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Thevenot v. State

Court of Appeals of Indiana

May 3, 2019

Mark E. Thevenot, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal 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 Madison, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Mark E. Thevenot appeals his convictions of Level 5 felony domestic battery[1] and Level 6 felony criminal confinement.[2] 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.

         Facts and Procedural History

         [¶2] 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 blood.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] The State charged Thevenot with Level 3 felony criminal confinement, [3] Level 5 felony domestic battery, Class A misdemeanor domestic battery, [4] and Level 6 felony strangulation.[5] 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.

         [¶11] 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.

         [¶12] 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 adjudication. ...

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