MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Aug 27 2020, 9:08 am

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
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric Devone Dailey,                                      August 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-429
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1806-F6-19249



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020                       Page 1 of 7
                                        Statement of the Case
[1]   Eric Devone Dailey (“Dailey”) appeals, following a jury trial, his conviction of

      Level 6 felony intimidation.1 Dailey argues that the evidence is insufficient to

      support his conviction. Concluding that the evidence is sufficient, we affirm

      Dailey’s intimidation conviction.


[2]   We affirm.


                                                      Issue
              Whether there is sufficient evidence to support Dailey’s
              intimidation conviction.


                                                      Facts
[3]   In June 2018, Dailey and E.R.M. (“E.R.M.”) had been dating for three years

      and lived together. When E.R.M. returned to their home on June 1, 2018,

      Dailey confronted her outside the home and accused her of having a sexual

      relationship with another man. Dailey threw E.R.M. against her truck and

      placed his arm over her neck and chest, causing E.R.M. to have difficulty

      breathing. When E.R.M. threatened to call the police, Dailey attempted to take

      her phone but could not reach it. Dailey then fled from the scene. When

      E.R.M. entered her home, Dailey telephoned her three times and threatened to




      1
        IND. CODE § 35-45-2-1. The jury also convicted Dailey of Class A misdemeanor domestic battery. See I.C.
      § 35-42-2-1.3. However, Dailey does not appeal the domestic battery conviction.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020                 Page 2 of 7
      kill her during one of the calls. E.R.M. called the police and went to the

      hospital the following morning because she had chest pains.


[4]   The State charged Dailey with Level 6 felony intimidation, Class A

      misdemeanor domestic battery, Level 6 felony strangulation, and Class A

      misdemeanor interference with the reporting of a crime. The information

      charging Dailey with intimidation alleged that: “On or about June 1, 2018,

      [Dailey] did communicate a threat to commit a forcible felony, to-wit: to kill

      [E.R.M.] . . . with the intent that [E.R.M.] engage in conduct against the will of

      said other person, to-wit: not call the police.” (App. Vol. 2 at 85).


[5]   At Dailey’s jury trial, during closing argument, the State argued as follows:


              [Dailey] also committed the crime of intimidation. When he
              called [E.R.M.] to tell her he was going to kill her, he did that
              after she said she was going to call the police. And she said that
              after he [had] attacked her. He told her that to place her in fear
              so she wouldn’t call the police. There’s no other reasonable
              interpretation of that. There’s a clear link from what happened
              that day to him making that threat. He wanted to place her in
              fear so she wouldn’t call for help and that is the crime of
              intimidation.


      (Tr. Vol. 2 at 145).


[6]   A jury convicted Dailey of Level 6 felony intimidation and Class A

      misdemeanor domestic battery and acquitted him of Level 6 felony

      strangulation and Class A misdemeanor interference with the reporting of a

      crime. Dailey appeals the intimidation conviction.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020   Page 3 of 7
                                                  Decision
[7]   Dailey argues that there is insufficient evidence to support his conviction for

      Level 6 felony intimidation. Our standard of review for sufficiency of the

      evidence claims is well settled. We consider only the probative evidence and

      reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility.

      Id. We will affirm the conviction unless no reasonable fact finder could find the

      elements of the crime proven beyond a reasonable doubt. Id. The evidence is

      sufficient if an inference may be reasonably drawn from it to support the

      verdict. Id. at 147.


[8]   INDIANA CODE § 35-45-2-1(a)(1) provides that “[a] person who communicates a

      threat with the intent that another person engage in conduct against the other

      person’s will” commits Class A misdemeanor intimidation. The offense is a

      Level 6 felony if the threat is to commit a forcible felony. I.C. § 35-45-2-

      1(b)(1)(A). Therefore, to convict Dailey of Level 6 felony intimidation, the State

      was required to prove beyond a reasonable doubt that Dailey communicated a

      threat to E.R.M. to commit a forcible felony with the intent to cause E.R.M. to

      refrain from contacting the police.


[9]   Dailey does not deny that he threated to kill E.R.M. Rather, his sole argument

      is that there is insufficient evidence of his intent because he never specified the

      reason for his threat. Intent may be proven by circumstantial evidence.

      McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014). Intent can be


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020   Page 4 of 7
       inferred from a defendant’s conduct and the natural and usual sequence to

       which such conduct logically and reasonably points. Id. To determine whether

       the defendant intended to commit the conduct, the trier of fact must usually

       resort to reasonable inferences based on an examination of the surrounding

       circumstances. Hendrix v. State, 615 N.E.2d 483, 485 (Ind. Ct. App. 1993). 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 a reasonable person could

       not form inferences with regard to each material element of the offense so as to

       ascertain a defendant’s guilt beyond a reasonable doubt. McCaskill, 3 N.E.3d at

       1050.


[10]   In the McCaskill case, McCaskill had engaged in a sexual relationship with

       Matlock’s husband for two years when McCaskill telephoned Matlock and

       threated her. The State charged McCaskill with Class A misdemeanor

       intimidation and alleged in the charging information that McCaskill had

       threatened Matlock “with the intent that [Matlock] engage in conduct against

       her will, namely to leave her husband and/or cause her husband to leave her.”

       Id. at 1049. A jury convicted McCaskill of intimidation, and she appealed.


[11]   On appeal, McCaskill, like Dailey, did not deny that she had threatened

       Matlock. Rather, she argued, as does Dailey, that there was insufficient

       evidence of her intent because she had never specified the reason for her threats

       against Matlock. The State responded that because McCaskill and Matlock did

       not have a relationship other than through Matlock’s husband, McCaskill’s aim

       must have been for Matlock to leave her husband. However, this Court

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020   Page 5 of 7
       explained that “because the events leading up to the threats [were] not a part of

       the record and McCaskill never clarified her reasons for the threats, [the State’s

       argument was] pure speculation.” Id. This Court concluded that the State’s

       reasoning for McCaskill’s threat was not a logical inference from the evidence.

       Specifically, this Court explained that “[i]n light of the long-standing nature of

       McCaskill’s relationship with [Matlock’s husband] and the lack of evidence that

       McCaskill ha[d] threatened Matlock with the intent to make her leave [her

       husband] in the past, it [was] not clear why McCaskill would suddenly begin to

       threaten Matlock with that aim.” Id. at 1051. Accordingly, this Court held that

       there was insufficient evidence to support McCaskill’s Class A misdemeanor

       intimidation conviction and reversed it. Id.


[12]   However, the facts in McCaskill are distinguishable from the facts in this case.

       Here, the State presented evidence of the events leading up to the threat.

       Specifically, our review of the evidence reveals that Dailey threw E.R.M.

       against her truck and placed his arm over her neck and chest, causing E.R.M. to

       have difficulty breathing. When E.R.M. threatened to call the police, Dailey

       attempted to take her phone but could not reach it. Dailey then fled from the

       scene. When E.R.M. entered her home, Dailey telephoned her three times and

       threatened to kill her during one of the calls. We agree with the State that “it is

       a reasonable inference that Dailey threatened to kill E.R.M. to prevent her from

       calling the police to report the battery after he failed to steal her phone and

       thereby prevent her from calling the police earlier.” (State’s Br. 8-9). This




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020   Page 6 of 7
       evidence is sufficient evidence to support Dailey’s Level 6 intimidation

       conviction.


[13]   Affirmed.


       Bradford, C.J., and Baker, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020   Page 7 of 7
