MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 15 2017, 7:26 am
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
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Matthew B. Makenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justice K. Kiama, March 15, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1610-CR-2396
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jenny Pitts Manier,
Appellee-Plaintiff Judge
The Honorable Julie Verheye,
Magistrate
Trial Court Cause No.
71D04-1604-CM-1881
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Justice Kiama was shopping at a JC Penney store in
Mishawaka on April 16, 2016. At some point, Kiama was asked to leave the
store because he was swearing loudly in front of other customers. As he was
leaving the store, Kiama continued to swear at the store employee who had
requested that he leave the store, raised his shirt, and indicated that he was
armed with a firearm. The store employee observed what appeared to be a
handgun tucked in Kiama’s waistband.
[2] Kiama was subsequently charged with Class A misdemeanor intimidation. He
was found guilty as charged following a bench trial. The trial court
subsequently sentenced Kiama to thirty days with twenty-six days suspended.
The trial court also placed Kiama on probation for 180 days.
[3] On appeal, Kiama challenges the sufficiency of the evidence to sustain his
intimidation conviction. Concluding that the evidence is sufficient to sustain
the challenged conviction, we affirm.
Facts and Procedural History
[4] Kiama was shopping at a JC Penney store in Mishawaka on April 16, 2016,
when he became concerned that his vehicle might have been stolen. 1 Kiama
1
As it turns out, the vehicle in question had not been stolen and was discovered immediately
by Kiama’s wife following his arrest.
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became visibly upset and began swearing loudly. Tony Slagle, a loss-prevention
detective employed by JC Penney approached Kiama, attempted “to calm him
down,” and offered to help him by notifying mall security of the possible auto
theft. Tr. p. 6. Slagle also informed Kiama that he could not swear while he
remained inside the store. Kiama then “got very agitated” and started swearing
at Slagle. Tr. p. 6. Slagle asked Kiama to leave the store.
[5] Slagle escorted Kiama out of the store. Once outside in the parking lot, Kiama
turned back towards Slagle, screamed “I have a firearm” and “pulled up his
shirt.” Tr. p. 7. At this time, Slagle “saw what appeared to be a handgun in
[Kiama’s] waistband.” Tr. p. 7. Slagle, who had been on the phone with mall
security, immediately called 911. From a safe distance, Slagle observed Kiama
wander around the parking lot until law enforcement arrived.
[6] On April 18, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged
Kiama with Class A misdemeanor intimidation. The case proceeded to a bench
trial on September 29, 2016. During trial, both Slagle and Kiama testified
about their encounter. At the conclusion of trial, the trial court noted that the
parties presented “two very different versions of the encounter that occurred at
[the] JC Penney” store. Tr. p. 31. The trial court then proceeded to find Kiama
guilty of the charged offense. In finding Kiama guilty of the charged offense,
the trial court explicitly stated that it believed Slagle’s testimony relating to his
and Kiama’s encounter. The trial court subsequently sentenced Kiama to thirty
days with twenty-six days suspended and credit for the time which Kiama
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“spent in custody” prior to trial. Tr. p. 34. The trial court also placed Kiama
on probation for a period of 180 days. This appeal follows.
Discussion and Decision
[7] Kiama contends that the evidence is insufficient to sustain his conviction for
Class A misdemeanor intimidation.
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 trial court’s ruling.
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) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
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[8] In charging Kiama, the State alleged that on or about April 16, 2016, Kiama
“did communicate a threat to Tony A. Slagle II, with the intent that Tony A.
Slagle II be placed in fear of retaliation for a prior lawful act, to-wit: Asking
[Kiama] to leave JC Penney.” Appellant’s App. Vol. II, p. 7. Indiana Code
section 35-45-2-1(a)(2) provides that “[a] person who communicates a threat to
another person with the intent: … (2) that the other person be placed in fear of
retaliation for a prior lawful act … commits intimidation, a Class A
misdemeanor.” The word “threat” has been defined as an expression, by words
or action, of an intention to “unlawfully injure the person threatened or another
person, or damage property.” Ind. Code § 35-42-2-1(d)(1). Thus, in order to
prove that Kiama committed the charged offense, the State was required to
prove that Kiama communicated a threat to Slagle with the intent that Slagle
would be placed in fear of retaliation for the prior lawful act of asking Kiama to
leave the JC Penney store.
[9] In challenging his conviction, Kiama claims that the evidence is insufficient to
sustain his conviction because although he claimed to be armed with a firearm,
he “never made any threats of intention to inflict harm of Slagle or anyone.”
Appellant’s Br. p. 8. In support, Kiama cites to our prior opinion in Gaddis v.
State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997), in which we concluded that
“under the intimidation statute the mere display of a handgun does not express
an intention to unlawfully injure a person or his property.” For its part, the
State counters by arguing that the facts are more similar to those presented in
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Johnson v. State, 743 N.E.2d 755 (Ind. 2001). In Johnson, the Indiana Supreme
Court affirmed the defendant’s intimidation conviction, holding that
In this case, evidence that Johnson displayed a firearm combined
with telling Kreczmer “don’t even think it,” which was preceded
by two obscene remarks, was sufficient for a trier of fact to
conclude that Johnson communicated a threat within the
meaning of the intimidation statute, namely: Johnson expressed
by his words and actions an intention to unlawfully injure
Kreczmer. The evidence was also sufficient to show that
Johnson threatened Kreczmer with the intent to place him in fear
of retaliation for a prior lawful act, namely: asking Johnson to
move the car.
743 N.E.2d at 757.
[10] Upon review, we agree that the facts are more similar to those presented in
Johnson than in Gaddis. Review of the record reveals that Kiama did not merely
display a weapon as was the case in Gaddis. Instead, Kiama loudly cursed at
Slagle, stated that he was armed with a firearm, and lifted his shirt to reveal
what appeared to Slagle to be a handgun tucked in the waistband of his pants.
Thus, similar to the facts presented in Johnson, here, Kiama’s act of brandishing
an apparent handgun was preceded by repeated cursing and an explicit
statement that he was armed.
[11] We acknowledge that review of the record reveals that during trial, Slagle and
Kiama provided very different accounts of their encounter. However, in
finding Kiama guilty of the charged offense, the trial court explicitly stated that
it believed Slagle’s testimony relating to his and Kiama’s encounter. The trial
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court, acting in its role as the fact-finder, “is best positioned to judge the
credibility of these witnesses, is free to credit or discredit testimony, and weigh
conflicting evidence.” Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011).
[12] Again, Slagle’s testimony establishes that on the date in question, as part of his
employment as a JC Penney, Slagle lawfully requested Kiama leave the store
after Kiama refused to stop cursing loudly in front of other customers.
Immediately after Kiama left the store, he turned toward and loudly cursed at
Slagle, pulled up his shirt, and indicated that he was armed with a firearm.
Slagle observed what appeared to be a handgun tucked into Kiama’s waistband.
Kiama’s actions were such that a fact-finder could reasonably infer that the
actions were sufficient to place a reasonable person in fear for his safety. See
Brewington v. State, 7 N.E.3d 946, 969 (Ind. 2014) (providing that in deciding the
question of whether statements and actions were meant to be threatening, the
fact-finder should consider all of the contextual factors, including whether the
communications at issue would be likely to cause a reasonable person, similarly
situation to the victim, to fear for their safety).
[13] We conclude that the above-discussed facts are sufficient to support the
inference that Kiama communicated a threat to Slagle with the intent that
Slagle would be placed in fear of retaliation for the prior lawful act of asking
Kiama to leave the JC Penney store.2 Accordingly, we further conclude that the
2
We note that the fact that the question of whether Kiama was actually armed with a firearm
was later called into question as no firearm was recovered from his person during his arrest
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evidence is sufficient to sustain Kiama’s intimidation conviction. Kiama’s
claim to the contrary amounts to nothing more than an invitation for this court
to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.
[14] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
does not impact the sufficiency of the evidence to sustain his conviction because the evidence
supports the inference that Kiama acted in an intimidating and threatening manner by loudly
and angrily indicating that he was armed with a firearm and pulling up his shirt to display
what appeared to be a firearm tucked into his waistband.
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Justice K. Kiama v. State of Indiana (mem.dec.)
Combined Opinion