Feb 17 2014, 7:21 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RAKIEA MCCASKILL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1306-CR-480
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy Jones, Judge
Cause No. 49F08-1212-CM-82624
February 17, 2014
OPINION - FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Rakiea McCaskill (“McCaskill”) appeals her conviction for Class A misdemeanor
intimidation.1
We reverse and remand with instructions.
ISSUE
Whether there was sufficient evidence to support McCaskill’s conviction
for Class A misdemeanor intimidation beyond a reasonable doubt.
FACTS
McCaskill had a relationship with Tamika Matlock’s (“Matlock”) husband
(“Husband”), with whom she had a child. According to Matlock, Husband lied to
McCaskill over the period of a year or two and told her that he was planning to leave
Matlock, but he never did.
Between the night of October 28, 2012 and the morning of October 29, 2012,
when McCaskill’s child with Husband was approximately a year old, McCaskill called
Matlock four times and told her that she “would beat [her] ass” and that “she was coming
over to [Matlock’s] house and [] had been sitting in front of [her] house.” (Tr. 6).
McCaskill also contacted Matlock on Facebook, again telling her that she was going to
“beat [her] ass” and that “everybody in the city [knew she would] beat [her] ass.” (Tr. 7).
During one of McCaskill’s phone calls, Matlock responded, “You keep putting this stuff
on Facebook then come to my house like you said.” (Tr. 12). During another call,
1
Ind. Code § 35-45-2-1(a)(1).
2
McCaskill told Matlock that she was outside Matlock’s house, so Matlock looked out the
window and saw McCaskill’s vehicle on the road outside.2
On December 10, 2012, the State charged McCaskill with Class A misdemeanor
intimidation under subsection (a)(1) of the intimidation statute. The charging information
provided that McCaskill had communicated a threat to Matlock with the intent that she
engage in conduct against her will, namely to “leave her husband and/or cause her
husband to leave her.”3 (App. 19). On May 8, 2013, the trial court held a bench trial, at
which Matlock testified that “[McCaskill] kind of want[s] my husband to leave me . . . .”
(Tr. 7). When asked, though, whether McCaskill “specifically said she was going to beat
[Matlock’s] ass because [she was] married to [Husband],” Matlock admitted that
“[McCaskill] didn’t say why she would beat my ass.” (Tr. 8-9). Still, Matlock argued
“[w]hy else would she want to beat my ass? I don’t talk to her. I’m not friends with
her.” (Tr. 8). Subsequently, McCaskill testified and claimed that she had threatened
Matlock because Matlock and Matlock’s cousin had previously “jumped on [her].” (Tr.
16).
At the conclusion of the presentation of evidence, the trial court found McCaskill
guilty of Class A misdemeanor intimidation. It sentenced her to 365 days with 363 days
suspended. McCaskill now appeals. Additional facts will be provided as necessary.
2
It is not clear from the transcript whether this happened during the same phone call where McCaskill
told Matlock that “she was coming over to [Matlock’s] house and [] had been sitting in front of [her]
house.” (Tr. 6).
3
Notably, the Indiana Code also provides that a person may commit intimidation if that person
“communicates a threat to another person, with the intent: . . . that the other person be placed in fear of
retaliation for a prior lawful act.” I.C. § 35-45-2-1(a)(2). Although the State moved to amend the
charging information at trial to add this element to the charge, the trial court denied the State’s motion.
3
DECISION
On appeal, McCaskill argues that the State did not provide sufficient evidence to
convict her of Class A misdemeanor intimidation. The standard of review for a
sufficiency of the evidence claim is that this Court should only reverse a conviction when
reasonable persons would not be able to form inferences as to each material element of
the offense. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied.
We do not reweigh evidence or judge the credibility of witnesses. Id. at 213. In addition,
we only consider the evidence most favorable to the verdict and the reasonable inferences
stemming from that evidence. Id.
Pursuant to Indiana Code § 35-45-2-1(a), a person commits intimidation if that
person “communicates a threat to another person, with the intent: (1) that the other person
engage in conduct against the other person’s will; [or] (2) that the other person be placed
in fear of retaliation for a prior lawful act . . .” I.C. § 35-45-2-1(a). In its information,
the State charged McCaskill with the intent to cause Matlock to engage in the conduct of
leaving Husband against her will. McCaskill does not deny that she threatened Matlock.
However, McCaskill argues that there was insufficient evidence of her intent because she
never specified the reason for her threats towards Matlock. In response, the State
contends that even though all of the evidence of intent was circumstantial, the inference
stemming from McCaskill’s relationship with Husband was sufficient to show that
McCaskill intended her threats to cause Matlock to leave Husband.
First, we must note that, although there is only circumstantial evidence of
McCaskill’s intent, intent may be proven by circumstantial evidence. Lee v. State, 973
4
N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied. Intent can be inferred from a
defendant’s conduct and the natural and usual sequence to which such conduct logically
and reasonably points. Id. We will not reverse a conviction that rests in whole or in part
on circumstantial evidence unless we can state as a matter of law that reasonable persons
could not form inferences with regard to each material element of the offense so as to
ascertain a defendant’s guilt beyond a reasonable doubt. Defries v. State, 342 N.E.2d
622, 625 (Ind. 1976).
In Casey v. State, 676 N.E.2d 1069 (Ind. Ct. App. 1997), we considered a
conviction for intimidation based on circumstantial evidence of intent. Casey is not
directly on point because the appellant in Casey, Tommy Casey (“Casey”), was charged
with another element of the intimidation statute, intending to place another person “in
fear of retaliation for a prior lawful act” under subsection (a)(2), rather than intending to
cause the person to “engage in conduct against the person’s will” under subsection (a)(1).
I.C. § 35-45-2-1(a). However, we find the discussion of intent in Casey relevant to the
instant case, even though the charges are not the same.
In Casey, the victim, Kimberly Williamson (“Williamson”) went to a bar with
several friends, where she ran into Casey and her estranged husband’s brother, Bryan
Williamson (“Bryan”). Casey, 676 N.E.2d at 1071. Casey and Bryan started a fight with
one of Williamson’s friends, which escalated to the point that they had to leave the bar.
Id. Later, Williamson returned to her home and started to watch television with her
boyfriend and a friend. Id. While they were watching television, Casey appeared on her
ledge outside her window. Id. Williamson asked him to leave, but he refused and asked
5
a companion to retrieve his gun from his car. Id. He told Williamson, her boyfriend, and
her friend that he was going to kill all of them. Id. Casey then struck Williamson’s
boyfriend with a baseball bat and told Williamson that she was next. Id. However,
Williamson was able to evade Casey by getting inside of her house. Id.
Subsequently, the State charged Casey with Class C felony intimidation, among
other charges. Id. The trial court convicted Casey of the intimidation charge, but this
Court vacated the conviction on appeal. Id. Our reasoning was that the evidence did not
identify which of Williamson’s prior lawful acts had instigated Casey’s threats, even
though the State advanced several plausible prior acts, such as Williamson being a patron
at a bar, being at her house, and being a witness to Casey’s attack on her boyfriend. Id. at
1073. We found it persuasive that Casey’s threats “[did] not demonstrate his reasons for
threatening [Williamson] or indicate that he was doing so because of any specific prior
act.” Id.
Our reasoning in Casey is analogous to the instant case because, like Casey,
McCaskill never explained her reasons for threatening Matlock. The State argues that
because McCaskill and Matlock do not have a relationship other than through Husband,
McCaskill’s aim must have been for Matlock to leave Husband. However, because the
events leading up to the threats are not a part of the record and McCaskill never clarified
her reasons for the threats, that conclusion is pure speculation. Further, we are not
persuaded that it is the logical inference stemming from the evidence in the record.
Matlock testified that McCaskill had engaged in a relationship with Husband for at least
two years and had wanted Husband to leave Matlock. In light of the long-standing nature
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of McCaskill’s relationship with Husband and the lack of evidence that McCaskill has
threatened Matlock with the intent to make her leave Husband in the past, it is not clear
why McCaskill would suddenly begin to threaten Matlock with that aim.4
Based on these factors, we conclude that the State did not provide sufficient
evidence to prove beyond a reasonable doubt that McCaskill committed Class A
misdemeanor intimidation as charged, and we reverse McCaskill’s conviction. However,
we note that the State also argued for the lesser-included offense of harassment at trial.5
(Tr. 15). Pursuant to Indiana Code § 35-45-2-2(a), a person who,
with intent to harass, annoy, or alarm another person but with no intent of
legitimate communication:
(1) makes a telephone call, whether or not a conversation ensues;
(2) communicates with a person by telegraph, mail, or other form of
written communication . . .
commits harassment, a Class B misdemeanor.
In the instant case, McCaskill made several threats to Matlock through telephone and
Facebook that she was going to “beat [her] ass” and that “everybody in the city [knew she
would] beat [her] ass.” (Tr. 7). These statements were clearly intended to harass, annoy,
or alarm Matlock and were not intended to result in legitimate communication.
Additionally, McCaskill does not deny that she made these threats. As a result, we
conclude that the State did produce sufficient evidence that McCaskill committed Class B
misdemeanor harassment. We remand to the trial court with instructions to vacate
4
Matlock did testify that there have been other instances of conflict between herself and McCaskill, but
the only instances to which she testified occurred “while this case [was] pending,” rather than prior to the
instant offense. (Tr. 8).
5
I.C. § 35-45-2-2(a).
7
McCaskill’s judgment of conviction for intimidation and to enter a judgment of
conviction for McCaskill for Class B misdemeanor harassment.
Reversed and Remanded with instructions.
MATHIAS, J., and BRADFORD, J., concur.
8