MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 15 2019, 8:46 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
Troy D. Warner                                          Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Lamont Reid,                                    May 15, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1829
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Paul Singleton,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D06-1706-CM-2390



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                    Page 1 of 12
                                              Case Summary

[1]   Jeffrey Reid appeals his convictions for battery resulting in bodily injury, a

      Class A misdemeanor, and intimidation, a Class A misdemeanor. We affirm.


                                                     Issues

[2]   Reid raises two issues, which we restate as:


              I.      Whether the evidence is sufficient to convict Reid of
                      battery resulting in bodily injury.


              II.     Whether the evidence is sufficient to convict Reid of
                      intimidation.


                                                     Facts

[3]   Karagh Brennan manages Joe’s Tavern and Catering (“Joe’s Tavern”) in South

      Bend. On June 7, 2017, several children from the neighborhood rode their

      bicycles to the corner in front of Joe’s Tavern, where they stopped on the

      sidewalk. Brennan encountered Reid when she went outside to give the

      children popsicles, as she had on more than one occasion. Subsequently, a

      series of events occurred causing Brennan and Reid to argue; however, the

      exact details were recounted differently by each witness.


[4]   According to Brennan, while she was outside, Reid and Joseph Panetti were

      walking down the street outside Joe’s Tavern, when the men began “cuss[ing]”

      at her. Tr. p. 18. Brennan had never met Reid before that day. Reid asked

      Brennan if she had a problem with the children, to which Brennan responded


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 2 of 12
      that she did not. 1 Reid then grabbed Brennan and slammed her against the

      building. Brennan believed Reid slammed her against the building twice, but

      she could not recall the exact number of times. Brennan was able to return

      inside Joe’s Tavern to call 911. Reid followed Brennan into Joe’s Tavern,

      carrying Brennan’s hat that she had been wearing when she went outside. 2


[5]   In telling a different version of events, Panetti testified that he overheard

      Brennan tell one of the children, his younger sister, to get off the Joe’s Tavern

      property using profane language, and overheard Brennan call the children

      “retards” while the children were eating popsicles. Id. at 93. Reid and Brennan

      began to argue, and at that point, Panetti left the property before any physical

      interaction occurred. Panetti stated that Reid stayed behind outside Joe’s

      Tavern.


[6]   According to Reid’s mother, Tammy Reid (“Tammy”), who witnessed the

      entire incident from her car down the street, 3 Reid and Brennan were arguing

      and Brennan “shove[d]” Reid. Id. at 112. At that point, Reid turned around

      and “slapped [Brennan’s] hat off.” Id. at 113. Subsequently, Brennan “took off




      1
       There was some testimony later, by the responding officer, that perhaps one of the children was harassing
      Brennan while she was giving them popsicles.
      2
        Donald Splawski, a witness inside Joe’s Tavern who testified later at the trial, agreed that there was a
      “scuffle” in the entry-way of Joe’s Tavern. He noticed that a man had his hand on Brennan’s face and
      “smacked her hat off her head.” Tr. p. 64. Carla Jenkins, another witness inside Joe’s Tavern who testified
      later at the trial, also stated that Reid “had [Brennan’s] face [ ] up in the door and her head against the
      window.” Id. at 48.
      3
          Tammy was waiting for Reid to give him a ride home.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                    Page 3 of 12
      into the bar,” and Reid picked up Brennan’s hat and walked into Joe’s Tavern.

      Id. at 113.


[7]   Carla Jenkins, who was inside Joe’s Tavern, testified that she stood up and tried

      to stop Reid. Jenkins testified that Reid grabbed Jenkins by the arm, telling her

      that he would “f*** [Jenkins] right there on the bar” and referred to Jenkins as

      an “old b****.” Id. at 52-53. Jenkins became scared that Reid was going to

      hurt or sexually assault her. Donald Splawski, another patron of Joe’s Tavern,

      also testified that he heard Reid say to Jenkins that he would “f*** you right

      here and now, b****.” Id. at 68. Splawski, however, testified that Jenkins did

      not stand and get in Reid’s way. Splawski testified that he saw Reid throw

      Brennan’s hat on the bar and leave.


[8]   Brennan was able to escape out the back door of Joe’s Tavern. Reid then left

      Joe’s Tavern, and the police arrived five to ten minutes later. Officer Bruno

      Martinsky with the South Bend Police Department responded to Brennan’s 911

      call. When Officer Martinsky arrived, Reid was standing outside Joe’s Tavern.

      Reid told Officer Martinsky that the people inside Joe’s Tavern called him, and

      Reid’s hands were trembling when he spoke to Officer Martinsky. Reid told

      Officer Martinsky that Reid accidentally knocked the hat off Brennan’s head

      and that he tried to go back inside to return the hat.


[9]   Officer Martinsky spoke with Brennan who was “visibly upset, shaking, [and]

      crying.” Id. at 77. Officer Martinsky also took photographs of Brennan’s




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 4 of 12
       injury, which consisted of a tiny red spot on her face. Brennan testified her

       injuries included knots on her head, as well as a red spot on her face.


[10]   The State charged Reid with Count I, battery resulting in bodily injury, a Class

       A misdemeanor; Count II, intimidation, a Class A misdemeanor; and Count

       III, criminal trespass, a Class A misdemeanor. On July 25, 2018, a bench trial

       was held, where witnesses testified to the foregoing facts.


[11]   At the close of the State’s case in chief, the trial court granted Reid’s motion for

       directed verdict on Count III, criminal trespass, a Class A misdemeanor. The

       trial court found Reid guilty of Count I, battery resulting in a bodily injury, a

       Class A misdemeanor, and Count II, intimidation, a Class A misdemeanor.

       Reid now appeals.


                                                    Analysis

[12]   Reid challenges the sufficiency of the evidence of both convictions. When there

       is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence

       nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016)

       (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied), cert. denied.

       Instead, “we ‘consider only that evidence most favorable to the judgment

       together with all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler,

       481 N.E.2d at 84). “We will affirm the judgment if it is supported by

       ‘substantial evidence of probative value even if there is some conflict in that

       evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018)

       (holding that, even though there was conflicting evidence, it was “beside the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 5 of 12
       point” because that argument “misapprehend[s] our limited role as a reviewing

       court”). Further, “[w]e will affirm the conviction unless no reasonable fact-

       finder could find the elements of the crime proven beyond a reasonable doubt.”

       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007)).


                                      I.       Battery Resulting in Bodily Injury

[13]   First, Reid challenges the sufficiency of the evidence of his conviction for

       battery resulting in bodily injury. Specifically, Reid contends that he was acting

       in self-defense outside the bar. The State argues Reid’s self-defense claim is

       waived because Reid failed to raise it in the trial court. We agree. Reid did not

       claim self-defense to the trial court. 4 Accordingly, Reid’s self-defense argument

       on appeal is waived.


[14]   Waiver notwithstanding, we will address the merits of Reid’s self-defense claim.

       “‘A valid claim of self-defense is legal justification for an otherwise criminal

       act.’” Ervin v. State, 114 N.E.3d 888, 895 (Ind. Ct. App. 2018) (quoting Wallace

       v. State, 725 N.E.2d 837, 840 (Ind. 2000)), trans. denied. Pursuant to Indiana

       Code Section 35-41-3-2(c), “[a] person is justified in using reasonable force

       against any other person to protect the person or a third person from what the

       person reasonably believes to be the imminent use of unlawful force.” “‘When

       a claim of self-defense is raised and finds support in the evidence, the State




       4
           During closing argument, the State argued that Reid did not claim self-defense, and Reid did not object.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                        Page 6 of 12
       bears the burden of negating at least one of the necessary elements.’” Id.

       (quoting King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied).

       “‘The State may meet this burden by rebutting the defense directly, by

       affirmatively showing the defendant did not act in self-defense, or by simply

       relying upon the sufficiency of its evidence in chief.’” Id. (quoting King, 61

       N.E.3d at 1283). “If a defendant is convicted despite his claim of self-defense,

       we will reverse only if no reasonable person could say that self-defense was

       negated beyond a reasonable doubt.” Id. (citations omitted).


[15]   Although Reid did not argue self-defense, in reaching its decision, the trial court

       stated, “with respect to self-defense, at least it has been mentioned I think a slap

       would be too force[ful], an unnecessary amount of force based on the push.

       And I think the slap did cause bodily injury.” Tr. p. 146. The trial court found

       that Reid exerted more force than reasonably necessary under the

       circumstances. See Weedman v. State, 21 N.E.3d 873, 883 (Ind. Ct. App. 2014)

       (finding “[a] claim of self-defense will also fail if the person uses more force

       than is reasonably necessary under the circumstances”) (citations omitted). We

       cannot reweigh the evidence to reach a different conclusion. Accordingly, the

       evidence is sufficient to convict Reid of battery resulting in bodily injury, a

       Class A misdemeanor.


                                               II.      Intimidation

[16]   Second, Reid challenges the sufficiency of the evidence of his intimidation

       conviction. To prove intimidation, a Class A misdemeanor, the State was

       required to prove: “A person who communicates a threat to another person,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 7 of 12
       with the intent: . . . (2) That the other person be placed in fear of retaliation for

       a prior lawful act . . . commits intimidation, a Class A misdemeanor.” Ind.

       Code § 35-45-2-1(a)(2). As the State argues, the threat was Reid’s statement

       that he would “f***” Jenkins at the bar, while calling Jenkins a “b****.” Tr.

       pp. 52-53. The lawful action Reid retaliated against was Jenkins’ attempt “to

       get in the way of [Reid] and [Brennan],” so that Jenkins could prevent Reid

       from chasing Brennan. Id. at 52. The deputy prosecutor argued in closing

       arguments that the prior lawful act was Jenkins’ attempt “to prevent [Reid]

       from continuing his pursuit of [Brennan].” 5 Id. at 133.


                                                        A. Threat

[17]   Reid argues that the statements made to Jenkins do not fit the definition of a

       true threat. Specifically, Reid contends that it would have been unreasonable

       for Jenkins to think that Reid actually would sexually assault Jenkins in the bar

       where other people were present. Pursuant to Indiana Code Section 35-45-2-

       1(c), a threat is defined as:


               an expression, by words or action, of an intention to:


                        (1) unlawfully injure the person threatened or another
                        person, or damage property;




       5
         The State went on to clarify, that “[w]hether [Jenkins] got up and moved ten feet, whether she turned her
       chair, whether she just barely got out of it and directed her comments to him she made an attempt, a lawful
       attempt to stop [Reid] from going after [Brennan] to which he responded by grabbing her arms and having a
       few choice words about what he might do to her.” Tr. pp. 145-46.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                    Page 8 of 12
                       (2) unlawfully subject a person to physical confinement or
                       restraint;


                       (3) commit a crime;


                       (4) unlawfully withhold official action, or cause such
                       withholding;


                       (5) unlawfully withhold testimony or information with
                       respect to another person’s legal claim or defense, except
                       for a reasonable claim for witness fees or expenses;


                       (6) expose the person threatened to hatred, contempt,
                       disgrace, or ridicule;


                       (7) falsely harm the credit or business reputation of the
                       person threatened; or


                       (8) cause the evacuation of a dwelling, a building, another
                       structure, or a vehicle.


[18]   “Our [S]upreme [C]ourt clarified in Brewington v. State that true threats depend

       on two necessary elements: (1) that the speaker intend[ed] his communications

       to put his targets in fear for their safety, and (2) that the communications were

       likely to actually cause such fear in a reasonable person similarly situated to the

       target.” Fleming v. State, 85 N.E.3d 626, 629 (Ind. Ct. App. 2017) (citing

       Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied)). Here, there is

       sufficient evidence of both prongs.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 9 of 12
[19]   As to Brewington’s first prong, the evidence showed that Reid made these

       statements to Jenkins when he was angry. Reid had just finished arguing with

       Brennan outside of Joe’s Tavern and had followed Brennan inside while still

       angry. The trial court heard the witness testimony 6 regarding Reid’s statements

       and demeanor inside Joe’s Tavern, and it was reasonable for the fact finder to

       conclude that Reid intended to put Jenkins in fear of her safety. See Fleming, 85

       N.E.3d at 629 (concluding that the first prong of Brewington was satisfied when

       Fleming “directly threatened to beat Mr. Kottkamp’s a[**]” and the threat was

       made “while Fleming was angry”) (internal quotations omitted).


[20]   As to Brewington’s second prong, the evidence indicates that Jenkins was scared,

       and believed that Reid was going to hurt or sexually assault her. Even if we

       accept as true Reid’s argument that it is unlikely he would have sexually

       assaulted Jenkins in public, this fact is not determinative. Reid’s statements in

       the context of the events in Joe’s Tavern clearly were statements of a threat of

       violence. See e.g., Holloway v. State, 51 N.E.3d 376, 378 (Ind. Ct. App. 2016)

       (affirming Holloway’s intimidation conviction and noting that “Holloway cites

       no authority for the proposition that a person must be capable of inflicting

       injury when the statement is made . . .”), trans. denied. It was, therefore,

       reasonable for the trial court, as factfinder, to determine that Reid’s statements

       would cause fear in a reasonable person similarly situated to Jenkins. The




       6
        At the end of the trial, the trial court stated that it found “that the most credible witnesses that we have are
       [Tammy] as well as Ms. Jenkins and Mr. Splawski. . . .” Tr. p. 146.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                        Page 10 of 12
       evidence supports this conclusion, and thus, we cannot say there is insufficient

       evidence to find that Reid communicated a true threat.


                                                  B. Prior Lawful Act

[21]   Next, Reid argues the evidence does not suggest that Jenkins attempted to

       intervene when Reid entered Joe’s Tavern and followed Brennan, which was

       the prior lawful act articulated by the State for Reid’s intimidation conviction.

       Reid’s argument focuses on the conflicting testimony between Jenkins and

       Splawski. At the trial, Splawski testified that Jenkins did not actually stand up

       between Reid and Brennan. Jenkins, however, testified that she did stand in

       front of Reid, although she acknowledged that some physical issues limited the

       speed with which she could do so. The determination of whether Jenkins

       actually was able to get between Brennan and Reid was a question of credibility

       for the trial court. The trial court ultimately weighed the credibility of the

       witnesses and made a determination, as fact finder, of what occurred that day at

       Joe’s Tavern. In order to disagree with the trial court, we would need to

       reweigh the evidence and find a different version of the events more credible,

       which we cannot do.7 Based on the foregoing, the evidence is sufficient to

       convict Reid of intimidation, a Class A misdemeanor.




       7
         Regardless, as we have noted above, the State’s prior lawful act that it articulated at trial was not solely
       based on a theory that Jenkins literally stood between Reid and Brennan, but instead that Jenkins attempted
       to do so. See Tr. pp. 145-46.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019                      Page 11 of 12
                                                  Conclusion

[22]   The evidence is sufficient to convict Reid of battery resulting in bodily injury, a

       Class A misdemeanor, and intimidation, a Class A misdemeanor. We affirm.


[23]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1829 | May 15, 2019   Page 12 of 12
