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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIN L. BERGER GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRIAN S. FLEMING, )
)
Appellant-Defendant, )
)
vs. ) No. 82A05-1202-CR-100
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1107-FD-807
November 1, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Brian S. Fleming appeals his conviction for intimidation1 as a Class D felony,
raising the following restated issues:
I. Whether the evidence of the element of mens rea was sufficient to
support Fleming’s conviction for intimidation; and
II. Whether statements made by the prosecuting attorney during final
argument constituted prosecutorial misconduct.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 30, 2011, Fleming called Deaconess Hospital and said he had a gun and
was going to kill himself. Deaconess Hospital reported the call to the Evansville Police
Department. In response to the call, four uniformed police officers were dispatched to
Fleming’s home and saw Fleming pacing on his driveway and holding something in his
hands that the officers believed was a gun. When Fleming noticed the officers
approaching with their guns drawn, he yelled at the officers to stay back or he was going
to shoot them. Fleming pointed the black object in his hand at each of the officers, who
in turn took cover.
The officers believed that Fleming was intoxicated, and from the information
supplied by dispatch from the hospital, were aware that he had mental health issues.
Within a few minutes of confronting Fleming, the officers noticed that he no longer had
the object in his hand. At that point, the officers rushed Fleming and took him into
custody. No weapon was ever found; instead, it appeared that the object the officers
thought was a gun was, in fact, a solar lawn light.
1
See Ind. Code § 35-45-2-1.
2
The State charged Fleming with intimidation as a Class D felony, and he was tried
to a jury on December 9, 2011. As part of his defense, Fleming argued that he suffered
from brain damage, panic disorder, and overuse of alcohol, and that “the combination of
factors limited his[,] what we call[,] mens rea, his mental capacity, to intend that
consequence.” Tr. at 119. During closing argument, the prosecutor commented that the
jury could not consider “mental disease or defects because he didn’t file an insanity
defense . . . .” Id. at 27. Fleming objected to the prosecutor’s comments, but the trial
court overruled his objection. Fleming did not request an admonishment or move for a
mistrial. The jury found Fleming guilty of intimidation, and he was later sentenced to
two years executed at the Indiana Department of Correction. Fleming now appeals.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Fleming contends that there was insufficient evidence to support his intimidation
conviction. Specifically, he contends that there was no evidence that he had the requisite
mens rea to commit the offense. In reviewing the sufficiency of the evidence, we
examine only the probative evidence and reasonable inferences that support the verdict.
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We do not assess witness credibility, nor
do we reweigh the evidence. Id. “Under our appellate system, those roles are reserved
for the finder of fact.” Id. Instead, we consider only the evidence most favorable to the
trial court ruling and affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. “This evidence need not
overcome every reasonable hypothesis of innocence; it is sufficient so long as an
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inference may reasonably be drawn from it to support the verdict.” Id.
To be convicted of intimidation as a Class D felony, the State was required to
prove that Fleming communicated a threat to a law enforcement officer with intent that
the officer be placed in fear of retaliation for a prior lawful act. See Ind. Code § 35-45-2-
1.2 Fleming challenges only the intent element of the crime and contends that his
physical and mental condition—that he suffered from brain damage, panic attacks, and
alcohol intoxication—prevented him from forming the requisite mens rea. Appellant’s
Br. at 4.
Fleming’s defense was essentially that he did not have the mens rea because his
mental conditions prevented him from appreciating the wrongfulness of his conduct at the
time of the offense. Because intent is a mental function, absent an admission from the
defendant, it must be determined from a consideration of the defendant’s conduct and the
natural and usual consequences of such conduct. Hendrix v. State, 615 N.E.2d 483, 485
(Ind. Ct. App. 1993) (citing Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)). To
determine whether the defendant intended to commit the alleged conduct, the trier of fact
must usually resort to reasonable inferences based upon an examination of the
surrounding circumstances. Id. Whether Fleming’s brain damage, panic attacks, and
abuse of alcohol impaired his mental faculties such that he did not have the intent to place
the officers in fear of retaliation is a question of fact, and the conclusion will not be
2
Indiana Code section 35-45-2-1, in pertinent part, provides that a person who communicates a
threat to another person, with the intent that the other person be placed in fear of retaliation for a prior
lawful act, commits intimidation, a Class A misdemeanor. However, the offense is a Class D felony if the
person to whom the threat is communicated is a law enforcement officer.
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disturbed if substantial evidence of probative value exists. Galloway v. State, 938 N.E.2d
699, 709 (Ind. 2010).
The State was required to establish that Fleming intended to place the officers in
fear of retaliation for performing their lawful duties as officers. Here, the four officers
were responding to a dispatch generated by a call from Deaconess Hospital that “a person
named Brian Fleming . . . had called them saying he was going to kill himself, that he had
a gun and he was going to pull the trigger.” Tr. at 31. In an attempt to prevent the
suicide, the officers approached Fleming, who was pacing on his driveway and was
holding an object that looked like a gun. Upon seeing the officers, Fleming pointed the
object at them and yelled, “get back I’m going to fucking shoot you, get back.” Id. at 33.
The officers scattered and took cover behind trees just off the driveway. Id. As a
defense, Fleming introduced evidence that his mental state prevented him from forming
the intent required to commit the crime. The jury found Fleming guilty of Class D felony
intimidation.
By asking this court to overturn his conviction on the basis of the proof of intent,
Fleming is essentially asking this court to reweigh the evidence. Our standard for
reviewing sufficiency of the evidence claims is well settled. We do not reweigh the
evidence or judge the credibility of the witnesses, and it lies within the jury’s exclusive
province to weigh conflicting evidence. Eberle v. State, 942 N.E.2d 848, 856 (Ind. Ct.
App. 2011), trans. denied. We find sufficient evidence existed for a jury to believe that
Fleming threatened the law enforcement officers and placed them in fear of retaliation for
the prior lawful act of being on his property to investigate the report of a suicide attempt.
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II. Prosecutorial Misconduct
Fleming asserts that the deputy prosecutor engaged in prosecutorial misconduct
during closing argument when he argued that the jury could not consider mental disease
or defect because Fleming had not filed a “Notice of Insanity Defense.” Tr. at 126.
Specifically, Fleming contends that this comment impermissibly shifted the State’s
burden of proof.
The State contends that Fleming failed to properly preserve this argument for
appellate review because, although he objected to the deputy prosecutor’s statements, he
did not request an admonishment or move for a mistrial when the trial court overruled his
objection. “Generally, in order to properly preserve a claim of prosecutorial misconduct
for appeal, a defendant must not only raise a contemporaneous objection, but he must
request an admonishment and, if the admonishment is not given or is insufficient to cure
the error, then he must request a mistrial. Bass v. State, 947 N.E.2d 456, 461 (Ind. Ct.
App. 2011) (citing Lainhart v. State, 916 N.E.2d 924, 931 (Ind. Ct. App. 2009)), trans.
denied. Here, the trial court overruled Fleming’s objection to the prosecutor’s comments;
however, because Fleming “did not request an admonishment or move for a mistrial after
the court made its rulings, he has waived his prosecutorial misconduct claims and must
show fundamental error in order to be entitled to reversal.” Id.; see Brown v. State, 799
N.E.2d 1064, 1066 (Ind. 2003) (“Because Brown failed to request an admonishment or
move for a mistrial when the trial court overruled his objection, his claim of prosecutorial
misconduct is procedurally foreclosed and reversal on appeal requires a showing of
fundamental error.”).
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For prosecutorial misconduct to rise to the level of fundamental error, however, it
must be so prejudicial to the rights of the defendant as to have made a fair trial
impossible. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind. Ct. App. 2003), trans. denied.
In determining whether an alleged error rendered a judicial proceeding unfair, this court
must consider whether the resulting harm or potential for harm is substantial. Id. A
review of the totality of the circumstances and a determination whether the error had a
substantial influence upon the outcome are required. Id.
Here, while acknowledging that voluntary intoxication was not a defense,
Fleming’s entire closing argument consisted of urging the jury to consider that the
combination of Fleming’s brain damage, panic disorder, suicidal ideation, and overuse of
alcohol prevented him from forming the intent required to commit Class D felony
intimidation. Tr. at 119-25. In response, the State pointed out that by failing to file a
Notice of Insanity Defense, and thereby raise a defense of mental disease, Fleming could
not dispute the evidence of intent by what in effect constituted an insanity defense. Id. at
126. Indiana Code section 35-41-3-6 provides that a person is not responsible for
committing a crime if, because of mental illness, he or she “was unable to appreciate the
wrongfulness of the conduct at the time of the offense.” This is an affirmative defense
upon which the defendant bears the burden of proof. Thompson v. State, 804 N.E.2d
1146, 1148 (Ind. 2004). Although the State must prove that a defendant acted with the
requisite mens rea, it has no obligation to prove that a defendant was “sane.” Id. (quoting
Lyon v. State, 608 N.E.2d 1368, 1370 (Ind. 1993)). Contrary to Fleming’s suggestion, the
State was not required to prove that Fleming was of legally sound mind when he
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committed the acts that constituted intimidation. The burden was on Fleming to present
evidence that he was so mentally disturbed at the time of the incident that he could not
appreciate the wrongfulness of his conduct. The prosecutor’s comments did not shift the
State’s burden of proof and did not deprive Fleming of a fair trial. Fleming was not
denied a fair trial. The error was not fundamental and, therefore, is waived.
Affirmed.
NAJAM, J., and MAY, J., concur.
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