MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 06 2020, 9:05 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Pierre D. Thomas, Jr. Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Myriam Serrano-Colon Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Pierre Thomas, Jr., July 6, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-195 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Gary J. Schutte, Magistrate Trial Court Cause No. 82C01-1910-F6-7274
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Pierre Thomas (Thomas), appeals his conviction for
intimidation, a Level 6 felony, Ind. Code § 35-45-2-1(b).
[2] We affirm.
ISSUE [3] Thomas presents one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to support Thomas’
conviction for intimidation.
FACTS AND PROCEDURAL HISTORY [4] In October of 2019, Thomas and A.Y. were involved in a romantic relationship.
On October 14, 2019, Thomas and A.Y. visited A.Y.’s aunt and cousin at their
home. They started to argue because Thomas believed that A.Y. had
previously been in a relationship with another visitor at the residence. Thomas
began scrolling through A.Y.’s text messages on her cellular phone looking for
evidence of the relationship. When A.Y. demanded her phone back, Thomas
snapped it in half and “got physical” with her. (Transcript Vol. II, p. 33).
Following the assault, A.Y. called the police.
[5] Evansville Police Department Officers Paul Klein and Nathan VanCleave
(Officer VanCleave) responded to the call. After investigating the incident,
Thomas was detained and Officer VanCleave transported Thomas to jail.
Although Thomas had been “fairly cooperative[,] but loud” when the officers
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 2 of 6 initially questioned him, he became “argumentative and combative,” calling
Officer VanCleave “a bitch, a fag, a hoe, like motherfucking police” in the
squad car during the ten-minute drive to jail. (Tr. Vol. II, pp. 77-78). During
the ride to jail, Thomas also informed Officer VanCleave that the officer “didn’t
understand where [Thomas] was coming from” and for Officer VanCleave “to
understand maybe something should happen to [him] . . . and his family.” (Tr.
Vol. II, p. 78). When asked if Thomas was threatening Officer VanCleave,
Thomas responded, “Yes, that is a threat.” (Tr. Vol. II, p. 78). Thomas
continued to repeat this threat in the squad car.
[6] As they arrived at the jail and while they made their way into the building,
Thomas repeatedly called Officer VanCleave names and became “increasingly
combative and aggressive.” (Tr. Vol. II, p. 79). Thomas continued to make
threats to Officer VanCleave and his family. Thomas hurled, “I don’t give two
fucks. Put your hands on me, bitch. Crooked ass fag. Fuck you bitch . . . I
know you fixing to put your hands on me. Come on bitch, why don’t you just
take the cuffs off so I can hit you back, bitch.” (Tr. Vol. II, p. 82). Though
Thomas was in handcuffs, he was walking around. Due to his aggressive
behavior, Thomas was placed in a restraining chair for the officers’ protection.
While Officer VanCleave completed the paperwork, Thomas was placed in a
holding cell, where he continued to shout at Officer VanCleave.
[Thomas] said that there needed to be a purge. He would start exclaiming my name, VanCleave. I know you’re listening. He would say he was going to – he said he hoped my house would get shot up. He hoped that somebody would come and steal my
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 3 of 6 kid’s bike. He said he was going to fuck me up. He said fuck my wife. Fuck my kids. He said when my kids would be trick-or- treating two weeks from then he said he hoped somebody would come and beat them up, knock my kids out.
(Tr. Vol. II, p. 86). Officer VanCleave considered Thomas’ statements to be
more than just idle threats. Thomas “repeatedly said his name out loud” and
told Officer VanCleave that he would be released from jail soon. (Tr. Vol. II, p.
88). Thomas informed the officer that “after he would get out of jail, he could
come fuck [Officer VanCleave] up.” (Tr. Vol. II, p. 90). Other officers at the
jail observed the incident. The officers heard Thomas tell Officer VanCleave to
“take his handcuffs off to beat his ass” and that Thomas hoped the officer’s
family would perish in a house fire. (Tr. Vol. II, p. 99). They heard Thomas
make several statements about “how he wanted to hurt Officer VanCleave,”
and also “threatened harm to Officer VanCleave and his family.” (Tr. Vol. II,
p. 106).
[7] On October 16, 2019, the State filed an Information, charging Thomas with
Count I, domestic battery, a Level 6 felony; Count II, intimidation, a Level 6
felony; and Count III, criminal mischief, a Class B misdemeanor. On
December 2, 2019, the trial court conducted a jury trial. At the close of the
evidence, the jury found Thomas guilty of intimidation and not guilty of
domestic battery and criminal mischief. On December 27, 2019, the trial court
sentenced Thomas to a term of eighteen months at the Department of
Correction.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 4 of 6 [8] Thomas now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
[9] Thomas contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for intimidation. Our standard of
review with regard to sufficiency claims is well-settled. In reviewing a
sufficiency of the evidence claim, this court does not reweigh the evidence or
judge the credibility of the witnesses. Clemons v. State, 987 N.E.2d 92, 95 (Ind.
Ct. App. 2013). We consider only the evidence most favorable to the judgment
and the reasonable inferences drawn therefrom and will affirm if the evidence
and those inferences constitute substantial evidence of probative value to
support the judgment. Id. Reversal is appropriate only when reasonable
persons would not be able to form inferences as to each material element of the
offense. Id.
[10] To convict Thomas of intimidation, the State was required to establish that
Thomas communicated a threat to Officer VanCleave “with the intent that
[Officer VanCleave] be placed in fear of retaliation for a prior lawful act” and
that the “threat [was] communicated because of [Officer VanCleave’s]
occupation, profession, [or] employment status.” I.C. § 35-45-2-1(b). Thomas’
sole contention focuses on the characterization of the perceived threat. He
maintains that he was not expressing a threat, but rather was conveying
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 06 2020, 9:05 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Pierre D. Thomas, Jr. Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Myriam Serrano-Colon Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Pierre Thomas, Jr., July 6, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-195 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Gary J. Schutte, Magistrate Trial Court Cause No. 82C01-1910-F6-7274
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Pierre Thomas (Thomas), appeals his conviction for
intimidation, a Level 6 felony, Ind. Code § 35-45-2-1(b).
[2] We affirm.
ISSUE [3] Thomas presents one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to support Thomas’
conviction for intimidation.
FACTS AND PROCEDURAL HISTORY [4] In October of 2019, Thomas and A.Y. were involved in a romantic relationship.
On October 14, 2019, Thomas and A.Y. visited A.Y.’s aunt and cousin at their
home. They started to argue because Thomas believed that A.Y. had
previously been in a relationship with another visitor at the residence. Thomas
began scrolling through A.Y.’s text messages on her cellular phone looking for
evidence of the relationship. When A.Y. demanded her phone back, Thomas
snapped it in half and “got physical” with her. (Transcript Vol. II, p. 33).
Following the assault, A.Y. called the police.
[5] Evansville Police Department Officers Paul Klein and Nathan VanCleave
(Officer VanCleave) responded to the call. After investigating the incident,
Thomas was detained and Officer VanCleave transported Thomas to jail.
Although Thomas had been “fairly cooperative[,] but loud” when the officers
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 2 of 6 initially questioned him, he became “argumentative and combative,” calling
Officer VanCleave “a bitch, a fag, a hoe, like motherfucking police” in the
squad car during the ten-minute drive to jail. (Tr. Vol. II, pp. 77-78). During
the ride to jail, Thomas also informed Officer VanCleave that the officer “didn’t
understand where [Thomas] was coming from” and for Officer VanCleave “to
understand maybe something should happen to [him] . . . and his family.” (Tr.
Vol. II, p. 78). When asked if Thomas was threatening Officer VanCleave,
Thomas responded, “Yes, that is a threat.” (Tr. Vol. II, p. 78). Thomas
continued to repeat this threat in the squad car.
[6] As they arrived at the jail and while they made their way into the building,
Thomas repeatedly called Officer VanCleave names and became “increasingly
combative and aggressive.” (Tr. Vol. II, p. 79). Thomas continued to make
threats to Officer VanCleave and his family. Thomas hurled, “I don’t give two
fucks. Put your hands on me, bitch. Crooked ass fag. Fuck you bitch . . . I
know you fixing to put your hands on me. Come on bitch, why don’t you just
take the cuffs off so I can hit you back, bitch.” (Tr. Vol. II, p. 82). Though
Thomas was in handcuffs, he was walking around. Due to his aggressive
behavior, Thomas was placed in a restraining chair for the officers’ protection.
While Officer VanCleave completed the paperwork, Thomas was placed in a
holding cell, where he continued to shout at Officer VanCleave.
[Thomas] said that there needed to be a purge. He would start exclaiming my name, VanCleave. I know you’re listening. He would say he was going to – he said he hoped my house would get shot up. He hoped that somebody would come and steal my
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 3 of 6 kid’s bike. He said he was going to fuck me up. He said fuck my wife. Fuck my kids. He said when my kids would be trick-or- treating two weeks from then he said he hoped somebody would come and beat them up, knock my kids out.
(Tr. Vol. II, p. 86). Officer VanCleave considered Thomas’ statements to be
more than just idle threats. Thomas “repeatedly said his name out loud” and
told Officer VanCleave that he would be released from jail soon. (Tr. Vol. II, p.
88). Thomas informed the officer that “after he would get out of jail, he could
come fuck [Officer VanCleave] up.” (Tr. Vol. II, p. 90). Other officers at the
jail observed the incident. The officers heard Thomas tell Officer VanCleave to
“take his handcuffs off to beat his ass” and that Thomas hoped the officer’s
family would perish in a house fire. (Tr. Vol. II, p. 99). They heard Thomas
make several statements about “how he wanted to hurt Officer VanCleave,”
and also “threatened harm to Officer VanCleave and his family.” (Tr. Vol. II,
p. 106).
[7] On October 16, 2019, the State filed an Information, charging Thomas with
Count I, domestic battery, a Level 6 felony; Count II, intimidation, a Level 6
felony; and Count III, criminal mischief, a Class B misdemeanor. On
December 2, 2019, the trial court conducted a jury trial. At the close of the
evidence, the jury found Thomas guilty of intimidation and not guilty of
domestic battery and criminal mischief. On December 27, 2019, the trial court
sentenced Thomas to a term of eighteen months at the Department of
Correction.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 4 of 6 [8] Thomas now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
[9] Thomas contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for intimidation. Our standard of
review with regard to sufficiency claims is well-settled. In reviewing a
sufficiency of the evidence claim, this court does not reweigh the evidence or
judge the credibility of the witnesses. Clemons v. State, 987 N.E.2d 92, 95 (Ind.
Ct. App. 2013). We consider only the evidence most favorable to the judgment
and the reasonable inferences drawn therefrom and will affirm if the evidence
and those inferences constitute substantial evidence of probative value to
support the judgment. Id. Reversal is appropriate only when reasonable
persons would not be able to form inferences as to each material element of the
offense. Id.
[10] To convict Thomas of intimidation, the State was required to establish that
Thomas communicated a threat to Officer VanCleave “with the intent that
[Officer VanCleave] be placed in fear of retaliation for a prior lawful act” and
that the “threat [was] communicated because of [Officer VanCleave’s]
occupation, profession, [or] employment status.” I.C. § 35-45-2-1(b). Thomas’
sole contention focuses on the characterization of the perceived threat. He
maintains that he was not expressing a threat, but rather was conveying
“sinister hopes.” (Appellant’s Br. p. 8).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 5 of 6 [11] “Threat” is statutorily defined as “an expression, by words or action, of an
intention to unlawfully injure the person threatened or another person.” I.C. §
35-45-2-1-(d)(1). Here, the record is replete with references to Thomas’
statements intending to injure Officer VanCleave and his family. Although
several statements might arguably be categorized as aspirational, Thomas
clearly admitted to the officer that his expressions should be viewed as threats.
He verbalized that he wanted to hurt Officer VanCleave and warned him that
“after he would get out of jail, he could come fuck [Officer VanCleave] up.”
(Tr. Vol. II, p. 90). The fact that Thomas was handcuffed while making these
threats is unavailing. See Holloway v. State, 51 N.E.3d 376, 378 (Ind. Ct. App.
2016) (holding that sufficient evidence supported a conviction for felony
intimidation, although Holloway was handcuffed and incapable of carrying out
his stated intent to injure the officer). Accordingly, as Thomas’ argument
amounts to nothing more than an invitation to reweigh the evidence, which we
decline, we affirm the trial court’s judgment.
CONCLUSION [12] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt to support Thomas’ conviction for intimidation.
[13] Affirmed.
[14] Mathias, J. and Tavitas, J. concur
Court of Appeals of Indiana | Memorandum Decision 20A-CR-195 | July 6, 2020 Page 6 of 6