MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Nov 30 2017, 8:58 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Paula M. Sauer                                          Curtis T. Hill, Jr.
Danville, Indiana                                       Attorney General of Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keith D. Williams,                                      November 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A01-1707-CR-1589
        v.                                              Appeal from the
                                                        Hendricks Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Mark A. Smith, Judge
                                                        Trial Court Cause No.
                                                        32D04-1602-F6-110



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017            Page 1 of 9
[1]   Following a bench trial, Keith D. Williams (“Williams”) was found guilty but

      mentally ill of committing Level 6 felony intimidation 1 and Class B

      misdemeanor battery.2 He appeals his intimidation conviction, asserting that

      the evidence was insufficient to convict him because the State failed to prove

      the “prior lawful act” element of the intimidation statute.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Williams has a documented history of mental illness. He has been on disability

      since 2011, has been diagnosed with paranoid schizophrenia, and was

      hospitalized psychiatrically on two occasions, one in 2010 and another in 2013.

      On February 4, 2016, Williams walked into Abacus Staffing (“Abacus”), a

      staffing or employment agency. Mellissa Fender (“Fender”) was working by

      herself, and she greeted Williams as he entered. Williams expressed interest in

      obtaining employment, and Fender handed him a job application on a

      clipboard, and then she went down the hall to a copy room to make copies of

      orientation packets, telling Williams to let her know if he had any questions as

      he filled out his application.


[4]   While Fender was in the room making copies, the office phone rang, and she

      walked across the hall to her office and answered it. The call was from a female



      1
          See Ind. Code § 35-45-2-1(a)(2).
      2
          See Ind. Code § 35-42-2-1(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 2 of 9
      who had completed an application a few days prior and was checking on the

      status of her application. To confirm that she was looking at the correct

      application, Fender repeated the applicant’s last name back to her, “Spivey,”

      and told her that Abacus was awaiting paperwork on her background check, but

      would call her when it had an open position for her. Tr. Vol. II at 50. Fender

      concluded the call and hung up. As she did so, Fender heard movement in the

      front office, similar to the movement of a chair, so she returned to the front

      office to see if Williams was done with the application or had questions.


[5]   When she walked in, Williams was standing between her and the front door

      with his application rolled up in one hand and the clipboard in the other. His

      demeanor had changed, and he looked angry, rigid, and was “very, very, very

      upset.” Id. at 52. Williams yelled at Fender and told her that “he had heard

      [her] on the phone disrespecting him” by calling him a “he she.” Id. He

      continued yelling and saying “that people like [her] were always disrespecting

      him.” Id. Fender told Williams that he must have misunderstood her, that she

      did not call him a “he she,” and “actually told [Williams] the last name that I

      was saying” on the phone. Id. Williams continued to yell at Fender, and he

      pointed at her and said how “white bitches” like her were always disrespecting

      him. Id. at 53, 56. He then flung the clipboard at Fender, hitting her in her

      upper leg. He also threatened to slit her throat and said that he wanted to shove

      the clipboard up her “bloody ass pussy.” Id. at 54. Fender felt “very scared.”

      Id. Williams stepped out the front door twice, but immediately re-entered, each

      time calling Fender names and yelling about how she and others disrespected

      Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 3 of 9
      him. He also warned Fender that if she drove past East Main Street that he

      would “make sure [she] got what was coming to [her].” Id. at 56. Williams left

      the premises again, and Fender saw him through the glass door as he walked

      away toward where Fender’s car was parked, so she locked the door behind

      him. She retrieved a pistol from her office, called her boss, and called her

      husband. Fender’s boss called the police, but Williams left moments before the

      police arrived. A few days later, Williams called Abacus and spoke to Fender’s

      boss, making reference in the call to his recent encounter with Fender and

      indicating that he understood what he had said to her was not appropriate.

      Williams apologized for what he had said to Fender.


[6]   In February 2016, the State charged Williams with Level 6 felony intimidation

      and, later, with Class B misdemeanor battery. Williams filed a Notice of

      Defense of Mental Disease or Defect and Motion for Examinations. The trial

      court appointed two psychologists, Dr. Don Olive (“Dr. Olive”) and Dr.

      George Parker (“Dr. Parker”) to conduct competency evaluations, and the next

      day, the trial court ordered the same two doctors to conduct examinations as to

      his sanity at the time of the offense. Following a July 2016 hearing, Williams

      was found not competent to stand trial and was committed to the custody of

      Division of Mental Health and Addiction for competency restoration services.


[7]   In January 2017, Williams was returned to Hendricks County to stand trial.

      Dr. Olive had concerns about Williams’s limited intellectual resources, but he

      did not believe that there was clear evidence of a mental disease or defect that

      rendered Williams unable to appreciate the wrongfulness of his conduct, and he

      Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 4 of 9
      opined that Williams was not insane at the time of the offense. Tr. Vol. II at

      106-107, 112; State’s Ex. 1. Dr. Parker believed that Williams met the criteria

      for a schizophrenia diagnosis, such that he had a mental disease or defect, but

      that Williams had a basic appreciation of the wrongfulness of his actions. Tr.

      Vol. II at 118; State’s Ex. 2. Both court-appointed psychologists believed that

      Williams was not insane at the time of the offense.


[8]   Williams waived his right to a jury trial, and a two-day bench trial was held on

      March 14, and June 23, 2017. The State presented the testimony of Fender and

      of her boss. Fender testified to the above course of events, that being she was

      alone in the office, Williams walked in, she gave him an application and went

      to the back to make copies, and while back there, she answered the phone and

      spoke to a female applicant who had been at Abacus a few days prior. Fender

      repeated the woman’s last name and told her that Abacus would get back with

      her when it had a job for her. Fender returned to the front area and

      encountered an angry Williams who said that he heard her on the phone calling

      him a “he she.” Tr. Vol. II at 52. Fender testified that she was alone in the

      office with Williams, who stood between her and the front door, and that she

      was scared. He threw the clipboard at her and made derogatory remarks to her.

      Eventually, he left, and she locked the door and called her boss and her

      husband.


[9]   Williams testified in his defense. He presented a different version of events,

      stating that he went to Abacus, where Fender gave him an application to

      complete. He stated that, as he was filling out the application, another man

      Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 5 of 9
       walked in the door, and Fender spoke to him about an orientation. According

       to Williams, Fender pointed at Williams and told the other man that “this girl

       also fillin a uh, is [] going to a orientation,” and Williams told Fender, “I’m not

       no she, that I’m a uh, man.” Id. at 72. Williams testified that, at some point,

       the phone rang and that Fender answered it at the front desk, where he could

       see her, but could not hear her. Williams testified that, while seated, he told

       Fender that he did not want to be disrespected, then stood, threw the clipboard

       to the floor, and left after Fender “disrespected” him. Id. at 75. He estimated

       that the other man who he said had entered the office was there for less than a

       minute. Williams denied making any threats or derogatory comments to

       Fender and said that “[e]verything” Fender had testified to “was completely a

       lie.” Id. at 89.


[10]   The trial court rejected Williams’s insanity defense, but found him guilty but

       mentally ill on both counts. He was sentenced to 600 days in the Hendricks

       County Jail on the intimidation conviction and 180 days on the battery

       conviction. The sentences were reduced for credit time and ordered to run

       concurrently. Williams now appeals.


                                      Discussion and Decision
[11]   On appeal, Williams claims that his intimidation conviction should be reversed

       because the State failed to prove the “prior lawful act” element of Indiana Code

       section 35-45-2-1. In reviewing a claim of insufficient evidence, this Court does

       not reweigh the evidence or assess witness credibility. Huber v. State, 805


       Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 6 of 9
       N.E.2d 887, 890 (Ind. Ct. App. 2004). It considers only the evidence most

       favorable to the verdict, together with all reasonable and logical inferences to be

       drawn therefrom. Id. We affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Leggs v.

       State, 966 N.E.2d 204, 208 (Ind. Ct. App. 2012).


[12]   To convict a defendant of Level 6 felony intimidation, the State must prove that

       (1) the defendant communicated a threat (2) to another person (3) to commit a

       forcible felony (4) with the intent that the other person be placed in fear of

       retaliation (5) for a prior lawful act. Ind. Code § 35-45-2-1(a)(2), (b)(1)(A).

       Here, the charging information alleged as follows:


               On or about 02/04/16, in Hendricks County, Indiana, Keith
               Dewayne Williams did communicate a threat to Melissa (sic)
               Fender with the intent that the other person:


               be placed in fear of retaliation for a prior lawful act, to-wit:
               for making a statement on the phone to someone that Mr.
               Williams believed was in reference to him.


               Furthermore,


               The threat was to commit a forcible felony.


       Appellant’s App. Vol. II at 13. On appeal, Williams challenges the sufficiency of

       the State’s evidence only as to the “a prior lawful act” element, posing the

       following query: “[C]an a person be convicted for threatening to retaliate for an

       act that never happened?” Appellant’s Br. at 11. His position is that the alleged

       Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 7 of 9
       lawful act was Fender calling Williams a “he she,” which she did not do, and

       thus “the State hinges its case on an act [that] did not take place[,]” and because

       he “cannot be prosecuted for making threats for something that never

       happened[,]” the State cannot satisfy the “prior lawful act” element. Id. at 9-10,

       13. We disagree with the premise that a prior lawful act never happened.


[13]   The evidence most favorable to the conviction is that Fender was in the Abacus

       office, alone, when Williams entered and that she remained alone with him the

       entire time. As part of her job duties, she answered the phone when it rang,

       taking the call in her office, which was located down the hall from the front

       office area, where Williams sat and worked on his application. When she

       returned to check on him, he was standing and appeared “enraged.” Tr. Vol. II

       at 52. According to Fender, “[H]e began telling me that . . . he heard me on the

       phone disrespecting him, that I was calling him a he she, that people like me are

       always disrespecting him.” Id. The evidence, then, was that Williams’s anger

       was specifically about what she said, or he thought she said, on the phone call.

       That is, the prior lawful act was her answering the phone call and speaking to

       the applicant. Although Williams was mistaken about Fender’s words, he

       threatened to attack her in retaliation for the words that he believed she said on

       the phone. We agree with the State that “the prior lawful act was not that

       Fender made derogatory statements about [Williams], . . . but the fact that she

       was engaged in her job and speaking to an applicant on the phone, and




       Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017   Page 8 of 9
       [Williams] assumed that she was speaking about him.”3 Appellee’s Br. at 11.

       Accordingly, we find that the State presented sufficient evidence to convict

       Williams as charged of Level 6 felony intimidation.


[14]   Affirmed.


[15]   Najam, J., and Brown, J., concur.




       3
         In arguing that he “cannot be prosecuted for making threats for something that never happened,” Appellant’s
       Br. at 13, Williams asserts that “[h]e responded to a delusion, not an act.” Appellant’s Reply Br. at 6. To the
       extent that the “delusion” he is referring to is the alleged man that entered the office for a minute and to
       whom Fender supposedly spoke, that was a completely different version of events than that which Fender
       described. She testified that she and Williams were at all times alone in the office and that Williams was
       angry at her based on what he heard during her phone call, whereas Williams testified that he was mad at her
       for calling him a “girl” to the other man. Tr. Vol. II at 72. The trial court saw the witnesses, judged their
       credibility, and chose to believe Fender’s version, as was the trial court’s prerogative. Loyd v. State, 787
       N.E.2d 953, 959 (Ind. Ct. App. 2003). We thus reject any suggestion that the prior lawful act had anything
       to do with what may have been a delusion of another man’s presence in the office and Fender’s purported
       remarks to him.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1707-CR-1589 | November 30, 2017           Page 9 of 9
