MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 12 2019, 10:18 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
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Abraham Erastus Perry II,                                September 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-769
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff.                                      Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1804-F5-12095



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019                Page 1 of 7
                                           Statement of the Case

[1]   Following a bench trial, Abraham Perry (“Perry”) was found guilty of Level 5

      felony intimidation1 and Class B misdemeanor criminal mischief.2 Perry

      appeals his intimidation conviction, arguing that the evidence was insufficient

      to convict him because the State failed to prove the “prior lawful act” element

      of the intimidation statute. Concluding that the State presented sufficient

      evidence, we affirm Perry’s intimidation conviction.


[2]   We affirm.


                                                          Issue

                         Whether sufficient evidence supports Perry’s conviction.


                                                         Facts

[3]   Perry was a regular customer at a Metro PCS store located in Indianapolis.

      Over time, he became familiar with a Metro PCS employee, Christina Bryant

      (“Bryant”). During one of his visits to the store in early April 2018, Perry

      brought Bryant a bag of clothing.3 When Bryant saw Perry with the bag of

      clothes, she refused to speak with him and went into the back of the store.




      1
          IND. CODE § 35-45-2-1.
      2
          I.C. § 35-43-1-2.
      3
          The record does not reveal why Perry brought Bryant the bag of clothing.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019   Page 2 of 7
      Brent Spear (“Spear”), the owner and store manager, followed and checked on

      Bryant.


[4]   When Spear returned, he initially informed Perry that Bryant was not in the

      store. Perry then pointed out that he saw Bryant walk to the back of the store

      and that he wanted to give her the bag of clothes. Spear then informed Perry

      that Bryant did not want to come out and speak with him and that “she was not

      interested in any clothes, that she did not need any clothes, she did not ask for

      them and to please take them with him.” (Tr. 20). Perry pressed Spear about

      seeing Bryant and giving her the clothes. Eventually, Spear informed Perry that

      he needed to leave the store and that if he left the bag in the store, it would be

      thrown into the trash. Perry left the store with the clothing, slammed the door,

      and yelled from the parking lot.


[5]   Spear did not see Perry again until almost a week later. On April 11, 2018,

      Perry entered the Metro PCS store holding a handsaw. The events were

      captured on surveillance video with audio and introduced at trial as State’s

      Exhibit 1. Spear was assisting a customer and did not initially notice Perry

      sitting in the corner. Unprovoked, Perry began yelling at Spear, using profane

      language and homophobic insults. He stood up, dropped his handsaw, and

      approached the counter. Once at the counter, Perry continued to insult and

      demean Spear.


[6]   Eventually, Perry picked up his handsaw and moved towards the door. Once at

      the door, Perry continued his insults and then stepped outside. He began to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019   Page 3 of 7
      walk away but turned around and reentered the store. Perry again approached

      the counter. This time, Spear moved toward Perry. As he approached Spear,

      Perry alluded to their previous encounter involving the clothing, stating, “[h]ey

      man if my friend, some chick up here that’s working, isn’t doing good man. She

      says she aint got clothes (indiscernible).” (State’s Ex. 1 at 2:38-2:44).

      Immediately thereafter, Perry reached out with the handsaw towards Spear’s

      head, Spear reacted and tried to grab the handsaw, and Perry shouted, “I’ll cut

      your head off . . . .” (State’s Ex. 1 at 2:46). Perry then broke a sales counter

      desk and started to move towards the door. As he exited, Perry told Spear,

      “I’m still gonna come back and fuck you up.” (State’s Ex. 1 at 2:59).


[7]   The State charged Perry with Level 5 felony intimidation and Class B

      misdemeanor criminal mischief. The charging information alleged, in relevant

      part, that Perry


              did communicate a threat to Brent Spear, another person, with the
              intent that Brent Spear be placed in fear of retaliation for a prior
              lawful act, to-wit: preventing Abraham Perry II from
              communicating with Christina Bryant and requesting him to leave
              Metro PCS; and in committing said act the defendant drew a
              deadly weapon, to-wit: a knife[.]

      (App. 21).


[8]   A bench trial occurred in February 2019. Perry’s theory of defense was that the

      evidence did not prove that the threats he made were to place Spear in fear of

      retaliation for the incident involving the clothing, as alleged by the State. The




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019   Page 4 of 7
       trial court found Perry guilty of intimidation as charged.4 The trial court

       imposed a six (6) year executed sentence in the Department of Correction for

       the intimidation conviction and a concurrent 180-day sentence for the criminal

       mischief conviction. Perry now appeals.


                                                        Decision

[9]    Perry contends the State failed to present sufficient evidence to support his

       conviction for Level 5 felony intimidation. Our standard of review for

       sufficiency of evidence claims is well-settled. We do not assess the credibility of

       the witnesses or reweigh the evidence in determining whether the evidence is

       sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

       the probative evidence and reasonable inferences supporting the verdict. Id.

       Reversal is appropriate only when no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. Additionally, our

       Indiana Supreme Court has explained that “when determining whether the

       elements of an offense are proven beyond a reasonable doubt, a fact-finder may

       consider both the evidence and the resulting reasonable inferences.” Thang v. State,

       10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).


[10]   To convict Perry of Level 5 felony intimidation, the State was required to prove

       beyond a reasonable doubt that while drawing or using a deadly weapon, Perry




       4
           Perry pled guilty to the Class B misdemeanor criminal mischief charge on the day of trial.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019                Page 5 of 7
       communicated a threat to another person with the intent that the other person

       be placed in fear of retaliation for a prior lawful act. I.C. § 35-46-2-1(a)(2),

       (b)(2)(A). In charging Perry, the State alleged that the prior lawful act was

       Spear’s preventing Perry from communicating with Bryant and requesting that

       Perry leave the store. On appeal, Perry challenges the sufficiency of the State’s

       evidence only as to the “prior lawful act” element. Specifically, Perry claims

       that the evidence presented “shows that [his] threats were made in direct

       response to things Spear said and did in the heat of their encounter on April

       11[,]” as opposed to retaliation for their encounter the week prior. (Perry’s Br.

       9). We disagree.


[11]   There 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. (quoting 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.


[12]   The evidence most favorable to the intimidation conviction reveals that there

       were two distinct incidents separated by less than a week. The first incident

       involved Perry bringing clothes into the Metro PCS store for Bryant and Spear

       preventing Perry from speaking with Bryant and asking him to leave the store.

       The second incident, less than a week later, involved Perry entering the store

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019   Page 6 of 7
       armed with a handsaw. At some point, Perry approached Spear and began to

       discuss the first incident involving the clothing, stating, “[h]ey man if my friend,

       some chick up here that’s working, isn’t doing good man. She says she aint got

       clothes (indiscernible).” (State’s Ex. 1 at 2:38-2:44). Immediately thereafter,

       Perry, while jerking the handsaw around, threatened to “cut [Spear’s] head off.”

       (Tr. 25, State’s Ex. 1 at 2:46). Spear testified that after the first incident, he did

       not encounter Perry again until April 11. We conclude that it was reasonable

       for the trial court to infer that the motivation for Perry’s crime was the prior

       lawful act of Spear not allowing him to speak with Bryant and requesting that

       he leave the store.


[13]   Accordingly, it was reasonable for the trier of fact to find that Spear engaged in

       a prior lawful act, and that there was a clear nexus between that prior lawful act

       and Perry’s threat to cut Spear’s head off with the handsaw. Thus, the evidence

       is sufficient, and we affirm Perry’s intimidation conviction.


[14]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-769 | September 12, 2019   Page 7 of 7
