MEMORANDUM DECISION

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


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


                                          IN THE
    COURT OF APPEALS OF INDIANA

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



Mathias, Judge.




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

        Superior Court of Class A misdemeanor intimidation and sentenced to 365

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

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

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

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

        We affirm.

                                        Facts and Procedural History


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

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

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

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


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

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

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

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

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

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

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

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



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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


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

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

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

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

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

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

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

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

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

         statements constituted a threat.


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

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

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

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

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

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

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

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

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

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

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




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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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