ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM E. DAILY JEFFREY A. MODISETT
Danville, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
LUCAS GRAHAM, ) ) Appellant-Defendant, ) ) vs. ) No. 67A01-9901-CR-9 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
produced two additional people who had been present at the initial hearing and who had
overheard Graham threaten Terry.
On September 9, 1998, Graham was charged with two counts of Intimidation, as class D felonies and one count of Invasion of Privacy, as a class D felony. Following a jury trial, Graham was convicted on the two Intimidation counts, but was found not guilty on the Invasion of Privacy count. This appeal ensued.
retaliation for a prior lawful act. Ind. Code § 35-45-2-1(b)(1)(A). A defendant also
commits Intimidation, a class D felony, if he threatens a witness in a pending criminal
proceeding against the defendant. Ind. Code § 35-45-2-1(b)(1)(B)(iii).
brief at 8). In support of this contention, Graham directs our attention to Casey v. State, 676
N.E.2d 1069, 1072 (Ind. Ct. App. 1997).
In Casey, Kimberly Williamson (Kimberly) and several of her friends went to a local bar where they encountered Tommy Casey (Casey) and Bryan Williamson (Bryan), the brother of Kimberly's estranged husband, Ben Williamson (Ben). Casey and Bryan subsequently began fighting with one of Kimberly's friends inside the bar. Kimberly and her friends eventually returned to Kimberly's residence to watch television. Later that same evening, one of Kimberly's friends observed a person standing on a ledge outside a window on the second story of Kimberly's residence. As soon as Kimberly and her two friends stepped outside to investigate, they were confronted by Casey, Bryan, Ben, and a fourth unidentified person. Kimberly pleaded with Casey to leave, but he refused, stating, Get inside bitch, you're next. Casey then asked one of his companions to retrieve his gun from his car, stating that he was going to kill all of them. Shortly thereafter, either Bryan or Ben handed Casey an aluminum baseball bat which he used to strike one of Kimberly's friends on the back of the head. Casey then turned to Kimberly and yelled again, You're next, bitch. Kimberly's friend immediately pushed her inside her home and locked the door.
Casey was later charged and convicted of Battery and Intimidation. On appeal, this Court reversed Casey's intimidation conviction. In so doing, we stated that mere proof that the victim is engaged in an act which is not illegal at the time the threat is made is not sufficient to prove intimidation. Casey, 676 N.E.2d at 1072. We further stated that the State must 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. Id. Further, while the State subsequently
alleged in its response to Casey's motion to correct error that Kimberly was engaged in the
lawful acts of being a patron at a bar, being at her house and being a witness to Casey's
attack on her friend, we found that the record did not support the State's contention that
Casey was retaliating for any of those actions. Id. at 1073.
In relying on Casey, Graham argues that the statement, You're dead. I'm gonna kill you[,] does not demonstrate Graham's reason for threatening Terry, nor does it indicate Graham was threatening Terry for any specific act. We find these arguments unpersuasive. Unlike the Casey case where there was no evidence from which the jury could reasonably infer that Casey had threatened Kimberly with the intent to place her in fear of retaliation for a prior lawful act, here the record supports the State's contention that Graham threatened to retaliate against Terry for Terry's prior and continuing legal act of participating as a witness against Graham with regard to the alleged battery. Terry witnessed the battery and was present at the initial hearing. Additionally, Graham threatened Terry while they were still in the courtroom, immediately after the hearing, as Graham returned to the witness bench. Based on these facts, we find there was sufficient evidence for the trier of fact to infer, beyond a reasonable doubt, that Graham threatened Terry with the intent of placing him in fear due to Terry's participation as an eyewitness in the court proceedings against Graham. Accordingly, we find no error.
FRIEDLANDER, J., and STATON, J., concur.
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