MEMORANDUM DECISION                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                             May 24 2018, 7:58 am

this Memorandum Decision shall not be                                   CLERK
                                                                    Indiana Supreme Court
regarded as precedent or cited before any                              Court of Appeals
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael G. Moore                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brittani Whitlock,                                      May 24, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1706-CR-1371
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                     Commissioner
                                                        Trial Court Cause No.
                                                        49G09-1509-F6-31989



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018          Page 1 of 13
[1]   Brittani Whitlock (“Whitlock”) appeals, following a jury trial, her two

      convictions for Level 6 felony intimidation.1 Whitlock argues that there was

      insufficient evidence to support her two convictions. Concluding that

      Whitlock’s arguments are merely a request to reweigh the evidence, we deny

      this request and affirm her two intimidation convictions.


[2]   We affirm.


                                                           Issue
                     Whether sufficient evidence supports Whitlock’s convictions.


                                                           Facts
[3]   In September 2015, Whitlock and her three young children (“the children”)2

      were living with Whitlock’s grandmother (“Grandmother”). During the late

      evening of September 8, 2015, Grandmother became concerned with

      Whitlock’s treatment of the children and called 911. Indianapolis Metropolitan

      Police Department (“IMPD”) Officers Ryan Archer (“Officer Archer”), Joshua

      Murphy (“Officer Murphy”), and Donald Jones (“Officer Jones”) were

      dispatched to Grandmother’s house. Upon their arrival, they spoke to

      Grandmother, who was “upset” and told them that she could not control

      Whitlock and that she was “scared” for the children. (Tr. Vol. 2 at 66, 87).




      1
          IND. CODE § 35-45-2-1.
      2
          The children were four years old, three years old, and one year old.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 2 of 13
[4]   Grandmother took the officers back to Whitlock’s bedroom, where she was

      with the children. After Grandmother opened the door, Whitlock told the

      officers that she “hate[d] the fucking police” and yelled for them to leave. (Tr.

      Vol. 2 at 68-69). The officers stayed in the room, and Officers Archer tried to

      talk to Whitlock. She yelled at him and told him that “if she [wa]s not under

      arrest that [he] need[ed] to get the fuck out.” (Tr. Vol. 2 at 89). After Whitlock

      yelled, her one-year-old child started to cry. Officer Archer tried to keep the

      children “calm” by talking to them and giving them stickers and high fives. (Tr.

      Vol. 2 at 89). Whitlock instructed her children to stop talking to the officers

      and told the children that the officers “like[d] to kill black people” and “like[d]

      to shoot people.” (Tr. Vol. 2 at 89).


[5]   The officers went into the living room with Grandmother, and she told the

      officers that Whitlock suffered from bipolar disorder and had not taken her

      medicine. Grandmother also stated that she was “concern[ed] that [Whitlock]

      [wa]s going to hurt [the children].” (Tr. Vol. 2 at 69). Officer Archer called the

      Department of Child Services (“DCS”), and the officers waited for a Child

      Protective Services (“CPS”) worker to come to the house.3


[6]   As the officers were in the living room with Grandmother, Whitlock walked

      into the room with her children. Whitlock was talking on the phone to

      someone, and she laughed and said “[f]uck the police . . . they are in my living




      3
          During the trial, the witnesses interchangeably referred to both DCS and CPS.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 3 of 13
room[.]” (Tr. Vol. 2 at 70). Whitlock yelled for the officers to get out, and

Officer Archer told Whitlock that he had called CPS and that the officers would

not leave until they had spoken with CPS. Whitlock became “more enraged”

and “scream[ed]” and “cuss[ed]” at the officers. (Tr. Vol. 2 at 126, 127).

Whitlock then played two songs, both titled “Fuck the [P]olice[,]”4 on a

Bluetooth speaker and “ha[d] her kids dance and flip the officers off.” (Tr. Vol.

2 at 71). Whitlock replayed the songs, walked in and out of the house, and

refused to talk to the officers. Whitlock told the person on the phone that “she

was going to get her kids in the basement, [and] have her boys drive by and

shoot [them] up; shoot the police up” and “shoot these fucking pigs.” (Tr. Vol.

2 at 72, 102). As she said these words, she looked at the officers. Whitlock also

took photographs of the officers and told them that “she was going to post them

on Facebook so her people w[ould] know who [the officers] [we]re so they

c[ould] kill [the officers].” (Tr. Vol. 2 at 104). Additionally, Whitlock

mentioned Officer Perry Renn (“Officer Renn”), a police officer who had been

shot and killed in the line of duty in July 2015, and told the officers, “Fuck

Perry Renn” and “Fuck him, he deserved it.” (Tr. Vol. 2 at 103, 154). The

officers waited for approximately an hour for the CPS worker to arrive at the

house, and during that time, Whitlock played the “Fuck the Police” songs “the

entire time [the officers] were there.” (Tr. Vol. 2 at 96).




4
    One song was by NWA, and the other song was by Lil Boosie.


Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 4 of 13
[7]   When CPS worker, Asha Alvarado (“Alvarado”), arrived at the house,

      Whitlock was still playing the songs and was talking on her phone. Officer

      Archer informed Alvarado that Grandmother was “very upset about how

      [Whitlock] physically and verbally abuses her children.” (Tr. Vol. 2 at 133).

      Whitlock was “[a]ngry” and “hostile,” and she “cuss[ed] and “scream[ed]” at

      Alvarado and the officers. (Tr. Vol. 2 at 104). Alvarado found the scene in the

      house to be “[c]haotic[.]” (Tr. Vol. 2 at 175). Whitlock continued to play the

      songs, talk on her phone, and walk around the house. The officers determined

      that they were going to take Whitlock for a psychological evaluation, and

      Alvarado decided that CPS was going to file a “petition to keep the children in

      their home.” (Tr. Vol. 2 at 192). Alvarado informed Whitlock and talked to

      her about placing the children with Grandmother. Whitlock “became upset[,]”

      refused placement with Grandmother, and said that “if they were going to be

      taking her[,]” then “she wanted [CPS] to place her children in foster care.” (Tr.

      Vol. 2 at 177). As Alvarado started to step outside to call her supervisor,

      Whitlock told the person on the phone that he “should come over and follow

      the CPS worker home and harm her” or “take care of her[.]” (Tr. Vol. 2 at 73,

      177). Alvarado then walked outside, called her supervisor, and informed the

      supervisor of what Whitlock had said.


[8]   The State charged Whitlock with two counts of Level 6 felony intimidation.

      The first count was for Whitlock’s threat to Alvarado, and the second was for

      Whitlock’s threat to Officer Archer. The trial court held a jury trial on April 5,

      2017. The State presented testimony from Alvarado and Officers Archer,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 5 of 13
      Murphy, and Jones, who testified to the facts above. The jury found Whitlock

      guilty as charged. For each conviction, the trial court imposed a 725-day

      sentence with 180 days executed in jail and 545 days suspended to probation,

      and it ordered these sentences to be served concurrently. Whitlock now

      appeals.


                                                 Decision
[9]   Whitlock argues that the evidence was insufficient to support her two

      intimidation convictions.


              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.

      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

      and citations omitted) (emphasis in original). “In essence, we assess only

      whether the verdict could be reached based on reasonable inferences that may be

      drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.

      2012) (emphasis in original).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 6 of 13
[10]   The intimidation statute 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 as a Class A

       misdemeanor. I.C. § 35-45-2-1(a)(2). The offense is a Level 6 felony when the

       threat is to commit a forcible felony,5 I.C. § 35-45-2-1(b)(1)(A), or when the

       person to whom the threat is communicated is a law enforcement officer. I.C. §

       35-45-2-1(b)(1)(B)(i). To establish intimidation, the State must specifically

       identify a legal act by the victim and “establish that the legal act occurred prior

       to the threat and that the defendant intended to place the victim in fear of

       retaliation for that act.” Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App.

       1997).


[11]   We first review Whitlock’s challenge to her intimation conviction relating to

       Alvarado. In order to convict Whitlock of Level 6 felony intimidation as

       charged in Count 1, the State was required to prove beyond a reasonable doubt

       that Whitlock communicated a threat to commit a forcible felony against

       Alvarado, i.e., threatened to have someone follow Alvarado and “take care of

       her” or “kill her,” with the intent to place her in fear of retaliation for the prior

       lawful act of “conducting a child welfare investigation[.]” (App. Vol. 2 at 23).




       5
         A “forcible felony” is “a felony that involves the use or threat of force against a human being, or in which
       there is imminent danger of bodily injury to a human being.” I.C. § 35-31.5-2-138.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018                  Page 7 of 13
[12]   Whitlock argues that: (1) the evidence was insufficient to show that she

       communicated a threat to Alvarado; and (2) assuming her statement constituted

       a threat, there was “no clear nexus” between Alvarado’s prior lawful act of

       conducting a child welfare investigation and Whitlock’s threat. (Whitlock’s Br.

       11).


[13]   In regard to the “threat” element, Whitlock contends that the statement she

       made about having the person on the phone follow Alvarado and harm her was

       “not a threat to Alvarado” because Whitlock did not make the statement

       directly to Alvarado and because Alvarado merely “overheard” the statement

       while Whitlock was talking on the phone to the other person. (Whitlock’s Br.

       10). Whitlock contends that her statement to have the person on the phone

       follow and harm Alvarado was merely a “suggestion about an act some

       unknown person should do.” (Whitlock’s Br. 10).


[14]   We reject Whitlock’s suggestion that her words did not constitute a threat. The

       intimidation statute defines “threat” as an “expression, by words or action, of

       an intention to . . . unlawfully injure the person threatened . . . [or] commit a

       crime[.]” I.C. § 35-45-2-1(d)(1), (d)(3). “The text of the intimidation statute

       does not limit the phrase ‘communicates a threat to another person’ to only

       those threats made directly to or in the presence of the threatened party.” Ajabu

       v. State, 677 N.E.2d 1035, 1042 (Ind. Ct. App. 1997), trans. denied. “The word

       ‘communicate’ encompasses those threats made known or transmitted to

       another person, and the statute does not limit the means utilized to convey the

       threat.” Id. (explaining that “threats include those a person makes known to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 8 of 13
       the victim through the print, radio[,] or television media with the requisite

       intent”). See also I.C. § 35-45-2-1(c) (providing that a person’s communication

       of a threat “includes posting a message electronically, including on a social

       networking web site”). Whether a particular communication constitutes a

       threat is an objective question for the trier of fact. Owens v. State, 659 N.E.2d

       466, 474 (Ind. 1995), reh’g denied. Thus, whether Whitlock’s communication to

       Alvarado, objectively viewed, was a threat was a question of fact for the jury to

       decide.


[15]   Whitlock’s argument regarding the threat element is nothing more than a

       request to reweigh the evidence. Here, the evidence showed that Alvarado

       arrived at Whitlock’s house and found a “[c]haotic” scene. (Tr. Vol. 2 at 175).

       Whitlock was loudly playing the “Fuck the Police” songs and walking around

       the house. Whitlock was “[a]ngry” and “hostile,” and she “cuss[ed] and

       “scream[ed]” at Alvarado and the officers. (Tr. Vol. 2 at 104). Eventually,

       Alvarado decided that she needed to file a “petition to keep the children in their

       home[,]” and she informed Whitlock and talked to her about placing the

       children with Grandmother. (Tr. Vol. 2 at 192). Whitlock “became upset[,]”

       refused placement with Grandmother, and said that “if they were going to be

       taking her[,]” then “she wanted [CPS] to place her children in foster care.” (Tr.

       Vol. 2 at 177). Alvarado then started to step outside to call her supervisor, and

       Whitlock told the person on the phone that he “should come over and follow

       the CPS worker home and harm her” or “take care of her[.]” (Tr. Vol. 2 at 73,

       177). Alvarado then walked outside, called her supervisor, and informed the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 9 of 13
       supervisor of what Whitlock had said. Given the context in which the

       statement was made, the jury could have reasonably concluded that Whitlock’s

       statement was a threat to have a forcible felony committed against Alvarado.

       See, e.g., E.B. v. State, 89 N.E.3d 1087, 1091 (Ind. Ct. App. 2017) (“It is well-

       established that a defendant need not speak directly with a victim to

       communicate a threat for purposes of Indiana Code section 35-45-2-1.”). We

       will not reweigh the evidence or the trial court’s determination. See Drane, 867

       N.E.2d at 146.


[16]   Additionally, we reject Whitlock’s argument that there was not a clear nexus

       between Alvarado’s prior lawful act and Whitlock’s threat. This argument is a

       challenge to Whitlock’s intent or whether Whitlock made the threat to

       Alvarado with the intent that she be placed in fear of retaliation for her prior

       lawful act of conducting a child welfare investigation. In regard to the intent

       element, “[t]here is nothing in the intimidation statute that requires a defendant

       to expressly state what the victim’s prior lawful act was for which a defendant

       intends to retaliate.” Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016),

       trans. denied. “It is well-settled that in criminal cases, the State is not required to

       prove intent by direct and positive evidence.” Id. (internal quotation marks and

       citation omitted). “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. Id.


[17]   The evidence cited above is sufficient to show that Whitlock made the threat to

       Alvarado with the intent that she be placed in fear of retaliation for her prior

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 10 of 13
       lawful act of conducting a child welfare investigation. Accordingly, we reject

       Whitlock’s argument that there was not a clear nexus between Alvarado’s prior

       lawful act and Whitlock’s threat. Because there was probative evidence from

       which the jury could have found Whitlock guilty beyond a reasonable doubt of

       Level 6 felony intimidation against Alvarado, we affirm her conviction from

       Count 1. See, e.g., Fleming v. State, 85 N.E.3d 626, 632 (Ind. Ct. App. 2017)

       (refusing to reweigh the jury’s verdict and affirming the defendant’s

       intimidation conviction where it was reasonable for the jury to infer from the

       evidence that the defendant’s threat was prompted by the victim’s prior lawful

       act); Chastain, 58 N.E.3d at 240 (affirming the defendant’s intimidation

       conviction where the evidence showed that the victim had engaged in a lawful

       act and that the defendant then “directed his anger” toward the victim and

       “reacted in response” to the victim’s act).


[18]   Turning to Whitlock’s challenge to her intimation conviction relating to Officer

       Archer, we note that in order to convict Whitlock of Level 6 felony intimidation

       as charged in Count 2, the State was required to prove beyond a reasonable

       doubt that Whitlock communicated a threat to the officers, “said threat being

       that she would have someone drive by and shoot the officer(s),” with the intent

       to place Officer Archer in fear of retaliation for his prior lawful act of

       “conducting an investigation and/or telling [Whitlock] to turn down her

       music[.]” (App. Vol. 2 at 23).


[19]   Whitlock does not deny that she threatened Officer Archer nor does she dispute

       the fact that he engaged in a prior lawful act. Instead, she contends that her

       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 11 of 13
       “threat was completely unrelated to Officer Archer’s actions” and that “she

       made nasty derogatory comments to everyone” that evening. (Whitlock’s Br.

       13). Thus, she challenges the intent element of the intimidation statute.


[20]   Again, Whitlock’s argument is nothing more than a request to reweigh the

       evidence. Here, the evidence showed that Officer Archer and the officers were

       dispatched to Grandmother’s house when she became concerned about

       Whitlock’s treatment of the children. As they talked to Whitlock in her

       bedroom, she told them that she “hate[d] the fucking police” and yelled for

       them to leave. (Tr. Vol. 2 at 68-69). Thereafter, when the officers were in the

       living room, Whitlock walked and yelled for the officers to get out. Officer

       Archer told Whitlock that he had called CPS and that the officers would not

       leave until they had spoken with CPS. Whitlock became “more enraged” and

       “scream[ed]” and “cuss[ed]” at the officers. (Tr. Vol. 2 at 126, 127). Whitlock

       then repeatedly played the “Fuck the Police” songs and walked around while

       talking on her phone. Whitlock told the person on the phone that “she was

       going to get her kids in the basement, [and] have her boys drive by and shoot

       [them] up; shoot the police up” and “shoot these fucking pigs.” (Tr. Vol. 2 at

       72, 102). As she said these words, she looked at the officers. Whitlock also

       took photographs of the officers and told them that “she was going to post them

       on Facebook so her people w[ould] know who [the officers] [we]re so they

       c[ould] kill [the officers].” (Tr. Vol. 2 at 104). From this evidence, the jury

       could have reasonably determined that Whitlock communicated a threat to

       Officer Archer with the intent to place him in fear of retaliation for his prior


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 12 of 13
       lawful act of conducting an investigation. Accordingly, we affirm Whitlock’s

       Level 6 felony intimidation conviction from Count 2.


[21]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1371| May 24, 2018   Page 13 of 13
