Alan Dwayne Gray v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 23, 2012
• Docket: 45A04-1110-CR-517
• Status: Unpublished

Opinion

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 FILED Apr 23 2012, 8:59 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Office of the Public Defender Attorney General of Indiana Crown Point, Indiana AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ALAN DWAYNE GRAY, ) ) Appellant-Defendant, ) ) vs. ) No. 45A04-1110-CR-517 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas P. Stefaniak, Jr., Judge The Honorable Kathleen A. Sullivan, Magistrate Cause No. 45G04-1105-FD-98

April 23, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Alan Dwayne Gray appeals his convictions for criminal recklessness as a class D

felony1 and intimidation as a class D felony.2 Gray raises one issue, which we revise and

restate as whether the evidence is sufficient to sustain his convictions. We affirm.

The facts most favorable to Gray’s convictions follow. On May 1, 2011,

Velsheena Bryant walked to the house of her neighbor Robert Dove because he was

having a barbeque. A red van with tinted windows pulled up near Dove’s house. There

were eight women in the van, including Lakesha Gray and her daughters Arianna Gray

and Essence Gray. Lakesha was in a relationship with Dove and was also married to

Dino, who is Gray’s nephew. Eventually, an altercation occurred between Dove and

Lakesha and her daughters. Velsheena began to walk home, and one of Lakesha’s

daughters said “[w]hat that ‘B’ gonna do.” Transcript at 41. Lakesha, Arianna, and

Essence “started jumping on” Velsheena, and Lakesha hit her. Id. Velsheena went to her

house and called the police, and the police arrested Lakesha, Arianna, and Essence.

On May 7, 2011, Velsheena was at home and heard someone say “come outside,

come outside” but did not see anyone. Id. at 43. Dove then called Velsheena’s house

“saying that they just kicked in his door and . . . then he said that they was gonna come

kick in [Velsheena’s] door next because of the altercation that happened the week before

that.” Id.

Later that day, Cynthia Bryant, who was Velsheena’s mother, called her other

daughter, Quetillya Bryant, for a ride to a gas station. Quetillya picked up Cynthia, drove

1 Ind. Code § 35-42-2-2 (Supp. 2006) 2 Ind. Code § 35-45-2-1 (Supp. 2006).

2 to the Gary Food Mart, and parked next to gas pump number three. Cynthia went inside

the gas station, and Quetillya remained in her vehicle. Inside the store, Gray approached

Cynthia, and Cynthia observed that Gray was intoxicated. Gray stated “I want to know

what’s going on, because the girl that you had sent to jail was my niece.” Id. at 115.

Cynthia attempted to explain to Gray that his niece had “jumped on my daughter for

nothing and she’s pregnant” but “it was like [Gray] wasn’t trying to hear nothing [she]

was saying to him” and “was trying to stir something up.” Id. at 116-117. Gray pointed

to other people in the store and asked Cynthia “Who is that,” but Cynthia did not know

any of the people. Id. at 117. Cynthia and Gray exited the gas station, and Gray pointed

to Quetillya and stated “Who is she,” and Cynthia stated that Quetillya “don’t have

nothin’ to do with it, she don’t [k]now nothin’ about nothing, and she is just here with

[Cynthia].” Id. Quetillya heard Gray state that “it was his nephew, Dino, that kicked

down that N-----’s door,” referring to Dove’s house. Id. at 65-66.

Quetillya opened the door of her vehicle about half way because a pole prevented

her from opening it further and put one leg out. As Quetillya opened her car door and

stood, Gray “got loud” and stated: “B----, I got a trick for you. I got a trick for you.” Id.

at 66. Gray then “went for the nozzle,” held the gas nozzle “like he’s holding a gun,”

pointed it at Quetillya, and sprayed gasoline toward Quetillya. Id. at 69, 73. The

gasoline sprayed on the windshield and driver’s side window of Quetillya’s vehicle, on

the inside seat of her vehicle, and on Quetillya’s jacket. Gray had a cigarette in his hand

and stated: “B----, I’ll set you on fire.” Id. at 121. Cynthia and the owner of the gas

station attempted to wrestle the nozzle away from Gray. Cynthia stated “Come on, . . .

3 Gray, we’re better than that, that’s my daughter,” and Gray told Cynthia “You got a

disrespectful ass daughter.” Id. at 74-75. One of Gray’s family members pulled into the

gas station, placed Gray in his vehicle, and left.

Later in the afternoon, police officers approached Gray and three other men

standing in the street, and the men told the officers that “[t]he man you’re looking for is

already on the highway going back to Indianapolis.” Id. at 52. Quetillya identified Gray

as the man who discharged gasoline on her, and Gray was arrested.

In an amended information filed on June 6, 2011, the State charged Gray with:

Count I, criminal recklessness as a class D felony; Count II, intimidation as a class D

felony; Count III, criminal mischief as a class B misdemeanor; and Count IV, battery as a

class B misdemeanor. At trial, the jury heard the testimony of, among others, Velsheena,

Quetillya, Cynthia, and several law enforcement officers. The jury found Gray guilty on

all counts, and the court vacated judgment in Counts III and IV as lesser included

offenses of Count I. The court sentenced Gray to two years on each count and ordered

the sentences to be served concurrently.

The issue is whether the evidence is sufficient to sustain Gray’s convictions.

When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence

or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),

reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom

that support the verdict. Id. We will affirm the conviction if there exists evidence of

probative value from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. Id. “It is well-established that ‘the uncorroborated testimony

4 of one witness may be sufficient by itself to sustain a conviction on appeal.’” Scott v.

State, 871 N.E.2d 341, 343 (Ind. Ct. App. 2007) (quoting Toney v. State, 715 N.E.2d

367, 369 (Ind. 1999)), trans. denied.

A. Criminal Recklessness Conviction

The offense of criminal recklessness as a class D felony is governed by Ind. Code

§ 35-42-2-2, which provides in part that “[a] person who recklessly, knowingly, or

intentionally performs . . . an act that creates a substantial risk of bodily injury to another

person . . . commits criminal recklessness” and “the offense . . . is . . . a Class D felony if

. . . it is committed while armed with a deadly weapon . . . .” According to Ind. Code §

35-41-2-2, a person “engages in conduct ‘intentionally’ if, when he engages in the

conduct, it is his conscious objective to do so;” a person “engages in conduct ‘knowingly’

if, when he engages in the conduct, he is aware of a high probability that he is doing so;”

and a person “engages in conduct ‘recklessly’ if he engages in the conduct in plain,

conscious, and unjustifiable disregard of harm that might result and the disregard

involves a substantial deviation from acceptable standards of conduct.”

We also note that because intent is a mental function, it must be determined from a

consideration of the defendant’s conduct and the natural and usual consequences of such

conduct, absent an admission from the defendant. Hendrix v. State, 615 N.E.2d 483,

484-485 (Ind. Ct. App. 1993) (citing Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)).

To determine whether the defendant intended to commit the conduct, the trier of fact

must usually resort to reasonable inferences based upon an examination of the

surrounding circumstances. Id.

5 Gray’s sole argument is that he did not act with the intent necessary to convict him

of criminal recklessness. Gray argues that he “reached out with at [sic] gas nozzle and

Quetillya’s mother and the gas station owner also grabbed the nozzle and a scuffle

ensued” and that “[s]ome gas came out onto Quetillya’s car and jacket. However, the

State failed to prove that Gray recklessly, knowingly or intentionally sprayed it on

Quetillya.” Appellant’s Brief at 8.

The State argues that the evidence demonstrates that Gray’s conscious objective

was to cover Quetillya in gasoline, that his comment of “hav[ing] a trick for” Quetillya

indicates that he intended to cause her harm, and that Gray’s holding the nozzle as if it

were a gun further demonstrates Gray’s objective. The State further argues that Gray was

aware of the high probability that he was spraying gas on Quetillya, that the amount of

gas sprayed demonstrates that Gray did not accidentally engage the gas pump, and that

Cynthia and the owner of the gas station would not have physically engaged Gray if he

was merely standing with the nozzle in his hand. The State also argues that Gray’s action

of spraying gasoline placed Quetillya and everyone at the gas station in danger and that

Gray substantially deviated from acceptable standards of conduct at the gas station.

The record reveals that, inside the gas station, Gray stated to Cynthia: “I want to

know what’s going on, because the girl that you had sent to jail was my niece.”

Transcript at 115. Cynthia testified that she attempted to explain to Gray that his niece

had “jumped on my daughter for nothing and she’s pregnant” but that “it was like [Gray]

wasn’t trying to hear nothing I was saying to him” and “was trying to stir something up.”

Id. at 116-117. After Gray and Cynthia exited the gas station, Quetillya heard them

6 arguing and heard Gray state that “it was his nephew, Dino, that kicked down that N-----

’s door.” Id. at 65-66. Gray and Quetillya were arguing and yelling at each other.

As Quetillya opened her car door and stood, Gray “got loud” and stated “B----, I

got a trick for you.” Id. at 66. Gray “went for the nozzle,” held the gas nozzle “like he’s

holding a gun,” pointed it at Quetillya, and sprayed gasoline toward her. Id. at 69, 73.

He had a cigarette in his hand and stated “B----, I’ll set you on fire.” Id. at 121. The

gasoline sprayed on the windshield and driver’s side window of Quetillya’s vehicle, on

the inside seat of her vehicle, and on her jacket. Cynthia and the owner of the gas station

attempted to wrestle the nozzle away from Gray. Cynthia stated “Come on, . . . Gray,

we’re better than that, that’s my daughter,” and Gray told Cynthia “You got a

disrespectful ass daughter.” Id. at 74-75.

Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could have found that Gray possessed the requisite intent and

did commit criminal recklessness as a class D felony. See Al-Saud v. State, 658 N.E.2d

907, 910 (Ind. 1995) (holding that the evidence was sufficient to support a conviction of

criminal recklessness); Griffith v. State, 898 N.E.2d 412, 416-417 (Ind. Ct. App. 2008)

(concluding that evidence of probative value existed from which the trier of fact could

have found that the defendant committed criminal recklessness as a class D felony).

B. Intimidation Conviction

The offense of intimidation is governed by Ind. Code § 35-45-2-1, which provides

in part that “[a] person who communicates a threat to another person, with the intent . . .

that the other person be placed in fear of retaliation for a prior lawful act . . . commits

7 intimidation, a Class A misdemeanor,” and the “offense is a . . . Class D felony if . . . the

threat is to commit a forcible felony.” Ind. Code § 35-45-2-1. A “threat” is “an

expression, by words or action, of an intention to . . . unlawfully injure the person

threatened or another person, or damage property; [or] commit a crime . . . .” Ind. Code §

35-45-2-1(c). Ind. Code § 35-41-1-11 defines forcible felony as a “felony that involves

the use or threat of force against a human being, or in which there is imminent danger of

bodily injury to a human being.” As previously noted, intent is generally determined

from a consideration of the defendant’s conduct and the natural and usual consequences

of such conduct and the trier of fact must usually resort to reasonable inferences based

upon an examination of the surrounding circumstances. See Hendrix, 615 N.E.2d at 484-

485.

Gray’s sole argument is that the evidence is insufficient to affirm his conviction

for intimidation because Quetillya testified at trial that she was not in fact intimidated by

Gray. Gray argues “[b]y her own words, Quetillya admitted that [] Gray did not

intimidate her” and that “[s]he was holding her own in their fight.” Appellant’s Brief at

9. The State argues that Gray communicated threats to Quetillya, that Ind. Code § 35-45-

2-1 does not require Quetillya to be intimidated by Gray’s threat or even placed in fear by

Gray, and that only Gray’s intent is relevant.

Gray does not point to authority for the proposition that a defendant does not

commit the offense of intimidation if the threat communicated by the defendant to

another person does not result in the other person feeling fearful or intimidated. Ind.

Code § 35-45-2-1 requires the State to show that the defendant “communicate[d] a threat

8 to another person, with the intent . . . that the other person be placed in fear . . . ,” and the

State alleged in its amended charging information that Gray knowingly or intentionally

communicated a threat to Quetillya “with the intent that [she] be placed in fear of

retaliation . . . .” See Appellant’s Appendix at 16 (emphasis added).

Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could reasonably have found beyond a reasonable doubt that

Gray committed intimidation as a class D felony. See Griffith, 898 N.E.2d at 417-

418 (holding the evidence was sufficient for the court to have found that the defendant

committed intimidation as a class D felony).

For the foregoing reasons, we affirm Gray’s convictions for criminal recklessness

and intimidation as class D felonies.

Affirmed.

BAKER, J., and KIRSCH, J., concur.