MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 20 2018, 6:56 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Talisha Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stefan Murphy, December 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1208
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G12-1703-CM-11652
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1208 | December 20, 2018 Page 1 of 10
Case Summary
[1] Stefan Murphy appeals his conviction for class A misdemeanor intimidation.
He asserts that the State presented insufficient evidence to support his
conviction and that the prosecutor committed misconduct during closing
argument that constituted fundamental error. Finding the evidence sufficient
and no misconduct or fundamental error, we affirm.
Facts and Procedural History
[2] On January 27, 2017, Murphy entered a Chase Bank in Castleton to cash a
check. Murphy did not have an account with Chase, but the check was written
on a Chase account. Chase has a policy that individuals who do not have an
account with Chase must pay an $8.00 check cashing fee. Murphy cashed the
check and was charged the fee. He became angry and asked to speak with the
branch manager about the fee.
[3] The manager, Patrick Canny, informed Murphy about Chase’s policy and
explained to him that there was nothing he could do because the fee was
nonrefundable. Canny apologized and informed Murphy that the bank could
give him the check back and he could go elsewhere to cash it if he wished.
[4] Murphy told Canny that he wanted a refund of the $8.00 fee or he would
pursue legal recourse against Canny and Chase. Canny again stated that there
was nothing he could do, and he went to his office to retrieve a business card to
give to Murphy. Canny exited his office, handed Murphy the card, and
returned to his office, with Murphy trailing behind him. After Canny entered
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his office, Murphy stood in the doorway of the office and said, “[I]f I weren’t in
a bank right now, I’d be kicking your ass.” Tr. Vol. 2 at 11. Murphy then
stepped into Canny’s office and shut the door. He flung Canny’s card at him
and again threatened Canny that he was going to “kick [his] f’ing ass.” Id. at
12. Murphy told Canny, “This isn’t over. I’m going to f you up when I see
you, you know, I’ll see you again.” Id. Murphy approached Canny, who was
sitting in a chair, and stood over him with his legs pressed against the chair.
Murphy shoved his finger against Canny’s nose while he leaned over him.
Murphy noticed that Canny was shaking in fear, and he began mocking Canny.
Canny told Murphy that he needed to leave, but when Canny attempted to
stand, Murphy pushed him back into the chair with a “chest bump.” Id. at 15.
Murphy repeated that he was going to find Canny later, and then pushed
Canny back into the chair when Canny attempted to stand up. On Canny’s
third attempt to stand, Murphy chest-bumped Canny again, but Canny fell to
the side of his desk and was then able to slide around Murphy and escape into
the bank lobby.
[5] As the two men were exiting the office, Murphy yelled at Canny and put his
finger in Canny’s face saying, “You are a f***king racist and I’m not done. I
will be back.” Id. at 54. Murphy left the bank. After he was gone, bank
employees called the police. Canny subsequently identified Murphy from a
photo lineup.
[6] The State charged Murphy with one count of class A misdemeanor
intimidation and one count of class B misdemeanor battery. Following a trial,
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the jury found Murphy guilty of the class A misdemeanor. The trial court
sentenced him to a one-year term, fully suspended to nonreporting probation.
This appeal ensued.
Discussion and Decision
Section 1 – The evidence is sufficient to support Murphy’s
conviction.
[7] Murphy contends that the State presented insufficient evidence to support his
intimidation conviction. When reviewing a claim of insufficient evidence, we
neither reweigh the evidence nor assess witness credibility. Bell v. State, 31
N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable inferences
drawn therefrom that support the conviction, and will affirm if there is
probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[8] To convict Murphy of class A misdemeanor intimidation, the State was
required to prove that Murphy communicated a threat to Canny with the intent
that Canny be placed in fear of retaliation for a prior lawful act. Ind. Code § 35-
45-2-1(a)(2). Murphy asserts that the State presented insufficient evidence that
his comments to Canny constituted a threat and further that the State failed to
prove his intent to place Canny in fear of retaliation for a prior lawful act,
namely, the imposition of the check cashing fee. We disagree.
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[9] First, we reject Murphy’s suggestion that his comments to Canny did not
constitute a threat. The intimidation statute defines “threat” as an “expression,
by words or action, of an intention to ... unlawfully injure the person threatened
... [or] commit a crime[.]” Ind. Code § 35-45-2-1(d)(1), -(d)(3). Our supreme
court clarified in Brewington v. State that “true threats” depend on two necessary
elements: (1) that the speaker intend for his communications to put his target in
fear for his safety and (2) that the communications were likely to actually cause
such fear in a reasonable person similarly situated to the target. 7 N.E.3d 946,
964 (Ind. 2014), cert. denied (2015). We find the evidence sufficient as to both
elements. Murphy repeatedly told Canny that he knew where to find him, that
he was going to kick his ass, and that “[t]his isn’t over.” Tr. Vol. 2 at 12. The
words used, coupled with an angry tone of voice and aggressive physical
behavior, support a reasonable inference that Murphy intended for his
communications to put Canny in fear for his safety. Moreover, it was
reasonable for the jury to infer that such communications were likely to actually
cause fear in a reasonable person similarly situated to Canny. Canny testified
that he was scared and shaking both during and after the incident, and that he
believed that Murphy was planning to find him and cause him physical harm.
Under the circumstances, the evidence was sufficient to establish that Murphy’s
words to Canny constituted a true threat.
[10] In addition to proving that a threat was issued, the State was also required to
prove that the threat itself was delivered with the intent to place Canny in fear
of retaliation for a prior lawful act. That is to say, the State must demonstrate a
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clear nexus between a prior lawful act and the threat. Roar v. State, 52 N.E.3d
940, 944 (Ind. Ct. App. 2016), summarily aff’d by 54 N.E.3d 1001 (Ind. 2016).
The charging information specified that the prior lawful act was “the check
cashing fee” imposed by the bank. Appellant’s App. Vol. 2 at 18. Murphy
argues that because it was technically the bank that charged him the fee, and
not Canny, it was not Canny’s prior lawful act that Murphy was allegedly
retaliating against. We are not persuaded by Murphy’s attempt to distinguish
between Canny and the bank in this situation. Canny was the branch manager
who informed Murphy of the fee policy and his inability to refund the imposed
fee, and the State presented ample evidence that Murphy’s anger and hostility
toward Canny immediately followed. There was a clear nexus between
Canny’s lawful act as a bank representative and Murphy’s threat against him.
The State presented sufficient evidence to support the conviction.
Section 2 – Murphy has failed to establish prosecutorial
misconduct or fundamental error based thereon.
[11] Murphy also asserts that the prosecutor committed misconduct at multiple
points during his closing argument. In reviewing a properly preserved claim of
prosecutorial misconduct, we must consider first whether misconduct occurred
and second whether the misconduct placed the defendant in a position of grave
peril to which he should not have been subjected. Williams v. State, 724 N.E.2d
1070, 1080 (Ind. 2000). Murphy concedes that he did not properly preserve his
prosecutorial misconduct claim, and therefore, he must establish not only the
grounds for the misconduct but also the additional grounds for fundamental
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error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014).1 The fundamental error
exception to the contemporaneous objection rule is extremely narrow and
applies only when the error constitutes a blatant denial of basic due process
principles that makes it impossible to receive a fair trial. Id. To establish
fundamental error, the defendant must show that, under the circumstances, the
trial judge erred in not sua sponte raising the issue because alleged errors (a)
constitute clearly blatant violations of basic and elementary principles of due
process and (b) present an undeniable and substantial potential for harm. Id.
[12] Murphy’s first assertion of prosecutorial misconduct concerns the prosecutor’s
alleged misstatement of evidence. Specifically, Murphy points to the following
passages from closing argument:
The things you heard Mr. Canny testify the defendant said to
him. Those are threats. Don’t leave your common sense at the
door when you walk back there. You know that is a threat
somebody going up to a bank manager and screaming that I’m
gonna come back here and kick your ass, that’s a threat. So, we’ve
proved that.
Tr. Vol. 2 at 81 (emphasis added).
[Canny] sat right here and he said that he was shaking, that the
defendant saw him, and that he started to mock him, because he was
scared.
1
To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct
occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial. Ryan, 9
N.E.3d at 667.
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Id. at 82-83 (emphasis added).
[13] Murphy argues that the prosecutor misstated the evidence because there was no
evidence that Murphy actually screamed that he was going to come back to the
bank and batter Canny, and further there was no direct testimony as to why
Murphy was later mocking Canny. We disagree with Murphy’s assertion that
the above passages contain misstatements of evidence. Canny testified that
Murphy repeatedly threatened that “[t]his isn’t over” that he would “find”
Canny, and that he would “f” Canny up when he saw him “again.” Id. at 12,
44. Moreover, Canny testified that as Murphy leaned over his chair, he
inquired “why you shaking[,]” and Canny explained that he believed that
Murphy was clearly mocking him for being scared. Id. at 44-45. The above-
quoted statements by the prosecutor were accurate summaries of the evidence
presented, followed by permissible arguments as to the inferences to be drawn
from the evidence. See Neville v. State, 976 N.E.2d 1252, 1260 (Ind. Ct. App.
2012) (noting that prosecutor may properly argue logical or reasonable
conclusions to be drawn from evidence). The prosecutor’s statements did not
constitute misconduct.
[14] Next, Murphy claims that the prosecutor committed misconduct by improperly
asserting his personal opinion on the element of intent. See Gaby v. State, 949
N.E.2d 870, 880-81 (Ind. Ct. App. 2011) (noting that an attorney should not
assert personal knowledge of facts in issue except when testifying as a witness)
(citing Ind. Professional Conduct Rule 3.4(e)). Murphy directs us to when the
prosecutor said,
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We also have to prove the defendant intended that Mr. Canny be
placed in fear of retaliation because of a prior lawful act. Well, I
certainly think that he intended Mr. Canny to be placed in fear of
retaliation because of what [Murphy] said.
Tr. Vol. 2 at 81-82 (emphasis added). Contrary to Murphy’s assertion, when
this statement is viewed in context, it is apparent that the prosecutor was not
asserting any personal knowledge as to Canny’s intent. Instead, the prosecutor
was simply commenting on a reasonable conclusion based upon the weight of
the evidence and, despite the use of the pronoun “I,” there was absolutely no
implication that the prosecutor had access to any special information outside of
the evidence presented to the jury. The prosecutor did not commit misconduct
in making this statement.
[15] Finally, Murphy makes a convoluted argument that the prosecutor committed
misconduct by relying on evidence that was admitted in violation of a pretrial
motion in limine precluding the State’s witnesses from speculating as to his
intent. Murphy again directs us to when the prosecutor summarized Canny’s
testimony that Murphy “started to mock [Canny], because [Canny] was
scared.” Id. at 82. Murphy argues that Canny’s testimony supporting the
prosecutor’s statement was inadmissible speculation regarding Murphy’s intent.
However, Murphy failed to object to Canny’s testimony at trial and
consequently has waived any argument regarding its admissibility. Hoglund v.
State, 962 N.E.2d 1230, 1239 (Ind. 2012). Thus, even if we were to assume
misconduct on the part of the prosecutor in relying on the evidence, Murphy
would need to establish two levels of fundamental error: fundamental error by
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the trial court in admitting Canny’s testimony, and fundamental error by the
trial court in permitting the prosecutor to summarize that testimony. Murphy
cannot meet this high bar. There was ample evidence regarding Murphy’s
intent, such that we cannot say that Canny’s isolated statement, and the
prosecutor’s brief summary thereof, presented an undeniable and substantial
potential for harm.
[16] In sum, Murphy has failed to demonstrate that the prosecutor committed
misconduct in the first place, much less that he was denied a fair trial as a
result. Because Murphy has demonstrated neither prosecutorial misconduct
nor fundamental error, we affirm his conviction.
[17] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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