenot reported
that M.B. had walked to Scottsburg and was not home. M.B.
snuck from the kitchen to behind Thevenot and began waiving
her arms so the police officer would see her. The officer
asked M.B. who she was, and M.B. gave her name. The officer
told M.B. that she needed to call her sister and then asked
Thevenot to step outside for a minute. Thevenot refused, so
the officer asked M.B. to step outside. M.B. walked toward
the door to step outside, but Thevenot grabbed her, pulled
her away from the door, slammed the door shut, and locked it.
For the next four hours, while police and SWAT waited outside
the house, Thevenot would not let M.B. out of his sight, even
when she went to the bathroom. He accused M.B. of calling the
police and hid his cell phone so she could not make any more
calls. Thevenot kept the lights off and the blinds shut, and
he would not respond to police as they called to him with a
bullhorn. When police called Thevenot's phone, he offered
it to M.B. to talk to the police, but M.B. refused the phone
because I was scared you know. He had the door locked. The
back one was all the way to the back of the house. All I
could do was imagine him if I got up toward that door he was
going to grab me by my hair because my hair was a little
longer then. That's what he was going to do, and I mean
he was going to finish what he started.
(Id. at 128.) After over four hours of stand-off,
Thevenot left the house and was taken into police custody.
M.B. walked out of the house, and an officer escorted her to
a chair, helped her remove her jacket to assess her injuries,
and immediately called for an ambulance.
The State charged Thevenot with Level 3 felony criminal
confinement,  Level 5 felony domestic battery, Class A
misdemeanor domestic battery,  and Level 6 felony
strangulation. The State also filed an allegation that
Thevenot was a habitual offender. Before trial, the State
moved for, and the court granted, dismissal without prejudice
of the charge of Level 6 felony strangulation.
The State filed notice of intent to offer Evidence Rule
404(b) evidence to demonstrate motive and relationship. The
404(b) evidence was explanation of Thevenot's prior
conviction for battery of M.B., based on Thevenot's
statement he would beat her six months because she
"throwed him in jail for six months." (Tr. Vol. 2
at 92.) The State also filed notice of intent to offer
Evidence Rule 702 expert opinion evidence regarding domestic
violence. Thevenot filed a motion in limine to exclude those
two kinds of evidence. The court ruled the State could admit
the 404(b) evidence of Thevenot's prior conviction as
relevant to motive and could admit the 702 evidence only if
Thevenot asserted M.B.'s behavior was
"unexpected" for someone who was being confined.
(App. Vol. 4 at 45.) As we will discuss in more detail below,
both of those forms of evidence were admitted at trial.
The jury found Thevenot guilty of Level 6 felony criminal
confinement, Level 5 felony domestic battery, and Class A
misdemeanor domestic battery. Thevenot admitted the prior
convictions that demonstrated his being a habitual offender.
Prior to sentencing, the trial court merged the misdemeanor
and felony findings of domestic battery, to avoid a double
jeopardy violation. The court imposed a five-year sentence
for Level 5 felony domestic battery and enhanced that
sentence by five years for the habitual offender