Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any 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:

STEVEN STOESZ                                      GREGORY F. ZOELLER
Westfield, Indiana                                 Attorney General of Indiana

                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 Mar 28 2013, 9:17 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN REYNOLDS,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 29A04-1208-CR-423
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Wayne Sturtevant, Judge
                              Cause No. 29D05-1106-FD-9798


                                         March 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Steven Reynolds (“Reynolds”) appeals his conviction, following a jury trial, for

Class D felony intimidation.1

          We affirm.

                                             ISSUE

                   Whether sufficient evidence supports Reynolds’s conviction.

                                            FACTS

          On June 17, 2011, Reynolds, who was incarcerated in the Madison County jail,

was transported to a Hamilton County Superior Court to attend a guardianship hearing for

three-year-old A.K.          The guardianship petition had been filed by A.K.’s maternal

grandmother, Stacie Kirkman (“Stacie”) so that she could become the guardian over A.K.

while A.K’s mother and Stacie’s daughter, Shelby Kirkman (“Shelby), was in jail on a

work release program. Reynolds attended the hearing as an interested party. Reynolds’s

parents also attended the hearing, which was presided over by Magistrate William

Greenaway (“the magistrate”).

          At some point prior to the hearing, Reynolds had filed—in the guardianship

proceeding—a pro se petition to establish paternity of A.K. Stacie then filed a petition to

dismiss the paternity petition from the guardianship action.          When discussing his

paternity petition with the magistrate, Reynolds told the magistrate that he thought he

should establish paternity if a guardianship was going to be established. Reynolds also

stated, “[I]f I’m being lead [sic] to believe, and me and my family have both spent money

1
    Ind. Code § 35-45-2-1.
                                               2
on, on a child that wasn’t mine, I’d, I’d like to know if it’s not mine.” (Ex. Vol. at 182.)

The magistrate informed Reynolds that he was required to file the paternity petition as a

separate action and dismissed the petition. Reynolds indicated that he understood and

would file a separate paternity action.

       The magistrate then conducted the guardianship proceeding. Stacie’s attorney,

Jillian Keating (“Attorney Keating”), questioned both Stacie and Shelby and established

that Shelby had consented to Stacie being appointed as A.K.’s guardian. The magistrate

determined A.K. to be incapacitated and appointed Stacie as her guardian.

       Thereafter, Reynolds spoke up and claimed that he had a notarized document in

which Shelby had allegedly signed custody of A.K. to Reynolds’s parents three months

earlier. The magistrate informed Reynolds that his document would not be “worth the

paper it’s written on” if it had not been filed with the trial court as part of the

guardianship proceeding. (Tr. 191). The magistrate told Reynolds that if he wanted to

contest the guardianship, he should have intervened.

       The magistrate again explained to Reynolds that he would need to establish

paternity in a separate paternity proceeding. As Reynolds expressed his frustration at

trying to file a pro se paternity petition, tensions started to arise between Shelby and

Reynolds’s mother. Reynolds’s mother then asked the magistrate if she and her husband

would be able to visit their granddaughter, and the magistrate responded that nothing

could be ordered until Reynolds had established paternity. After the magistrate informed




                                             3
Reynolds that he might be prohibited under the statute from establishing paternity2 for

three-year-old A.K., the following exchange occurred in the courtroom:

        [Reynolds’s mother]:             But he’s not ordered to pay child support.

        THE COURT:                       No.

        [Reynolds’s mother]:             That’s good. Don’t.

        [Stacie]:                        We don’t want it.

        THE COURT:                       Okay. Well, why don’t we just go ahead --.

        MR. REYNOLDS:                    I want it.

        THE COURT:                       Okay. Why don’t you folks --.

        MR. REYNOLDS:                    [Officer] Defoe, you want to grab that, bro’.
                                         And, you better tell them to have the transport
                                         damn ready, bro’. Dead serious. I’m not even
                                         playing. Let’s get the fuck out of dodge.

        THE COURT:                       Okay. Well, at this point, the Court’s finding
                                         you in con-, direct contempt for whatever else
                                         you are being held on, due to your language in
                                         this Court, which brings the ability of the --

        MR. REYNOLDS:                    Come on man, I’m, I’m going to prison for 70
                                         years, boss.

        THE COURT:                       70 years?

        MR. REYNOLDS:                    I’m going --. Let’s get out of here, man

        THE COURT:                       How long are you gone for?

        MR. REYNOLDS:                    Huh?

        THE COURT:                       How --?


2
 Indiana Code § 31-14-5-3 (b) provides, in relevant part, that “a man alleging to be the child’s father . . .
must file a paternity action not later than two (2) years after the child is born . . . .”
                                                      4
MR. REYNOLDS:          I’ve been, I’ve been down my whole life. I’m
                       going back for 70 years. You think I’m worried
                       about contempt?

THE COURT:             70? Okay.

OFFICER ROGERS:        Control.

THE COURT:             In that case. No, I’m not worried about
                       contempt then. You’re remanded. Good luck
                       to you.

OFFICER ROGERS:        Can   you  get   transport         over      here
                       (INDISCERNIBLE).

[Attorney Keating]:    There’s still pending charges, Your Honor.

THE COURT:             Okay. Well, I’m not going to worry about
                       contempt. He’s facing that. Okay.

                             *****

OFFICER ROGERS:        Stand by.

MR. REYNOLDS:          I’ve     got        something for   you
                       (INDISCERNIBLE). I swear to God, Shelby,
                       I’m going to kill you.

[Reynolds’s mother]:   Sir, I want a restrain.

MR. REYNOLDS:          I’m going to kill you whore.

[Reynolds’s mother]:   Sir, I want a restraining order.

THE COURT:             Wait. Okay. Wait up. Will you stop it,
                       because I’ve got a record running. And, the
                       record clearly picked up him threatening to kill
                       her, right?

COURT REPORTER:        Yes, it did.

THE COURT:             Okay.


                                   5
          MR. REYNOLDS:                    Yelled Out from hallway (INDISCERNIBLE).
                                           I’ll kill you!

          THE COURT:                       Leave the record running.

          OFFICER ROGERS:                  1203 Could we get another 17 Unit to assist
                                           with the 1749. He’s on (INDISCERNIBLE)
                                           elevator.

          THE COURT:                       We need to have a copy of this transcript
                                           created. Submitted to the prosecutor’s office at
                                           the earliest possible convenience. Because,
                                           obviously, the Respondent [Reynolds] has just
                                           threatened to kill this individual. Okay. There
                                           you go. Okay. Good luck guys.

(Ex. Vol. at 173-76) (emphasis in original).

          The State charged Reynolds with Class D felony intimidation. On July 12, 2012,

the trial court held a jury trial.              Attorney Keating, the court reporter from the

guardianship hearing, and Shelby testified as State’s witnesses.                     Attorney Keating

described Reynolds’s actions in the courtroom during the guardianship hearing and the

threats made toward Shelby during that hearing. The State also played a redacted version

of the audio recording of the guardianship hearing.3 The jury found Reynolds guilty as

charged. The trial court imposed a three (3) year sentence to be served at the Department

of Correction. Reynolds now appeals his conviction.

                                                DECISION

          Reynolds argues that the evidence was insufficient to support his conviction for

intimidation.




3
    The State redacted the references that Reynolds was facing 70 years in prison.
                                                      6
        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 [jury’s verdict]. 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).

        A defendant commits intimidation as a class D felony when he communicates a

threat to commit a forcible felony4 against another person with the intent that the person

be placed in fear of retaliation for a prior lawful act. I.C. § 35–45–2–1. In order to

convict Reynolds of class D felony intimidation as charged, the State was required to

prove beyond a reasonable doubt that Reynolds communicated a threat to commit a

forcible felony against Shelby, i.e., threatened to kill her, with the intent that Shelby be

placed in fear of retaliation for the prior lawful act of participating in the guardianship

proceedings. (See id.; App. 8). 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).



4
 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.

                                                     7
          Reynolds does not dispute that he threatened to kill Shelby. Indeed, he could not

credibly challenge this element as his threat to kill Shelby was recorded during the

guardianship proceeding and thereafter transcribed and played for the jury. Instead,

Reynolds contends that the evidence was insufficient to show that he threatened Shelby

for participating in the guardianship proceeding and claims that his threats were made

because his petition to establish paternity was denied. He asserts that “[t]here was no

evidence offered by the State at trial which could be interpreted to prove that

Reynolds[‘s] threat were made to [Shelby] for the prior lawful act of participating in the

guardianship proceedings.” (Reynolds’s Br. at 9).

          Here, the record reveals that tensions escalated during this guardianship hearing to

the point where Reynolds threatened to kill Shelby. Shelby did not tell Reynolds about

the guardianship proceeding, despite the fact that she informally acknowledged him as

A.K.’s father.      Nevertheless, Reynolds attended the guardianship proceeding as an

interested party and sought to establish paternity of three-year-old A.K. as part of that

guardianship proceeding. During the guardianship hearing, the trial court dismissed

Reynolds’s paternity petition and informed him that he needed to file a separate paternity

action.     Also during the hearing, Shelby, who was incarcerated on a work release

program, consented to her mother, Stacie, being appointed as guardian of A.K.

Immediately after the magistrate named Stacie as guardian, Reynolds attempted to

informally challenge the appointment by alleging that Shelby had previously signed a

consent for his own parents to have custody of A.K. The magistrate told Reynolds that if

he wanted to contest the guardianship, he should have intervened, which he could do after

                                               8
establishing paternity. After the magistrate indicated that Reynolds’s parents would not

be able to visit A.K. and that Reynolds might be prohibited under the statute from

establishing paternity for three-year-old A.K., Reynolds threatened to kill Shelby.

       The evidence supports a reasonable inference that Reynolds’s threat was made to

place Shelby in fear of retaliation for her participation in the guardianship proceedings,

during which Reynolds’s paternity petition was dismissed.         Reynolds’s argument is

nothing more than an invitation to reweigh the evidence, which we will not do. See

Drane, 867 N.E.2d at 146. Because there was probative evidence from which the jury

could have found Reynolds guilty beyond a reasonable doubt of Class D felony

intimidation, we affirm his conviction. See, e.g., Graham v. State, 713 N.E.2d 309, 312

(Ind. Ct. App. 1999) (affirming defendant’s intimidation conviction where evidence that

the defendant threatened the victim in the courtroom supported the inference that the

defendant threatened the victim in retaliation for the victim’s prior and continuing act of

participating as a witness in the proceedings against the defendant), trans. denied.

       Affirmed.

ROBB, C.J., and MAY, J., concur.




                                             9
