                                                                              FILED
                                                                          Jun 28 2019, 9:08 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Stanley L. Campbell                                        Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                        Attorney General of Indiana
                                                                 George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA
      Gabriel A. Merriweather,                                   June 28, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2270
              v.                                                 Appeal from the Allen Superior
                                                                 Court
      State of Indiana,                                          The Honorable Frances C. Gull,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 02D05-1802-F5-42



      Mathias, Judge.


[1]   Following a jury trial in Allen Superior Court, Gabriel A. Merriweather

      (“Merriweather”) was convicted of Level 5 felony domestic battery, Level 5

      felony intimidation, Level 6 felony domestic battery, and determined to be a

      habitual offender. The trial court sentenced Merriweather to an aggregate term


      Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                           Page 1 of 27
      of twelve years of incarceration. Merriweather appeals and presents four issues

      for our review, which we restate as:

              I.       Whether the information charging him with intimidation is so
                       flawed as to constitute fundamental error;


              II.      Whether the trial court committed fundamental error by failing to
                       properly instruct the jury on the requirement of unanimity;


              III.     Whether the State presented evidence sufficient to support his
                       conviction for intimidation; and


              IV.      Whether his twelve-year sentence is inappropriate.


[2]   We affirm.


                                  Facts and Procedural History
[3]   At the time relevant to this appeal, Merriweather lived in Fort Wayne, Indiana

      with his wife, S.S. The couple had one child together, and each had a child

      from a previous relationship. All three children lived with Merriweather and

      S.S. By 2018, Merriweather’s marriage to S.S. was deteriorating, and, on

      January 9 of that year, S.S. filed for divorce but did not tell Merriweather.

      Although the couple had tried to work on their marriage, S.S. “didn’t see it

      getting anywhere.” Tr. p. 29. Still, S.S. told Merriweather that he and his

      daughter could live with her until he received money from the estate of his

      recently deceased father.




      Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 2 of 27
[4]   On January 11, 2018, S.S. picked Merriweather up from work at approximately

      9:30 p.m. and returned home. At home, S.S. sat in the living room on her

      phone. Merriweather claims he heard what he believed to be another man on

      the phone with S.S. He also observed what he thought to be a hickey on her

      neck. According to S.S., however, she was merely on her phone playing video

      games. Both parties agree that Merriweather asked S.S. if they could continue

      to work on their relationship. S.S. responded, “no,” and Merriweather briefly

      went into the kitchen. Tr. p. 35.


[5]   Moments later, Merriweather returned to the living room and punched S.S. in

      the face. He then grabbed S.S. by her ponytail and dragged her into the kitchen.

      S.S. begged Merriweather to stop, as their daughters were at home in their

      bedroom. Merriweather rammed S.S.’s head into the refrigerator, a wooden

      chair, and a cabinet. S.S. fell down and drew her body up into a fetal position

      while pleading for Merriweather to stop. Instead, Merriweather kicked S.S. and

      stomped on her.

[6]   Eventually, Merriweather stopped and gave S.S. a towel to wipe off her face,

      which was bleeding. S.S. asked to go to the hospital, but Merriweather grabbed

      a kitchen knife and threatened to kill her. S.S. again implored Merriweather to

      take her to the hospital, as she could tell her jaw was injured. This apparently

      persuaded Merriweather, who then left the kitchen and yelled to the girls that

      they needed to take their mother to the hospital. In the car, S.S. convinced

      Merriweather to drop her and her daughters off at her mother’s house. When

      Merriweather left, S.S. telephoned the police. The responding officers took

      Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019        Page 3 of 27
      photographs of S.S.’s injuries, and S.S.’s mother drove her to the hospital. At

      the hospital, S.S. was diagnosed with a fractured jaw. She underwent surgery to

      repair her injury the following day, which involved permanently implanting

      metal plates and screws into S.S.’s jaw. Merriweather later attempted to

      apologize to S.S. and told her, “you don’t have to show up to court[.]” Tr. p.

      51.

[7]   On February 6, 2018, the State charged Merriweather as follows: Count I,

      Level 5 felony domestic battery; Count II, Level 5 felony intimidation; Count

      III, Level 6 felony domestic battery; and Count IV, Level 6 felony domestic

      battery. On February 19, 2018, the State amended the charging information to

      include an allegation that Merriweather was an habitual offender.


[8]   A two-day jury trial commenced on July 10, 2018. Immediately prior to trial,

      the State moved to dismiss Count IV and to correct a scrivener’s error regarding

      the spelling of S.S.’s name in the remaining counts. The trial court granted both

      motions, and the jury ultimately found Merriweather guilty as charged. The

      jury also determined that Merriweather was an habitual offender. At a

      sentencing hearing held on August 21, 2018, the trial court sentenced

      Merriweather to six years on each of the Level 5 felony convictions and to two

      and one-half years on the Level 6 felony conviction, to be served concurrently.

      The trial court then enhanced the six-year sentence on Count I by six years due

      to the habitual offender adjudication, for an aggregate term of twelve years of

      incarceration. Merriweather now appeals.



      Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019       Page 4 of 27
               I. The Charging Information Did Not Constitute Fundamental Error

[9]    Merriweather first argues that the wording of the information charging him

       with intimidation constituted fundamental error. Merriweather admits that he

       did not lodge any objection to the wording of the charging information before

       the trial court, nor did he move to dismiss the charge. We explained in Grimes v.

       State that the


               [f]ailure to timely challenge an allegedly defective charging
               information results in waiver unless fundamental error has
               occurred. Fundamental error is an extremely narrow exception to
               the waiver rule, and the defendant faces the heavy burden of
               showing that the alleged error is so prejudicial to the defendant’s
               rights as to make a fair trial impossible. An error in a charging
               information is fundamental if it mislead[s] the defendant or fail[s]
               to give him notice of the charges against him so that he is unable
               to prepare a defense to the accusation.


       84 N.E.3d 635, 640 (Ind. Ct. App. 2017), trans. denied (citations and internal

       quotation marks omitted).

[10]   The State charged Merriweather with Level 5 felony intimidation as follows:


               On or about the 11th day of January, 2018, in the County of
               Allen and in the State of Indiana, said defendant, Gabriel A.
               Merriweather, did, while armed with a deadly weapon,
               communicate a threat to [S.S.],with the intent that [S.S.] be
               placed in fear of retaliation for a prior lawful act or engage in
               conduct against her will[.]


       Appellant’s App. p. 14.



       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019           Page 5 of 27
[11]   This generally tracks the language of the governing statute, which provides:


               (a) A person who communicates a threat to another person, with
               the intent:
                    (1) that the other person engage in conduct against the other
                    person’s will; [or]
                    (2) that the other person be placed in fear of retaliation for a
                    prior lawful act;
                                                         ***
               commits intimidation, a Class A misdemeanor.

               (b) However, the offense is a:
                                                         ***
                    (2) Level 5 felony if:
                        (A) while committing it, the person draws or uses a deadly
                        weapon[.]


       Ind. Code § 35-45-2-1.1


[12]   Merriweather has two issues with the charging information. First, he claims

       that the information was improper because it failed to specify any particular act

       on the part of the victim for which Merriweather was seeking to place her in

       fear of retaliation. Merriweather is correct that we have noted before that

       “prosecutors’ failure to specify the ‘prior lawful act’ in the charging information




       1
         This section has since been amended by Pub. L. 66-2019 § 17, which will be effective July 1, 2019. We cite
       to the version of the statute effective on the date Merriweather committed his offense.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                                Page 6 of 27
       is a recurring issue in appeals of criminal intimidation.” Fleming v. State, 85

       N.E.3d 626, 630 (Ind. Ct. App. 2017).

[13]   However, it is also well established that


               [t]he State is not required to include detailed factual allegations
               in a charging information. An information that enables an
               accused, the court, and the jury to determine the crime for which
               conviction is sought satisfies due process. Errors in the
               information are fatal only if they mislead the defendant or fail to
               give him notice of the charge filed against him. [W]here a
               charging instrument may lack appropriate factual detail,
               additional materials such as the probable cause affidavit
               supporting the charging instrument may be taken into account in
               assessing whether a defendant has been apprised of the charges
               against him.


       Gilliland v. State, 979 N.E.2d 1049, 1061 (Ind. Ct. App. 2012) (citations and

       internal quotation marks omitted).

[14]   Thus, in Fleming, even though the charging information did not specify any

       prior lawful act, we held this was not reversible error because the defendant

       never filed a motion to dismiss and because the “deputy prosecutor explained

       on two occasions during trial that the prior lawful act was [the victim] ‘stepping

       out on to his front porch which he said he did to protect his wife.’” 85 N.E.3d

       at 630 (transcript citation omitted).

[15]   The same is true here. Merriweather never challenged the adequacy of the

       charging information prior to or during trial. And even though the charging

       information does not specify a particular prior lawful act to which the threat

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 7 of 27
       was aimed, the probable cause affidavit set forth that Merriweather brutally beat

       and then threatened to kill S.S. immediately after she rejected his request to

       continue to work on their relationship. The factual basis underlying the charge

       was therefore clear well before trial. And at trial, S.S. testified that

       Merriweather beat her, then threatened to kill her with a knife shortly after she

       told him that she no longer wanted to work to mend their marriage. Moreover,

       when discussing the intimidation charge during the State’s closing argument,

       the prosecuting attorney stated that it was, “[i]ntimidation with a deadly

       weapon when he threatened to kill her because she wouldn’t give him a second

       chance.” Tr. p. 133. Under these facts and circumstances, we cannot say that

       the lack of factual details in the charging information constitutes fundamental

       error. See Fleming, 85 N.E.3d at 630.


[16]   Merriweather also argues that the charging information suffers from an

       additional defect in that it alleged that he committed intimidation by

       threatening S.S. with the intent that she either (1) be placed in fear of retaliation

       for a prior lawful act or (2) engage in conduct against her will. Because the

       information alleged two ways of committing the crime of intimidation,

       Merriweather contends that this rendered the information bad for duplicity.


[17]   We have explained before that “[o]ne of the well-established rules of criminal

       pleading is that there can be no joinder of separate and distinct offenses in one

       and the same count. A single count of a charging pleading may include but a

       single offense.” Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010), trans.

       denied. When one count improperly alleges two or more separate offenses,
       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 8 of 27
       “duplicity” occurs. Id. Such duplicity is unacceptable because it “‘prevents the

       jury from deciding guilt or innocence on each offense separately and may make

       it difficult to determine whether the conviction rested on only one of the

       offenses or both.’” Id. (quoting 5 Wayne R. LaFave et al., Criminal Procedure §

       19.3(c) (3d ed. 2007)). Whether a charging instrument is duplicitous generally

       turns on a proper construction of the criminal statute at issue. Id.


[18]   The State may, however, allege alternative means or theories of culpability

       when prosecuting the defendant for a single offense. Id. As stated by our

       supreme court in Baker v. State:


               [A] source of concern stems from jury instructions that are
               delivered disjunctively or charging instruments that allege the
               defendant engaged in either “X” or “Y” behavior. In this regard,
               our jurisprudence has drawn a distinction between disjunctive
               instructions and charging instruments allowing for alternative
               means of committing an offense, versus alternative separate
               criminal offenses.


       948 N.E.2d 1169, 1175 (Ind. 2011). There is accordingly no error when the

       State “merely present[s] the jury with alternative ways to find the defendant

       guilty as to one element,” as “‘[d]ifferent jurors may be persuaded by different

       pieces of evidence, even when they agree upon the bottom line.’” Cliver v. State,

       666 N.E.2d 59, 67 (Ind. 1996) (quoting Schad v. Arizona, 501 U.S. 624, 631–32

       (1991) (Souter, J., plurality opinion)); accord Vest, 930 N.E.2d at 1225–26.


[19]   Merriweather argues that the information charging him with intimidation is

       duplicitous because it alleges that he committed intimidation under two

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019        Page 9 of 27
       subsections. That is, he contends that he was charged with, in the words of the

       court in Baker, alternative separate offenses, not alternative means of

       committing one offense. We are not so sure.


[20]   In support of his argument that the charging information was duplicitous,

       Merriweather cites Marshall v. State, 602 N.E.2d 144 (Ind. Ct. App. 1992), trans.

       denied, a case in which the defendant had been arrested after touching the

       genital area of an undercover police officer in a public restroom. The

       information charging the defendant with public indecency stated that he “did

       unlawfully and knowingly, in a public place . . . (engage in the act of sexual

       intercourse) (engage in deviate sexual conduct, to-wit: ____) (appear in a state

       of nudity) (fondle the genitals of [an undercover police officer]).” Id. at 148. The

       information was based on a pre-printed form, and whoever filled out the form

       had failed to delete the inapplicable portions of the form. The Marshall court

       stated that this appeared to have the effect of charging the defendant with all

       four varieties of public indecency. Id. at 149. The court therefore concluded that

       the information was “bad for duplicity and could not have withstood attack by

       a timely motion to dismiss.” Id. This would appear to support Merriweather’s

       argument that the information charging him with intimidation was bad for

       duplicity.

[21]   However, in Tague v. State, 539 N.E.2d 480, 481–82 (Ind. 1989), our supreme

       court held that the trial court did not abuse its discretion when it permitted the

       State to amend the information charging the defendant with child molesting by

       deviate sexual conduct to add “and/or sexual intercourse,” because the crime

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019         Page 10 of 27
       would be “proven in the event of either of the alternative acts described in the

       statute.” The court concluded that the amendment simply alleged that Tague

       committed a single crime of child molesting by alternate means. Id. Thus, the

       amendment did not alter the theory of the case or the identity of the crime

       charged.


[22]   Similarly, in Cliver, our supreme court held that the trial court did not err by

       permitting the State to amend the information charging defendant with

       conspiracy to include the specification of multiple, alternate overt acts

       connected by the conjunction “or.” 666 N.E.2d at 67. And in Davis v. State, 476

       N.E.2d 127, 132 (Ind. Ct. App. 1985), trans. denied, this court held that an

       indictment was not duplicitous where it alleged neglect of a child by

       endangerment “and/or” abandonment because it was based on two acts, either

       of which constituted neglect, and the State needed only to prove that the

       defendants either “endangered or abandoned” their child.

[23]   We think this case is more akin to Tague, Cliver, and Davis than it is to Marshall.

       Here, the State charged Merriweather with a single criminal offense—

       intimidating S.S.—and alleged two means of finding him guilty of this single

       offense, i.e., by threatening her with the intent of either placing her in fear of

       retaliation for a prior lawful act or with the intent that she engage in conduct

       against her will. We therefore believe that the charging information was not bad

       for duplicity.




       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019           Page 11 of 27
[24]   But even if we were to agree with Merriweather that the charging information

       in the present case were duplicitous like the one in Marshall, the court in that

       case further concluded that, although the charging information was improper, it

       did not amount to fundamental error because it alleged that the defendant

       fondled the genitals of the undercover officer on a specific date and location,

       and the defendant failed to demonstrate how his defense was impaired by the

       inadequacy of the information. 602 N.E.2d at 149.


[25]   The same is true here. Even if the charging information was duplicitous, it did

       not amount to fundamental error. The information alleged that Merriweather

       intimidated S.S. on a specific date and location. And it was clear from the

       probable cause affidavit that the State’s theory of the case was that

       Merriweather threatened S.S. because she did not want to continue to work on

       their relationship. That is, Merriweather threatened S.S. with the intent to place

       her in fear of retaliation for her prior lawful act of wanting to end her marriage

       with Merriweather. And again, the prosecuting attorney specifically argued to

       the jury that Merriweather intimidated S.S. “because she wouldn’t give him a

       second chance.” Tr. p. 133. For all of these reasons, we conclude that the

       charging information did not amount to fundamental error.


            II. The Trial Court’s Jury Instructions Did Not Constitute Fundamental
                                                Error

[26]   In a similar vein, Merriweather contends that the trial court’s manner of

       instructing the jury regarding jury unanimity constitutes fundamental error. The

       manner of instructing the jury is left to the discretion of the trial court. Fuentes v.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019           Page 12 of 27
       State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied. On appeal, we will

       reverse only when the instructions amount to an abuse of discretion. Id. To

       constitute an abuse of discretion, the instructions given must be erroneous, and

       the instructions taken as a whole must misstate the law or otherwise mislead the

       jury. Id. We will consider jury instructions as a whole and in reference to each

       other, not in isolation. Id. Here, Merriweather did not object to the trial court’s

       instructions, and must therefore establish fundamental error in order for us to

       reverse the trial court’s judgment.


               In order to be fundamental, the error must represent a blatant
               violation of basic principles rendering the trial unfair to the
               defendant and thereby depriving the defendant of fundamental
               due process. The error must be so prejudicial to the defendant’s
               rights as to make a fair trial impossible. In considering whether a
               claimed error denied the defendant a fair trial, we determine
               whether the resulting harm or potential for harm is substantial.
               Harm is not shown by the fact that the defendant was ultimately
               convicted. Rather, harm is determined by whether the
               defendant’s right to a fair trial was detrimentally affected by the
               denial of procedural opportunities for the ascertainment of truth
               to which he would have been entitled.


       Id. at 74 (quoting Baker, 948 N.E.2d at 1178).


[27]   Merriweather’s claim regarding the jury instructions mirrors his claim regarding

       the charging information, i.e., that the jury instruction defining the crime of

       intimidation permitted the jury to find him guilty of intimidation by threatening

       S.S. with the intent to either place her in fear of retaliation for a prior lawful act

       or with the intent that she engage in conduct against her will.


       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019           Page 13 of 27
[28]   A similar issue was addressed by our supreme court in Baker. In that case, the

       defendant was charged with molesting three children, and the jury heard

       evidence that he committed multiple acts of molestation against each victim.

       On appeal, Baker argued that some jurors may have relied on different evidence

       than the other jurors to convict on each of the three counts. Id. at 1177. On

       appeal, our supreme court held that

                  [t]he State may in its discretion designate a specific act (or acts)
                  on which it relies to prove a particular charge. However if the
                  State decides not to so designate, then the jurors should be
                  instructed that in order to convict the defendant they must either
                  unanimously agree that the defendant committed the same act or
                  acts or that the defendant committed all of the acts described by
                  the victim and included within the time period charged.


       Baker, 948 N.E.2d at 1177 (citing People v. Jones, 792 P.2d 643, 649–50 (Cal.

       1990)); State v. Muhm, 775 N.W.2d 508, 520 (S.D. 2009) (following Jones);

       Thomas v. People, 803 P.2d 144, 153–54 (Colo. 1990) (following Jones)).


[29]   In Baker, the State did not designate which specific act or acts of molestation it

       relied on to support each of the three counts naming the three victims.2 Id. at

       1178. And the trial court instructed the jury regarding unanimity as follows:


                  “Your verdicts must represent the considered judgment of each
                  juror. In order to return a verdict of guilt or innocence you must
                  all agree. . . . Upon retiring to the jury room the Foreperson will




       2
           But the State was not required to do so. See id.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019            Page 14 of 27
                preside over your deliberations and must sign and date the
                verdicts to which you agree. Each verdict must be unanimous.”


       Id. (record citation omitted). The Baker court concluded that this instruction

       was inadequate because it “did not advise the jury that in order to convict Baker

       the jury must either unanimously agree that he committed the same act or acts

       or that he committed all of the acts described by the victim and included within

       the time period charged.” Id.


[30]   Here, as in Baker, the charging information did not designate a specific act or

       acts the State relied upon to support the intimidation charge. Merriweather

       contends that, also as in Baker, the trial court’s instructions did not advise the

       jury that in order to convict Merriweather of intimidation that it must

       unanimously agree that he threatened S.S. with the same intent—either to place

       her in fear of retaliation for a prior lawful act or that she engage in conduct

       against her will.3 Thus, Merriweather argues that some of the jurors might have

       believed that he intimidated S.S. with the former intent, and some jurors might

       have believed that he intimidated S.S. with the latter intent.




       3
         We are unable to verify Merriweather’s claims regarding the trial court’s instruction on unanimity, as the
       record before us does not contain all of the trial court’s instructions to the jury. For this reason, we would be
       within our discretion to consider this issue waived for purposes of appeal. See Shelby v. State, 986 N.E.2d 345,
       370 (Ind. Ct. App. 2013) (noting that it is an appellant’s duty to present an adequate record clearly showing
       the alleged error), trans. denied. We review claims of instructional error by considering the instructions as a
       whole, and in reference to one another, not in isolation. Fuentes, 10 N.E.3d at 73. It is therefore critical that
       an appellant presenting a claim of instructional error provide the court on appeal with all of the court’s
       instructions, not simply the one being challenged.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                                  Page 15 of 27
[31]   Had Merriweather objected to the trial court’s unanimity instruction and

       tendered the specific unanimity instruction approved of in Baker, we might be

       required to reverse his conviction. But he did neither, and this is where the

       similarity of his case to Baker dooms Merriweather’s argument.


[32]   The defendant in Baker also failed to object to the trial court’s instructions or

       tender an instruction on the unanimity requirement. Our supreme court

       therefore concluded that Baker’s claim of instructional error was waived. Id.

       The court further concluded that the instructional issue did not amount to

       fundamental error, writing:

               In this case the only issue was the credibility of the alleged
               victims. The only defense was to undermine the young women’s
               credibility by, among other things, pointing out inconsistencies in
               their statements, and advancing the theory that they were lying in
               retaliation for Baker getting [one of the victims] into trouble.
               Essentially “this case is about whether or not these kids will lie
               about [Baker] and make stuff up about him. . . .” “Ultimately the
               jury resolved the basic credibility dispute against [Baker] and
               would have convicted the defendant of any of the various
               offenses shown by the evidence to have been committed.” We
               conclude Baker has not demonstrated that the instruction error in
               this case so prejudiced him that he was denied a fair trial.


       Baker, 948 N.E.2d at 1179 (quoting Muhm, 775 N.W.2d at 521).


[33]   The same is true here. Merriweather’s defense to the intimidation charge had

       nothing to do with his intent. Instead, he simply claimed that he did not

       threaten S.S. with a knife or intimidate her. In fact, he effectively admitted to

       beating S.S., but steadfastly denied threatening her with a knife. In contrast,

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019         Page 16 of 27
       S.S. unequivocally testified that Merriweather threatened to kill her with a

       knife. And S.S.’s mother testified that, shortly after the beating, S.S. told her

       that Merriweather pulled out a knife and threatened to kill her after S.S. told

       him that she no longer wanted to be with him. Because Merriweather’s intent

       was not the focus of his defense, we conclude, as did the court in Baker, that the

       failure to instruct the jury on the unanimity requirement was not fundamental

       error. See 948 N.E.2d at 1179; see also Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct.

       App. 2015) (concluding that trial court’s failure to give defendant’s incomplete

       instruction on jury unanimity was not fundamental error where the case

       “largely turn[ed] on credibility.”), trans. denied.


            III. The State Presented Sufficient Evidence to Support Merriweather’s
                                    Conviction for Intimidation

[34]   Merriweather next asserts that the State failed to present sufficient evidence to

       support his conviction for Level 5 felony intimidation. When reviewing a claim

       that the evidence is insufficient to support a conviction, we neither reweigh the

       evidence nor judge the credibility of the witnesses. Harrison v. State, 32 N.E.3d

       240, 247 (Ind. Ct. App. 2015), trans. denied. We instead respect the exclusive

       province of the trier of fact to weigh any conflicting evidence. Id. We consider

       only the probative evidence supporting the verdict and any reasonable

       inferences that may be drawn from this evidence. Id. We will affirm if the

       probative evidence and reasonable inferences drawn from the evidence could

       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Id.


       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019         Page 17 of 27
[35]   As set forth above, to convict Merriweather of intimidation, the State was

       required to prove that he communicated a threat to S.S., with the intent that

       S.S. engage in conduct against her will or that she be placed in fear for a prior

       lawful act. I.C. § 35-45-2-1(a)(1).4 To convict Merriweather of Level 5 felony

       intimidation, the State was further required to show that, while committing the

       above acts, Merriweather drew or used a deadly weapon. Id. at § 1(b)(2)(A).


[36]   As part of his claim that the State failed to present sufficient evidence to support

       his intimidation conviction, Merriweather again complains that the jury was

       given two means of finding him guilty. This is an argument that we have

       adequately addressed above. And, as discussed, it is clear from the probable

       cause affidavit and the prosecuting attorney’s closing argument that the State’s

       theory of the case was that Merriweather threatened to kill S.S. with a knife

       with the intent to place her in fear of retaliation for the prior lawful act of

       rejecting his request that they work on their relationship. This leads us to

       Merriweather’s main argument on this issue, which is that the State failed to




       4
         Merriweather also argues that there was insufficient evidence to support his conviction for intimidation
       because he did not threaten S.S. with the intent that she engage in conduct against her will. As explained
       above, the State’s theory of the case did not involve this means of committing the crime of intimidation. And
       because there is sufficient evidence to show that Merriweather committed intimidation by threatening S.S.
       with the intent that she be placed in fear of retaliation for a prior lawful act, we need not address whether
       there was sufficient evidence to convict Merriweather on this alternative theory.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                               Page 18 of 27
       prove that he threatened S.S. with the intent to place her in fear of retaliation

       for a prior lawful act.5

[37]   “‘[I]t is apparent that the legislature intended to require the State to prove that

       the victim had engaged in a prior act, which was not contrary to the law, and

       that the defendant intended to repay the victim for the prior lawful act.’”

       Fleming, 85 N.E.3d at 630 (quoting Casey v. State, 676 N.E.2d 1069, 1072 (Ind.

       Ct. App. 1997)). Merriweather notes that, when S.S. was asked why he

       threatened to kill her, she indicated that she did not know. Tr. p. 37. However,

       immediately thereafter, S.S. testified that the whole incident started after she

       stated she no longer wanted to work on their marriage. Id. Intent is a mental

       function and, absent a confession, usually must be proved by circumstantial

       evidence. Hightower v. State, 866 N.E.2d 356, 368 (Ind. Ct. App. 2007), trans.

       denied; see also McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014)

       (noting that the requisite intent under the intimidation statute may be proved by

       circumstantial evidence). “Intent can be inferred from a defendant’s conduct

       and the natural and usual sequence to which such conduct logically and

       reasonably points.” McCaskill, 3 N.E.3d at 1050. On appeal, we will not reverse

       a conviction that rests in whole or in part on circumstantial evidence unless we

       can state as a matter of law that reasonable persons could not form inferences

       with regard to each material element of the offense so as to ascertain a



       5
        Merriweather makes no argument that there was insufficient evidence that he threatened S.S. He claims
       only that there was insufficient evidence to prove that he made the threat with the intent to place S.S. in fear
       of retaliation for a prior lawful act or with the intent that she engage in conduct against her will.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                                  Page 19 of 27
       defendant’s guilt beyond a reasonable doubt. Id. (citing Defries v. State, 264 Ind.

       233, 342 N.E.2d 622, 625 (1976)).

[38]   Considering only the evidence favorable to the jury’s verdict, we conclude that

       the evidence presented by the State is sufficient to support Merriweather’s

       conviction for intimidation. As set forth above in the statement of facts,

       Merriweather asked his then-wife S.S. if they could work on their relationship.

       When S.S. responded negatively, effectively announcing her desire to end her

       marriage, Merriweather brutally beat her, pulled a knife on her, and threatened

       to kill her. From this, the jury could reasonably infer that Merriweather

       threatened to kill S.S. with the knife with the intent that she be put in fear of

       retaliation for the prior lawful act of refusing to work on her relationship with

       Merriweather.

[39]   As we held in Chastain v. State, 58 N.E.3d 235, 241 (Ind. Ct. App. 2016), trans.

       denied, “a conviction under the intimidation statute should not depend upon a

       precise parsing of the threatening language used by a defendant or a detailed

       timeline of when a threat was issued in relation to a prior lawful act.” (citing

       Roar v. State, 52 N.E.3d 940, 944 (Ind. Ct. App. 2016), trans. granted, adopted in

       relevant part, 54 N.E.3d 1001 (Ind. 2016)). What is required is that there be a

       clear nexus between the prior lawful act and the defendant’s threat. Id.


[40]   In Chastain, the victim decided to intervene when he saw the defendant verbally

       abuse and shove a woman. Id. at 236. After exchanging words with the victim,

       Chastain retrieved a handgun from his truck, cocked it, pointed it at the victim


       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019         Page 20 of 27
       and stated, “I’ll f***ing kill you,” several times. Id. at 237 (record citation

       omitted). Although the charging information did not specify what prior act the

       victim had engaged in for which Chastain intended to place him in fear of

       retaliation, at trial, the prosecutor argued that the prior lawful act was the

       victim’s interruption of the fight between Chastain and the woman. Id. On

       appeal, we affirmed the conviction, holding:

               we believe that persons in a position like that in which [the
               victim] found himself should be able to attempt to defuse
               situations like the one between Chastain and [the woman]
               without being threatened with the use of deadly force for doing
               so. We believe the legislature intended to criminalize such
               conduct when it enacted the intimidation statute. To the extent
               Chastain contends that [the victim] was engaged in a continuing
               act of interfering with Chastain’s argument when the threat was
               issued, the reasonable inference most favorable to the jury’s
               verdict is that Chastain intended to threaten [the victim] for his
               prior, completed lawful act of having already interrupted
               Chastain’s argument. There is no requirement in the intimidation
               statute that the prior lawful act has to be completed for any
               considerable length of time before a threat is made.


       Id. at 240–41.


[41]   We followed Chastain in Fleming v. State, 85 N.E.3d 626 (Ind. Ct. App. 2017). In

       that case, the victim walked onto his porch after he heard the defendant yell

       obscenities at the victim’s wife. When he did so, Fleming cursed at the victim.

       When the victim did not respond, Fleming stated that he was “going to come

       over and ‘kick [the victim’s] ass because [the victim] came out” onto his porch.

       Id. at 632 (transcript citation omitted). We held that this was sufficient to show

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 21 of 27
       that the victim committed “a distinct lawful act by stepping out onto his porch

       when he heard his wife being insulted,” and that Fleming’s threats were in

       direct response to this. Id.


[42]   The same is true here. S.S. committed a distinct lawful act—refusing

       Merriweather’s request to work on their relationship—and Merriweather then

       almost immediately attacked S.S. and threatened to kill her. It is clear that

       Merriweather’s threat was in direct response to S.S.’s prior lawful act. We

       therefore find this case distinguishable from those in which this court has

       previously held that the evidence was insufficient to show that the defendant’s

       threat was in response to a prior lawful act. See, e.g., Blackmon v. State, 32

       N.E.3d 1178, 1182–83 (Ind. Ct. App. 2015) (evidence insufficient to show that

       defendant threatened victim with intent to place victim in fear of retaliation for

       the prior lawful act of stealing water from his daughter’s home where there was

       no evidence that he actually caught the victim stealing water and defendant did

       not pull knife until after victim threatened to call the police); Ransley v. State,

       850 N.E.2d 443, 446–47 (Ind. Ct. App. 2006) (evidence insufficient to support

       conviction for intimidation where defendant threatened victim with the intent

       that victim not come onto his property, which is not a prior act), trans. denied;

       Casey, 676 at 1072–73 (evidence insufficient to support intimidation conviction

       where State did not specify which of victim’s prior acts led to the threats and

       only alleged that defendant threatened victim with baseball bat and said,

       “you’re next, bitch,” and there was no evidence that threat was directed toward

       victim’s prior actions).


       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019           Page 22 of 27
[43]   In short, the State presented sufficient evidence to show that Merriweather

       threatened S.S. to place her in fear of retaliation for the prior lawful act of

       rejecting his proposal to work on their marriage.


                  IV. Merriweather’s Twelve-Year Sentence is Not Inappropriate

[44]   Lastly, Merriweather argues that his twelve-year sentence is inappropriate.

       Even if a trial court acts within its statutory discretion in imposing a sentence,

       Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.

       State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)). This authority is

       implemented through Indiana Appellate Rule 7(B), which provides that the

       court on appeal “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.”


[45]   Although we may revise a sentence on appeal, we still exercise deference to a

       trial court’s sentencing decision, as Appellate Rule 7(B) requires us to give “due

       consideration” to that decision, and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions. Id. The

       principal role of appellate review should be to attempt to “leaven the outliers”

       and identify guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve what we perceive to


       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 23 of 27
       be a “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008).

[46]   Our review under Appellate Rule 7(B) should focus on “the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Id. The question

       is not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055,

       1063 (Ind. Ct. App. 2015). It is the defendant’s burden on appeal to persuade us

       that the sentence imposed by the trial court is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006). When we review the appropriateness of a

       sentence, we consider “the culpability of the defendant, the severity of the

       crime, the damage done to others, and myriad other factors that come to light

       in a given case.” Cardwell, 895 N.E.2d at 1224.


[47]   Merriweather was convicted of Level 5 felony domestic battery, Level 5 felony

       intimidation, and Level 6 felony domestic battery. The sentencing range for a

       Level 5 felony is one to six years, with an advisory sentence of three years. Ind.

       Code § 35-50-2-6(b). The sentencing range for a Level 6 felony is six months to

       two and one-half years, with an advisory sentence of one year. Ind. Code § 35-

       50-2-7(b). As a result of the habitual offender adjudication, the trial court was

       also required to enhance one of Merriweather’s sentences by two to six years.

       See Ind. Code § 35-50-2-8(i)(2).




       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019         Page 24 of 27
[48]   The trial court sentenced Merriweather to concurrent sentences of six years on

       the Level 5 felony domestic battery conviction, six years on the Level 5 felony

       intimidation conviction, and two and one-half years on the Level 6 domestic

       battery conviction. The trial court also enhanced the sentence on Count I by six

       years due to the habitual offender finding, for an aggregate sentence of twelve

       years.6

[49]   We first address the nature of the offense. Merriweather brutally attacked S.S.

       because she rejected his request that they work on their deteriorating marriage.

       He also appears to have been jealous, as he claimed to have heard S.S. speaking

       on the telephone with another man. Merriweather struck S.S. with such ferocity

       that he broke her jaw, which required surgery to mend. As a result, S.S. now

       permanently has metal plates and screws in her jaw. Merriweather also

       slammed S.S.’s head into a kitchen appliance and furniture. Then, he stomped

       on her while she was in a fetal position on the floor. He also threatened to kill

       her with a knife. And he did all of this while his children and S.S.’s children




       6
         Although Merriweather notes that he was sentenced to the maximum possible on each count and also
       received the most severe habitual offender enhancement, the trial court did order all the sentences to be
       served concurrently. Thus, although Merriweather received a severe sentence, he did not receive the
       maximum possible sentence.
       Neither domestic battery nor intimidation are “crimes of violence” for purposes of the consecutive sentence
       statute, Indiana Code section 35-50-1-2(a), and the most serious crime for which Merriweather was convicted
       was a Level 5 felony. Thus, even if the trial court opted to impose consecutive, as opposed to concurrent,
       sentences, the consecutive terms could not exceed seven years. See id. at § 2(d)(2). Thus, the most the trial
       court could have sentenced Merriweather to was twelve years plus additional consecutive sentences not to
       exceed seven years, for a maximum statutory sentence of nineteen years.

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019                                Page 25 of 27
       were in the home. He later attempted to avoid responsibility for his criminal

       actions by telling S.S. that she did not have to testify against him. See Tr. p. 51.


[50]   In addition to the brutal nature of Merriweather’s offenses, his sentence is

       further supported by Merriweather’s character, as evidenced by his extensive

       criminal history. Following juvenile probation in 1985 for what would have

       been burglary if committed by an adult, Merriweather continued to commit

       numerous crimes and has since been convicted of five felonies and eight

       misdemeanors. Specifically, he was convicted for Class B felony burglary in

       1988, Class C felony burglary in 1998, Class C felony carrying a handgun

       without a license in 2001, and two counts of Class D felony domestic battery in

       2010. His misdemeanor convictions include criminal trespass, possession of

       marijuana, operating a motor vehicle with a suspended license, false informing,

       domestic battery, and invasion of privacy. He has also had his parole and

       probation revoked.


[51]   We have noted before that “the significance of a defendant’s criminal history

       varies based on the gravity, nature, and number of prior offenses as they relate

       to the current offense.” Chappell v. State, 966 N.E.2d 124, 134 (Ind. Ct. App.

       2012), trans. denied. Here, not only does the sheer number of Merriweather’s

       prior convictions reflect poorly on his character, so too does the fact that three

       of these prior convictions were for domestic battery. See id. (holding that

       defendant’s prior convictions for breaking and entering and trespass reflected

       poorly on his character as it related to his instant conviction for burglary); see

       also Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior

       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019          Page 26 of 27
       conviction for Operating While Intoxicated (“OWI”) would be a significant

       aggravator in a subsequent alcohol-related offense); Simmons v. State, 962

       N.E.2d 86, 93 (Ind. Ct. App. 2011) (noting that prior OWI convictions, as they

       related to present offense of OWI, reflected poorly on defendant’s character and

       justified imposition of maximum eight-year sentence).


[52]   Considering both the brutal nature of Merriweather’s offenses and his poor

       character, as reflected by his extensive criminal history, we can only conclude

       that the twelve-year sentence imposed by the trial court was not inappropriate.


                                                   Conclusion

[53]   The information charging Merriweather with intimidation did not constitute

       fundamental error due to duplicity, nor did the trial court fundamentally err in

       instructing the jury regarding the intimidation charge. Further, the State

       presented evidence sufficient to support Merriweather’s conviction for Level 5

       felony intimidation, and, lastly, Merriweather’s aggregate sentence of twelve

       years is not inappropriate. Accordingly, we affirm the judgment of the trial

       court.


[54]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019       Page 27 of 27
