MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Dec 20 2018, 6:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Talisha Griffin                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                   Marjorie Lawyer-Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Stefan Murphy,                                          December 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1208
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Hooper,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1703-CM-11652



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018                  Page 1 of 10
                                             Case Summary
[1]   Stefan Murphy appeals his conviction for class A misdemeanor intimidation.

      He asserts that the State presented insufficient evidence to support his

      conviction and that the prosecutor committed misconduct during closing

      argument that constituted fundamental error. Finding the evidence sufficient

      and no misconduct or fundamental error, we affirm.


                                 Facts and Procedural History
[2]   On January 27, 2017, Murphy entered a Chase Bank in Castleton to cash a

      check. Murphy did not have an account with Chase, but the check was written

      on a Chase account. Chase has a policy that individuals who do not have an

      account with Chase must pay an $8.00 check cashing fee. Murphy cashed the

      check and was charged the fee. He became angry and asked to speak with the

      branch manager about the fee.


[3]   The manager, Patrick Canny, informed Murphy about Chase’s policy and

      explained to him that there was nothing he could do because the fee was

      nonrefundable. Canny apologized and informed Murphy that the bank could

      give him the check back and he could go elsewhere to cash it if he wished.


[4]   Murphy told Canny that he wanted a refund of the $8.00 fee or he would

      pursue legal recourse against Canny and Chase. Canny again stated that there

      was nothing he could do, and he went to his office to retrieve a business card to

      give to Murphy. Canny exited his office, handed Murphy the card, and

      returned to his office, with Murphy trailing behind him. After Canny entered

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 2 of 10
      his office, Murphy stood in the doorway of the office and said, “[I]f I weren’t in

      a bank right now, I’d be kicking your ass.” Tr. Vol. 2 at 11. Murphy then

      stepped into Canny’s office and shut the door. He flung Canny’s card at him

      and again threatened Canny that he was going to “kick [his] f’ing ass.” Id. at

      12. Murphy told Canny, “This isn’t over. I’m going to f you up when I see

      you, you know, I’ll see you again.” Id. Murphy approached Canny, who was

      sitting in a chair, and stood over him with his legs pressed against the chair.

      Murphy shoved his finger against Canny’s nose while he leaned over him.

      Murphy noticed that Canny was shaking in fear, and he began mocking Canny.

      Canny told Murphy that he needed to leave, but when Canny attempted to

      stand, Murphy pushed him back into the chair with a “chest bump.” Id. at 15.

      Murphy repeated that he was going to find Canny later, and then pushed

      Canny back into the chair when Canny attempted to stand up. On Canny’s

      third attempt to stand, Murphy chest-bumped Canny again, but Canny fell to

      the side of his desk and was then able to slide around Murphy and escape into

      the bank lobby.


[5]   As the two men were exiting the office, Murphy yelled at Canny and put his

      finger in Canny’s face saying, “You are a f***king racist and I’m not done. I

      will be back.” Id. at 54. Murphy left the bank. After he was gone, bank

      employees called the police. Canny subsequently identified Murphy from a

      photo lineup.


[6]   The State charged Murphy with one count of class A misdemeanor

      intimidation and one count of class B misdemeanor battery. Following a trial,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 3 of 10
      the jury found Murphy guilty of the class A misdemeanor. The trial court

      sentenced him to a one-year term, fully suspended to nonreporting probation.

      This appeal ensued.


                                     Discussion and Decision

         Section 1 – The evidence is sufficient to support Murphy’s
                                conviction.
[7]   Murphy contends that the State presented insufficient evidence to support his

      intimidation conviction. When reviewing a claim of insufficient evidence, we

      neither reweigh the evidence nor assess witness credibility. Bell v. State, 31

      N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable inferences

      drawn therefrom that support the conviction, and will affirm if there is

      probative evidence from which a reasonable factfinder could have found the

      defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

      believed by the trier of fact is enough to support the conviction, then the

      reviewing court will not disturb it. Id. at 500.


[8]   To convict Murphy of class A misdemeanor intimidation, the State was

      required to prove that Murphy communicated a threat to Canny with the intent

      that Canny be placed in fear of retaliation for a prior lawful act. Ind. Code § 35-

      45-2-1(a)(2). Murphy asserts that the State presented insufficient evidence that

      his comments to Canny constituted a threat and further that the State failed to

      prove his intent to place Canny in fear of retaliation for a prior lawful act,

      namely, the imposition of the check cashing fee. We disagree.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 4 of 10
[9]    First, we reject Murphy’s suggestion that his comments to Canny did not

       constitute a threat. The intimidation statute defines “threat” as an “expression,

       by words or action, of an intention to ... unlawfully injure the person threatened

       ... [or] commit a crime[.]” Ind. Code § 35-45-2-1(d)(1), -(d)(3). Our supreme

       court clarified in Brewington v. State that “true threats” depend on two necessary

       elements: (1) that the speaker intend for his communications to put his target in

       fear for his safety and (2) that the communications were likely to actually cause

       such fear in a reasonable person similarly situated to the target. 7 N.E.3d 946,

       964 (Ind. 2014), cert. denied (2015). We find the evidence sufficient as to both

       elements. Murphy repeatedly told Canny that he knew where to find him, that

       he was going to kick his ass, and that “[t]his isn’t over.” Tr. Vol. 2 at 12. The

       words used, coupled with an angry tone of voice and aggressive physical

       behavior, support a reasonable inference that Murphy intended for his

       communications to put Canny in fear for his safety. Moreover, it was

       reasonable for the jury to infer that such communications were likely to actually

       cause fear in a reasonable person similarly situated to Canny. Canny testified

       that he was scared and shaking both during and after the incident, and that he

       believed that Murphy was planning to find him and cause him physical harm.

       Under the circumstances, the evidence was sufficient to establish that Murphy’s

       words to Canny constituted a true threat.


[10]   In addition to proving that a threat was issued, the State was also required to

       prove that the threat itself was delivered with the intent to place Canny in fear

       of retaliation for a prior lawful act. That is to say, the State must demonstrate a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 5 of 10
       clear nexus between a prior lawful act and the threat. Roar v. State, 52 N.E.3d

       940, 944 (Ind. Ct. App. 2016), summarily aff’d by 54 N.E.3d 1001 (Ind. 2016).

       The charging information specified that the prior lawful act was “the check

       cashing fee” imposed by the bank. Appellant’s App. Vol. 2 at 18. Murphy

       argues that because it was technically the bank that charged him the fee, and

       not Canny, it was not Canny’s prior lawful act that Murphy was allegedly

       retaliating against. We are not persuaded by Murphy’s attempt to distinguish

       between Canny and the bank in this situation. Canny was the branch manager

       who informed Murphy of the fee policy and his inability to refund the imposed

       fee, and the State presented ample evidence that Murphy’s anger and hostility

       toward Canny immediately followed. There was a clear nexus between

       Canny’s lawful act as a bank representative and Murphy’s threat against him.

       The State presented sufficient evidence to support the conviction.


             Section 2 – Murphy has failed to establish prosecutorial
                misconduct or fundamental error based thereon.
[11]   Murphy also asserts that the prosecutor committed misconduct at multiple

       points during his closing argument. In reviewing a properly preserved claim of

       prosecutorial misconduct, we must consider first whether misconduct occurred

       and second whether the misconduct placed the defendant in a position of grave

       peril to which he should not have been subjected. Williams v. State, 724 N.E.2d

       1070, 1080 (Ind. 2000). Murphy concedes that he did not properly preserve his

       prosecutorial misconduct claim, and therefore, he must establish not only the

       grounds for the misconduct but also the additional grounds for fundamental

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 6 of 10
       error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014).1 The fundamental error

       exception to the contemporaneous objection rule is extremely narrow and

       applies only when the error constitutes a blatant denial of basic due process

       principles that makes it impossible to receive a fair trial. Id. To establish

       fundamental error, the defendant must show that, under the circumstances, the

       trial judge erred in not sua sponte raising the issue because alleged errors (a)

       constitute clearly blatant violations of basic and elementary principles of due

       process and (b) present an undeniable and substantial potential for harm. Id.


[12]   Murphy’s first assertion of prosecutorial misconduct concerns the prosecutor’s

       alleged misstatement of evidence. Specifically, Murphy points to the following

       passages from closing argument:


               The things you heard Mr. Canny testify the defendant said to
               him. Those are threats. Don’t leave your common sense at the
               door when you walk back there. You know that is a threat
               somebody going up to a bank manager and screaming that I’m
               gonna come back here and kick your ass, that’s a threat. So, we’ve
               proved that.


       Tr. Vol. 2 at 81 (emphasis added).


               [Canny] sat right here and he said that he was shaking, that the
               defendant saw him, and that he started to mock him, because he was
               scared.




       1
        To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct
       occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial. Ryan, 9
       N.E.3d at 667.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018               Page 7 of 10
       Id. at 82-83 (emphasis added).


[13]   Murphy argues that the prosecutor misstated the evidence because there was no

       evidence that Murphy actually screamed that he was going to come back to the

       bank and batter Canny, and further there was no direct testimony as to why

       Murphy was later mocking Canny. We disagree with Murphy’s assertion that

       the above passages contain misstatements of evidence. Canny testified that

       Murphy repeatedly threatened that “[t]his isn’t over” that he would “find”

       Canny, and that he would “f” Canny up when he saw him “again.” Id. at 12,

       44. Moreover, Canny testified that as Murphy leaned over his chair, he

       inquired “why you shaking[,]” and Canny explained that he believed that

       Murphy was clearly mocking him for being scared. Id. at 44-45. The above-

       quoted statements by the prosecutor were accurate summaries of the evidence

       presented, followed by permissible arguments as to the inferences to be drawn

       from the evidence. See Neville v. State, 976 N.E.2d 1252, 1260 (Ind. Ct. App.

       2012) (noting that prosecutor may properly argue logical or reasonable

       conclusions to be drawn from evidence). The prosecutor’s statements did not

       constitute misconduct.


[14]   Next, Murphy claims that the prosecutor committed misconduct by improperly

       asserting his personal opinion on the element of intent. See Gaby v. State, 949

       N.E.2d 870, 880-81 (Ind. Ct. App. 2011) (noting that an attorney should not

       assert personal knowledge of facts in issue except when testifying as a witness)

       (citing Ind. Professional Conduct Rule 3.4(e)). Murphy directs us to when the

       prosecutor said,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 8 of 10
               We also have to prove the defendant intended that Mr. Canny be
               placed in fear of retaliation because of a prior lawful act. Well, I
               certainly think that he intended Mr. Canny to be placed in fear of
               retaliation because of what [Murphy] said.


       Tr. Vol. 2 at 81-82 (emphasis added). Contrary to Murphy’s assertion, when

       this statement is viewed in context, it is apparent that the prosecutor was not

       asserting any personal knowledge as to Canny’s intent. Instead, the prosecutor

       was simply commenting on a reasonable conclusion based upon the weight of

       the evidence and, despite the use of the pronoun “I,” there was absolutely no

       implication that the prosecutor had access to any special information outside of

       the evidence presented to the jury. The prosecutor did not commit misconduct

       in making this statement.


[15]   Finally, Murphy makes a convoluted argument that the prosecutor committed

       misconduct by relying on evidence that was admitted in violation of a pretrial

       motion in limine precluding the State’s witnesses from speculating as to his

       intent. Murphy again directs us to when the prosecutor summarized Canny’s

       testimony that Murphy “started to mock [Canny], because [Canny] was

       scared.” Id. at 82. Murphy argues that Canny’s testimony supporting the

       prosecutor’s statement was inadmissible speculation regarding Murphy’s intent.

       However, Murphy failed to object to Canny’s testimony at trial and

       consequently has waived any argument regarding its admissibility. Hoglund v.

       State, 962 N.E.2d 1230, 1239 (Ind. 2012). Thus, even if we were to assume

       misconduct on the part of the prosecutor in relying on the evidence, Murphy

       would need to establish two levels of fundamental error: fundamental error by

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 9 of 10
       the trial court in admitting Canny’s testimony, and fundamental error by the

       trial court in permitting the prosecutor to summarize that testimony. Murphy

       cannot meet this high bar. There was ample evidence regarding Murphy’s

       intent, such that we cannot say that Canny’s isolated statement, and the

       prosecutor’s brief summary thereof, presented an undeniable and substantial

       potential for harm.


[16]   In sum, Murphy has failed to demonstrate that the prosecutor committed

       misconduct in the first place, much less that he was denied a fair trial as a

       result. Because Murphy has demonstrated neither prosecutorial misconduct

       nor fundamental error, we affirm his conviction.


[17]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018   Page 10 of 10
