      MEMORANDUM DECISION
                                                                           FILED
      Pursuant to Ind. Appellate Rule 65(D),                          Oct 13 2016, 5:41 am
      this Memorandum Decision shall not be                                CLERK
      regarded as precedent or cited before any                        Indiana Supreme Court
                                                                          Court of Appeals
      court except for the purpose of establishing                          and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Mark S. Lenyo                                            Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Fronse W. Smith, Jr.,                                    October 13, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A03-1511-CR-2098
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable John M.
      Appellee-Plaintiff                                       Marnocha, Judge
                                                               Trial Court Cause No.
                                                               71D02-1506-F6-361



      Mathias, Judge.


[1]   Fronse W. Smith, Jr. (“Smith”) was convicted in St. Joseph Superior Court of

      Level 6 felony intimidation. Smith appeals his conviction and argues:

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 1 of 11
          I. Whether the evidence is sufficient to support his intimidation conviction,

          II. Whether there was an improper variance between the charging
              information and the proof at trial, and,

          III.Whether the trial court abused its discretion when it allowed the State to
              amend the charging information one day before trial.

[2]   We affirm.

                                    Facts and Procedural History

[3]   In May 2014, Smith and his wife, Linda, were separated and sharing custody of

      their son, C.S. On May 29, 2015, C.S. was at Smith’s house, and when Linda

      called to check on C.S., Smith assured her that C.S. was fine. Later that night,

      Smith called Linda, told her he was in the McDonald’s drive-through, and

      asked if she wanted anything to eat. Linda believed that Smith wanted to bring

      her food so that he could spend time with her that night.


[4]   Linda declined Smith’s offer, and Smith quickly became agitated and angry.

      He called Linda foul names and told her that she was a bad wife. He then

      threatened her, stating that he “was going to split [her] chest open with an ax.”

      Tr. pp. 38, 54. Linda knew that Smith had an ax and feared for her safety.


[5]   Linda disconnected the phone call and called 911. She drove to the Mishawaka

      police station, and while she was there, Smith began to text her. Smith claimed

      that C.S. was in bed at Linda’s house. He also stated that he was going to

      dispose of and destroy Linda’s property. Linda told the officers that she

      believed that Smith was inside her house.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 2 of 11
[6]    South Bend Police Officers Alex Pishkur and Harvey Mills were dispatched to

       Linda’s home. When they arrived, Smith was walking from his vehicle into

       Linda’s house. Smith had parked his vehicle with an attached trailer in the

       middle of the street blocking the normal flow of traffic. Smith was

       uncooperative and hostile with the officers.


[7]    Linda returned to her home shortly thereafter. She and Smith spoke briefly

       while Officer Mills stood nearby. At one point, Smith moved closer to Linda

       and stated, “Now you’ve really done it.” Tr. p. 48. The officer then arrested

       Smith and placed him in handcuffs.


[8]    The officers decided to tow Smith’s vehicle but allowed Linda to look inside for

       the keys in order to move it from the roadway. Linda observed an ax

       underneath several items piled on the front passenger seat. Officer Mills also

       observed the ax.

[9]    On June 3, 2015, Smith was charged with Level 6 felony intimidation. The

       State alleged:


               FRONSE WAYNE SMITH, JR. did communicate a threat to
               commit a forcible felony, to Linda Smith, with the intent that
               Linda Smith be placed in fear of retaliation for a prior lawful act.


       Appellant’s App. p. 110.

[10]   On September 15, 2015, the State moved to amend the charging information.

       The amended information described the “prior lawful act” as an argument

       “because Linda Smith did not want McDonald’s.” Id. at 97. On the day before
       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 3 of 11
       Smith’s jury trial commenced, the trial court granted the State’s motion to

       amend the charging information.

[11]   On September 24, 2015, a jury trial was held, and Smith was found guilty as

       charged. For his Level 6 felony intimidation conviction, Smith was ordered to

       serve a one-year suspended sentence. He was placed on probation for one year,

       and the trial court issued a no contact order. Smith now appeals his conviction.

                                           Insufficient Evidence

[12]   Smith argues that the State failed to present sufficient evidence to prove that he

       committed Level 6 felony intimidation.


               When we review a claim challenging the sufficiency of the
               evidence we neither reweigh the evidence nor assess the
               credibility of the witnesses. Instead, we consider only the
               evidence and reasonable inferences drawn therefrom that support
               the verdict. And we will affirm the conviction if there is probative
               evidence from which a reasonable jury could have found the
               defendant guilty beyond a reasonable doubt.


       Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016) (citing Treadway v. State, 924

       N.E.2d 621, 639 (Ind. 2010).

[13]   In order to convict Smith of intimidation as charged, the State was required to

       prove that he communicated a threat to Linda, with the intent that Linda be

       placed in fear of retaliation for a prior lawful act. See Ind. Code § 35-45-2-1(a)(2)

       (2014). Smith argues that the State failed to prove “a prior lawful act” or any




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 4 of 11
       “connection between the threat made by the defendant and the prior lawful act

       claimed by the State.” Appellant’s Br. at 10.

[14]   Our court has held that “mere proof that the victim is engaged in an act which

       is not illegal at the time the threat is made is not sufficient.” Casey v. State, 676

       N.E.2d 1068, 1072 (Ind. Ct. App. 1997). The State “must 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.” Id.; see also Ransley, 850 N.E.2d

       443, 447 (Ind. Ct. App. 2006), trans. denied (stating “a person may be angry

       enough to commit intimidation. However, anger, without proof of intent to

       retaliate, is not enough to satisfy the requirements of the statute”).


[15]   In Casey, the alleged victim Kimberly was with her friends at a bar. Casey was

       at the same bar and began fighting with one of Kimberly’s friends. After

       Kimberly returned home to watch television with her boyfriend Russo and his

       friend Chapman, Casey appeared on a ledge outside Kimberly’s window.

       Kimberly, Russo, and Chapman went outside to investigate. Casey told

       Kimberly and her friends that they were surrounded by fifty people and should

       not try to run. Kimberly pleaded with Casey to leave. Casey told her, “Get

       inside bitch, you’re next.” Id. at 1071. He asked one of his associates to get his

       gun from the car, and he stated that he was going to kill them all. Casey then

       struck Russo with an aluminum bat and told Kimberly, “You’re next bitch.” Id.

       Casey was found guilty of intimidation.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 5 of 11
[16]   On appeal, we vacated the conviction. Id. at 1073. We held that the State failed

       to prove that Casey threatened Kimberly to place her in fear of retaliation for a

       prior lawful act. Id. The State argued that Kimberly had been engaged in the

       lawful acts of “being a patron at a bar, being at her house and being a witness to

       Casey’s attack on Russo.” Id. However, we found that the record did not

       support an inference that Casey was threatening Kimberly for this particular

       conduct. We also noted that “Casey’s threats, which consisted of statement that

       ‘You’re next bitch’ and that he was going to kill her . . . do not demonstrate his

       reasons for threatening Kimberly or indicate that he was doing so because of

       any specific prior act.” Id.


[17]   However, the intimidation statute does not require a defendant to expressly

       describe the victim’s prior lawful act for which a defendant intends to retaliate.

       Moreover, it is well-settled that the State “is not required to prove intent by

       direct and positive evidence.” Johnson v. State, 837 N.E.2d 209, 214 (Ind. Ct.

       App. 2005), 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. Id. (quoting Lykins v. State, 726 N.E.2d 1265, 1270

       (Ind. Ct. App. 2000)).


[18]   In this case, the State alleged that the “prior lawful act” was the argument

       between Smith and Linda “because Linda Smith did not want McDonald’s.”

       Appellant’s App. p. 97. At trial, Linda testified that earlier in the evening, she

       and Smith spoke and had a cordial conversation about their child’s welfare.

       However, at approximately 10:45 p.m., Smith called and told Linda that he was

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 6 of 11
       in the McDonald’s drive-through and asked if Linda wanted anything to eat.

       Tr. p. 37. Linda replied that she was not hungry but was tired and wanted to go

       to bed.


[19]   Linda testified that Smith “pretty quickly became agitated and angry, started

       name calling.” Id. Smith was also upset about Linda’s job. The State asked

       Linda why Smith would react so strongly to her response that she did not want

       McDonald’s. Linda replied, “I believe that he wanted to spend some time with

       me that evening.” Id. Smith then threatened Linda and stated that “he was

       going to split [her] chest open with an ax.” Tr. p. 38.

[20]   Linda’s decision to refuse Smith’s offer to bring her McDonald’s is

       unquestionably a lawful act. After Linda refused the offer, Smith became upset

       and eventually threatened Linda. The State proved that Smith’s threat was in

       retaliation for Linda’s prior lawful act, i.e. Linda’s decision that she did not

       want Smith to bring her food from McDonald’s. For all of these reasons, we

       conclude that the evidence is sufficient to support Smith’s intimidation

       conviction.


                                The Amended Charging Information

[21]   Smith also raises two arguments with respect to the charging information. First,

       he claims an improper variance between the charging information and the proof

       was presented at trial concerning the alleged “prior lawful act.” Smith also

       argues that the trial court improperly granted the State’s motion to amend the

       charging information one day before his jury trial. The State amended the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 7 of 11
       information by specifically alleging that the “prior lawful act” was an argument

       “because Linda Smith did not want McDonald’s.” Appellant’s App. p. 97.

            I. Variance between the Charging Information and Proof at Trial

[22]   Smith contends the State presented a material and fatal variance between the

       prior lawful act alleged and the evidence presented at trial.1

                Because the charging information advises a defendant of the
                accusations against him, the allegations in the pleading and the
                evidence used at trial must be consistent with one another. A
                variance is an essential difference between the two. Not all
                variances, however, are fatal. Relief is required only if the
                variance (1) misled the defendant in preparing a defense,
                resulting in prejudice, or (2) leaves the defendant vulnerable to
                future prosecution under the same evidence.


       Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014).


[23]   Smith claims that at trial, the State argued that the following were prior lawful

       acts: 1) that Linda did not want McDonald’s (the act alleged in the charging

       information), 2) the argument between Linda and Smith, and 3) Linda rejecting



       1
         The State argues that Smith waived this claim by failing to raise it in the trial court. However, any error
       between the pleading and proof at a criminal trial is fundamental because a defendant has a constitutional
       right to be informed of the nature of the accusation in sufficient detail to enable him to prepare his defense.
       See Blackmon v. State, 32 N.E.3d 1178, 1184 (Ind. Ct. App. 2015) (quoting Myers v. State, 510 N.E.2d 1301,
       1366-67 (Ind. 1987)) (explaining that “[c]onsistency between the allegations charged and the proof adduced is
       required out of deference for the accused’s constitutional right to be informed of the nature and cause of the
       accusation in sufficient detail to enable her to prepare her defense, to protect her in the event of double
       jeopardy, and to define the issues so that the court will be able to determine what evidence is admissible and
       to pronounce judgment”). Therefore, we address Smith’s claim on its merits. See Young v. State, 30 N.E.2d
       719, 726 (Ind. 2015) (stating “[a]n error is fundamental, and thus reviewable despite failure to object, if it
       made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due
       process presenting an undeniable and substantial potential for harm”).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016             Page 8 of 11
       Smith, i.e. not allowing him to come to her house. However, Smith does not

       explain how this claimed variance between the charging information and proof

       at trial prevented him from preparing and presenting his defense. See

       Appellant’s Br. at 19 (broadly stating that “[i]t follows that the prior lawful act

       had to be identified in the charging information with sufficient specificity so as

       not to mislead Smith in the preparation of his defense” with no specific

       argument that Smith suffered any prejudice in presenting his defense).


[24]   The State’s theory of the case was that Smith’s offer to bring McDonald’s to his

       estranged wife Linda was Smith’s attempt to spend time with her, and when she

       rejected his offer of McDonald’s, Smith was angered to the point where he

       threatened her in retaliation. The record has no direct evidence from which a

       fact-finder could conclude why Smith became so angry when Linda refused his

       offer to bring her McDonald’s. However, direct evidence is not required. See

       Johnson, 837 N.E.2d at 214.


[25]   Linda testified that she and Smith had a cordial discussion earlier in the day

       concerning their son’s welfare. Howver, after she rejected his offer later that

       evening, Smith “pretty quickly became agitated and angry, [and] started name

       calling.” Tr. p. 37. Linda stated that she believed that Smith wanted to spend

       time with her that evening. Id. Linda testified that is the reason Smith reacted so

       strongly to her statement that she did not want McDonald’s. Tr. p. 38.

[26]   Prior to trial, Smith’s counsel deposed Linda, and Smith had the probable cause

       affidavit and additional discovery materials. Smith had pretrial knowledge of


       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 9 of 11
       the substance of Linda’s testimony and was fully advised of the charge against

       him. At trial, Smith did not deny threatening Linda during their argument but

       argued that he had not committed intimidation because his threat was not made

       in retaliation for any prior lawful act.

[27]   For all of these reasons, we conclude that Smith has not established a fatal

       variance between the charging information and the evidence presented at trial.

                    II. Pretrial Amendment to the Charging Information

[28]   Finally, Smith argues that the trial court abused its discretion when it granted

       the State’s motion to amend the charging information on the day before his jury

       trial began. Indiana Code section 35-34-1-5(b) provides in pertinent part that the

       State may substantively amend a charging information “before the

       commencement of trial . . . if the amendment does not prejudice the substantial

       rights of the defendant.” “A defendant’s substantial rights include a right to

       sufficient notice and an opportunity to be heard regarding the charge; and, if the

       amendment does not affect any particular defense or change the positions of

       either of the parties, it does not violate these rights.” Gomez v. State, 907 N.E.2d

       607, 611 (Ind. Ct. App. 2009) (citations omitted); see also Sides v. State, 692

       N.E.2d 1310, 1313 (Ind. 1998) (explaining that “[u[ltimately, the question is

       whether the defendant had a reasonable opportunity to prepare for and defend

       against the charges”).


[29]   As we concluded above, Smith was fully advised of the charges against him. He

       has not established that the amendment to the charging information prevented


       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 10 of 11
       him from preparing or presenting his defense to the intimidation charge.

       Therefore, under Indiana Code section 35-34-1-5(b), the trial court properly

       allowed the amendment to the charging information the day before trial

       commenced.

                                                  Conclusion

[30]   The State presented sufficient evidence to prove that Smith committed

       intimidation, and Smith has not established any error in the charging

       information that would require us to reverse his conviction.


[31]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-2098 | October 13, 2016   Page 11 of 11
