Alan Dwayne Gray v. State of Indiana ( 2012 )

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
FILED
Apr 23 2012, 8:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ALAN DWAYNE GRAY, )
)
Appellant-Defendant, )
)
vs. ) No. 45A04-1110-CR-517
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
The Honorable Kathleen A. Sullivan, Magistrate
Cause No. 45G04-1105-FD-98
April 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Alan Dwayne Gray appeals his convictions for criminal recklessness as a class D
felony1 and intimidation as a class D felony.2 Gray raises one issue, which we revise and
restate as whether the evidence is sufficient to sustain his convictions. We affirm.
The facts most favorable to Gray’s convictions follow. On May 1, 2011,
Velsheena Bryant walked to the house of her neighbor Robert Dove because he was
having a barbeque. A red van with tinted windows pulled up near Dove’s house. There
were eight women in the van, including Lakesha Gray and her daughters Arianna Gray
and Essence Gray. Lakesha was in a relationship with Dove and was also married to
Dino, who is Gray’s nephew. Eventually, an altercation occurred between Dove and
Lakesha and her daughters. Velsheena began to walk home, and one of Lakesha’s
daughters said “[w]hat that ‘B’ gonna do.” Transcript at 41. Lakesha, Arianna, and
Essence “started jumping on” Velsheena, and Lakesha hit her. Id. Velsheena went to her
house and called the police, and the police arrested Lakesha, Arianna, and Essence.
On May 7, 2011, Velsheena was at home and heard someone say “come outside,
come outside” but did not see anyone. Id. at 43. Dove then called Velsheena’s house
“saying that they just kicked in his door and . . . then he said that they was gonna come
kick in [Velsheena’s] door next because of the altercation that happened the week before
that.” Id.
Later that day, Cynthia Bryant, who was Velsheena’s mother, called her other
daughter, Quetillya Bryant, for a ride to a gas station. Quetillya picked up Cynthia, drove
1
Ind. Code § 35-42-2-2 (Supp. 2006)
2
Ind. Code § 35-45-2-1 (Supp. 2006).
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to the Gary Food Mart, and parked next to gas pump number three. Cynthia went inside
the gas station, and Quetillya remained in her vehicle. Inside the store, Gray approached
Cynthia, and Cynthia observed that Gray was intoxicated. Gray stated “I want to know
what’s going on, because the girl that you had sent to jail was my niece.” Id. at 115.
Cynthia attempted to explain to Gray that his niece had “jumped on my daughter for
nothing and she’s pregnant” but “it was like [Gray] wasn’t trying to hear nothing [she]
was saying to him” and “was trying to stir something up.” Id. at 116-117. Gray pointed
to other people in the store and asked Cynthia “Who is that,” but Cynthia did not know
any of the people. Id. at 117. Cynthia and Gray exited the gas station, and Gray pointed
to Quetillya and stated “Who is she,” and Cynthia stated that Quetillya “don’t have
nothin’ to do with it, she don’t [k]now nothin’ about nothing, and she is just here with
[Cynthia].” Id. Quetillya heard Gray state that “it was his nephew, Dino, that kicked
down that N-----’s door,” referring to Dove’s house. Id. at 65-66.
Quetillya opened the door of her vehicle about half way because a pole prevented
her from opening it further and put one leg out. As Quetillya opened her car door and
stood, Gray “got loud” and stated: “B----, I got a trick for you. I got a trick for you.” Id.
at 66. Gray then “went for the nozzle,” held the gas nozzle “like he’s holding a gun,”
pointed it at Quetillya, and sprayed gasoline toward Quetillya. Id. at 69, 73. The
gasoline sprayed on the windshield and driver’s side window of Quetillya’s vehicle, on
the inside seat of her vehicle, and on Quetillya’s jacket. Gray had a cigarette in his hand
and stated: “B----, I’ll set you on fire.” Id. at 121. Cynthia and the owner of the gas
station attempted to wrestle the nozzle away from Gray. Cynthia stated “Come on, . . .
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Gray, we’re better than that, that’s my daughter,” and Gray told Cynthia “You got a
disrespectful ass daughter.” Id. at 74-75. One of Gray’s family members pulled into the
gas station, placed Gray in his vehicle, and left.
Later in the afternoon, police officers approached Gray and three other men
standing in the street, and the men told the officers that “[t]he man you’re looking for is
already on the highway going back to Indianapolis.” Id. at 52. Quetillya identified Gray
as the man who discharged gasoline on her, and Gray was arrested.
In an amended information filed on June 6, 2011, the State charged Gray with:
Count I, criminal recklessness as a class D felony; Count II, intimidation as a class D
felony; Count III, criminal mischief as a class B misdemeanor; and Count IV, battery as a
class B misdemeanor. At trial, the jury heard the testimony of, among others, Velsheena,
Quetillya, Cynthia, and several law enforcement officers. The jury found Gray guilty on
all counts, and the court vacated judgment in Counts III and IV as lesser included
offenses of Count I. The court sentenced Gray to two years on each count and ordered
the sentences to be served concurrently.
The issue is whether the evidence is sufficient to sustain Gray’s convictions.
When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence
or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),
reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom
that support the verdict. Id. We will affirm the conviction if there exists evidence of
probative value from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. Id. “It is well-established that ‘the uncorroborated testimony
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of one witness may be sufficient by itself to sustain a conviction on appeal.’” Scott v.
State, 871 N.E.2d 341, 343 (Ind. Ct. App. 2007) (quoting Toney v. State, 715 N.E.2d
367, 369 (Ind. 1999)), trans. denied.
A. Criminal Recklessness Conviction
The offense of criminal recklessness as a class D felony is governed by Ind. Code
§ 35-42-2-2, which provides in part that “[a] person who recklessly, knowingly, or
intentionally performs . . . an act that creates a substantial risk of bodily injury to another
person . . . commits criminal recklessness” and “the offense . . . is . . . a Class D felony if
. . . it is committed while armed with a deadly weapon . . . .” According to Ind. Code §
35-41-2-2, a person “engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious objective to do so;” a person “engages in conduct ‘knowingly’
if, when he engages in the conduct, he is aware of a high probability that he is doing so;”
and a person “engages in conduct ‘recklessly’ if he engages in the conduct in plain,
conscious, and unjustifiable disregard of harm that might result and the disregard
involves a substantial deviation from acceptable standards of conduct.”
We also note that because intent is a mental function, it must be determined from a
consideration of the defendant’s conduct and the natural and usual consequences of such
conduct, absent an admission from the defendant. Hendrix v. State, 615 N.E.2d 483,
484-485 (Ind. Ct. App. 1993) (citing Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)).
To determine whether the defendant intended to commit the conduct, the trier of fact
must usually resort to reasonable inferences based upon an examination of the
surrounding circumstances. Id.
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Gray’s sole argument is that he did not act with the intent necessary to convict him
of criminal recklessness. Gray argues that he “reached out with at [sic] gas nozzle and
Quetillya’s mother and the gas station owner also grabbed the nozzle and a scuffle
ensued” and that “[s]ome gas came out onto Quetillya’s car and jacket. However, the
State failed to prove that Gray recklessly, knowingly or intentionally sprayed it on
Quetillya.” Appellant’s Brief at 8.
The State argues that the evidence demonstrates that Gray’s conscious objective
was to cover Quetillya in gasoline, that his comment of “hav[ing] a trick for” Quetillya
indicates that he intended to cause her harm, and that Gray’s holding the nozzle as if it
were a gun further demonstrates Gray’s objective. The State further argues that Gray was
aware of the high probability that he was spraying gas on Quetillya, that the amount of
gas sprayed demonstrates that Gray did not accidentally engage the gas pump, and that
Cynthia and the owner of the gas station would not have physically engaged Gray if he
was merely standing with the nozzle in his hand. The State also argues that Gray’s action
of spraying gasoline placed Quetillya and everyone at the gas station in danger and that
Gray substantially deviated from acceptable standards of conduct at the gas station.
The record reveals that, inside the gas station, Gray stated to Cynthia: “I want to
know what’s going on, because the girl that you had sent to jail was my niece.”
Transcript at 115. Cynthia testified that she attempted to explain to Gray that his niece
had “jumped on my daughter for nothing and she’s pregnant” but that “it was like [Gray]
wasn’t trying to hear nothing I was saying to him” and “was trying to stir something up.”
Id. at 116-117. After Gray and Cynthia exited the gas station, Quetillya heard them
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arguing and heard Gray state that “it was his nephew, Dino, that kicked down that N-----
’s door.” Id. at 65-66. Gray and Quetillya were arguing and yelling at each other.
As Quetillya opened her car door and stood, Gray “got loud” and stated “B----, I
got a trick for you.” Id. at 66. Gray “went for the nozzle,” held the gas nozzle “like he’s
holding a gun,” pointed it at Quetillya, and sprayed gasoline toward her. Id. at 69, 73.
He had a cigarette in his hand and stated “B----, I’ll set you on fire.” Id. at 121. The
gasoline sprayed on the windshield and driver’s side window of Quetillya’s vehicle, on
the inside seat of her vehicle, and on her jacket. Cynthia and the owner of the gas station
attempted to wrestle the nozzle away from Gray. Cynthia stated “Come on, . . . Gray,
we’re better than that, that’s my daughter,” and Gray told Cynthia “You got a
disrespectful ass daughter.” Id. at 74-75.
Based upon our review of the record, we conclude that evidence of probative value
exists from which the jury could have found that Gray possessed the requisite intent and
did commit criminal recklessness as a class D felony. See Al-Saud v. State, 658 N.E.2d
907, 910 (Ind. 1995) (holding that the evidence was sufficient to support a conviction of
criminal recklessness); Griffith v. State, 898 N.E.2d 412, 416-417 (Ind. Ct. App. 2008)
(concluding that evidence of probative value existed from which the trier of fact could
have found that the defendant committed criminal recklessness as a class D felony).
B. Intimidation Conviction
The offense of intimidation is governed by Ind. Code § 35-45-2-1, which provides
in part that “[a] person who communicates a threat to another person, with the intent . . .
that the other person be placed in fear of retaliation for a prior lawful act . . . commits
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intimidation, a Class A misdemeanor,” and the “offense is a . . . Class D felony if . . . the
threat is to commit a forcible felony.” Ind. Code § 35-45-2-1. A “threat” is “an
expression, by words or action, of an intention to . . . unlawfully injure the person
threatened or another person, or damage property; [or] commit a crime . . . .” Ind. Code §
35-45-2-1(c). Ind. Code § 35-41-1-11 defines forcible felony as a “felony that involves
the use or threat of force against a human being, or in which there is imminent danger of
bodily injury to a human being.” As previously noted, intent is generally determined
from a consideration of the defendant’s conduct and the natural and usual consequences
of such conduct and the trier of fact must usually resort to reasonable inferences based
upon an examination of the surrounding circumstances. See Hendrix, 615 N.E.2d at 484-
485.
Gray’s sole argument is that the evidence is insufficient to affirm his conviction
for intimidation because Quetillya testified at trial that she was not in fact intimidated by
Gray. Gray argues “[b]y her own words, Quetillya admitted that [] Gray did not
intimidate her” and that “[s]he was holding her own in their fight.” Appellant’s Brief at
9. The State argues that Gray communicated threats to Quetillya, that Ind. Code § 35-45-
2-1 does not require Quetillya to be intimidated by Gray’s threat or even placed in fear by
Gray, and that only Gray’s intent is relevant.
Gray does not point to authority for the proposition that a defendant does not
commit the offense of intimidation if the threat communicated by the defendant to
another person does not result in the other person feeling fearful or intimidated. Ind.
Code § 35-45-2-1 requires the State to show that the defendant “communicate[d] a threat
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to another person, with the intent . . . that the other person be placed in fear . . . ,” and the
State alleged in its amended charging information that Gray knowingly or intentionally
communicated a threat to Quetillya “with the intent that [she] be placed in fear of
retaliation . . . .” See Appellant’s Appendix at 16 (emphasis added).
Based upon our review of the record, we conclude that evidence of probative value
exists from which the jury could reasonably have found beyond a reasonable doubt that
Gray committed intimidation as a class D felony. See Griffith, 898 N.E.2d at 417-
418 (holding the evidence was sufficient for the court to have found that the defendant
committed intimidation as a class D felony).
For the foregoing reasons, we affirm Gray’s convictions for criminal recklessness
and intimidation as class D felonies.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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