                                                      Feb 17 2014, 7:21 am
FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                              GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              CYNTHIA L. PLOUGHE
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RAKIEA MCCASKILL,                             )
                                              )
      Appellant-Defendant,                    )
                                              )
              vs.                             )       No. 49A02-1306-CR-480
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Amy Jones, Judge
                           Cause No. 49F08-1212-CM-82624


                                  February 17, 2014

                             OPINION - FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

          Rakiea McCaskill (“McCaskill”) appeals her conviction for Class A misdemeanor

intimidation.1

          We reverse and remand with instructions.

                                           ISSUE

          Whether there was sufficient evidence to support McCaskill’s conviction
          for Class A misdemeanor intimidation beyond a reasonable doubt.

                                          FACTS

          McCaskill had a relationship with Tamika Matlock’s (“Matlock”) husband

(“Husband”), with whom she had a child.          According to Matlock, Husband lied to

McCaskill over the period of a year or two and told her that he was planning to leave

Matlock, but he never did.

          Between the night of October 28, 2012 and the morning of October 29, 2012,

when McCaskill’s child with Husband was approximately a year old, McCaskill called

Matlock four times and told her that she “would beat [her] ass” and that “she was coming

over to [Matlock’s] house and [] had been sitting in front of [her] house.” (Tr. 6).

McCaskill also contacted Matlock on Facebook, again telling her that she was going to

“beat [her] ass” and that “everybody in the city [knew she would] beat [her] ass.” (Tr. 7).

During one of McCaskill’s phone calls, Matlock responded, “You keep putting this stuff

on Facebook then come to my house like you said.” (Tr. 12). During another call,




1
    Ind. Code § 35-45-2-1(a)(1).
                                             2
McCaskill told Matlock that she was outside Matlock’s house, so Matlock looked out the

window and saw McCaskill’s vehicle on the road outside.2

        On December 10, 2012, the State charged McCaskill with Class A misdemeanor

intimidation under subsection (a)(1) of the intimidation statute. The charging information

provided that McCaskill had communicated a threat to Matlock with the intent that she

engage in conduct against her will, namely to “leave her husband and/or cause her

husband to leave her.”3 (App. 19). On May 8, 2013, the trial court held a bench trial, at

which Matlock testified that “[McCaskill] kind of want[s] my husband to leave me . . . .”

(Tr. 7). When asked, though, whether McCaskill “specifically said she was going to beat

[Matlock’s] ass because [she was] married to [Husband],” Matlock admitted that

“[McCaskill] didn’t say why she would beat my ass.” (Tr. 8-9). Still, Matlock argued

“[w]hy else would she want to beat my ass? I don’t talk to her. I’m not friends with

her.” (Tr. 8). Subsequently, McCaskill testified and claimed that she had threatened

Matlock because Matlock and Matlock’s cousin had previously “jumped on [her].” (Tr.

16).

        At the conclusion of the presentation of evidence, the trial court found McCaskill

guilty of Class A misdemeanor intimidation. It sentenced her to 365 days with 363 days

suspended. McCaskill now appeals. Additional facts will be provided as necessary.


2
  It is not clear from the transcript whether this happened during the same phone call where McCaskill
told Matlock that “she was coming over to [Matlock’s] house and [] had been sitting in front of [her]
house.” (Tr. 6).
3
  Notably, the Indiana Code also provides that a person may commit intimidation if that person
“communicates a threat to another person, with the intent: . . . that the other person be placed in fear of
retaliation for a prior lawful act.” I.C. § 35-45-2-1(a)(2). Although the State moved to amend the
charging information at trial to add this element to the charge, the trial court denied the State’s motion.
                                                    3
                                        DECISION

       On appeal, McCaskill argues that the State did not provide sufficient evidence to

convict her of Class A misdemeanor intimidation.           The standard of review for a

sufficiency of the evidence claim is that this Court should only reverse a conviction when

reasonable persons would not be able to form inferences as to each material element of

the offense. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied.

We do not reweigh evidence or judge the credibility of witnesses. Id. at 213. In addition,

we only consider the evidence most favorable to the verdict and the reasonable inferences

stemming from that evidence. Id.

       Pursuant to Indiana Code § 35-45-2-1(a), a person commits intimidation if that

person “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 . . .” I.C. § 35-45-2-1(a). In its information,

the State charged McCaskill with the intent to cause Matlock to engage in the conduct of

leaving Husband against her will. McCaskill does not deny that she threatened Matlock.

However, McCaskill argues that there was insufficient evidence of her intent because she

never specified the reason for her threats towards Matlock.         In response, the State

contends that even though all of the evidence of intent was circumstantial, the inference

stemming from McCaskill’s relationship with Husband was sufficient to show that

McCaskill intended her threats to cause Matlock to leave Husband.

       First, we must note that, although there is only circumstantial evidence of

McCaskill’s intent, intent may be proven by circumstantial evidence. Lee v. State, 973

                                             4
N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied. Intent can be inferred from a

defendant’s conduct and the natural and usual sequence to which such conduct logically

and reasonably points. Id. 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 defendant’s guilt beyond a reasonable doubt. Defries v. State, 342 N.E.2d

622, 625 (Ind. 1976).

       In Casey v. State, 676 N.E.2d 1069 (Ind. Ct. App. 1997), we considered a

conviction for intimidation based on circumstantial evidence of intent. Casey is not

directly on point because the appellant in Casey, Tommy Casey (“Casey”), was charged

with another element of the intimidation statute, intending to place another person “in

fear of retaliation for a prior lawful act” under subsection (a)(2), rather than intending to

cause the person to “engage in conduct against the person’s will” under subsection (a)(1).

I.C. § 35-45-2-1(a). However, we find the discussion of intent in Casey relevant to the

instant case, even though the charges are not the same.

       In Casey, the victim, Kimberly Williamson (“Williamson”) went to a bar with

several friends, where she ran into Casey and her estranged husband’s brother, Bryan

Williamson (“Bryan”). Casey, 676 N.E.2d at 1071. Casey and Bryan started a fight with

one of Williamson’s friends, which escalated to the point that they had to leave the bar.

Id. Later, Williamson returned to her home and started to watch television with her

boyfriend and a friend. Id. While they were watching television, Casey appeared on her

ledge outside her window. Id. Williamson asked him to leave, but he refused and asked

                                             5
a companion to retrieve his gun from his car. Id. He told Williamson, her boyfriend, and

her friend that he was going to kill all of them. Id. Casey then struck Williamson’s

boyfriend with a baseball bat and told Williamson that she was next. Id. However,

Williamson was able to evade Casey by getting inside of her house. Id.

       Subsequently, the State charged Casey with Class C felony intimidation, among

other charges. Id. The trial court convicted Casey of the intimidation charge, but this

Court vacated the conviction on appeal. Id. Our reasoning was that the evidence did not

identify which of Williamson’s prior lawful acts had instigated Casey’s threats, even

though the State advanced several plausible prior acts, such as Williamson being a patron

at a bar, being at her house, and being a witness to Casey’s attack on her boyfriend. Id. at

1073. We found it persuasive that Casey’s threats “[did] not demonstrate his reasons for

threatening [Williamson] or indicate that he was doing so because of any specific prior

act.” Id.

       Our reasoning in Casey is analogous to the instant case because, like Casey,

McCaskill never explained her reasons for threatening Matlock. The State argues that

because McCaskill and Matlock do not have a relationship other than through Husband,

McCaskill’s aim must have been for Matlock to leave Husband. However, because the

events leading up to the threats are not a part of the record and McCaskill never clarified

her reasons for the threats, that conclusion is pure speculation. Further, we are not

persuaded that it is the logical inference stemming from the evidence in the record.

Matlock testified that McCaskill had engaged in a relationship with Husband for at least

two years and had wanted Husband to leave Matlock. In light of the long-standing nature

                                             6
of McCaskill’s relationship with Husband and the lack of evidence that McCaskill has

threatened Matlock with the intent to make her leave Husband in the past, it is not clear

why McCaskill would suddenly begin to threaten Matlock with that aim.4

          Based on these factors, we conclude that the State did not provide sufficient

evidence to prove beyond a reasonable doubt that McCaskill committed Class A

misdemeanor intimidation as charged, and we reverse McCaskill’s conviction. However,

we note that the State also argued for the lesser-included offense of harassment at trial.5

(Tr. 15). Pursuant to Indiana Code § 35-45-2-2(a), a person who,

          with intent to harass, annoy, or alarm another person but with no intent of
          legitimate communication:
                 (1) makes a telephone call, whether or not a conversation ensues;
                 (2) communicates with a person by telegraph, mail, or other form of
                 written communication . . .
          commits harassment, a Class B misdemeanor.

In the instant case, McCaskill made several threats to Matlock through telephone and

Facebook that she was going to “beat [her] ass” and that “everybody in the city [knew she

would] beat [her] ass.” (Tr. 7). These statements were clearly intended to harass, annoy,

or alarm Matlock and were not intended to result in legitimate communication.

Additionally, McCaskill does not deny that she made these threats. As a result, we

conclude that the State did produce sufficient evidence that McCaskill committed Class B

misdemeanor harassment.           We remand to the trial court with instructions to vacate



4
  Matlock did testify that there have been other instances of conflict between herself and McCaskill, but
the only instances to which she testified occurred “while this case [was] pending,” rather than prior to the
instant offense. (Tr. 8).
5
    I.C. § 35-45-2-2(a).
                                                     7
McCaskill’s judgment of conviction for intimidation and to enter a judgment of

conviction for McCaskill for Class B misdemeanor harassment.

      Reversed and Remanded with instructions.

MATHIAS, J., and BRADFORD, J., concur.




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