Keith D. Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2017
• Docket: 32A01-1707-CR-1589
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2017, 8:58 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keith D. Williams, November 30, 2017 Appellant-Defendant, Court of Appeals Case No. 32A01-1707-CR-1589 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Mark A. Smith, Judge Trial Court Cause No. 32D04-1602-F6-110

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 1 of 9 [1] Following a bench trial, Keith D. Williams (“Williams”) was found guilty but

mentally ill of committing Level 6 felony intimidation 1 and Class B

misdemeanor battery.2 He appeals his intimidation conviction, asserting that

the evidence was insufficient to convict him because the State failed to prove

the “prior lawful act” element of the intimidation statute.

[2] We affirm.

Facts and Procedural History [3] Williams has a documented history of mental illness. He has been on disability

since 2011, has been diagnosed with paranoid schizophrenia, and was

hospitalized psychiatrically on two occasions, one in 2010 and another in 2013.

On February 4, 2016, Williams walked into Abacus Staffing (“Abacus”), a

staffing or employment agency. Mellissa Fender (“Fender”) was working by

herself, and she greeted Williams as he entered. Williams expressed interest in

obtaining employment, and Fender handed him a job application on a

clipboard, and then she went down the hall to a copy room to make copies of

orientation packets, telling Williams to let her know if he had any questions as

he filled out his application.

[4] While Fender was in the room making copies, the office phone rang, and she

walked across the hall to her office and answered it. The call was from a female

1 See Ind. Code § 35-45-2-1(a)(2). 2 See Ind. Code § 35-42-2-1(b)(1).

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 2 of 9 who had completed an application a few days prior and was checking on the

status of her application. To confirm that she was looking at the correct

application, Fender repeated the applicant’s last name back to her, “Spivey,”

and told her that Abacus was awaiting paperwork on her background check, but

would call her when it had an open position for her. Tr. Vol. II at 50. Fender

concluded the call and hung up. As she did so, Fender heard movement in the

front office, similar to the movement of a chair, so she returned to the front

office to see if Williams was done with the application or had questions.

[5] When she walked in, Williams was standing between her and the front door

with his application rolled up in one hand and the clipboard in the other. His

demeanor had changed, and he looked angry, rigid, and was “very, very, very

upset.” Id. at 52. Williams yelled at Fender and told her that “he had heard

[her] on the phone disrespecting him” by calling him a “he she.” Id. He

continued yelling and saying “that people like [her] were always disrespecting

him.” Id. Fender told Williams that he must have misunderstood her, that she

did not call him a “he she,” and “actually told [Williams] the last name that I

was saying” on the phone. Id. Williams continued to yell at Fender, and he

pointed at her and said how “white bitches” like her were always disrespecting

him. Id. at 53, 56. He then flung the clipboard at Fender, hitting her in her

upper leg. He also threatened to slit her throat and said that he wanted to shove

the clipboard up her “bloody ass pussy.” Id. at 54. Fender felt “very scared.”

Id. Williams stepped out the front door twice, but immediately re-entered, each

time calling Fender names and yelling about how she and others disrespected

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 3 of 9 him. He also warned Fender that if she drove past East Main Street that he

would “make sure [she] got what was coming to [her].” Id. at 56. Williams left

the premises again, and Fender saw him through the glass door as he walked

away toward where Fender’s car was parked, so she locked the door behind

him. She retrieved a pistol from her office, called her boss, and called her

husband. Fender’s boss called the police, but Williams left moments before the

police arrived. A few days later, Williams called Abacus and spoke to Fender’s

boss, making reference in the call to his recent encounter with Fender and

indicating that he understood what he had said to her was not appropriate.

Williams apologized for what he had said to Fender.

[6] In February 2016, the State charged Williams with Level 6 felony intimidation

and, later, with Class B misdemeanor battery. Williams filed a Notice of

Defense of Mental Disease or Defect and Motion for Examinations. The trial

court appointed two psychologists, Dr. Don Olive (“Dr. Olive”) and Dr.

George Parker (“Dr. Parker”) to conduct competency evaluations, and the next

day, the trial court ordered the same two doctors to conduct examinations as to

his sanity at the time of the offense. Following a July 2016 hearing, Williams

was found not competent to stand trial and was committed to the custody of

Division of Mental Health and Addiction for competency restoration services.

[7] In January 2017, Williams was returned to Hendricks County to stand trial.

Dr. Olive had concerns about Williams’s limited intellectual resources, but he

did not believe that there was clear evidence of a mental disease or defect that

rendered Williams unable to appreciate the wrongfulness of his conduct, and he

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 4 of 9 opined that Williams was not insane at the time of the offense. Tr. Vol. II at

106-107, 112; State’s Ex. 1. Dr. Parker believed that Williams met the criteria

for a schizophrenia diagnosis, such that he had a mental disease or defect, but

that Williams had a basic appreciation of the wrongfulness of his actions. Tr.

Vol. II at 118; State’s Ex. 2. Both court-appointed psychologists believed that

Williams was not insane at the time of the offense.

[8] Williams waived his right to a jury trial, and a two-day bench trial was held on

March 14, and June 23, 2017. The State presented the testimony of Fender and

of her boss. Fender testified to the above course of events, that being she was

alone in the office, Williams walked in, she gave him an application and went

to the back to make copies, and while back there, she answered the phone and

spoke to a female applicant who had been at Abacus a few days prior. Fender

repeated the woman’s last name and told her that Abacus would get back with

her when it had a job for her. Fender returned to the front area and

encountered an angry Williams who said that he heard her on the phone calling

him a “he she.” Tr. Vol. II at 52. Fender testified that she was alone in the

office with Williams, who stood between her and the front door, and that she

was scared. He threw the clipboard at her and made derogatory remarks to her.

Eventually, he left, and she locked the door and called her boss and her

husband.

[9] Williams testified in his defense. He presented a different version of events,

stating that he went to Abacus, where Fender gave him an application to

complete. He stated that, as he was filling out the application, another man

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 5 of 9 walked in the door, and Fender spoke to him about an orientation. According

to Williams, Fender pointed at Williams and told the other man that “this girl

also fillin a uh, is [] going to a orientation,” and Williams told Fender, “I’m not

no she, that I’m a uh, man.” Id. at 72. Williams testified that, at some point,

the phone rang and that Fender answered it at the front desk, where he could

see her, but could not hear her. Williams testified that, while seated, he told

Fender that he did not want to be disrespected, then stood, threw the clipboard

to the floor, and left after Fender “disrespected” him. Id. at 75. He estimated

that the other man who he said had entered the office was there for less than a

minute. Williams denied making any threats or derogatory comments to

Fender and said that “[e]verything” Fender had testified to “was completely a

lie.” Id. at 89.

[10] The trial court rejected Williams’s insanity defense, but found him guilty but

mentally ill on both counts. He was sentenced to 600 days in the Hendricks

County Jail on the intimidation conviction and 180 days on the battery

conviction. The sentences were reduced for credit time and ordered to run

concurrently. Williams now appeals.

Discussion and Decision [11] On appeal, Williams claims that his intimidation conviction should be reversed

because the State failed to prove the “prior lawful act” element of Indiana Code

section 35-45-2-1. In reviewing a claim of insufficient evidence, this Court does

not reweigh the evidence or assess witness credibility. Huber v. State, 805

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 6 of 9 N.E.2d 887, 890 (Ind. Ct. App. 2004). It considers only the evidence most

favorable to the verdict, together with all reasonable and logical inferences to be

drawn therefrom. Id. We affirm the conviction unless no reasonable fact-finder

could find the elements of the crime proven beyond a reasonable doubt. Leggs v.

State, 966 N.E.2d 204, 208 (Ind. Ct. App. 2012).

[12] To convict a defendant of Level 6 felony intimidation, the State must prove that

(1) the defendant communicated a threat (2) to another person (3) to commit a

forcible felony (4) with the intent that the other person be placed in fear of

retaliation (5) for a prior lawful act. Ind. Code § 35-45-2-1(a)(2), (b)(1)(A).

Here, the charging information alleged as follows:

On or about 02/04/16, in Hendricks County, Indiana, Keith Dewayne Williams did communicate a threat to Melissa (sic) Fender with the intent that the other person:

be placed in fear of retaliation for a prior lawful act, to-wit: for making a statement on the phone to someone that Mr. Williams believed was in reference to him.

Furthermore,

The threat was to commit a forcible felony.

Appellant’s App. Vol. II at 13. On appeal, Williams challenges the sufficiency of

the State’s evidence only as to the “a prior lawful act” element, posing the

following query: “[C]an a person be convicted for threatening to retaliate for an

act that never happened?” Appellant’s Br. at 11. His position is that the alleged

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 7 of 9 lawful act was Fender calling Williams a “he she,” which she did not do, and

thus “the State hinges its case on an act [that] did not take place[,]” and because

he “cannot be prosecuted for making threats for something that never

happened[,]” the State cannot satisfy the “prior lawful act” element. Id. at 9-10,

13. We disagree with the premise that a prior lawful act never happened.

[13] The evidence most favorable to the conviction is that Fender was in the Abacus

office, alone, when Williams entered and that she remained alone with him the

entire time. As part of her job duties, she answered the phone when it rang,

taking the call in her office, which was located down the hall from the front

office area, where Williams sat and worked on his application. When she

returned to check on him, he was standing and appeared “enraged.” Tr. Vol. II

at 52. According to Fender, “[H]e began telling me that . . . he heard me on the

phone disrespecting him, that I was calling him a he she, that people like me are

always disrespecting him.” Id. The evidence, then, was that Williams’s anger

was specifically about what she said, or he thought she said, on the phone call.

That is, the prior lawful act was her answering the phone call and speaking to

the applicant. Although Williams was mistaken about Fender’s words, he

threatened to attack her in retaliation for the words that he believed she said on

the phone. We agree with the State that “the prior lawful act was not that

Fender made derogatory statements about [Williams], . . . but the fact that she

was engaged in her job and speaking to an applicant on the phone, and

Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017 Page 8 of 9 [Williams] assumed that she was speaking about him.”3 Appellee’s Br. at 11.

Accordingly, we find that the State presented sufficient evidence to convict

Williams as charged of Level 6 felony intimidation.

[14] Affirmed.

[15] Najam, J., and Brown, J., concur.

3 In arguing that he “cannot be prosecuted for making threats for something that never happened,” Appellant’s Br. at 13, Williams asserts that “[h]e responded to a delusion, not an act.” Appellant’s Reply Br. at 6. To the extent that the “delusion” he is referring to is the alleged man that entered the office for a minute and to whom Fender supposedly spoke, that was a completely different version of events than that which Fender described. She testified that she and Williams were at all times alone in the office and that Williams was angry at her based on what he heard during her phone call, whereas Williams testified that he was mad at her for calling him a “girl” to the other man. Tr. Vol. II at 72. The trial court saw the witnesses, judged their credibility, and chose to believe Fender’s version, as was the trial court’s prerogative. Loyd v. State, 787 N.E.2d 953, 959 (Ind. Ct. App. 2003). We thus reject any suggestion that the prior lawful act had anything to do with what may have been a delusion of another man’s presence in the office and Fender’s purported remarks to him.

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