Cory J. Brightharp v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 14 2020, 8:48 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
David A. Felts Curtis T. Hill, Jr.
Locke & Witte Attorney General of Indiana
Fort Wayne, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cory J. Brightharp, September 14, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-649
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1912-F6-1527
Bailey, Judge.
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Case Summary
[1] Cory J. Brightharp (“Brightharp”) challenges his convictions and sentence for
Intimidation1 and Criminal Recklessness,2 as Level 6 felonies. We affirm.
Issues
[2] Brightharp presents three issues for review:
I. Whether sufficient evidence supports his conviction for
Intimidation;
II. Whether his sentence is inappropriate; and
III. Whether he was denied the effective assistance of trial
counsel.
Facts and Procedural History
[3] During the fall of 2019, Timothy Hardy (“Hardy”) was living in a Fort Wayne
residence with his daughters and his fiancée, Candice Bibs (“Bibs”). Hardy
observed that Brightharp sometimes slept in a chair in an alley across the street
from Hardy’s residence. One day, Brightharp showed up outside Hardy’s
house and began to confront Hardy about “the woman in his house” and an
alleged debt she owed Brightharp. (Tr. at 81.) Thereafter, Brightharp
1
Ind. Code § 35-45-2-1(a).
2
I.C. § 35-42-2-2(a).
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continued to confront Hardy at least weekly, with the common themes that
Bibs owed Brightharp money, Hardy should intervene, and it was unfair that
Bibs was living with Hardy while Brightharp had been left homeless. Hardy
and Bibs frequently called the police after these encounters.
[4] In November, Hardy and Brightharp were at a Phillips 66 convenience store on
Wayne Trace Road when Brightharp again confronted Hardy. On this
occasion, an employee of Phillips 66 called for police assistance and Brightharp
left the premises.
[5] During the early morning hours of December 1, 2019, Hardy returned to the
same Phillips 66 store to purchase a lottery ticket. He sat down to fill out the
form and noticed that Brightharp sat down nearby. Brightharp expressed his
desire to “talk about the woman in [Hardy’s] house” and questioned why “she
had not paid the money” and Brightharp had “lost the house.” (Id. at 85.)
Hardy got up and moved toward the cash register, telling Brightharp that “he
had a personal problem and probably needs to go to small claims.” (Id.)
[6] As Hardy paid for his purchases and walked to his truck, Brightharp followed,
calling Hardy names such as “punk” and “bitch.” (Id. at 86.) He claimed that
Hardy “hid behind his truck and the police.” (Id.) As Hardy prepared to drive
away, he saw his friend, Dave Cotton (“Cotton”), arrive at the store. Hardy
decided to get out of his truck and warn Cotton about Brightharp.
[7] When Hardy and Cotton began to talk, they saw Brightharp approach and pull
out a long-blade knife. Brightharp got within two or three feet of Hardy and
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pointed the knife directly at Hardy, saying: “it’s going to be your day.” (Id.)
Hardy raised his hands and moved his body sideways in an attempt to protect
an artery if Brighton lunged. Brightharp repeated such phrases as “I’ve got
nothing to lose” and “I’ve got something for you” until Hardy persuaded him
to “fight like men with [only] their hands.” (Id. at 90, 91, 128.) Brightharp then
dropped his knife, reached into his pocket and retrieved a second knife, and
placed them both on the ground. He began to remove his outer clothing, as if
preparing for a fight.
[8] Police officers, summoned by employee Priscilla Guerrero (“Guerrero”),
arrived and interviewed those present. They placed Brightharp under arrest.
On December 5, 2019, Brightharp was charged with Intimidation and Criminal
Recklessness. On February 19, 2020, a jury convicted Brightharp as charged.
[9] At the sentencing hearing, conducted on March 12, 2020, Brightharp confirmed
the accuracy of the Presentence Investigation Report (“PSI”). When
interviewed, Brightharp had denied any history of mental illness. His counsel
interjected that he believed the PSI inaccurately portrayed the state of
Brightharp’s mental health. According to defense counsel, Brightharp was
competent and able to assist in his defense, but counsel asked that the trial court
“take into consideration for sentencing purposes [Brightharp’s] mental health
issues.” (Id. at 223.) The trial court imposed upon Brightharp concurrent
sentences of two years and 183 days for Criminal Recklessness, with one year
suspended, and two years, with one year suspended, for Intimidation.
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Additionally, the trial court ordered that Brightharp be given a psychological
assessment. Brightharp now appeals.
Discussion and Decision
[10] Pursuant to Indiana Code Section 35-45-2-1(a), “A person who communicates
a threat with the intent: . . . that another person engage in conduct against the
other person’s will; [or] that another person be placed in fear of retaliation for a
prior lawful act . . . commits intimidation, a Class A misdemeanor.” The
offense is elevated to a Level 6 felony if the threat is to commit a forcible felony.
Id. Here, the Information alleged that Brightharp communicated a threat to
Hardy, with the intent that Hardy engage in conduct against his will or be
placed in fear of retaliation for a prior lawful act, and the threat was to commit
a forcible felony. In closing argument, the State contended that Hardy was
goaded into a fight and that he had engaged in prior lawful acts of having a
relationship with Bibs and calling for police assistance.
[11] On appeal, Brightharp argues that the State presented insufficient evidence to
show he intended that Hardy engage in conduct against Hardy’s will or be
placed in fear of retaliation for a prior lawful act. Brightharp argues that Hardy
voluntarily “tried to engage Brightharp in a fight” and had verbally accosted
Brightharp in an unlawful manner. Appellant’s Brief at 12. For the purposes of
the crime of Intimidation, a threat is defined, in relevant part, as “an
expression, by words or action, of an intention to ... unlawfully injure the
person threatened or another person, or damage property ... [or] commit a
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crime.” I.C. § 35–45–2–1(d). “A defendant’s intent may be proven by
circumstantial evidence alone, and knowledge and intent may be inferred from
the facts and circumstances of each case.” Chastain v. State, 58 N.E.3d 235, 240
(Ind. Ct. App. 2016), trans. denied.
[12] Our standard of review for sufficiency is clear: we will consider only the
evidence most favorable to the verdicts and the reasonable inferences to be
drawn therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will
affirm a conviction if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id. We will
neither reweigh the evidence nor reassess the credibility of witnesses. Id.
[13] Hardy testified to having some history with Brightharp with the latter
repeatedly insisting that Hardy’s fiancée owed Brightharp money and Hardy
should answer for that debt. Hardy had responded by calling police. Hardy
testified further that, on December 1, 2019, Brightharp approached Hardy,
accused him of hiding behind the police, pointed a knife directly at him, and
announced “it’s going to be your day.” (Tr. at 90.) Cotton testified that
Brightharp was yelling and screaming such phrases as “I’ve got something for
you” and confirmed that Brightharp pulled out a knife and pointed it directly at
Hardy. (Id. at 128.) Brightharp persisted in pointing the knife at Hardy and
continuing his diatribe even after Guerrero came outside the convenience store
and tried to reason with Brightharp. Brightharp disarmed himself only after
being challenged to a fight without weapons. Police officers recovered two
knives in proximity to Brightharp.
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[14] Indiana Code Section 35-45-2-1(a), setting forth the elements of the crime of
Intimidation, is written in the disjunctive. The State was required to establish
beyond a reasonable doubt that Brightharp intended that Hardy engage in
conduct against his will or intended to place Hardy in fear of retaliation for a
prior lawful act. The eyewitness testimony and physical evidence is sufficient
to permit the factfinder to conclude beyond a reasonable doubt that Brightharp
intended to place Hardy in fear of retaliation for a prior lawful act. Brightharp’s
argument that Hardy openly expressed a desire to fight, and thus Brightharp did
not intend that Hardy commit an act against Hardy’s will, is at bottom an
invitation to reweigh the evidence. This we cannot do. Leonard, 73 N.E.3d at
160. Sufficient evidence supports Brightharp’s conviction of Intimidation.
Sentencing
[15] Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by a trial court. Sanders v.
State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans. denied. This appellate
authority is embodied in Indiana Appellate Rule 7(B). Id. Under 7(B), the
appellant must demonstrate that his sentence is inappropriate in light of the
nature of his offense and his character. Id. (citing Ind. Appellate Rule 7(B)). In
these instances, deference to the trial courts “should prevail unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
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[16] The Indiana Supreme Court has explained that the principal role of appellate
review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’
result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The
question is not whether another sentence is more appropriate, but whether the
sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008).
[17] A defendant convicted of a Level 6 felony is subject to a sentencing range of six
months to two and one-half years, with one year as the advisory sentence. I.C.
§ 35-50-2-7(b). Brightharp received concurrent sentences of two and one-half
years and two years, with one year of each suspended to probation. He
contends that the nature of the offenses and his character do not support his
aggregate sentence. In particular, he emphasizes that there were indications of
his mental instability and that the most serious offenses in his criminal history
are remote in time.
[18] First, we look to the nature of the offenses. Brightharp followed a patron of a
convenience store through the store and into the parking lot, yelling insults and
obscenities. Cotton heard the yelling and screaming and became concerned.
After he moved into very close proximity to Hardy, Brightharp pulled out a
long-blade knife and announced, “It’s going to be somebody’s day. I have
nothing to lose.” (Tr. at 90.) Guerrero, fearful for her safety and that of her
customers, encouraged Brightharp to drop the knife. He refused to do so until
challenged to a fistfight. Nothing in the nature of the offenses, involving several
individuals, militates toward a lesser sentence.
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[19] Next, we consider the defendant’s character. Brightharp has an extensive
criminal history consisting of four prior felony convictions and two
misdemeanor convictions. As the trial court observed, the most serious of these
convictions (for Gross Sexual Battery and Drug Trafficking in the State of
Ohio) were remote in time. However, Brightharp was serving a suspended
sentence for Criminal Trespass when arrested in this case. Brightharp’s
attorney stated at the sentencing hearing that Brightharp may have received
mental health treatment at some time but discontinued prescribed medication.
When interviewed for the PSI, Brightharp denied that he suffered from a mental
illness.3
[20] In sum, Brightharp has not presented compelling evidence that portrays in a
positive light the nature of the offenses or his character. Absent such evidence,
we are unpersuaded that his sentence is inappropriate.
3
To the extent that Brightharp suggests that the trial court did not accord proper weight to the remoteness of
some of his criminal history or to the defense attorney’s suggestion that Brightharp suffers from a mental
illness, the contentions are not available for review. Our Indiana Supreme Court has succinctly summarized
the sentencing review framework:
The imposition of sentence and the review of sentences on appeal should proceed as follows:
1. The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing
a particular sentence.
2. The reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal
for abuse of discretion.
3. The relative weight or value assignable to reasons properly found or those which should have been found is
not subject to review for abuse.
4. Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B).
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
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Effectiveness of Counsel
[21] Finally, Brightharp claims that he was denied the effective assistance of trial
counsel because counsel did not tender a jury instruction relative to mental
illness. We review ineffectiveness claims as follows:
Ineffective assistance of counsel claims are evaluated under the
two-part test articulated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, [the
appellant] must show: 1) that counsel’s performance was
deficient based on prevailing professional norms; and 2) that the
deficient performance prejudiced the defense. Ward v. State, 969
N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687, 104
S. Ct. 2052).
In analyzing whether counsel’s performance was deficient, the
Court first asks whether, “‘considering all the circumstances,’
counsel’s actions were ‘reasonable [ ] under prevailing
professional norms.’” Wilkes, 984 N.E.2d at 1240 (quoting
Strickland, 466 U.S. at 668, 104 S. Ct. 2052). Counsel is afforded
considerable discretion in choosing strategy and tactics, and
judicial scrutiny of counsel’s performance is highly deferential.
Id.
To demonstrate prejudice, “the defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. 2052.
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Stevens, 770 N.E.2d at 746.
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Counsel is afforded considerable discretion in choosing strategy
and tactics and these decisions are entitled to deferential review.
Id. at 746-47 (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052).
Furthermore, isolated mistakes, poor strategy, inexperience and
instances of bad judgment do not necessarily render
representation ineffective. Id. at 747 (citations omitted).
Weisheit v. State, 109 N.E.3d 978, 983-84 (Ind. 2018).
[22] Brightharp argues that counsel should have tendered a jury instruction on
mental illness so that (1) the jury could have concluded that he lacked the
requisite criminal intent and (2) he could have avoided placement in the
Department of Correction and instead been given “a proper alternative
sentence.” Appellant’s Brief at 16.
[23] Had Brightharp raised and supported an insanity defense, he could have
avoided criminal liability and incarceration. Even where the State meets its
burden to prove the elements of a criminal offense beyond a reasonable doubt, a
defendant in Indiana can avoid criminal responsibility by successfully raising
and establishing the “insanity defense.” Galloway v. State, 938 N.E.2d 699, 708
(Ind. 2010) (citing I.C. § 35–41–3–6(a)). “A successful insanity defense results
in the defendant being found not responsible by reason of insanity.” Id. The
defendant bears the burden of establishing the insanity defense by a
preponderance of the evidence and must establish both (1) that he or she suffers
from a mental illness and (2) that the mental illness rendered him or her unable
to appreciate the wrongfulness of his or her conduct at the time of the offense.
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Id. “Thus, mental illness alone is not sufficient to relieve criminal
responsibility.” Id.
[24] But although he obliquely asserts that he lacked criminal intent, Brightharp
does not argue that defense counsel should have raised an insanity defense, nor
does he point to evidence that would have supported the defense. At bottom,
Brightharp does not provide us with either the text or context of the desired
instruction. In these circumstances, we readily conclude that Brightharp has
not shown that he was prejudiced by defense counsel’s failure to tender an
instruction.
Conclusion
[25] Sufficient evidence supports Brightharp’s conviction for Intimidation. His
sentence is not inappropriate. He has not shown that he was denied the
effective assistance of trial counsel.
[26] Affirmed.
Vaidik, J., and Baker, Sr. J., concur.
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