MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                            Aug 31 2018, 8:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
court except for the purpose of establishing                                    Court of Appeals
                                                                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Smalls,                                            August 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-433
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1611-F2-44593



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018                       Page 1 of 8
[1]   James Smalls appeals convictions for criminal confinement as a level 3 felony

      and intimidation as a level 5 felony. We affirm.


                                               Procedural History

[2]   In August 2016, Michael McMuray lived in Indianapolis with his girlfriend

      Heavenleigh Gentry. McMuray had met Smalls four or five months earlier

      through their mutual friend Blossom Kirby. McMuray, Gentry, and Kirby

      were at McMuray’s house on the evening of August 24, 2016. Kirby left the

      house at around 1:00 a.m., and McMuray and Gentry fell asleep. 1


[3]   At approximately 7:30 a.m. on August 25, 2016, Smalls and another man

      knocked on the front door of McMuray’s house. Gentry was on the bed, and

      McMuray was waking up on the couch.2 McMuray opened the door,

      recognized Smalls but not the other man, and asked Smalls if he had the

      seventy dollars McMuray had previously loaned him, and Smalls indicated that

      he did not have the money. McMurray closed the door, turned to walk away,

      and heard another knock on the door. When McMuray opened the door, a

      third man, Ulysses Sanders, stuck his arm through the open door and pointed a

      gun at McMuray’s face. McMuray pressed his body against the door in an

      attempt to push Sanders out and close the door, but Sanders’s arm was already




      1
       McMuray testified that he, Gentry, and Kirby were “talking about a sexual endeavor” but that not
      “everybody was feeling comfortable so we all just backed out.” Transcript Volume II at 21.
      2
       Photographs admitted into evidence show a mattress on the floor directly adjacent to a living room area and
      couch.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018                   Page 2 of 8
      in the door, and McMuray tried to obtain control of the gun. Smalls and the

      other two men forced their way into the home, knocked McMuray to the floor,

      and started to punch, kick, and stomp on him. McMuray screamed for help,

      yelled his neighbor’s name a couple of times, and tried to block the men’s

      blows. Gentry “was crying and hysterical” and “was sitting up on the bed and

      she watched the whole thing and screamed . . . .” Transcript Volume II at 28.

      The three men dragged McMuray into the middle of the room, and Smalls

      asked for money. Smalls and Sanders held guns, and the other man had a knife

      with an eight- or nine-inch blade.


[4]   Sanders walked over to Gentry, handed her his gun, and asked her to shoot

      McMuray. Gentry refused. Sanders then took the gun from Gentry, gave it to

      McMuray, and instructed him to shoot Gentry. McMuray also refused. Smalls

      said, “he ain’t got no heart.” Id. at 31. Smalls asked McMuray where he kept

      his money, McMuray said he had ten dollars on the computer stand, and

      Smalls took the money. Smalls walked back and forth while holding his gun in

      his hand, and Gentry was sitting on the bed. At some point, McMuray

      indicated he would shoot Gentry. Sanders handed the gun to McMuray, and

      McMuray pointed the gun at Sanders’s face and pulled the trigger, but the gun

      did not fire. Sanders wrestled the gun from McMuray and repeatedly struck

      him in the head with the butt of the gun, and Smalls pointed his gun at

      McMuray and said, “I’ll shoot you, you dumb b----.” Id. at 38. Gentry

      continued to sit on the bed, watch the attack, and cry. Smalls announced

      “we’re gonna straighten this out right now” and called Kirby, and McMuray


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 3 of 8
      heard Smalls say, while on the phone, “who did you say raped you? Who did

      you say robbed you?” Id. at 39. Smalls hung up and said “it don’t look good

      for you.” Id. Sanders again passed his gun to Gentry and attempted to

      convince her to shoot McMuray, and the intruders “were making comments

      about what they were going to do with her after they killed and got [McMuray]

      out of the why [sic].” Id. at 39-40. Kirby “burst in the door” and was “agitated

      that [McMuray] was still alive.” Id. at 40. The three intruders turned to Kirby

      and, when they were paying attention to her, McMuray jumped up and “bolted

      out” the front door, ran toward a neighbor, and screamed for help and to call

      the police. Id. Soon afterwards, McMuray saw Smalls, Sanders, and the third

      man exit his home and go down the street. The responding police officer

      observed McMuray’s injuries and that Gentry “seemed to be very scared at the

      time.” Id. at 57. While law enforcement was gathering information, Kirby

      approached and began yelling and screaming, and the officer detained her.

      McMuray was treated at the hospital.


[5]   The State charged Smalls with: Count I, burglary as a level 2 felony; Count II,

      armed robbery as a level 3 felony; Count III, criminal confinement of McMuray

      as a level 3 felony; Count IV, criminal confinement of Gentry as a level 3

      felony; Count V, intimidation of McMuray as a level 5 felony; Count VI,

      intimidation of Gentry as a level 5 felony; and Count VII, battery resulting in

      moderate bodily injury to McMuray as a level 6 felony. At trial, Amber Fiers

      testified that she was dating Smalls in August 2016, that August 24th was their

      one-month anniversary, and that Smalls was with her the entire evening of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 4 of 8
      August 24th and morning hours of August 25th. The jury found Smalls guilty

      on all counts. The court sentenced Smalls to twenty-three years with five years

      suspended on Count I, ordered that fourteen years of the sentence be served in

      the Department of Correction and four years be served through community

      corrections, and ordered that he serve one year on probation. The court also

      sentenced him to ten years for each of his convictions under Counts II, III, and

      IV, four years for each of his convictions under Counts V and VI, and one year

      for his conviction under Count VII, all to run concurrently with his sentence

      under Count I.


                                                  Discussion

[6]   Smalls claims the evidence does not support his convictions of criminal

      confinement of Gentry under Count IV and intimidation of Gentry under

      Count VI. When reviewing claims of insufficiency of the evidence, we do not

      reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

      N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the

      reasonable inferences therefrom that support the verdict. Id. The conviction

      will be affirmed if there exists evidence of probative value from which a

      reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

      A conviction may be sustained on the uncorroborated testimony of a single

      witness or victim. Lay v. State, 933 N.E.2d 38, 42 (Ind. Ct. App. 2010), trans.

      denied. A verdict may be sustained based on circumstantial evidence alone if

      that circumstantial evidence supports a reasonable inference of guilt. Maul v.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 5 of 8
      State, 731 N.E.2d 438, 439 (Ind. 2000); Gonzalez v. State, 908 N.E.2d 338, 340

      (Ind. Ct. App. 2009).


[7]   Ind. Code § 35-42-3-3 provides in part that a person who knowingly or

      intentionally confines another person without the other person’s consent

      commits criminal confinement and that the offense is a level 3 felony if it is

      committed while armed with a deadly weapon. “Confine” means to

      substantially interfere with the liberty of a person. Ind. Code § 35-42-3-1. The

      State, under Count IV, alleged that Smalls and his accomplices knowingly

      confined Gentry without her consent while Smalls and/or Sanders were armed

      with a handgun. Ind. Code § 35-45-2-1 provides in part that a person who

      communicates a threat to another person, with the intent that the other person

      engage in conduct against the other person’s will, commits intimidation and

      that the offense is a level 5 felony if, while committing it, the person draws or

      uses a deadly weapon. “Threat” means an expression, by words or action, of

      an intention to, among other things, unlawfully injure the person threatened or

      another person or unlawfully subject a person to physical confinement or

      restraint, or commit a crime. Ind. Code § 35-45-2-1(d). The State, under Count

      VI, alleged that Smalls and his accomplices communicated a threat to Gentry

      with the intent that she engage in conduct against her will, to-wit, to shoot

      McMuray, and in doing so they drew or used a handgun.


[8]   Smalls argues that Gentry did not testify and the State did not admit any

      statements she may have made to anyone. He argues “whether Gentry was in

      fact confined and, if so, whether that confinement was against her will and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 6 of 8
       whether whatever, if anything, was conveyed from Smalls to Gentry were

       threats are wholly subjective inquiries” and “Gentry’s testimony is the only

       evidence that could prove what the State has asserted.” Appellant’s Brief at 10.


[9]    The State responds that it was not required to present Gentry’s testimony to

       show that Smalls committed the crimes against her and points to the violence of

       the home invasion, McMuray’s injuries, the fact the intruders were armed,

       Gentry’s demeanor during the attack, that Smalls pointed his firearm at

       McMuray and threatened to shoot, that the intruders openly discussed what

       they would do with Gentry after they killed McMuray, and that the intruders

       cajoled McMuray and Gentry into shooting one another. It maintains that

       Smalls’s argument is simply a request to reweigh the evidence.


[10]   The jury heard the testimony of McMuray regarding the violent actions of

       Smalls and the other intruders during the home invasion. McMuray testified

       regarding the men’s forceful entry into the residence while armed, the violent

       attack upon him, that Gentry was sitting on the mattress on the floor near the

       attack and witnessed the entire altercation, and that Gentry “was crying and

       hysterical.” Transcript Volume II at 28. The State presented photographic

       evidence of, and testimony describing, McMuray’s injuries as well as of the

       location of Gentry on the mattress on the floor relative to the attack upon

       McMuray in the residence. During the prolonged attack, Smalls and each of

       the other attackers were armed. McMuray testified that Gentry “watched the

       whole thing and screamed.” Id. Smalls pointed his gun at McMuray and said

       he would shoot him. The men handed a gun to McMuray and directed him to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 7 of 8
       shoot Gentry, which he refused to do, and they handed a gun to Gentry and

       commanded her to shoot McMuray, which she refused to do. The intruders

       discussed “what they were going to do with [Gentry] after they killed”

       McMuray. Id. at 39. Kirby arrived and was agitated that McMuray was alive.

       The officer responding to the scene observed that Gentry was “very scared.” Id.

       at 57.


[11]   A reasonable jury could find from the testimony and evidence presented that

       Smalls and his accomplices, while armed, knowingly or intentionally

       substantially interfered with Gentry’s liberty without her consent and that,

       while using a deadly weapon, they communicated a threat to Gentry by words

       or actions with the intent that she engage in conduct against her will to shoot

       McMuray as charged. Smalls’s arguments constitute requests for this Court to

       reweigh the evidence, which we will not do. See Jordan, 656 N.E.2d at 817.

       Based upon the record, we conclude the State presented evidence of a probative

       nature from which the jury could find beyond a reasonable doubt that Smalls

       committed the offenses of criminal confinement of Gentry as a level 3 felony

       and intimidation of Gentry as a level 5 felony. For the foregoing reasons, we

       affirm Smalls’s convictions.


[12]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-433 | August 31, 2018   Page 8 of 8
