Reginald Shirley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 23, 2015
• Docket: 49A04-1412-CR-575
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 23 2015, 8:35 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Gregory F. Zoeller Timothy J. Burns Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reginald Shirley, September 23, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1412-CR-575 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Rebekah Pierson- Appellee-Plaintiff Treacy, Judge; The Honorable Shatrese M. Flowers, Commissioner Trial Court Cause No. 49F19-1406-CM-28168

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 1 of 9 [1] Following a bench trial, Reginald Shirley (“Shirley”) was convicted in Marion

Superior Court of Class A misdemeanor intimidation and sentenced to 365

days with sixty-five days suspended to probation. Shirley now appeals and

presents two issues for our review, which we restate as:

I. Whether the trial court properly excluded testimony concerning the relationship between Shirley and his mother and;

II. Whether the State presented sufficient evidence to support Shirley’s conviction for intimidation.

We affirm.

Facts and Procedural History

[2] In the early months of 2014, Shirley lived at a rental property owned by his

seventy-six-year-old mother, Lillian Frazier (“Frazier”). Shirley agreed to pay

rent in the amount of $500 per month. Shirley was struggling to pay rent each

month, and by March of 2014, he owed Frazier $9,000 in back-rent. Tr. p. 26.

[3] On March 6, 2014, in the early afternoon, Frazier stopped by her rental

property to tell Shirley that he needed to pay his rent. She discovered that

Shirley had changed the locks, so Frazier knocked on the door several times

before he reluctantly opened the door. Frazier told Shirley that if he could not

pay the rent owed, she would start eviction proceedings and that she could not

afford to “carry him.” Tr. p. 28. Shirley became upset and threatened to burn

the house down if she evicted him. Tr. p. 31. Shirley’s threats caused Frazier to

fear her son. Tr. p. 32. This fear was also based in part on Frazier’s belief that

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 2 of 9 Shirley had entered her home on numerous occasions and had stolen food and

other personal belongings.

[4] Later in the evening on the same day, Frazier returned to Shirley’s residence

with her grand-daughter, Alexis Gibson (“Gibson”) asking for the rent due.

Shirley again told Frazier that he did not have the money to pay the rent.

Frazier then asked Shirley for the keys to the house, which made Shirley angry.

He went to the bathroom and started slamming objects against the wall. When

he came out of the bathroom, Shirley “got in . . . [Frazier’s] face” and again

threatened to burn the house down. Tr. p. 48. Frazier responded to Shirley,

“[g]o ahead and do it,” because then she could call the police. Tr. pp. 49, 51.

Both Frazier and Gibson believed Shirley at the time and were scared of him.

Tr. pp. 40, 49.

[5] True to her word, Frazier initiated an eviction proceeding, and Shirley was

evicted by the constable on March 14, 2014. Frazier did not accompany the

constable herself because she remained frightened of Shirley. On May 20, 2014,

Frazier made a police report against Shirley, related to the threats he made to

her on March 6, 2014. Frazier testified at trial that she did not make the report

right away because she was fearful that he might attempt to damage her house.

Tr. p. 40.

[6] The State charged Shirley with Class A misdemeanor intimidation, and he was

convicted after a bench trial. At trial, Shirley sought to introduce testimony of

his relationship with Frazier after the March 6, 2014 incident occurred. The

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 3 of 9 State objected based on relevancy, and the trial court sustained the objection.

After the bench trial, Shirley was sentenced to 365 days with sixty-five days

suspended to probation. Shirley now appeals.

I. Exclusion of Testimony Concerning the Relationship Between Frazier and Shirley

[7] A trial court has broad discretion in ruling on the admissibility of evidence.

Smith v. State, 980 N.E.2d 346, 349 (Ind. Ct. App. 2012) (citing Washington v.

State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)). This court will only reverse a

trial court’s ruling on admissibility when the trial court has abused its

discretion. Id. An abuse of discretion involves a decision that is clearly against

the logic and effects of the facts and circumstances before the court. Id. (citing

Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)). Even if the trial

court’s decision was an abuse of discretion, we will not reverse if the admission

constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

1999).

[8] When the trial court excluded Shirley’s offered testimony about his relationship

with Frazier after the March 6 incidents, Shirley made an offer to prove that he

wanted to testify that he had a positive relationship with Frazier after March 6.

Shirley argues that the trial court abused its discretion in excluding his

testimony. He asserts that his testimony would contradict Frazier’s and

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 4 of 9 Gibson’s testimony that they were afraid of him and show that Frazier did not

take Shirley’s statement seriously.1

[9] The State argues that Shirley’s testimony was inadmissible as irrelevant under

Indiana Evidence Rule 401. Evidence is relevant if it has any tendency to make

a fact more or less probable than it would be without the evidence and the fact

is of consequence in determining the action. Ind. Evidence Rule 401. Shirley’s

proposed testimony would have described this relationship with Frazier after

March 6, 2014. This testimony was not relevant to the Class A misdemeanor

intimidation charge which stated:

On or about 3/6/2014, in Marion County, State of Indiana, the following named defendant Reginald Shirley, did communicate a threat to Lillian Frazier, another person, said threat being: “If you put me out, I’ll burn it (the house) down,” with the intent that said person engage in conduct against his/her will, that is not evict him from his residence.

App. 15.

[10] Shirley’s testimony that he had a positive relationship with Frazier after the

March 6, 2014, incident is not relevant to whether he communicated a threat to

Frazier on that date and as such is inadmissible under Indiana Evidence Rule

1 The State claims that Shirley’s argument that the trial court abused its discretion is waived because he failed to make an adequate offer of proof. After reviewing the record, we disagree. Shirley adequately identified the substance of the evidence, the grounds for admission, and the relevancy of the testimony by explaining that his testimony would rebut Frazier’s statement that she was afraid of him. We will proceed to address the issue on its merits.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 5 of 9 401. Accordingly, the trial court did not abuse its discretion by excluding

Shirley’s testimony.

[11] Even if the trial court had abused its discretion by excluding Shirley’s

testimony, any error would be harmless. “Trial court error is harmless if the

probable impact of the error on the [trier of fact], in light of all of the evidence,

is sufficiently minor such that it does not affect the substantial rights of the

parties.” Bald v. State, 766 N.E.2d 1170, 1173 (Ind. 2002) (quoting Hauk v. State,

729 N.E.2d 994, 1002 (Ind. 2000)). Shirley had the opportunity to cross-

examine Frazier and Gibson concerning their alleged fear of him but did not.

Any additional testimony from Shirley relating to the relationship with Frazier

after the March 6, 2014, incident would not have negated any of the elements of

the intimidation charge. For all of these reasons, the trial court did not commit

any reversible error by excluding Shirley’s testimony.

II. Sufficiency of the Evidence

[12] Finally, Shirley argues that his conviction was not supported by sufficient

evidence. “Upon a challenge to the sufficiency of evidence to support a

conviction, a reviewing court does not reweigh the evidence or judge the

credibility of witnesses, and respects the [trier of fact’s] exclusive province to

weigh conflicting evidence.” Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct.

App. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We

consider only probative evidence and reasonable inferences supporting the

verdict. Id. We must affirm if the probative evidence and reasonable inferences

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 6 of 9 drawn from the evidence could have allowed a reasonable trier of fact to find

the defendant guilty beyond a reasonable doubt. Id.

[13] Shirley does not dispute that he communicated the threatening statements to

Frazier, but rather, he claims that he made the statements because she

threatened to evict him. Shirley argues that he was “merely venting,” and his

statements were “not meant seriously.” Appellant’s Br. at 5.

[14] Indiana Code section 35-45-2-1(a)(1) provides:

A person who: (1) communicates (2) a threat (3) to another person (4) with the intent that the other person engage in conduct against the other person’s will commits intimidation, a Class A misdemeanor.

[15] The State proved that Shirley communicated a threat to Frazier by establishing

that Frazier visited her rental property on numerous occasions to collect unpaid

rent from Shirley. On both occasions Frazier requested the rent payments and

stated if he did not pay she would start eviction proceedings, Shirley responded

that he would burn the house down.

[16] The main question at issue is whether Shirley communicated a threat to Frazier

to prevent her from evicting him from the rental property. A “‘threat’ means an

expression, by words or action, of an intention to: (1) unlawfully injure the

person threatened or another person, or damage property.” Ind. Code § 35-45-2-

1(d). In Indiana, an objective analysis is used to determine whether a statement

constitutes a threat. Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995). A mens rea

determination in a threat case is almost inevitably a matter of circumstantial

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 7 of 9 proof, absent a defendant’s confession or admission. Brewington v. State, 7

N.E.3d 946, 964 (Ind. 2014).

[17] The statements Shirley made were in the context of several arguments with

Frazier related to past due rent and Frazier’s need to evict him if he could not

pay her what he owed. On the second visit, Shirley became enraged, went to

the bathroom, and slammed objects against the wall. When he returned he

invaded Frazier’s personal space and threatened to burn the house down again.

Given the circumstances, Shirley’s actions did not suggest that he was joking or

not serious. Objectively, a reasonable fact-finder could determine that Shirley’s

statements constituted a threat.

[18] Shirley cites to Newell v. State, 7 N.E.2d 367, 369 (Ind. Ct. App. 2014), in which

our court applied the objective test, but also considered the following additional

factors: the content of the statement, the context of the statement, and the

reaction of the listener. Id. Weighing these factors, especially the reaction of the

listener, we still conclude that Shirley’s statement was a “threat.” Here, Shirley

made the statement directly to Frazier in a hostile manner that led Frazier and

Gibson to believe that he would follow through with burning the house down.

Both Frazier and Gibson testified at trial that they believed Shirley’s statement

and were afraid of him. Tr. pp. 31, 32, 49. Looking at the totality of the

circumstances under the objective test and the Newell factors, we conclude that

the State proved that Shirley’s statement was a true threat.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 8 of 9 Conclusion

[19] The trial court did not abuse its discretion in excluding Shirley’s testimony

describing his relationship with Frazier after the March 6, 2014, incident

occurred because it was inadmissible under Indiana Evidence Rule 401.

Further, the State presented sufficient evidence to support Shirley’s Class A

misdemeanor intimidation conviction.

[20] Affirmed.

Baker, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-575| September 23, 2015 Page 9 of 9