MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Mar 15 2017, 7:26 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Matthew B. Makenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justice K. Kiama,                                        March 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1610-CR-2396
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jenny Pitts Manier,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Julie Verheye,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D04-1604-CM-1881



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017     Page 1 of 8
                                          Case Summary
[1]   Appellant-Defendant Justice Kiama was shopping at a JC Penney store in

      Mishawaka on April 16, 2016. At some point, Kiama was asked to leave the

      store because he was swearing loudly in front of other customers. As he was

      leaving the store, Kiama continued to swear at the store employee who had

      requested that he leave the store, raised his shirt, and indicated that he was

      armed with a firearm. The store employee observed what appeared to be a

      handgun tucked in Kiama’s waistband.


[2]   Kiama was subsequently charged with Class A misdemeanor intimidation. He

      was found guilty as charged following a bench trial. The trial court

      subsequently sentenced Kiama to thirty days with twenty-six days suspended.

      The trial court also placed Kiama on probation for 180 days.


[3]   On appeal, Kiama challenges the sufficiency of the evidence to sustain his

      intimidation conviction. Concluding that the evidence is sufficient to sustain

      the challenged conviction, we affirm.



                            Facts and Procedural History
[4]   Kiama was shopping at a JC Penney store in Mishawaka on April 16, 2016,

      when he became concerned that his vehicle might have been stolen. 1 Kiama




      1
       As it turns out, the vehicle in question had not been stolen and was discovered immediately
      by Kiama’s wife following his arrest.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 2 of 8
      became visibly upset and began swearing loudly. Tony Slagle, a loss-prevention

      detective employed by JC Penney approached Kiama, attempted “to calm him

      down,” and offered to help him by notifying mall security of the possible auto

      theft. Tr. p. 6. Slagle also informed Kiama that he could not swear while he

      remained inside the store. Kiama then “got very agitated” and started swearing

      at Slagle. Tr. p. 6. Slagle asked Kiama to leave the store.


[5]   Slagle escorted Kiama out of the store. Once outside in the parking lot, Kiama

      turned back towards Slagle, screamed “I have a firearm” and “pulled up his

      shirt.” Tr. p. 7. At this time, Slagle “saw what appeared to be a handgun in

      [Kiama’s] waistband.” Tr. p. 7. Slagle, who had been on the phone with mall

      security, immediately called 911. From a safe distance, Slagle observed Kiama

      wander around the parking lot until law enforcement arrived.


[6]   On April 18, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Kiama with Class A misdemeanor intimidation. The case proceeded to a bench

      trial on September 29, 2016. During trial, both Slagle and Kiama testified

      about their encounter. At the conclusion of trial, the trial court noted that the

      parties presented “two very different versions of the encounter that occurred at

      [the] JC Penney” store. Tr. p. 31. The trial court then proceeded to find Kiama

      guilty of the charged offense. In finding Kiama guilty of the charged offense,

      the trial court explicitly stated that it believed Slagle’s testimony relating to his

      and Kiama’s encounter. The trial court subsequently sentenced Kiama to thirty

      days with twenty-six days suspended and credit for the time which Kiama



      Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 3 of 8
      “spent in custody” prior to trial. Tr. p. 34. The trial court also placed Kiama

      on probation for a period of 180 days. This appeal follows.



                                Discussion and Decision
[7]   Kiama contends that the evidence is insufficient to sustain his conviction for

      Class A misdemeanor intimidation.

               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) (citations, emphasis, and

      quotations omitted). “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). Upon review, appellate courts do not reweigh the evidence or assess

      the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

      2002).

      Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 4 of 8
[8]   In charging Kiama, the State alleged that on or about April 16, 2016, Kiama

      “did communicate a threat to Tony A. Slagle II, with the intent that Tony A.

      Slagle II be placed in fear of retaliation for a prior lawful act, to-wit: Asking

      [Kiama] to leave JC Penney.” Appellant’s App. Vol. II, p. 7. Indiana Code

      section 35-45-2-1(a)(2) provides that “[a] person who communicates a threat to

      another person with the intent: … (2) that the other person be placed in fear of

      retaliation for a prior lawful act … commits intimidation, a Class A

      misdemeanor.” The word “threat” has been defined as an expression, by words

      or action, of an intention to “unlawfully injure the person threatened or another

      person, or damage property.” Ind. Code § 35-42-2-1(d)(1). Thus, in order to

      prove that Kiama committed the charged offense, the State was required to

      prove that Kiama communicated a threat to Slagle with the intent that Slagle

      would be placed in fear of retaliation for the prior lawful act of asking Kiama to

      leave the JC Penney store.


[9]   In challenging his conviction, Kiama claims that the evidence is insufficient to

      sustain his conviction because although he claimed to be armed with a firearm,

      he “never made any threats of intention to inflict harm of Slagle or anyone.”

      Appellant’s Br. p. 8. In support, Kiama cites to our prior opinion in Gaddis v.

      State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997), in which we concluded that

      “under the intimidation statute the mere display of a handgun does not express

      an intention to unlawfully injure a person or his property.” For its part, the

      State counters by arguing that the facts are more similar to those presented in




      Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 5 of 8
       Johnson v. State, 743 N.E.2d 755 (Ind. 2001). In Johnson, the Indiana Supreme

       Court affirmed the defendant’s intimidation conviction, holding that

               In this case, evidence that Johnson displayed a firearm combined
               with telling Kreczmer “don’t even think it,” which was preceded
               by two obscene remarks, was sufficient for a trier of fact to
               conclude that Johnson communicated a threat within the
               meaning of the intimidation statute, namely: Johnson expressed
               by his words and actions an intention to unlawfully injure
               Kreczmer. The evidence was also sufficient to show that
               Johnson threatened Kreczmer with the intent to place him in fear
               of retaliation for a prior lawful act, namely: asking Johnson to
               move the car.


       743 N.E.2d at 757.


[10]   Upon review, we agree that the facts are more similar to those presented in

       Johnson than in Gaddis. Review of the record reveals that Kiama did not merely

       display a weapon as was the case in Gaddis. Instead, Kiama loudly cursed at

       Slagle, stated that he was armed with a firearm, and lifted his shirt to reveal

       what appeared to Slagle to be a handgun tucked in the waistband of his pants.

       Thus, similar to the facts presented in Johnson, here, Kiama’s act of brandishing

       an apparent handgun was preceded by repeated cursing and an explicit

       statement that he was armed.


[11]   We acknowledge that review of the record reveals that during trial, Slagle and

       Kiama provided very different accounts of their encounter. However, in

       finding Kiama guilty of the charged offense, the trial court explicitly stated that

       it believed Slagle’s testimony relating to his and Kiama’s encounter. The trial

       Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 6 of 8
       court, acting in its role as the fact-finder, “is best positioned to judge the

       credibility of these witnesses, is free to credit or discredit testimony, and weigh

       conflicting evidence.” Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011).


[12]   Again, Slagle’s testimony establishes that on the date in question, as part of his

       employment as a JC Penney, Slagle lawfully requested Kiama leave the store

       after Kiama refused to stop cursing loudly in front of other customers.

       Immediately after Kiama left the store, he turned toward and loudly cursed at

       Slagle, pulled up his shirt, and indicated that he was armed with a firearm.

       Slagle observed what appeared to be a handgun tucked into Kiama’s waistband.

       Kiama’s actions were such that a fact-finder could reasonably infer that the

       actions were sufficient to place a reasonable person in fear for his safety. See

       Brewington v. State, 7 N.E.3d 946, 969 (Ind. 2014) (providing that in deciding the

       question of whether statements and actions were meant to be threatening, the

       fact-finder should consider all of the contextual factors, including whether the

       communications at issue would be likely to cause a reasonable person, similarly

       situation to the victim, to fear for their safety).


[13]   We conclude that the above-discussed facts are sufficient to support the

       inference that Kiama communicated a threat to Slagle with the intent that

       Slagle would be placed in fear of retaliation for the prior lawful act of asking

       Kiama to leave the JC Penney store.2 Accordingly, we further conclude that the




       2
        We note that the fact that the question of whether Kiama was actually armed with a firearm
       was later called into question as no firearm was recovered from his person during his arrest

       Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 7 of 8
       evidence is sufficient to sustain Kiama’s intimidation conviction. Kiama’s

       claim to the contrary amounts to nothing more than an invitation for this court

       to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


[14]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       does not impact the sufficiency of the evidence to sustain his conviction because the evidence
       supports the inference that Kiama acted in an intimidating and threatening manner by loudly
       and angrily indicating that he was armed with a firearm and pulling up his shirt to display
       what appeared to be a firearm tucked into his waistband.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1610-CR-2396 | March 15, 2017   Page 8 of 8
