                                                      Apr 24 2014, 5:47 am

FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                 GREGORY F. ZOELLER
SHEA THOMPSON (Certified Legal Intern)         Attorney General of Indiana
Indianapolis, Indiana
                                               CHANDRA K. HEIN
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

DONNETTA NEWELL,                               )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )       No. 49A02-1309-CR-744
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )



                    APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable David M. Hooper, Master Commissioner
                            Cause No. 49F08-1306-CM-36456



                                     April 24, 2014

                             OPINION - FOR PUBLICATION

SHEPARD, Senior Judge
       Donnetta Newell appeals her conviction of intimidation, contending among other

things that evidence suggesting she was engaged in an altercation involving a meat

cleaver in the office at her apartment complex should have been inadmissible in her trial

on a charge she subsequently threatened the manager. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On the evening of May 28, 2013, security guard Russell Growe was on patrol at

his place of employment, Harmony Park Place Apartments. Appellant Donnetta Newell,

a resident of the apartments, approached Growe to complain that she was being evicted

and sued for damages by the management over a recent incident. She told Growe she

would not pay and declared “[s]he would take care of the m***********s and that also

the new lady upstairs was about to get her f*****g head knocked off.” Tr. p. 14.

       Growe concluded that Newell was referring to the apartments’ new manager,

Evelyn Young. Newell was aware that Growe’s duties included reporting security issues

to the manager.

       Young was not at the apartments that evening, but Growe was concerned that she

would be in danger when she arrived at work. He emailed Young to tell her about

Newell’s statement. Growe went to Young’s office first thing the next morning to

discuss the matter with her, “because I did feel the threat could be carried out.” Id. at 22.

He posted additional security outside her office for several weeks.




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      Newell’s statement to Growe made Young uncomfortable.              This discomfort

persisted over the next several days, as Newell and several associates waited outside

Young’s office and yelled threats at her when she got off work. Id. at 20.

      The State charged Newell with intimidation, as a class A misdemeanor. After a

bench trial, the court found her guilty and sentenced her accordingly.       This appeal

followed.

                                         ISSUES

      Newell raises two issues:

      I.     Whether the evidence is sufficient to sustain Newell’s conviction.

      II.    Whether the trial court abused its discretion by admitting evidence of prior
             bad acts.


                            DISCUSSION AND DECISION

                  I. SUFFICIENCY: WAS THIS A TRUE THREAT?

      In reviewing the sufficiency of the evidence, we examine only the probative

evidence and reasonable inferences that support the judgment. Lock v. State, 971 N.E.2d

71 (Ind. 2012). We do not assess witness credibility, nor do we reweigh the evidence to

determine if it was sufficient to support a conviction. Id. We affirm the conviction

unless no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id.

      To obtain a conviction of intimidation as a class A misdemeanor, the State must

prove beyond a reasonable doubt that the defendant (1) communicated (2) a threat (3) to

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another person (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) (2006).

       Newell says her statement to Growe about Young was not a threat, but rather some

venting to a friend. Whether a statement is a threat is an objective question for the trier

of fact. Ajabu v. State, 677 N.E.2d 1035 (Ind. Ct. App. 1997), trans. denied. For the

purposes of the crime of intimidation, a threat is defined, in relevant part, as “an

expression, by words or action, of an intention to . . . unlawfully injure the person

threatened or another person, or damage property . . . [or] commit a crime.” Ind. Code

§ 35-45-2-1(d).

       Counsel for Newell have correctly cited Watts v. United States, 394 U.S. 705, 89

S. Ct. 1399, 22 L. Ed. 2d 664 (1969), in which the Supreme Court was asked to

determine if a defendant’s statement that he would harm the president was a true threat.

The Court considered the content of the statement, its context, and the reaction of the

listeners. Id. at 708.

       Content of the Statement. Viewed as a matter of English, Newell’s declaration

that she would “take care of the m***********s” and that the new manager was “about

to get her f*****g head knocked off” took the form of a direct threat. While counsel has

argued that Newell was probably not capable of decapitating Young, a reasonable finder

of fact could conclude that such statements constituted a threat of physical harm.

       Context. Newell made the statements at issue after she had learned that she was

being evicted from her home and sued for damages. She was angry at the apartments’

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management. She acknowledged at trial that she was being evicted because management

believed she had damaged a desk in the apartment manager’s office with a meat cleaver.

       Reaction of the Listeners. Growe’s reaction to the statement was immediate and

indicated that he took it quite seriously. He promptly notified Young, met with her as she

arrived for work the next morning believing that she could be in danger, and posted

security outside her office.

       In addition, Newell’s statement that she was going to knock Young’s head off

made Young feel uncomfortable. She was further frightened in subsequent days when

Newell and associates waited outside her office to threaten her as she left work.

       Taken as a whole, this evidence persuades us that whether Newell was “simply

venting to a friend,” Appellant’s Br. p. 6, or whether she made a true threat within the

meaning of Watts, was appropriately a matter for decision by the finder of fact.

       Newell further argues that there is no evidence that she intended to communicate

the threat to Young as required by our statute. The word “communicates,” as used in

Indiana Code section 35-45-2-1, includes threats made or known or transmitted to

another person, and the statute does not limit the means utilized to convey the threat.

Ajabu, 677 N.E.2d at 1042.

       Here, Growe testified that, based on Newell’s past interactions with him, she was

aware his duties included reporting problems to the apartments’ manager. Furthermore,

her threat against Young raised a security issue, and a reasonable person could conclude

that Growe would have to act on that threat. There is sufficient evidence for the finder of

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fact to conclude Newell knew that her statement would be transmitted to Young. See

Walls v. State, 993 N.E.2d 262, 268 (Ind. Ct. App. 2013) (defendant communicated a

threat against a police officer by telling the officer’s son, another police officer, that he

would kill the father for arresting him), trans. denied.

                  II. ADMITTING EVIDENCE OF PRIOR BAD ACTS

       A trial court has broad discretion in ruling on the admissibility of evidence, and

we will disturb its ruling only where it is shown that the court abused its discretion.

Halliburton v. State, 1 N.E.3d 670 (Ind. 2013). 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.

       Newell says the court should not have admitted evidence of the incident that led to

her eviction, claiming it was a prior uncharged bad act with no probative value. This

contention turns on Indiana Evidence Rule 404(b), which provides: “Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the character.”

However, such evidence “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Id. This list of permissible purposes is illustrative but not exhaustive.

Ceaser v. State, 964 N.E.2d 911 (Ind. Ct. App. 2012), trans. denied.




                                              6
       During the State’s case-in-chief, the prosecutor attempted to ask its witnesses

about Newell’s involvement in past wrongdoing at the apartment complex. Newell

objected, and the court twice sustained the objection. Tr. pp. 16, 23-24.

       During Newell’s case-in-chief, however, upon being asked about her eviction,

Newell testified, “The day that they handed me the note by [sic] me being evicted I had

asked them why was I being evicted because I was arguing with a young lady. But they

felt and thought that I chopped up they [sic] desk which could nobody [sic] prove that I

had no—you know, hearsay.” Id. at 46. On cross-examination, the court permitted the

State to question Newell about the desk incident because she opened the door on direct.

Newell said, without admitting liability, that someone had used a meat cleaver to damage

a desk (“scratch,” she said) in the apartment complex’s office.

       We conclude that evidence about the desk incident was admissible under Rule

404(b) as probative of whether Newell intended to intimidate. Newell has argued at trial

and on appeal that she never intended to threaten Young but was instead merely

expressing frustration at being evicted. On this question of intent, evidence that she was

believed to have done violence recently in the manager’s office was legitimately

available for the purpose of evaluating whether her subsequent statements about doing

violence to the new manager were actually threats or just hyperbole.

       Moreover, evidence of the desk incident was admissible under Rule 404(b)

because it was material to evaluating Growe and Young’s reaction to Newell’s statement,

an element of the Watts test. Growe’s knowledge that his employer believed that Newell

                                             7
had engaged in violent misconduct in the recent past was relevant to establish why Growe

believed that Newell’s threat was serious.

       Of course, even if evidence of a prior bad act is admissible under Rule 404(b), the

court may nonetheless decline to admit the evidence under Indiana Evidence Rule 403,

which provides,

       The court may exclude relevant evidence if its probative value is
       substantially outweighed by a danger of one or more of the following:
       unfair prejudice, confusing the issues, misleading the jury, undue delay, or
       needlessly presenting cumulative evidence.

When evaluating the possibility of unfair prejudicial impact, courts look for the dangers

that (1) the finder of fact will substantially overestimate the value of the evidence or (2)

the evidence will arouse or inflame the passions or sympathies of the finder of fact.

Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied.

       There is no indication in the record that the court overestimated the value of the

desk incident or that it inflamed prejudice on the part of the court. To the contrary,

throughout the trial the court carefully barred evidence of Newell’s prior bad acts and

admitted evidence of the desk incident only after she opened the door during her

testimony. The court thus did not abuse its discretion in admitting evidence of the

incident that led to Newell’s eviction.

                                      CONCLUSION

       We affirm the judgment of the trial court.

       Affirmed.

VAIDIK, C.J., and FRIEDLANDER, J., concur.
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