Gabriel A. Merriweather v. State of Indiana , 128 N.E.3d 503 ( 2019 )

FILED
Jun 28 2019, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gabriel A. Merriweather, June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2270
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1802-F5-42
Mathias, Judge.
[1] Following a jury trial in Allen Superior Court, Gabriel A. Merriweather
(“Merriweather”) was convicted of Level 5 felony domestic battery, Level 5
felony intimidation, Level 6 felony domestic battery, and determined to be a
habitual offender. The trial court sentenced Merriweather to an aggregate term
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of twelve years of incarceration. Merriweather appeals and presents four issues
for our review, which we restate as:
I. Whether the information charging him with intimidation is so
flawed as to constitute fundamental error;
II. Whether the trial court committed fundamental error by failing to
properly instruct the jury on the requirement of unanimity;
III. Whether the State presented evidence sufficient to support his
conviction for intimidation; and
IV. Whether his twelve-year sentence is inappropriate.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Merriweather lived in Fort Wayne, Indiana
with his wife, S.S. The couple had one child together, and each had a child
from a previous relationship. All three children lived with Merriweather and
S.S. By 2018, Merriweather’s marriage to S.S. was deteriorating, and, on
January 9 of that year, S.S. filed for divorce but did not tell Merriweather.
Although the couple had tried to work on their marriage, S.S. “didn’t see it
getting anywhere.” Tr. p. 29. Still, S.S. told Merriweather that he and his
daughter could live with her until he received money from the estate of his
recently deceased father.
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[4] On January 11, 2018, S.S. picked Merriweather up from work at approximately
9:30 p.m. and returned home. At home, S.S. sat in the living room on her
phone. Merriweather claims he heard what he believed to be another man on
the phone with S.S. He also observed what he thought to be a hickey on her
neck. According to S.S., however, she was merely on her phone playing video
games. Both parties agree that Merriweather asked S.S. if they could continue
to work on their relationship. S.S. responded, “no,” and Merriweather briefly
went into the kitchen. Tr. p. 35.
[5] Moments later, Merriweather returned to the living room and punched S.S. in
the face. He then grabbed S.S. by her ponytail and dragged her into the kitchen.
S.S. begged Merriweather to stop, as their daughters were at home in their
bedroom. Merriweather rammed S.S.’s head into the refrigerator, a wooden
chair, and a cabinet. S.S. fell down and drew her body up into a fetal position
while pleading for Merriweather to stop. Instead, Merriweather kicked S.S. and
stomped on her.
[6] Eventually, Merriweather stopped and gave S.S. a towel to wipe off her face,
which was bleeding. S.S. asked to go to the hospital, but Merriweather grabbed
a kitchen knife and threatened to kill her. S.S. again implored Merriweather to
take her to the hospital, as she could tell her jaw was injured. This apparently
persuaded Merriweather, who then left the kitchen and yelled to the girls that
they needed to take their mother to the hospital. In the car, S.S. convinced
Merriweather to drop her and her daughters off at her mother’s house. When
Merriweather left, S.S. telephoned the police. The responding officers took
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photographs of S.S.’s injuries, and S.S.’s mother drove her to the hospital. At
the hospital, S.S. was diagnosed with a fractured jaw. She underwent surgery to
repair her injury the following day, which involved permanently implanting
metal plates and screws into S.S.’s jaw. Merriweather later attempted to
apologize to S.S. and told her, “you don’t have to show up to court[.]” Tr. p.
51.
[7] On February 6, 2018, the State charged Merriweather as follows: Count I,
Level 5 felony domestic battery; Count II, Level 5 felony intimidation; Count
III, Level 6 felony domestic battery; and Count IV, Level 6 felony domestic
battery. On February 19, 2018, the State amended the charging information to
include an allegation that Merriweather was an habitual offender.
[8] A two-day jury trial commenced on July 10, 2018. Immediately prior to trial,
the State moved to dismiss Count IV and to correct a scrivener’s error regarding
the spelling of S.S.’s name in the remaining counts. The trial court granted both
motions, and the jury ultimately found Merriweather guilty as charged. The
jury also determined that Merriweather was an habitual offender. At a
sentencing hearing held on August 21, 2018, the trial court sentenced
Merriweather to six years on each of the Level 5 felony convictions and to two
and one-half years on the Level 6 felony conviction, to be served concurrently.
The trial court then enhanced the six-year sentence on Count I by six years due
to the habitual offender adjudication, for an aggregate term of twelve years of
incarceration. Merriweather now appeals.
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I. The Charging Information Did Not Constitute Fundamental Error
[9] Merriweather first argues that the wording of the information charging him
with intimidation constituted fundamental error. Merriweather admits that he
did not lodge any objection to the wording of the charging information before
the trial court, nor did he move to dismiss the charge. We explained in Grimes v.
State that the
[f]ailure to timely challenge an allegedly defective charging
information results in waiver unless fundamental error has
occurred. Fundamental error is an extremely narrow exception to
the waiver rule, and the defendant faces the heavy burden of
showing that the alleged error is so prejudicial to the defendant’s
rights as to make a fair trial impossible. An error in a charging
information is fundamental if it mislead[s] the defendant or fail[s]
to give him notice of the charges against him so that he is unable
to prepare a defense to the accusation.
84 N.E.3d 635, 640 (Ind. Ct. App. 2017), trans. denied (citations and internal
quotation marks omitted).
[10] The State charged Merriweather with Level 5 felony intimidation as follows:
On or about the 11th day of January, 2018, in the County of
Allen and in the State of Indiana, said defendant, Gabriel A.
Merriweather, did, while armed with a deadly weapon,
communicate a threat to [S.S.],with the intent that [S.S.] be
placed in fear of retaliation for a prior lawful act or engage in
conduct against her will[.]
Appellant’s App. p. 14.
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[11] This generally tracks the language of the governing statute, which provides:
(a) A person who communicates a threat to another person, with
the intent:
(1) that the other person engage in conduct against the other
person’s will; [or]
(2) that the other person be placed in fear of retaliation for a
prior lawful act;
***
commits intimidation, a Class A misdemeanor.
(b) However, the offense is a:
***
(2) Level 5 felony if:
(A) while committing it, the person draws or uses a deadly
weapon[.]
Ind. Code § 35-45-2-1.1
[12] Merriweather has two issues with the charging information. First, he claims
that the information was improper because it failed to specify any particular act
on the part of the victim for which Merriweather was seeking to place her in
fear of retaliation. Merriweather is correct that we have noted before that
“prosecutors’ failure to specify the ‘prior lawful act’ in the charging information
1
This section has since been amended by Pub. L. 66-2019 § 17, which will be effective July 1, 2019. We cite
to the version of the statute effective on the date Merriweather committed his offense.
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is a recurring issue in appeals of criminal intimidation.” Fleming v. State, 85
N.E.3d 626, 630 (Ind. Ct. App. 2017).
[13] However, it is also well established that
[t]he State is not required to include detailed factual allegations
in a charging information. An information that enables an
accused, the court, and the jury to determine the crime for which
conviction is sought satisfies due process. Errors in the
information are fatal only if they mislead the defendant or fail to
give him notice of the charge filed against him. [W]here a
charging instrument may lack appropriate factual detail,
additional materials such as the probable cause affidavit
supporting the charging instrument may be taken into account in
assessing whether a defendant has been apprised of the charges
against him.
Gilliland v. State, 979 N.E.2d 1049, 1061 (Ind. Ct. App. 2012) (citations and
internal quotation marks omitted).
[14] Thus, in Fleming, even though the charging information did not specify any
prior lawful act, we held this was not reversible error because the defendant
never filed a motion to dismiss and because the “deputy prosecutor explained
on two occasions during trial that the prior lawful act was [the victim] ‘stepping
out on to his front porch which he said he did to protect his wife.’” 85 N.E.3d
at 630 (transcript citation omitted).
[15] The same is true here. Merriweather never challenged the adequacy of the
charging information prior to or during trial. And even though the charging
information does not specify a particular prior lawful act to which the threat
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was aimed, the probable cause affidavit set forth that Merriweather brutally beat
and then threatened to kill S.S. immediately after she rejected his request to
continue to work on their relationship. The factual basis underlying the charge
was therefore clear well before trial. And at trial, S.S. testified that
Merriweather beat her, then threatened to kill her with a knife shortly after she
told him that she no longer wanted to work to mend their marriage. Moreover,
when discussing the intimidation charge during the State’s closing argument,
the prosecuting attorney stated that it was, “[i]ntimidation with a deadly
weapon when he threatened to kill her because she wouldn’t give him a second
chance.” Tr. p. 133. Under these facts and circumstances, we cannot say that
the lack of factual details in the charging information constitutes fundamental
error. See Fleming, 85 N.E.3d at 630.
[16] Merriweather also argues that the charging information suffers from an
additional defect in that it alleged that he committed intimidation by
threatening S.S. with the intent that she either (1) be placed in fear of retaliation
for a prior lawful act or (2) engage in conduct against her will. Because the
information alleged two ways of committing the crime of intimidation,
Merriweather contends that this rendered the information bad for duplicity.
[17] We have explained before that “[o]ne of the well-established rules of criminal
pleading is that there can be no joinder of separate and distinct offenses in one
and the same count. A single count of a charging pleading may include but a
single offense.” Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010), trans.
denied. When one count improperly alleges two or more separate offenses,
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“duplicity” occurs. Id. Such duplicity is unacceptable because it “‘prevents the
jury from deciding guilt or innocence on each offense separately and may make
it difficult to determine whether the conviction rested on only one of the
offenses or both.’” Id. (quoting 5 Wayne R. LaFave et al., Criminal Procedure §
19.3(c) (3d ed. 2007)). Whether a charging instrument is duplicitous generally
turns on a proper construction of the criminal statute at issue. Id.
[18] The State may, however, allege alternative means or theories of culpability
when prosecuting the defendant for a single offense. Id. As stated by our
supreme court in Baker v. State:
[A] source of concern stems from jury instructions that are
delivered disjunctively or charging instruments that allege the
defendant engaged in either “X” or “Y” behavior. In this regard,
our jurisprudence has drawn a distinction between disjunctive
instructions and charging instruments allowing for alternative
means of committing an offense, versus alternative separate
criminal offenses.
948 N.E.2d 1169, 1175 (Ind. 2011). There is accordingly no error when the
State “merely present[s] the jury with alternative ways to find the defendant
guilty as to one element,” as “‘[d]ifferent jurors may be persuaded by different
pieces of evidence, even when they agree upon the bottom line.’” Cliver v. State,
666 N.E.2d 59, 67 (Ind. 1996) (quoting Schad v. Arizona, 501 U.S. 624, 631–32
(1991) (Souter, J., plurality opinion)); accord Vest, 930 N.E.2d at 1225–26.
[19] Merriweather argues that the information charging him with intimidation is
duplicitous because it alleges that he committed intimidation under two
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subsections. That is, he contends that he was charged with, in the words of the
court in Baker, alternative separate offenses, not alternative means of
committing one offense. We are not so sure.
[20] In support of his argument that the charging information was duplicitous,
Merriweather cites Marshall v. State, 602 N.E.2d 144 (Ind. Ct. App. 1992), trans.
denied, a case in which the defendant had been arrested after touching the
genital area of an undercover police officer in a public restroom. The
information charging the defendant with public indecency stated that he “did
unlawfully and knowingly, in a public place . . . (engage in the act of sexual
intercourse) (engage in deviate sexual conduct, to-wit: ____) (appear in a state
of nudity) (fondle the genitals of [an undercover police officer]).” Id. at 148. The
information was based on a pre-printed form, and whoever filled out the form
had failed to delete the inapplicable portions of the form. The Marshall court
stated that this appeared to have the effect of charging the defendant with all
four varieties of public indecency. Id. at 149. The court therefore concluded that
the information was “bad for duplicity and could not have withstood attack by
a timely motion to dismiss.” Id. This would appear to support Merriweather’s
argument that the information charging him with intimidation was bad for
duplicity.
[21] However, in Tague v. State, 539 N.E.2d 480, 481–82 (Ind. 1989), our supreme
court held that the trial court did not abuse its discretion when it permitted the
State to amend the information charging the defendant with child molesting by
deviate sexual conduct to add “and/or sexual intercourse,” because the crime
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would be “proven in the event of either of the alternative acts described in the
statute.” The court concluded that the amendment simply alleged that Tague
committed a single crime of child molesting by alternate means. Id. Thus, the
amendment did not alter the theory of the case or the identity of the crime
charged.
[22] Similarly, in Cliver, our supreme court held that the trial court did not err by
permitting the State to amend the information charging defendant with
conspiracy to include the specification of multiple, alternate overt acts
connected by the conjunction “or.” 666 N.E.2d at 67. And in Davis v. State, 476
N.E.2d 127, 132 (Ind. Ct. App. 1985), trans. denied, this court held that an
indictment was not duplicitous where it alleged neglect of a child by
endangerment “and/or” abandonment because it was based on two acts, either
of which constituted neglect, and the State needed only to prove that the
defendants either “endangered or abandoned” their child.
[23] We think this case is more akin to Tague, Cliver, and Davis than it is to Marshall.
Here, the State charged Merriweather with a single criminal offense—
intimidating S.S.—and alleged two means of finding him guilty of this single
offense, i.e., by threatening her with the intent of either placing her in fear of
retaliation for a prior lawful act or with the intent that she engage in conduct
against her will. We therefore believe that the charging information was not bad
for duplicity.
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[24] But even if we were to agree with Merriweather that the charging information
in the present case were duplicitous like the one in Marshall, the court in that
case further concluded that, although the charging information was improper, it
did not amount to fundamental error because it alleged that the defendant
fondled the genitals of the undercover officer on a specific date and location,
and the defendant failed to demonstrate how his defense was impaired by the
inadequacy of the information. 602 N.E.2d at 149.
[25] The same is true here. Even if the charging information was duplicitous, it did
not amount to fundamental error. The information alleged that Merriweather
intimidated S.S. on a specific date and location. And it was clear from the
probable cause affidavit that the State’s theory of the case was that
Merriweather threatened S.S. because she did not want to continue to work on
their relationship. That is, Merriweather threatened S.S. with the intent to place
her in fear of retaliation for her prior lawful act of wanting to end her marriage
with Merriweather. And again, the prosecuting attorney specifically argued to
the jury that Merriweather intimidated S.S. “because she wouldn’t give him a
second chance.” Tr. p. 133. For all of these reasons, we conclude that the
charging information did not amount to fundamental error.
II. The Trial Court’s Jury Instructions Did Not Constitute Fundamental
Error
[26] In a similar vein, Merriweather contends that the trial court’s manner of
instructing the jury regarding jury unanimity constitutes fundamental error. The
manner of instructing the jury is left to the discretion of the trial court. Fuentes v.
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State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied. On appeal, we will
reverse only when the instructions amount to an abuse of discretion. Id. To
constitute an abuse of discretion, the instructions given must be erroneous, and
the instructions taken as a whole must misstate the law or otherwise mislead the
jury. Id. We will consider jury instructions as a whole and in reference to each
other, not in isolation. Id. Here, Merriweather did not object to the trial court’s
instructions, and must therefore establish fundamental error in order for us to
reverse the trial court’s judgment.
In order to be fundamental, the error must represent a blatant
violation of basic principles rendering the trial unfair to the
defendant and thereby depriving the defendant of fundamental
due process. The error must be so prejudicial to the defendant’s
rights as to make a fair trial impossible. In considering whether a
claimed error denied the defendant a fair trial, we determine
whether the resulting harm or potential for harm is substantial.
Harm is not shown by the fact that the defendant was ultimately
convicted. Rather, harm is determined by whether the
defendant’s right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth
to which he would have been entitled.
Id. at 74 (quoting Baker, 948 N.E.2d at 1178).
[27] Merriweather’s claim regarding the jury instructions mirrors his claim regarding
the charging information, i.e., that the jury instruction defining the crime of
intimidation permitted the jury to find him guilty of intimidation by threatening
S.S. with the intent to either place her in fear of retaliation for a prior lawful act
or with the intent that she engage in conduct against her will.
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[28] A similar issue was addressed by our supreme court in Baker. In that case, the
defendant was charged with molesting three children, and the jury heard
evidence that he committed multiple acts of molestation against each victim.
On appeal, Baker argued that some jurors may have relied on different evidence
than the other jurors to convict on each of the three counts. Id. at 1177. On
appeal, our supreme court held that
[t]he State may in its discretion designate a specific act (or acts)
on which it relies to prove a particular charge. However if the
State decides not to so designate, then the jurors should be
instructed that in order to convict the defendant they must either
unanimously agree that the defendant committed the same act or
acts or that the defendant committed all of the acts described by
the victim and included within the time period charged.
Baker, 948 N.E.2d at 1177 (citing People v. Jones, 792 P.2d 643, 649–50 (Cal.
1990)); State v. Muhm, 775 N.W.2d 508, 520 (S.D. 2009) (following Jones);
Thomas v. People, 803 P.2d 144, 153–54 (Colo. 1990) (following Jones)).
[29] In Baker, the State did not designate which specific act or acts of molestation it
relied on to support each of the three counts naming the three victims.2 Id. at
1178. And the trial court instructed the jury regarding unanimity as follows:
“Your verdicts must represent the considered judgment of each
juror. In order to return a verdict of guilt or innocence you must
all agree. . . . Upon retiring to the jury room the Foreperson will
2
But the State was not required to do so. See id.
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preside over your deliberations and must sign and date the
verdicts to which you agree. Each verdict must be unanimous.”
Id. (record citation omitted). The Baker court concluded that this instruction
was inadequate because it “did not advise the jury that in order to convict Baker
the jury must either unanimously agree that he committed the same act or acts
or that he committed all of the acts described by the victim and included within
the time period charged.” Id.
[30] Here, as in Baker, the charging information did not designate a specific act or
acts the State relied upon to support the intimidation charge. Merriweather
contends that, also as in Baker, the trial court’s instructions did not advise the
jury that in order to convict Merriweather of intimidation that it must
unanimously agree that he threatened S.S. with the same intent—either to place
her in fear of retaliation for a prior lawful act or that she engage in conduct
against her will.3 Thus, Merriweather argues that some of the jurors might have
believed that he intimidated S.S. with the former intent, and some jurors might
have believed that he intimidated S.S. with the latter intent.
3
We are unable to verify Merriweather’s claims regarding the trial court’s instruction on unanimity, as the
record before us does not contain all of the trial court’s instructions to the jury. For this reason, we would be
within our discretion to consider this issue waived for purposes of appeal. See Shelby v. State, 986 N.E.2d 345,
370 (Ind. Ct. App. 2013) (noting that it is an appellant’s duty to present an adequate record clearly showing
the alleged error), trans. denied. We review claims of instructional error by considering the instructions as a
whole, and in reference to one another, not in isolation. Fuentes, 10 N.E.3d at 73. It is therefore critical that
an appellant presenting a claim of instructional error provide the court on appeal with all of the court’s
instructions, not simply the one being challenged.
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[31] Had Merriweather objected to the trial court’s unanimity instruction and
tendered the specific unanimity instruction approved of in Baker, we might be
required to reverse his conviction. But he did neither, and this is where the
similarity of his case to Baker dooms Merriweather’s argument.
[32] The defendant in Baker also failed to object to the trial court’s instructions or
tender an instruction on the unanimity requirement. Our supreme court
therefore concluded that Baker’s claim of instructional error was waived. Id.
The court further concluded that the instructional issue did not amount to
fundamental error, writing:
In this case the only issue was the credibility of the alleged
victims. The only defense was to undermine the young women’s
credibility by, among other things, pointing out inconsistencies in
their statements, and advancing the theory that they were lying in
retaliation for Baker getting [one of the victims] into trouble.
Essentially “this case is about whether or not these kids will lie
about [Baker] and make stuff up about him. . . .” “Ultimately the
jury resolved the basic credibility dispute against [Baker] and
would have convicted the defendant of any of the various
offenses shown by the evidence to have been committed.” We
conclude Baker has not demonstrated that the instruction error in
this case so prejudiced him that he was denied a fair trial.
Baker, 948 N.E.2d at 1179 (quoting Muhm, 775 N.W.2d at 521).
[33] The same is true here. Merriweather’s defense to the intimidation charge had
nothing to do with his intent. Instead, he simply claimed that he did not
threaten S.S. with a knife or intimidate her. In fact, he effectively admitted to
beating S.S., but steadfastly denied threatening her with a knife. In contrast,
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S.S. unequivocally testified that Merriweather threatened to kill her with a
knife. And S.S.’s mother testified that, shortly after the beating, S.S. told her
that Merriweather pulled out a knife and threatened to kill her after S.S. told
him that she no longer wanted to be with him. Because Merriweather’s intent
was not the focus of his defense, we conclude, as did the court in Baker, that the
failure to instruct the jury on the unanimity requirement was not fundamental
error. See 948 N.E.2d at 1179; see also Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct.
App. 2015) (concluding that trial court’s failure to give defendant’s incomplete
instruction on jury unanimity was not fundamental error where the case
“largely turn[ed] on credibility.”), trans. denied.
III. The State Presented Sufficient Evidence to Support Merriweather’s
Conviction for Intimidation
[34] Merriweather next asserts that the State failed to present sufficient evidence to
support his conviction for Level 5 felony intimidation. When reviewing a claim
that the evidence is insufficient to support a conviction, we neither reweigh the
evidence nor judge the credibility of the witnesses. Harrison v. State, 32 N.E.3d
240, 247 (Ind. Ct. App. 2015), trans. denied. We instead respect the exclusive
province of the trier of fact to weigh any conflicting evidence. Id. We consider
only the probative evidence supporting the verdict and any reasonable
inferences that may be drawn from this evidence. Id. We will affirm if the
probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
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[35] As set forth above, to convict Merriweather of intimidation, the State was
required to prove that he communicated a threat to S.S., with the intent that
S.S. engage in conduct against her will or that she be placed in fear for a prior
lawful act. I.C. § 35-45-2-1(a)(1).4 To convict Merriweather of Level 5 felony
intimidation, the State was further required to show that, while committing the
above acts, Merriweather drew or used a deadly weapon. Id. at § 1(b)(2)(A).
[36] As part of his claim that the State failed to present sufficient evidence to support
his intimidation conviction, Merriweather again complains that the jury was
given two means of finding him guilty. This is an argument that we have
adequately addressed above. And, as discussed, it is clear from the probable
cause affidavit and the prosecuting attorney’s closing argument that the State’s
theory of the case was that Merriweather threatened to kill S.S. with a knife
with the intent to place her in fear of retaliation for the prior lawful act of
rejecting his request that they work on their relationship. This leads us to
Merriweather’s main argument on this issue, which is that the State failed to
4
Merriweather also argues that there was insufficient evidence to support his conviction for intimidation
because he did not threaten S.S. with the intent that she engage in conduct against her will. As explained
above, the State’s theory of the case did not involve this means of committing the crime of intimidation. And
because there is sufficient evidence to show that Merriweather committed intimidation by threatening S.S.
with the intent that she be placed in fear of retaliation for a prior lawful act, we need not address whether
there was sufficient evidence to convict Merriweather on this alternative theory.
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prove that he threatened S.S. with the intent to place her in fear of retaliation
for a prior lawful act.5
[37] “‘[I]t is apparent that the legislature intended to require the State to prove that
the victim had engaged in a prior act, which was not contrary to the law, and
that the defendant intended to repay the victim for the prior lawful act.’”
Fleming, 85 N.E.3d at 630 (quoting Casey v. State, 676 N.E.2d 1069, 1072 (Ind.
Ct. App. 1997)). Merriweather notes that, when S.S. was asked why he
threatened to kill her, she indicated that she did not know. Tr. p. 37. However,
immediately thereafter, S.S. testified that the whole incident started after she
stated she no longer wanted to work on their marriage. Id. Intent is a mental
function and, absent a confession, usually must be proved by circumstantial
evidence. Hightower v. State, 866 N.E.2d 356, 368 (Ind. Ct. App. 2007), trans.
denied; see also McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014)
(noting that the requisite intent under the intimidation statute may be proved by
circumstantial evidence). “Intent can be inferred from a defendant’s conduct
and the natural and usual sequence to which such conduct logically and
reasonably points.” McCaskill, 3 N.E.3d at 1050. On appeal, 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 reasonable persons could not form inferences
with regard to each material element of the offense so as to ascertain a
5
Merriweather makes no argument that there was insufficient evidence that he threatened S.S. He claims
only that there was insufficient evidence to prove that he made the threat with the intent to place S.S. in fear
of retaliation for a prior lawful act or with the intent that she engage in conduct against her will.
Court of Appeals of Indiana | Opinion 18A-CR-2270 | June 28, 2019 Page 19 of 27
defendant’s guilt beyond a reasonable doubt. Id. (citing Defries v. State, 264 Ind.
233, 342 N.E.2d 622, 625 (1976)).
[38] Considering only the evidence favorable to the jury’s verdict, we conclude that
the evidence presented by the State is sufficient to support Merriweather’s
conviction for intimidation. As set forth above in the statement of facts,
Merriweather asked his then-wife S.S. if they could work on their relationship.
When S.S. responded negatively, effectively announcing her desire to end her
marriage, Merriweather brutally beat her, pulled a knife on her, and threatened
to kill her. From this, the jury could reasonably infer that Merriweather
threatened to kill S.S. with the knife with the intent that she be put in fear of
retaliation for the prior lawful act of refusing to work on her relationship with
Merriweather.
[39] As we held in Chastain v. State, 58 N.E.3d 235, 241 (Ind. Ct. App. 2016), trans.
denied, “a conviction under the intimidation statute should not depend upon a
precise parsing of the threatening language used by a defendant or a detailed
timeline of when a threat was issued in relation to a prior lawful act.” (citing
Roar v. State, 52 N.E.3d 940, 944 (Ind. Ct. App. 2016), trans. granted, adopted in
relevant part, 54 N.E.3d 1001 (Ind. 2016)). What is required is that there be a
clear nexus between the prior lawful act and the defendant’s threat. Id.
[40] In Chastain, the victim decided to intervene when he saw the defendant verbally
abuse and shove a woman. Id. at 236. After exchanging words with the victim,
Chastain retrieved a handgun from his truck, cocked it, pointed it at the victim
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and stated, “I’ll f***ing kill you,” several times. Id. at 237 (record citation
omitted). Although the charging information did not specify what prior act the
victim had engaged in for which Chastain intended to place him in fear of
retaliation, at trial, the prosecutor argued that the prior lawful act was the
victim’s interruption of the fight between Chastain and the woman. Id. On
appeal, we affirmed the conviction, holding:
we believe that persons in a position like that in which [the
victim] found himself should be able to attempt to defuse
situations like the one between Chastain and [the woman]
without being threatened with the use of deadly force for doing
so. We believe the legislature intended to criminalize such
conduct when it enacted the intimidation statute. To the extent
Chastain contends that [the victim] was engaged in a continuing
act of interfering with Chastain’s argument when the threat was
issued, the reasonable inference most favorable to the jury’s
verdict is that Chastain intended to threaten [the victim] for his
prior, completed lawful act of having already interrupted
Chastain’s argument. There is no requirement in the intimidation
statute that the prior lawful act has to be completed for any
considerable length of time before a threat is made.
Id. at 240–41.
[41] We followed Chastain in Fleming v. State, 85 N.E.3d 626 (Ind. Ct. App. 2017). In
that case, the victim walked onto his porch after he heard the defendant yell
obscenities at the victim’s wife. When he did so, Fleming cursed at the victim.
When the victim did not respond, Fleming stated that he was “going to come
over and ‘kick [the victim’s] ass because [the victim] came out” onto his porch.
Id. at 632 (transcript citation omitted). We held that this was sufficient to show
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that the victim committed “a distinct lawful act by stepping out onto his porch
when he heard his wife being insulted,” and that Fleming’s threats were in
direct response to this. Id.
[42] The same is true here. S.S. committed a distinct lawful act—refusing
Merriweather’s request to work on their relationship—and Merriweather then
almost immediately attacked S.S. and threatened to kill her. It is clear that
Merriweather’s threat was in direct response to S.S.’s prior lawful act. We
therefore find this case distinguishable from those in which this court has
previously held that the evidence was insufficient to show that the defendant’s
threat was in response to a prior lawful act. See, e.g., Blackmon v. State, 32
N.E.3d 1178, 1182–83 (Ind. Ct. App. 2015) (evidence insufficient to show that
defendant threatened victim with intent to place victim in fear of retaliation for
the prior lawful act of stealing water from his daughter’s home where there was
no evidence that he actually caught the victim stealing water and defendant did
not pull knife until after victim threatened to call the police); Ransley v. State,
850 N.E.2d 443, 446–47 (Ind. Ct. App. 2006) (evidence insufficient to support
conviction for intimidation where defendant threatened victim with the intent
that victim not come onto his property, which is not a prior act), trans. denied;
Casey, 676 at 1072–73 (evidence insufficient to support intimidation conviction
where State did not specify which of victim’s prior acts led to the threats and
only alleged that defendant threatened victim with baseball bat and said,
“you’re next, bitch,” and there was no evidence that threat was directed toward
victim’s prior actions).
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[43] In short, the State presented sufficient evidence to show that Merriweather
threatened S.S. to place her in fear of retaliation for the prior lawful act of
rejecting his proposal to work on their marriage.
IV. Merriweather’s Twelve-Year Sentence is Not Inappropriate
[44] Lastly, Merriweather argues that his twelve-year sentence is inappropriate.
Even if a trial court acts within its statutory discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by the trial court. Trainor v.
State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)). This authority is
implemented through Indiana Appellate Rule 7(B), which provides that the
court on appeal “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.”
[45] Although we may revise a sentence on appeal, we still exercise deference to a
trial court’s sentencing decision, as Appellate Rule 7(B) requires us to give “due
consideration” to that decision, and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions. Id. The
principal role of appellate review should be to attempt to “leaven the outliers”
and identify guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve what we perceive to
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be a “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008).
[46] Our review under Appellate Rule 7(B) should focus on “the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count.” Id. The question
is not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055,
1063 (Ind. Ct. App. 2015). It is the defendant’s burden on appeal to persuade us
that the sentence imposed by the trial court is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006). When we review the appropriateness of a
sentence, we consider “the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell, 895 N.E.2d at 1224.
[47] Merriweather was convicted of Level 5 felony domestic battery, Level 5 felony
intimidation, and Level 6 felony domestic battery. The sentencing range for a
Level 5 felony is one to six years, with an advisory sentence of three years. Ind.
Code § 35-50-2-6(b). The sentencing range for a Level 6 felony is six months to
two and one-half years, with an advisory sentence of one year. Ind. Code § 35-
50-2-7(b). As a result of the habitual offender adjudication, the trial court was
also required to enhance one of Merriweather’s sentences by two to six years.
See Ind. Code § 35-50-2-8(i)(2).
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[48] The trial court sentenced Merriweather to concurrent sentences of six years on
the Level 5 felony domestic battery conviction, six years on the Level 5 felony
intimidation conviction, and two and one-half years on the Level 6 domestic
battery conviction. The trial court also enhanced the sentence on Count I by six
years due to the habitual offender finding, for an aggregate sentence of twelve
years.6
[49] We first address the nature of the offense. Merriweather brutally attacked S.S.
because she rejected his request that they work on their deteriorating marriage.
He also appears to have been jealous, as he claimed to have heard S.S. speaking
on the telephone with another man. Merriweather struck S.S. with such ferocity
that he broke her jaw, which required surgery to mend. As a result, S.S. now
permanently has metal plates and screws in her jaw. Merriweather also
slammed S.S.’s head into a kitchen appliance and furniture. Then, he stomped
on her while she was in a fetal position on the floor. He also threatened to kill
her with a knife. And he did all of this while his children and S.S.’s children
6
Although Merriweather notes that he was sentenced to the maximum possible on each count and also
received the most severe habitual offender enhancement, the trial court did order all the sentences to be
served concurrently. Thus, although Merriweather received a severe sentence, he did not receive the
maximum possible sentence.
Neither domestic battery nor intimidation are “crimes of violence” for purposes of the consecutive sentence
statute, Indiana Code section 35-50-1-2(a), and the most serious crime for which Merriweather was convicted
was a Level 5 felony. Thus, even if the trial court opted to impose consecutive, as opposed to concurrent,
sentences, the consecutive terms could not exceed seven years. See id. at § 2(d)(2). Thus, the most the trial
court could have sentenced Merriweather to was twelve years plus additional consecutive sentences not to
exceed seven years, for a maximum statutory sentence of nineteen years.
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were in the home. He later attempted to avoid responsibility for his criminal
actions by telling S.S. that she did not have to testify against him. See Tr. p. 51.
[50] In addition to the brutal nature of Merriweather’s offenses, his sentence is
further supported by Merriweather’s character, as evidenced by his extensive
criminal history. Following juvenile probation in 1985 for what would have
been burglary if committed by an adult, Merriweather continued to commit
numerous crimes and has since been convicted of five felonies and eight
misdemeanors. Specifically, he was convicted for Class B felony burglary in
1988, Class C felony burglary in 1998, Class C felony carrying a handgun
without a license in 2001, and two counts of Class D felony domestic battery in
2010. His misdemeanor convictions include criminal trespass, possession of
marijuana, operating a motor vehicle with a suspended license, false informing,
domestic battery, and invasion of privacy. He has also had his parole and
probation revoked.
[51] We have noted before that “the significance of a defendant’s criminal history
varies based on the gravity, nature, and number of prior offenses as they relate
to the current offense.” Chappell v. State, 966 N.E.2d 124, 134 (Ind. Ct. App.
2012), trans. denied. Here, not only does the sheer number of Merriweather’s
prior convictions reflect poorly on his character, so too does the fact that three
of these prior convictions were for domestic battery. See id. (holding that
defendant’s prior convictions for breaking and entering and trespass reflected
poorly on his character as it related to his instant conviction for burglary); see
also Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior
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conviction for Operating While Intoxicated (“OWI”) would be a significant
aggravator in a subsequent alcohol-related offense); Simmons v. State, 962
N.E.2d 86, 93 (Ind. Ct. App. 2011) (noting that prior OWI convictions, as they
related to present offense of OWI, reflected poorly on defendant’s character and
justified imposition of maximum eight-year sentence).
[52] Considering both the brutal nature of Merriweather’s offenses and his poor
character, as reflected by his extensive criminal history, we can only conclude
that the twelve-year sentence imposed by the trial court was not inappropriate.
Conclusion
[53] The information charging Merriweather with intimidation did not constitute
fundamental error due to duplicity, nor did the trial court fundamentally err in
instructing the jury regarding the intimidation charge. Further, the State
presented evidence sufficient to support Merriweather’s conviction for Level 5
felony intimidation, and, lastly, Merriweather’s aggregate sentence of twelve
years is not inappropriate. Accordingly, we affirm the judgment of the trial
court.
[54] Affirmed.
May, J., and Brown, J., concur.
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