MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Aug 31 2020, 10:08 am
court except for the purpose of establishing                                          CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Caroline B. Briggs                                       Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quinton Devon Newsom,                                    August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-414
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Kristen E. McVey,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D05-1903-F6-297



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020             Page 1 of 14
                                                Case Summary
[1]   Quinton Newsom (“Newsom”) challenges his conviction of Intimidation, as a

      Level 6 felony,1 following a jury trial.


[2]   We affirm.



                                                       Issues
[3]   Newsom presents the following two restated issues on appeal:


                 I.       Whether the State presented sufficient evidence to support
                          his conviction of Intimidation.


                 II.      Whether the trial court committed fundamental error in its
                          jury instructions.


                                Facts and Procedural History
[4]   The following are the facts most favorable to the verdict.2 Newsom and Shanna

      Haley (“Haley”) had been in a romantic relationship for about a year, and

      Haley ended it at some point in April 2019. Newsom and Haley have a child

      who was born on February 10, 2019, and who resided with Haley. On March

      7, 2019, Newsom came to Haley’s residence and Haley let him inside.




      1
          Ind. Code § 35-45-2-1(a)(2), (b)(1)(A).
      2
         Our standard of review, as discussed in more detail below, requires that we consider only the probative
      evidence supporting the verdict. See, e.g., Merriweather v. State, 128 N.E.3d 503, 514-15 (Ind. Ct. App. 2019),
      trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020                      Page 2 of 14
      Newsom had another child with him who Haley did not know but who she

      believed to be about nine or ten years old.


[5]   Immediately after walking through the door, Newsom put two fingers up to

      Haley’s head and said, “[B]itch, you[’re] dead[,] I’m going to kill you.” Tr. at

      24. Haley did not know why Newsom said he would kill her. In response,

      Haley told Newsom he “need[ed] to stop” or she was going to call the police,

      but she did not call the police at that time. Id. at 25. Newsom repeated the

      same action and statement several times.


[6]   Newsom told Haley that he wanted to hold the baby, so Haley let him do so

      while she sat next to him at the kitchen table. At some point, while he was still

      holding the baby, Newsom “got[] mad” and took the baby into the bedroom.

      Id. Newsom shut the bedroom door and would not let Haley into the room.

      Because she was concerned for the baby, Haley begged Newsom to let her in.

      Newsom opened the bedroom door, pushed Haley with him into the bathroom,

      and shut the bathroom door. While they were both in the bathroom, Newsom

      was alternately “screaming and yelling” at Haley and telling her he loved her

      and wanted her back. Id. at 26-27. Haley asked Newsom to let her out of the

      bathroom several times.


[7]   Haley was eventually able to exit the bathroom, and both she and Newsom

      entered Haley’s bedroom. While Haley grabbed the baby, she watched

      Newsom lie on her bed and cover up with the blanket. Newsom was either

      sleeping or just had his eyes closed. Haley tried to wake him up several times,


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 3 of 14
      and in response Newsom either screamed at Haley, told her to leave him alone,

      or ignored her. At one point when Haley was trying to wake Newsom, he

      “threw the blanket up and, as he did, he smacked [the baby] in the face.” Id. at

      27-28.


[8]   Haley placed the baby in a play pen near the bed. Newsom shoved Haley down

      onto the bed by her shoulders and put one hand on her neck and the other on

      her head. Newsom held Haley in this position for a few minutes and alternated

      between squeezing his hands and telling Haley, “I’m going to kill you,” and

      kissing Haley and telling her he loved her and wanted her back. Id. at 29.

      Haley was able to push Newsom away using her feet. Newsom then shut the

      curtains in the bedroom and told Haley he was “going to make this battery

      charge count.” Id. at 30.


[9]   Newsom pushed Haley back onto the bed and again placed his hands on her

      neck and head. Newsom demanded Haley’s phone, which she hid behind her

      back. Haley then used her phone to call 9-1-1 by pushing the lock button

      repeatedly. A fight over Haley’s phone ensued, and both Haley’s and

      Newsom’s phones ended up on the floor across the room. Newsom asked

      Haley if she had really called the police and, when Haley affirmed that she did,

      Newsom walked to the front door, put a coat on the child who had arrived with

      him, and started to walk out the door. Newsom once again put his fingers up to

      Haley’s head and said, “[B]itch[,] you’re dead.” Id. at 32. Once Newsom was

      outside, he again asked Haley if she had really called the police. After Haley

      answered in the affirmative, Newsom “slammed the front door back open[,] …

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 4 of 14
       chased [Haley] into [the] bedroom[,]” and told her he was going to kill her. Id.

       at 32–33. Newsom then left. Haley locked the front door, called her next-door

       neighbor, and called 9-1-1 again.


[10]   Officer Lonnie Wilson (“Officer Wilson”) arrived at Haley’s residence and

       made contact with Haley while other officers made contact with Newsom a few

       blocks away from Haley’s apartment. Officer Wilson noticed that Haley was

       nervous, distraught, “worked up,” and that she had been crying. Id. at 53.

       Officer Wilson noticed that Haley showed restraint and apprehensiveness about

       speaking to him about what had happened, and Haley repeatedly told Officer

       Wilson that she was afraid.


[11]   On March 8, 2019, the State charged Newsom with Count I, Intimidation, as a

       Level 6 felony, and Count II, Domestic Battery, as a Level 6 felony.3 The

       information filed regarding the Intimidation charge stated:


                  On or about March 7, 2019, in Tippecanoe County, State of
                  Indiana, Quinton Devon Newsom did communicate a threat to
                  commit a forcible felony, to-wit: murder, to Shanna Haley, with
                  the intent that Shanna Haley be placed in fear of retaliation for a
                  prior lawful act, to-wit: calling 911[.]


       App. at 21.4




       3
           I.C. § 35-42-2-1.3(a), (b)(2).
       4
         As Newsom points out, the Information for the Intimidation charge laid out the elements of Indiana Code
       Section 35-45-2-1(a)(2) (i.e., a threat with intent that the other person be placed in fear of retaliation for a
       prior lawful act), but mistakenly cited Indiana Code Section 35-45-2-1(a)(1) (i.e., a threat with intent that the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020                       Page 5 of 14
[12]   Newsom had a jury trial on September 12, 2019, after which the jury received

       the following relevant instructions:


                Instruction 13.01                   Instructions to Be Considered as a
                                                    Whole


                You are to consider all of the instructions, both preliminary and
                final, together. Do not single out any certain sentence or any
                individual point or instruction and ignore the others.


                                                          ***


                Instruction 13.05                            Issues for Trial


                The State of Indiana has charged the Defendant, Quinton Devon
                Newsom, as follows:


                Count l, Intimidation, reads:


                On or about March 7, 2019, in Tippecanoe County, State of
                Indiana, Quinton Devon Newsom did communicate a threat to
                commit a forcible felony, to-wit: murder, to Shanna Haley, with
                the intent that Shanna Haley be placed in fear of retaliation for a
                prior lawful act, to-wit: calling 911.




       other person engage in conduct against the other person’s will). However, Newsom did not file a motion to
       dismiss or otherwise object to the citation in the charging information, nor does he allege on appeal that the
       mistaken citation in the information was fundamental error. Moreover, we note that both the charging
       information and the jury’s instructions stated the correct elements of Intimidation under the correct code
       section, i.e., I.C. § 35-45-2-1(a)(2). See Funk v. State, 714 N.E.2d 746, 749 (Ind. Ct. App. 1999) (finding no
       fundamental error where the “label applied to the charges may have been facially incorrect, but the substance
       of the intimidation charges was proper”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020                    Page 6 of 14
                                                ***


        Instruction 6.0200                         Intimidation


        The crime of Intimidation is defined by law as follows:


        A person whom [sic] communicates a threat to commit a forcible
        felony to another person with the intent that the other person be
        placed in fear of retaliation for a prior lawful act commits
        Intimidation, a Level 6 felony.


        Before you may convict the Defendant, the State must have
        proved each of the following beyond a reasonable doubt:


        1. The Defendant;


        2. communicated a threat to Shanna Haley[;]


        3. with the intent that Shanna Haley be placed in fear of
        retaliation for a prior lawful act[;]


        4. the threat was to commit a forcible felony.


        If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant not guilty of
        Intimidation a Level 6 Felony, charged in Count l.


                                                ***


        Instruction 14.4120                        Threat




Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 7 of 14
        The term “threat” is defined by law as meaning an expression, by
        words or action, of the intention to:


        1. [u]nlawfully injure the person threatened or another person, or
        damage property;


        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 and expenses;


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


        7. falsely harm the credit or business reputation of the person
        threatened, [sic] or


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


        Instruction 14.1780                        Forcible Felony


        The term “forcible felony” is defined by law as meaning a felony
        that involves the use or threat of force against a human being, or
        in which there is an imminent danger of bodily injury to a human
        being.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 8 of 14
                                                       ***


               Instruction 13.27                          Jury Deliberations


               To return a verdict, each of you must agree to it.


               ***


               The Court is submitting to you forms of possible verdicts you
               may return.… Do not sign any verdict form for which there is not
               unanimous agreement.…


       App. at 36-38, 42-43.


[13]   The jury returned verdicts of guilty for Count I, Intimidation, as a Level 6

       felony, and Count II, Domestic Battery, as a Level 6 felony, and the court

       sentenced Newsom accordingly. Newsom now appeals the Intimidation

       conviction.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[14]   Newsom challenges the sufficiency of the evidence to support his conviction of

       Intimidation, as a Level 6 felony.


               When reviewing a claim that the evidence is insufficient to
               support a conviction, we neither reweigh the evidence nor judge
               the credibility of the witnesses. Harrison v. State, 32 N.E.3d 240,
               247 (Ind. Ct. App. 2015), trans. denied. We instead respect the
               exclusive province of the trier of fact to weigh any conflicting
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 9 of 14
               evidence. Id. We consider only the probative evidence
               supporting the verdict and any reasonable inferences that may be
               drawn from this evidence. Id. We will affirm if the probative
               evidence and reasonable inferences drawn from the evidence
               could have allowed a reasonable trier of fact to find the defendant
               guilty beyond a reasonable doubt. Id.


       Merriweather v. State, 128 N.E.3d 503, 514-15 (Ind. Ct. App. 2019), trans. denied.

       “A defendant’s intent may be proven by circumstantial evidence alone, and

       knowledge and intent may be inferred from the facts and circumstances of each

       case.” Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016), trans. denied;

       see also Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014) (noting a verdict of

       guilt may be based upon an inference if reasonably drawn from the evidence).


[15]   To prove Newsom committed Intimidation, as a Level 6 felony, the State was

       required to prove beyond a reasonable doubt that: (1) Newsom; (2)

       communicated a threat; (3) to Haley; (4) to commit a forcible felony; (5) with

       the intent that Haley be placed in fear of retaliation for a prior lawful act. See

       I.C. § 35-45-2-1(a)(2), (b)(1)(A). Newsom only challenges the sufficiency of the

       evidence to prove the fifth element of the crime, i.e., that he intended to place

       Haley in fear of retaliation for her prior lawful act of calling 9-1-1. Specifically,

       he contends that his threat to kill Haley after learning that she called 9-1-1 was

       the same as his many threats to kill her before she called 9-1-1; therefore, he

       contends, there was insufficient evidence that his last threat was in retaliation

       for calling 9-1-1.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 10 of 14
[16]   When determining the sufficiency of evidence under the intimidation statute at

       issue here, the conviction “should not depend upon a precise parsing of the

       threatening language used by a defendant or a detailed timeline of when a

       threat was issued in relation to a prior lawful act.” Merriweather, 128 N.E.3d at

       516. Rather, “[w]hat is required is that there be a clear nexus between the prior

       lawful act and the defendant’s threat.” Id. Here, the State provided proof—

       and Newsom does not deny—that Newsom threatened Haley’s life moments

       after learning that she had called 9-1-1. That was sufficient evidence from

       which the jury could reasonably infer that Newsom threatened Haley’s life with

       the intention that she be placed in fear of retaliation for calling 9-1-1, a lawful

       act. 5 See, e.g., Chastain, 58 N.E.3d at 240 (upholding intimidation conviction

       where there was evidence of a victim’s “distinct lawful act,” followed by

       defendant’s threat to victim).


                                               Jury Instructions
[17]   Newsom maintains that his intimidation conviction must be reversed because it

       is impossible to tell whether the jury based its verdict on the threats that

       occurred before or after Haley’s 9-1-1- call. He maintains that this uncertainty




       5
         The cases Newsom cites in support of his sufficiency argument are readily distinguishable on the facts. In
       Blackmon v. State, 32 N.E.3d 1178 (Ind. Ct. App. 2015), and Casey v. State, 676 N.E.2d 1069 (Ind. Ct. App.
       1997), the State had failed to provide sufficient evidence of a prior lawful act. And in Ransley v. State, 850
       N.E.2d 443 (Ind. Ct. App. 2006), trans. denied, the threat related to a future lawful act, not a prior lawful act.
       Here, it is undisputed that Hanely called 9-1-1 and Newsom threatened her life immediately upon learning of
       the 9-1-1 call.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020                      Page 11 of 14
       violates the rule that a jury must unanimously agree which of defendant’s acts

       was the criminal act, citing Richardson v. United States, 526 U.S. 813 (1999).


[18]   We review a trial court’s instructions to the jury for an abuse of discretion. E.g.,

       Merriweather, 128 N.E.3d at 512.


               To constitute an abuse of discretion, the instructions given must
               be erroneous, and the instructions taken as a whole must misstate
               the law or otherwise mislead the jury. We will consider jury
               instructions as a whole and in reference to each other, not in
               isolation.


       Id. (citations omitted). Furthermore, “[a]bsent evidence to the contrary, we

       generally presume the jury follows the trial court’s instructions in reaching its

       determination.” Gibson v. State, 43 N.E.3d 231, 241 n.5 (Ind. 2015).


[19]   Newsom waived his challenge to the jury instructions by failing to object to

       them at trial. See, e.g., Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (“A

       defendant who fails to object to an instruction at trial waives any challenge to

       that instruction on appeal.”) (quotation and citation omitted). We will review

       an issue that was waived at trial only for fundamental error.


               In order to be fundamental, the error must represent a blatant
               violation of basic principles rendering the trial unfair to the
               defendant and thereby depriving the defendant of fundamental
               due process. Pope v. State, 737 N.E.2d 374, 380 (Ind. 2000). The
               error must be so prejudicial to the defendant’s rights as to make a
               fair trial impossible. Id.


       Id. at 1178-79.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 12 of 14
[20]   Newsom has not claimed, much less shown, fundamental error in the jury

       instructions. While Newsom claims it is possible that the jury based its

       intimidation verdict on threats other than the ones that followed Haley’s 9-1-1

       call, he points to no evidence in support of that contention. Rather, the trial

       court specifically instructed the jury that it could only convict Newsom of the

       intimidation charge if it found that Newsom intended to place Haley “in fear of

       retaliation for a prior lawful act, to-wit: calling 911.” Instruction 13.05, App. at 36

       (emphasis added); see also Instruction 6.0200, App. at 37 (“If the State failed to

       prove each of these elements beyond a reasonable doubt, you must find the

       Defendant not guilty of Intimidation a Level 6 Felony, charged in Count l.”).


[21]   Newsom asserts the jury could have been misled by Instruction 14.4120 because

       it laid out all the statutory definitions of “threat” rather than stating only the

       definition of threat that applied in this particular case, i.e., a threat to

       unlawfully injure the person threatened. Thus, he contends, the jury could have

       based its verdict on a threat to restrain Haley or a threat to commit a crime that

       was made before Haley called 9-1-1. However, even assuming there was

       evidence of such a threat, the jury was instructed to consider all of the

       instructions together. Instruction 13.05 specifically limited the threat to one to

       “commit a forcible felony, to-wit: murder,” App. at 36, and Instruction

       14.1780 defined “forcible felony” as “use or threat of force against a human

       being, or in which there is an imminent danger of bodily injury to a human

       being,” id. at 38. And, as already discussed, the jury was instructed to consider

       only the threat made after Haley’s lawful act of calling 9-1-1. Thus, the only


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 13 of 14
       threat the jury was instructed to consider was the one in which Newsom

       threatened Haley’s life upon learning of her 9-1-1 call.


[22]   Newsom has pointed to no fundamental error in the jury instructions and no

       evidence to rebut our general presumption that the jury followed the

       instructions it was given.



                                               Conclusion
[23]   The State presented sufficient evidence to support Newsom’s conviction of

       Intimidation, as a Level 6 felony. And Newsom has not shown fundamental

       error in the jury instructions.


[24]   Affirmed.


       Vaidik, J., and Baker, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-414 | August 31, 2020   Page 14 of 14
