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MEMORANDUM DECISION - NOT FOR PUBLICATION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