Eric Devone Dailey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 27 2020, 9:08 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 Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Devone Dailey, August 27, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-429 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge Trial Court Cause No. 49G16-1806-F6-19249

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-429 | August 27, 2020 Page 1 of 7

Statement of the Case [1] Eric Devone Dailey (“Dailey”) appeals, following a jury trial, his conviction of

Level 6 felony intimidation.1 Dailey argues that the evidence is insufficient to

support his conviction. Concluding that the evidence is sufficient, we affirm

Dailey’s intimidation conviction. [2] We affirm.

Issue Whether there is sufficient evidence to support Dailey’s intimidation conviction.

Facts [3] In June 2018, Dailey and E.R.M. (“E.R.M.”) had been dating for three years

and lived together. When E.R.M. returned to their home on June 1, 2018,

Dailey confronted her outside the home and accused her of having a sexual

relationship with another man. Dailey threw E.R.M. against her truck and

placed his arm over her neck and chest, causing E.R.M. to have difficulty

breathing. When E.R.M. threatened to call the police, Dailey attempted to take

her phone but could not reach it. Dailey then fled from the scene. When

E.R.M. entered her home, Dailey telephoned her three times and threatened to

1 IND. CODE § 35-45-2-1. The jury also convicted Dailey of Class A misdemeanor domestic battery. See I.C. § 35-42-2-1.3. However, Dailey does not appeal the domestic battery conviction.

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kill her during one of the calls. E.R.M. called the police and went to the

hospital the following morning because she had chest pains. [4] The State charged Dailey with Level 6 felony intimidation, Class A

misdemeanor domestic battery, Level 6 felony strangulation, and Class A

misdemeanor interference with the reporting of a crime. The information

charging Dailey with intimidation alleged that: “On or about June 1, 2018,

[Dailey] did communicate a threat to commit a forcible felony, to-wit: to kill

[E.R.M.] . . . with the intent that [E.R.M.] engage in conduct against the will of

said other person, to-wit: not call the police.” (App. Vol. 2 at 85). [5] At Dailey’s jury trial, during closing argument, the State argued as follows:

[Dailey] also committed the crime of intimidation. When he called [E.R.M.] to tell her he was going to kill her, he did that after she said she was going to call the police. And she said that after he [had] attacked her. He told her that to place her in fear so she wouldn’t call the police. There’s no other reasonable interpretation of that. There’s a clear link from what happened that day to him making that threat. He wanted to place her in fear so she wouldn’t call for help and that is the crime of intimidation.

(Tr. Vol. 2 at 145). [6] A jury convicted Dailey of Level 6 felony intimidation and Class A

misdemeanor domestic battery and acquitted him of Level 6 felony

strangulation and Class A misdemeanor interference with the reporting of a

crime. Dailey appeals the intimidation conviction.

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Decision [7] Dailey argues that there is insufficient evidence to support his conviction for

Level 6 felony intimidation. Our standard of review for sufficiency of the

evidence claims is well settled. We consider only the probative evidence and

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility.

Id. We will affirm the conviction unless no reasonable fact finder could find the

elements of the crime proven beyond a reasonable doubt. Id. The evidence is

sufficient if an inference may be reasonably drawn from it to support the

verdict. Id. at 147. [8] INDIANA CODE § 35-45-2-1(a)(1) provides that “[a] person who communicates a

threat with the intent that another person engage in conduct against the other

person’s will” commits Class A misdemeanor intimidation. The offense is a

Level 6 felony if the threat is to commit a forcible felony. I.C. § 35-45-2-

1(b)(1)(A). Therefore, to convict Dailey of Level 6 felony intimidation, the State

was required to prove beyond a reasonable doubt that Dailey communicated a

threat to E.R.M. to commit a forcible felony with the intent to cause E.R.M. to

refrain from contacting the police. [9] Dailey does not deny that he threated to kill E.R.M. Rather, his sole argument

is that there is insufficient evidence of his intent because he never specified the

reason for his threat. Intent may be proven by circumstantial evidence.

McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014). Intent can be

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inferred from a defendant’s conduct and the natural and usual sequence to

which such conduct logically and reasonably points. Id. To determine whether

the defendant intended to commit the conduct, the trier of fact must usually

resort to reasonable inferences based on an examination of the surrounding

circumstances. Hendrix v. State, 615 N.E.2d 483, 485 (Ind. Ct. App. 1993). We

will not reverse a conviction that rests in whole or in part on circumstantial

evidence unless we can state as a matter of law that a reasonable person could

not form inferences with regard to each material element of the offense so as to

ascertain a defendant’s guilt beyond a reasonable doubt. McCaskill, 3 N.E.3d at

1050. [10] In the McCaskill case, McCaskill had engaged in a sexual relationship with

Matlock’s husband for two years when McCaskill telephoned Matlock and

threated her. The State charged McCaskill with Class A misdemeanor

intimidation and alleged in the charging information that McCaskill had

threatened Matlock “with the intent that [Matlock] engage in conduct against

her will, namely to leave her husband and/or cause her husband to leave her.”

Id. at 1049. A jury convicted McCaskill of intimidation, and she appealed. [11] On appeal, McCaskill, like Dailey, did not deny that she had threatened

Matlock. Rather, she argued, as does Dailey, that there was insufficient

evidence of her intent because she had never specified the reason for her threats

against Matlock. The State responded that because McCaskill and Matlock did

not have a relationship other than through Matlock’s husband, McCaskill’s aim

must have been for Matlock to leave her husband. However, this Court

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explained that “because the events leading up to the threats [were] not a part of

the record and McCaskill never clarified her reasons for the threats, [the State’s

argument was] pure speculation.” Id. This Court concluded that the State’s

reasoning for McCaskill’s threat was not a logical inference from the evidence.

Specifically, this Court explained that “[i]n light of the long-standing nature of

McCaskill’s relationship with [Matlock’s husband] and the lack of evidence that

McCaskill ha[d] threatened Matlock with the intent to make her leave [her

husband] in the past, it [was] not clear why McCaskill would suddenly begin to

threaten Matlock with that aim.” Id. at 1051. Accordingly, this Court held that

there was insufficient evidence to support McCaskill’s Class A misdemeanor

intimidation conviction and reversed it. Id. [12] However, the facts in McCaskill are distinguishable from the facts in this case.

Here, the State presented evidence of the events leading up to the threat.

Specifically, our review of the evidence reveals that Dailey threw E.R.M.

against her truck and placed his arm over her neck and chest, causing E.R.M. to

have difficulty breathing. When E.R.M. threatened to call the police, Dailey

attempted to take her phone but could not reach it. Dailey then fled from the

scene. When E.R.M. entered her home, Dailey telephoned her three times and

threatened to kill her during one of the calls. We agree with the State that “it is

a reasonable inference that Dailey threatened to kill E.R.M. to prevent her from

calling the police to report the battery after he failed to steal her phone and

thereby prevent her from calling the police earlier.” (State’s Br. 8-9). This

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evidence is sufficient evidence to support Dailey’s Level 6 intimidation

conviction. [13] Affirmed.

Bradford, C.J., and Baker, Sr.J., concur.

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