John Mwangi v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res Mar 22 2013, 9:32 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN CELESTINO-HORSEMAN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHELLE BUMGARNER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN MWANGI, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1208-CR-647
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben Hill, Judge
The Honorable Viola Taliaferro, Senior Judge
Cause No. 49F18-1009-FD-70117
March 22, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
John Mwangi appeals his convictions for Class D felony intimidation and Class D
felony theft. We affirm.
Issues
Mwangi raises three issues, which we consolidate and restate as:
I. whether the trial court abused its discretion by excluding
evidence of a witness’s alleged bias; and
II. whether the evidence is sufficient to sustain his
convictions for intimidation and theft.
Facts
Kathy Phillips worked for Mwangi as the Director of Nursing for his company.
At one point, Phillips and Mwangi lived together. In January 2010, Phillips had a
conversation with Mwangi about his failure to pay her wages. They got into an argument
and Phillips threatened to quit. Mwangi locked the front door and threatened to kill
Phillips if she left. Mwangi eventually convinced Phillips not to quit her job.
In April 2010, Phillips still was not being paid her wages, and she decided again to
quit her job with Mwangi. Phillips called the police and went to the office to collect her
belongings. Mwangi called her into his office and locked the door. When she told him
that she had already called the police, Mwangi said that he could kill her, hide her body,
and be back on a plane to Kenya before she was found. The police then arrived and
knocked on the door.
Phillips stayed employed by Mwangi, but in July 2010, her personal cell phone
disappeared from her office. Mwangi’s girlfriend, Salome Ayoti, saw Mwangi with a
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phone. He told her that it belonged to “Kathy,” one of his staff members, that he took it
from her handbag, and that it contained some “very personal information that he was
trying to retrieve.” Tr. p. 43. A few weeks later, when Ayoti ended her relationship with
Mwangi, she took the phone with her. Ayoti gave the phone to Blanche Hood, who
returned the phone to Phillips. Phillips stopped working for Mwangi in July 2010.
In August 2010, Phillips’s attorney contacted Mwangi regarding $17,000 in
unpaid wages. Mwangi was informed that Phillips was “willing to forego legal action
and/or reporting this matter to law enforcement agencies if she [was] immediately paid in
full for the wages owed to her.” Defendant’s Ex. A. Mwangi did not pay Phillips, and
she contacted the police in September 2010.
The State charged Mwangi with Class D felony criminal confinement for the
January 2010 incident, Class D felony intimidation for the April 2010 incident, and Class
D felony theft for the cell phone incident. At the bench trial, Mwangi claimed that
Phillips gave him the cell phone because it was a business phone that was purchased by
his company. Mwangi admitted that he was not paying Phillips for her work. During
cross-examination of Phillips, Mwangi attempted to question her regarding money that
her son had invested in Mwangi’s company. The State objected to the question’s
relevance, and Mwangi claimed that the information went to Phillips’s bias and motive.
Mwangi claimed that Phillips’s son invested money and that he did not get repaid. The
trial court sustained the objection because “[t]he son [was] not here” and because the
evidence did not demonstrate “bias in and of itself.” Tr. pp. 32, 39. The trial court found
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Mwangi guilty of intimidation and theft but not guilty of criminal confinement. The trial
court then sentenced him to 250 days in jail. Mwangi now appeals.
Analysis
I. Admission of Evidence
Mwangi argues that the trial court abused its discretion by excluding evidence that
Phillips’s son had invested money with Mwangi and that her son was not repaid. The
admission or exclusion of evidence rests within the sound discretion of the trial court, and
we review for an abuse of discretion. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012).
An abuse of discretion occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it. Id. We will not disturb the trial
court’s decision without a requisite showing of abuse. Id.Mwangi argues that the excluded evidence went to Phillips’s credibility and bias.
In general, Indiana Evidence Rule 616 provides that, “[f]or the purpose of attacking the
credibility of a witness, evidence of bias, prejudice, or interest of the witness for or
against any party to the case is admissible.” However, the erroneous exclusion of
evidence does not require a reversal if its probable impact on the factfinder, in light of all
of the evidence in the case, is sufficiently minor so as not to affect the defendant’s
substantial rights. Vasquez v. State, 868 N.E.2d 473, 477 (Ind. 2007); see Ind. Trial Rule
61.
We need not resolve whether the trial court erroneously excluded this evidence
because Mwangi makes no argument that his substantial rights were affected by the
exclusion of the evidence. We note that there was significant evidence presented
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regarding Phillips’s bias and credibility. Mwangi presented evidence that, despite the
alleged criminal confinement, intimidation, and theft, Phillips continued working for
Mwangi. Although Phillips had the opportunity to inform the police of the intimidation
immediately after it happened, she did not do so. Further, the trial court was aware that
Phillips and Mwangi had previously been in a relationship and that Phillips did not
pursue charges against Mwangi until he failed to pay the wages that he allegedly owed
her. Despite all of this evidence, the trial court found Phillips credible. Under these
circumstances, we conclude that the probable impact of excluding evidence regarding
Phillips’s son’s failed investment in Mwangi’s company, even if erroneous, is sufficiently
minor so as not to affect Mwangi’s substantial rights. See, e.g., Munn v. State, 505
N.E.2d 782, 786 (Ind. 1987) (“Recognizing that the defendant was given wide latitude to
present evidence and cross-examine the victim regarding the nature and duration of their
alleged relationship before the rape, excluding only evidence about prior sexual
intercourse, . . . the exclusion of evidence regarding the prior sexual intercourse, standing
alone, would have been harmless beyond a reasonable doubt.”).
II. Sufficiency of the Evidence
Mwangi argues that the evidence is insufficient to sustain his convictions for
intimidation and theft. When reviewing the sufficiency of the evidence needed to support
a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey
v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting
the judgment and any reasonable inferences that can be drawn from such evidence.” Id.We will affirm if there is substantial evidence of probative value such that a reasonable
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trier of fact could have concluded the defendant was guilty beyond a reasonable doubt.
Id.Mwangi first argues that the evidence was insufficient to sustain his conviction for
intimidation. The offense of intimidation is governed by Indiana Code Section 35-45-2-
1, which provides: “A person who communicates a threat to another person, with the
intent . . . that the other person engage in conduct against the other person’s will . . .
commits intimidation.” The offense is a Class D felony if the “threat is to commit a
forcible felony.” Ind. Code § 35-45-2-1(b).
Mwangi argues that the evidence is insufficient because Phillips did not tell the
officers about the alleged threat, Phillips continued working for him, and Phillips did not
report the threat until Mwangi failed to respond to her attorney’s demands for payment.
The State presented evidence that, when Phillips decided to quit her employment with
Mwangi, he called her into his office, locked the door, and told her that he could kill her,
hide her body, and be back on a plane to Kenya before she was found. The trial court
was made aware that Phillips did not immediately tell the officers about the threat, that
she continued working for Mwangi for months, and that she only notified authorities of
the threat when Mwangi failed to pay her wages that were owed. Despite this evidence,
the trial court found Phillips credible and found Mwangi guilty of intimidation.
Mwangi’s argument is a request that we reweigh the evidence and judge Phillips’s
credibility, which we cannot do. The evidence is sufficient to sustain Mwangi’s
conviction for intimidation.
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Mwangi also argues that the evidence is insufficient to sustain his conviction for
theft of Phillips’s phone. The offense of theft is governed by Indiana Code Section 35-
43-4-2, which provides: “A person who knowingly or intentionally exerts unauthorized
control over property of another person, with intent to deprive the other person of any
part of its value or use, commits theft, a Class D felony.”
Mwangi argues that the evidence is insufficient because his company purchased
the phone and because Phillips did not report the theft until Mwangi failed to respond to
her attorney’s demands for payment. The State presented evidence that Phillips’s phone
went missing from her office. Mwangi’s girlfriend, Ayoti, saw Mwangi with a phone.
He told her that it belonged to “Kathy,” one of his staff members, that he took it from her
handbag, and that it contained some “very personal information that he was trying to
retrieve.” Tr. p. 43. A few weeks later, Ayoti took the phone and arranged for it to be
returned to Phillips.
Although Mwangi testified that his company owned the phone, Phillips testified
that she owned the phone and that, when Mwangi failed to pay her wages, he issued her a
check so that she could pay her cell phone bill. Further, the trial court was aware that
Phillips only notified authorities of the theft when Mwangi failed to pay her wages that
were owed. Despite this evidence, the trial court found Phillips credible and found
Mwangi guilty of theft. Mwangi’s argument is a request that we reweigh the evidence
and judge Phillips’s credibility, which we decline to do. The evidence is sufficient to
sustain Mwangi’s conviction for theft.
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Conclusion
Any error in the exclusion of the evidence regarding the investment was harmless,
and the evidence is sufficient to sustain Mwangi’s convictions for intimidation and theft.
We affirm.
Affirmed.
BAKER, J., and RILEY, J., concur.
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