Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          FILED
regarded as precedent or cited before any                    Nov 01 2012, 9:00 am
court except for the purpose of
establishing the defense of res judicata,                           CLERK
                                                                  of the supreme court,
collateral estoppel, or the law of the case.                      court of appeals and
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ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ERIN L. BERGER                                     GREGORY F. ZOELLER
Evansville, Indiana                                Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN S. FLEMING,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 82A05-1202-CR-100
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                          The Honorable Kelli E. Fink, Magistrate
                              Cause No. 82C01-1107-FD-807



                                        November 1, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Brian S. Fleming appeals his conviction for intimidation1 as a Class D felony,

raising the following restated issues:

       I.        Whether the evidence of the element of mens rea was sufficient to
                 support Fleming’s conviction for intimidation; and

       II.       Whether statements made by the prosecuting attorney during final
                 argument constituted prosecutorial misconduct.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On June 30, 2011, Fleming called Deaconess Hospital and said he had a gun and

was going to kill himself. Deaconess Hospital reported the call to the Evansville Police

Department. In response to the call, four uniformed police officers were dispatched to

Fleming’s home and saw Fleming pacing on his driveway and holding something in his

hands that the officers believed was a gun.           When Fleming noticed the officers

approaching with their guns drawn, he yelled at the officers to stay back or he was going

to shoot them. Fleming pointed the black object in his hand at each of the officers, who

in turn took cover.

       The officers believed that Fleming was intoxicated, and from the information

supplied by dispatch from the hospital, were aware that he had mental health issues.

Within a few minutes of confronting Fleming, the officers noticed that he no longer had

the object in his hand. At that point, the officers rushed Fleming and took him into

custody. No weapon was ever found; instead, it appeared that the object the officers

thought was a gun was, in fact, a solar lawn light.

       1
           See Ind. Code § 35-45-2-1.

                                             2
       The State charged Fleming with intimidation as a Class D felony, and he was tried

to a jury on December 9, 2011. As part of his defense, Fleming argued that he suffered

from brain damage, panic disorder, and overuse of alcohol, and that “the combination of

factors limited his[,] what we call[,] mens rea, his mental capacity, to intend that

consequence.” Tr. at 119. During closing argument, the prosecutor commented that the

jury could not consider “mental disease or defects because he didn’t file an insanity

defense . . . .” Id. at 27. Fleming objected to the prosecutor’s comments, but the trial

court overruled his objection. Fleming did not request an admonishment or move for a

mistrial. The jury found Fleming guilty of intimidation, and he was later sentenced to

two years executed at the Indiana Department of Correction. Fleming now appeals.

                            DISCUSSION AND DECISION

                           I.     Sufficiency of the Evidence

       Fleming contends that there was insufficient evidence to support his intimidation

conviction. Specifically, he contends that there was no evidence that he had the requisite

mens rea to commit the offense. In reviewing the sufficiency of the evidence, we

examine only the probative evidence and reasonable inferences that support the verdict.

Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We do not assess witness credibility, nor

do we reweigh the evidence. Id. “Under our appellate system, those roles are reserved

for the finder of fact.” Id. Instead, we consider only the evidence most favorable to the

trial court ruling and affirm the conviction unless no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Id. “This evidence need not

overcome every reasonable hypothesis of innocence; it is sufficient so long as an

                                             3
inference may reasonably be drawn from it to support the verdict.” Id.

        To be convicted of intimidation as a Class D felony, the State was required to

prove that Fleming communicated a threat to a law enforcement officer with intent that

the officer be placed in fear of retaliation for a prior lawful act. See Ind. Code § 35-45-2-

1.2   Fleming challenges only the intent element of the crime and contends that his

physical and mental condition—that he suffered from brain damage, panic attacks, and

alcohol intoxication—prevented him from forming the requisite mens rea. Appellant’s

Br. at 4.

        Fleming’s defense was essentially that he did not have the mens rea because his

mental conditions prevented him from appreciating the wrongfulness of his conduct at the

time of the offense. Because intent is a mental function, absent an admission from the

defendant, it must be determined from a consideration of the defendant’s conduct and the

natural and usual consequences of such conduct. Hendrix v. State, 615 N.E.2d 483, 485

(Ind. Ct. App. 1993) (citing Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)). To

determine whether the defendant intended to commit the alleged conduct, the trier of fact

must usually resort to reasonable inferences based upon an examination of the

surrounding circumstances. Id. Whether Fleming’s brain damage, panic attacks, and

abuse of alcohol impaired his mental faculties such that he did not have the intent to place

the officers in fear of retaliation is a question of fact, and the conclusion will not be


        2
          Indiana Code section 35-45-2-1, in pertinent part, provides that a person who communicates a
threat to another person, with the intent that the other person be placed in fear of retaliation for a prior
lawful act, commits intimidation, a Class A misdemeanor. However, the offense is a Class D felony if the
person to whom the threat is communicated is a law enforcement officer.


                                                     4
disturbed if substantial evidence of probative value exists. Galloway v. State, 938 N.E.2d

699, 709 (Ind. 2010).

       The State was required to establish that Fleming intended to place the officers in

fear of retaliation for performing their lawful duties as officers. Here, the four officers

were responding to a dispatch generated by a call from Deaconess Hospital that “a person

named Brian Fleming . . . had called them saying he was going to kill himself, that he had

a gun and he was going to pull the trigger.” Tr. at 31. In an attempt to prevent the

suicide, the officers approached Fleming, who was pacing on his driveway and was

holding an object that looked like a gun. Upon seeing the officers, Fleming pointed the

object at them and yelled, “get back I’m going to fucking shoot you, get back.” Id. at 33.

The officers scattered and took cover behind trees just off the driveway. Id. As a

defense, Fleming introduced evidence that his mental state prevented him from forming

the intent required to commit the crime. The jury found Fleming guilty of Class D felony

intimidation.

       By asking this court to overturn his conviction on the basis of the proof of intent,

Fleming is essentially asking this court to reweigh the evidence.          Our standard for

reviewing sufficiency of the evidence claims is well settled. We do not reweigh the

evidence or judge the credibility of the witnesses, and it lies within the jury’s exclusive

province to weigh conflicting evidence. Eberle v. State, 942 N.E.2d 848, 856 (Ind. Ct.

App. 2011), trans. denied. We find sufficient evidence existed for a jury to believe that

Fleming threatened the law enforcement officers and placed them in fear of retaliation for

the prior lawful act of being on his property to investigate the report of a suicide attempt.

                                              5
                            II.    Prosecutorial Misconduct

       Fleming asserts that the deputy prosecutor engaged in prosecutorial misconduct

during closing argument when he argued that the jury could not consider mental disease

or defect because Fleming had not filed a “Notice of Insanity Defense.” Tr. at 126.

Specifically, Fleming contends that this comment impermissibly shifted the State’s

burden of proof.

       The State contends that Fleming failed to properly preserve this argument for

appellate review because, although he objected to the deputy prosecutor’s statements, he

did not request an admonishment or move for a mistrial when the trial court overruled his

objection. “Generally, in order to properly preserve a claim of prosecutorial misconduct

for appeal, a defendant must not only raise a contemporaneous objection, but he must

request an admonishment and, if the admonishment is not given or is insufficient to cure

the error, then he must request a mistrial. Bass v. State, 947 N.E.2d 456, 461 (Ind. Ct.

App. 2011) (citing Lainhart v. State, 916 N.E.2d 924, 931 (Ind. Ct. App. 2009)), trans.

denied. Here, the trial court overruled Fleming’s objection to the prosecutor’s comments;

however, because Fleming “did not request an admonishment or move for a mistrial after

the court made its rulings, he has waived his prosecutorial misconduct claims and must

show fundamental error in order to be entitled to reversal.” Id.; see Brown v. State, 799

N.E.2d 1064, 1066 (Ind. 2003) (“Because Brown failed to request an admonishment or

move for a mistrial when the trial court overruled his objection, his claim of prosecutorial

misconduct is procedurally foreclosed and reversal on appeal requires a showing of

fundamental error.”).

                                             6
       For prosecutorial misconduct to rise to the level of fundamental error, however, it

must be so prejudicial to the rights of the defendant as to have made a fair trial

impossible. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind. Ct. App. 2003), trans. denied.

In determining whether an alleged error rendered a judicial proceeding unfair, this court

must consider whether the resulting harm or potential for harm is substantial. Id. A

review of the totality of the circumstances and a determination whether the error had a

substantial influence upon the outcome are required. Id.

       Here, while acknowledging that voluntary intoxication was not a defense,

Fleming’s entire closing argument consisted of urging the jury to consider that the

combination of Fleming’s brain damage, panic disorder, suicidal ideation, and overuse of

alcohol prevented him from forming the intent required to commit Class D felony

intimidation. Tr. at 119-25. In response, the State pointed out that by failing to file a

Notice of Insanity Defense, and thereby raise a defense of mental disease, Fleming could

not dispute the evidence of intent by what in effect constituted an insanity defense. Id. at

126.   Indiana Code section 35-41-3-6 provides that a person is not responsible for

committing a crime if, because of mental illness, he or she “was unable to appreciate the

wrongfulness of the conduct at the time of the offense.” This is an affirmative defense

upon which the defendant bears the burden of proof. Thompson v. State, 804 N.E.2d

1146, 1148 (Ind. 2004). Although the State must prove that a defendant acted with the

requisite mens rea, it has no obligation to prove that a defendant was “sane.” Id. (quoting

Lyon v. State, 608 N.E.2d 1368, 1370 (Ind. 1993)). Contrary to Fleming’s suggestion, the

State was not required to prove that Fleming was of legally sound mind when he

                                             7
committed the acts that constituted intimidation. The burden was on Fleming to present

evidence that he was so mentally disturbed at the time of the incident that he could not

appreciate the wrongfulness of his conduct. The prosecutor’s comments did not shift the

State’s burden of proof and did not deprive Fleming of a fair trial. Fleming was not

denied a fair trial. The error was not fundamental and, therefore, is waived.

       Affirmed.

NAJAM, J., and MAY, J., concur.




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