Reginald Shirley v. State of Indiana (mem. dec.) ( 2015 )

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.
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[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
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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
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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
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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.
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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
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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
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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.
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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.
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