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                             Mar 22 2013, 9:32 am
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KAREN CELESTINO-HORSEMAN                          GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  MICHELLE BUMGARNER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN MWANGI,                                      )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 49A02-1208-CR-647
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Reuben Hill, Judge
                        The Honorable Viola Taliaferro, Senior Judge
                             Cause No. 49F18-1009-FD-70117


                                        March 22, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       John Mwangi appeals his convictions for Class D felony intimidation and Class D

felony theft. We affirm.

                                          Issues

       Mwangi raises three issues, which we consolidate and restate as:

            I.   whether the trial court abused its discretion by excluding
                 evidence of a witness’s alleged bias; and

           II.   whether the evidence is sufficient to sustain his
                 convictions for intimidation and theft.

                                           Facts

       Kathy Phillips worked for Mwangi as the Director of Nursing for his company.

At one point, Phillips and Mwangi lived together. In January 2010, Phillips had a

conversation with Mwangi about his failure to pay her wages. They got into an argument

and Phillips threatened to quit. Mwangi locked the front door and threatened to kill

Phillips if she left. Mwangi eventually convinced Phillips not to quit her job.

       In April 2010, Phillips still was not being paid her wages, and she decided again to

quit her job with Mwangi. Phillips called the police and went to the office to collect her

belongings. Mwangi called her into his office and locked the door. When she told him

that she had already called the police, Mwangi said that he could kill her, hide her body,

and be back on a plane to Kenya before she was found. The police then arrived and

knocked on the door.

       Phillips stayed employed by Mwangi, but in July 2010, her personal cell phone

disappeared from her office. Mwangi’s girlfriend, Salome Ayoti, saw Mwangi with a

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phone. He told her that it belonged to “Kathy,” one of his staff members, that he took it

from her handbag, and that it contained some “very personal information that he was

trying to retrieve.” Tr. p. 43. A few weeks later, when Ayoti ended her relationship with

Mwangi, she took the phone with her. Ayoti gave the phone to Blanche Hood, who

returned the phone to Phillips. Phillips stopped working for Mwangi in July 2010.

      In August 2010, Phillips’s attorney contacted Mwangi regarding $17,000 in

unpaid wages. Mwangi was informed that Phillips was “willing to forego legal action

and/or reporting this matter to law enforcement agencies if she [was] immediately paid in

full for the wages owed to her.” Defendant’s Ex. A. Mwangi did not pay Phillips, and

she contacted the police in September 2010.

      The State charged Mwangi with Class D felony criminal confinement for the

January 2010 incident, Class D felony intimidation for the April 2010 incident, and Class

D felony theft for the cell phone incident. At the bench trial, Mwangi claimed that

Phillips gave him the cell phone because it was a business phone that was purchased by

his company. Mwangi admitted that he was not paying Phillips for her work. During

cross-examination of Phillips, Mwangi attempted to question her regarding money that

her son had invested in Mwangi’s company.          The State objected to the question’s

relevance, and Mwangi claimed that the information went to Phillips’s bias and motive.

Mwangi claimed that Phillips’s son invested money and that he did not get repaid. The

trial court sustained the objection because “[t]he son [was] not here” and because the

evidence did not demonstrate “bias in and of itself.” Tr. pp. 32, 39. The trial court found



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Mwangi guilty of intimidation and theft but not guilty of criminal confinement. The trial

court then sentenced him to 250 days in jail. Mwangi now appeals.

                                          Analysis

                                 I. Admission of Evidence

       Mwangi argues that the trial court abused its discretion by excluding evidence that

Phillips’s son had invested money with Mwangi and that her son was not repaid. The

admission or exclusion of evidence rests within the sound discretion of the trial court, and

we review for an abuse of discretion. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012).

An abuse of discretion occurs when the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before it. Id. We will not disturb the trial

court’s decision without a requisite showing of abuse. Id.

       Mwangi argues that the excluded evidence went to Phillips’s credibility and bias.

In general, Indiana Evidence Rule 616 provides that, “[f]or the purpose of attacking the

credibility of a witness, evidence of bias, prejudice, or interest of the witness for or

against any party to the case is admissible.”        However, the erroneous exclusion of

evidence does not require a reversal if its probable impact on the factfinder, in light of all

of the evidence in the case, is sufficiently minor so as not to affect the defendant’s

substantial rights. Vasquez v. State, 868 N.E.2d 473, 477 (Ind. 2007); see Ind. Trial Rule

61.

       We need not resolve whether the trial court erroneously excluded this evidence

because Mwangi makes no argument that his substantial rights were affected by the

exclusion of the evidence.      We note that there was significant evidence presented

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regarding Phillips’s bias and credibility. Mwangi presented evidence that, despite the

alleged criminal confinement, intimidation, and theft, Phillips continued working for

Mwangi. Although Phillips had the opportunity to inform the police of the intimidation

immediately after it happened, she did not do so. Further, the trial court was aware that

Phillips and Mwangi had previously been in a relationship and that Phillips did not

pursue charges against Mwangi until he failed to pay the wages that he allegedly owed

her. Despite all of this evidence, the trial court found Phillips credible. Under these

circumstances, we conclude that the probable impact of excluding evidence regarding

Phillips’s son’s failed investment in Mwangi’s company, even if erroneous, is sufficiently

minor so as not to affect Mwangi’s substantial rights. See, e.g., Munn v. State, 505

N.E.2d 782, 786 (Ind. 1987) (“Recognizing that the defendant was given wide latitude to

present evidence and cross-examine the victim regarding the nature and duration of their

alleged relationship before the rape, excluding only evidence about prior sexual

intercourse, . . . the exclusion of evidence regarding the prior sexual intercourse, standing

alone, would have been harmless beyond a reasonable doubt.”).

                             II. Sufficiency of the Evidence

       Mwangi argues that the evidence is insufficient to sustain his convictions for

intimidation and theft. When reviewing the sufficiency of the evidence needed to support

a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey

v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting

the judgment and any reasonable inferences that can be drawn from such evidence.” Id.

We will affirm if there is substantial evidence of probative value such that a reasonable

                                             5
trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.

Id.

       Mwangi first argues that the evidence was insufficient to sustain his conviction for

intimidation. The offense of intimidation is governed by Indiana Code Section 35-45-2-

1, which provides: “A person who communicates a threat to another person, with the

intent . . . that the other person engage in conduct against the other person’s will . . .

commits intimidation.” The offense is a Class D felony if the “threat is to commit a

forcible felony.” Ind. Code § 35-45-2-1(b).

       Mwangi argues that the evidence is insufficient because Phillips did not tell the

officers about the alleged threat, Phillips continued working for him, and Phillips did not

report the threat until Mwangi failed to respond to her attorney’s demands for payment.

The State presented evidence that, when Phillips decided to quit her employment with

Mwangi, he called her into his office, locked the door, and told her that he could kill her,

hide her body, and be back on a plane to Kenya before she was found. The trial court

was made aware that Phillips did not immediately tell the officers about the threat, that

she continued working for Mwangi for months, and that she only notified authorities of

the threat when Mwangi failed to pay her wages that were owed. Despite this evidence,

the trial court found Phillips credible and found Mwangi guilty of intimidation.

Mwangi’s argument is a request that we reweigh the evidence and judge Phillips’s

credibility, which we cannot do.       The evidence is sufficient to sustain Mwangi’s

conviction for intimidation.



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       Mwangi also argues that the evidence is insufficient to sustain his conviction for

theft of Phillips’s phone. The offense of theft is governed by Indiana Code Section 35-

43-4-2, which provides: “A person who knowingly or intentionally exerts unauthorized

control over property of another person, with intent to deprive the other person of any

part of its value or use, commits theft, a Class D felony.”

       Mwangi argues that the evidence is insufficient because his company purchased

the phone and because Phillips did not report the theft until Mwangi failed to respond to

her attorney’s demands for payment. The State presented evidence that Phillips’s phone

went missing from her office. Mwangi’s girlfriend, Ayoti, saw Mwangi with a phone.

He told her that it belonged to “Kathy,” one of his staff members, that he took it from her

handbag, and that it contained some “very personal information that he was trying to

retrieve.” Tr. p. 43. A few weeks later, Ayoti took the phone and arranged for it to be

returned to Phillips.

       Although Mwangi testified that his company owned the phone, Phillips testified

that she owned the phone and that, when Mwangi failed to pay her wages, he issued her a

check so that she could pay her cell phone bill. Further, the trial court was aware that

Phillips only notified authorities of the theft when Mwangi failed to pay her wages that

were owed. Despite this evidence, the trial court found Phillips credible and found

Mwangi guilty of theft. Mwangi’s argument is a request that we reweigh the evidence

and judge Phillips’s credibility, which we decline to do. The evidence is sufficient to

sustain Mwangi’s conviction for theft.



                                              7
                                       Conclusion

      Any error in the exclusion of the evidence regarding the investment was harmless,

and the evidence is sufficient to sustain Mwangi’s convictions for intimidation and theft.

We affirm.

      Affirmed.

BAKER, J., and RILEY, J., concur.




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