Nansee J. Crawford v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Feb 28 2018, 8:36 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan P. Dillon Curtis T. Hill, Jr.
Maritza K. Webb Attorney General of Indiana
Dillon Legal Group, P.C.
Kelly A. Loy
Franklin, Indiana Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nansee J. Crawford, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
55A05-1708-CR-1880
v. Appeal from the Morgan Superior
Court 2
State of Indiana, The Honorable Brian H. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55D02-1611-F6-1782
Mathias, Judge.
[1] Following a jury trial in Morgan Superior Court, Nansee J. Crawford
(“Crawford”) was convicted of Level 6 felony strangulation and two counts of
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Level 6 felony intimidation. Crawford appeals and presents two issues, which
we consolidate and restate as whether the State presented evidence sufficient to
support Crawford’s convictions. We hold that there was sufficient evidence to
support all of Crawford’s convictions. However, we conclude sua sponte that
Crawford’s convictions for two counts of intimidation based on the same threat
constitute impermissible double jeopardy. Accordingly, we affirm in part,
reverse in part, and remand.
Facts and Procedural History
[2] At some point during the summer of 2016, Dora Summers (“Summers”) was
looking for someone to help care for her elderly mother. Summers posted a
message to her Facebook page that she was looking for a caregiver and received
a response from Crawford, with whom Summers was already acquainted.
Thereafter, Crawford began to work part-time, three days a week, as a caregiver
for Summers’s mother.
[3] Toward the end of September, Summers’s mother was hospitalized. In mid-
October, Summers expected her mother to be released from the hospital and
attempted to contact Crawford to see if she could resume her job as a caregiver.
Crawford was not terribly responsive to Summers’s offers, claiming to be sick or
asleep, and she finally stopped responding at all. Summers then contacted the
agency through which she had hired Crawford and informed them that
Crawford had not responded. This agency then provided Summers with
another caregiver who could watch her mother four days a week.
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[4] Relations between Crawford and Summers soured after this. Although they did
not see each other, they exchanged online messages in which Crawford
expressed anger over being removed as Summers’s mother’s caregiver and
threatened Summers. Summers eventually blocked Crawford from contacting
her on Facebook.
[5] On November 20, 2016, Summers moved her mother to a nursing home. She
became upset as she packed her mother’s belongings and decided to run to the
store to pick up cleaning supplies. On her way to the store, however, Summers
decided to stop by the local Veterans of Foreign Wars post (“VFW”) to have a
drink at the bar and relax. After receiving her second glass of wine, Summers
noticed Crawford and her husband enter the club and sit at the other end of the
bar. Shortly thereafter, Summers went to the restroom.
[6] When Summers went to the restroom, she did not notice anyone else inside and
entered a stall. Inside the stall, she heard the restroom door close and looked
through the crack in the stall door and saw that Crawford had entered the
restroom. Summers asked Crawford if she wanted to talk, and, when she exited
the stall, the two spoke. Crawford told Summers that she thought that Summers
had gotten her removed as her mother’s caregiver. Summers responded that this
had been the agency’s decision, not hers. Crawford was angry, and Summers
became upset and started to weep and walk away. At this point, Crawford said,
“don’t cry on me, bitch[.] I’ll f**king kill you.” Jury Trial Tr. p. 102. Crawford
pushed Summers up against the restroom wall, blocking her from leaving.
Crawford also put at least one of her hands on Summers’s neck, and squeezed,
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which “strangled” and “choked” her. Id. at 102, 128. At this point, Julie
Lanham (“Lanham”), a bartender at the VFW, came in the restroom and
separated the two.
[7] Summers left the restroom and sat back down at the bar. Lanham and
Crawford then left the restroom, and as they walked by Summers, Crawford
again threatened her.1 Summers texted her son and informed him of what had
happened, and her son told her to call the police to report the attack. Summers
then called the police. Summers also noticed that Crawford’s attack had left her
with a scratch running down the left side of her face towards her neck, which
was bleeding. Her neck was also red from where Crawford had grabbed her.
[8] Mooresville Police Department Officer Lindsay Hayden (“Officer Hayden”)
responded to a report of a possible battery at the VFW and arrived on the scene,
where she spoke with Summers. Summers was “[v]ery distraught [and] crying.”
Id. at 147. Officer Hayden also observed the bleeding scratch on Summers’s
face and neck and the redness on her neck. Officer Hayden also spoke with
Crawford, who was agitated and was “[n]ot happy to be speaking with [police]
officers.” Id. at 151. Crawford claimed that she and Summers had engaged in a
“civil conversation” in the restroom. Id. at 150. She also claimed, unprompted,
that Summers had scratched her own face. Since Officer Hayden had not
1
Summers testified, “And when she passes me, she threatens me again and says, if I catch . . when I catch
you outside of this place, your ass is .. I don’t know exactly how she said that, but she threatened me again.”
Jury Trial Tr. p. 103.
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mentioned any injuries, she thought this statement odd. Crawford denied
having choked Summers.
[9] Mooresville Police Officer David Schultz (“Officer Schultz”) also responded to
the scene and spoke with the bartender, Lanham. According to Officer Schultz,
Lanham told him that she had seen Summers and Crawford go into the
restroom and knew they had “issues with each other.” Id. at 182. Lanham then
heard a commotion and went into the restroom where she saw Crawford with
her hands around Summers’s neck and separated the two.2 Officer Hayden
ultimately arrested Crawford and took her to jail.
[10] As a result of this incident, the State charged Crawford on November 21, 2016
as follows: Count 1, Level 6 felony strangulation; Count 2, Level 6 felony
intimidation; Count 3, Level 6 felony intimidation; Count 4, Class A
misdemeanor battery; and Count 5, Class B misdemeanor disorderly conduct.
A jury trial was held on May 2, 2017, at the conclusion of which the jury found
Crawford guilty as charged. At a sentencing hearing held on July 20, 2017, the
trial court determined that the two misdemeanor counts “merged” into the
strangulation conviction and entered judgment of conviction only on the three
felony counts. The court then imposed concurrent advisory sentences of one
and one-half years on each count, with all but six days suspended to probation.
The trial court also noted that, if Crawford successfully completed probation, it
2
Lanham testified as a witness for the defense and denied having told Officer Schultz that she witnessed
Crawford attacking Summers. She instead testified that she only observed Crawford yelling at Summers.
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would “consider and likely grant an alternative misdemeanor conviction in
these cases.” Sentencing Tr. p. 19. Crawford now appeals.
Discussion and Decision
[11] Crawford claims on appeal that the State failed to present evidence sufficient to
support all three of her felony convictions. 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 jury to weigh any conflicting evidence. Id. We consider only the probative
evidence supporting the verdict and any reasonable inferences which may be
drawn from this evidence, and we will affirm if the probative evidence and
reasonable inferences drawn therefrom could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt. Id.A. Strangulation
[12] The statute defining the crime of strangulation provides in relevant part:
A person who, in a rude, angry, or insolent manner, knowingly
or intentionally:
(1) applies pressure to the throat or neck of another person;
***
in a manner that impedes the normal breathing or the blood
circulation of the other person commits strangulation, a Level 6
felony.
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Ind. Code § 35-42-2-9(b) (2014).3
[13] Thus, to convict Crawford of Level 6 felony strangulation, the State had to
prove that she knowingly or intentionally applied pressure to the throat or neck
of Summers in a rude, angry, or insolent manner, and in such a manner that
impeded Summers’s normal breathing or blood circulation. Crawford claims
that there is no evidence that Summers’s normal breathing or blood circulation
was impeded by her grabbing Summers’s throat. We disagree.
[14] The evidence favorable to the jury’s verdict reveals that Crawford was angry
with Summers, threatened to kill her, pushed her up against a wall, grabbed her
by the throat, and squeezed her neck. Crawford claims that there was no
evidence that this interfered with Summers’s breathing. But Summers described
what Crawford did to her as being “strangled” and “choked.” Jury Trial Tr. pp.
102, 128. Moreover, Crawford squeezed Summers’s neck with enough force
that it was still red when the police arrived. From this, the jury could
reasonably infer that Crawford squeezed Summers’s throat with enough force
to impede her normal breathing. See Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct.
App. 2011) (concluding that there was sufficient evidence to support
defendant’s conviction for strangulation, and therefore there were no double
jeopardy issue concerns on retrial, where victim had abrasions on her neck and
3
We cite to the version of the statute in effect at the time of the commission of the offense. The statute has
subsequently been amended in a manner that does not affect the current case, though the above-cited
provision is now delineated as subsection (c). See P.L. 252-2017 § 11 (effective July 1, 2017).
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stated that she had been “strangled” and that defendant grabbed her around the
neck).4
[15] Crawford complains that Officer Schultz’s testimony regarding what Lanham
told him she saw was hearsay. However, Crawford made no hearsay objection
to this testimony at trial and does not claim evidentiary error on appeal.5 When
reviewing the sufficiency of the evidence, “‘[o]therwise inadmissible hearsay
evidence may be considered for substantive purposes and is sufficient to
establish a material fact at issue when the hearsay evidence is admitted without
a timely objection at trial.’” Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000)
(quoting Humphrey v. State, 680 N.E.2d 836, 840 (Ind. 1997)).
[16] Crawford also notes that Officer Schultz did not record his interview of
Lanham. Although this might be the better practice, and we encourage such
recordings as they eliminate any question regarding what a witness said, there is
no requirement that such interviews be recorded. The failure to record
Lanham’s statement might have been relevant to the weight to be given to
4
The State notes that Summers apparently demonstrated to the jury her reaction to what Crawford did to
her, testifying, “I remember she did it, and I kind of went . . and I was thinking what was I going to do.” Jury
Trial Tr. p. 102. In response to Crawford’s motion for a directed verdict, the prosecuting attorney described
Summers’s description as “a type of gasping.” Id. at 197. On appeal, Crawford claims that there is no support
for the prosecutor’s characterization in the transcript. We do not have access to any audio recording of the
testimony and are unable to judge the State’s characterization of Summers’s testimony. Still one might
reasonably infer that when Summers testified “I kind of went . . .” she demonstrated her reaction to being
grabbed by the throat. However, even if we agreed with Crawford that the prosecutor’s characterization of
Summers’s testimony was unsupported, the remaining evidence, and the reasonable inferences to be drawn
therefrom, are sufficient to support Crawford’s conviction for strangulation.
5
Crawford’s trial counsel did note the inconsistency between Officer Schultz’s testimony regarding what
Lanham told him and Lanham’s actual testimony as a defense witness. But the jury was not required to
credit Lanham’s trial testimony over Officer Schultz’s testimony regarding what Lanham told him on the
night of the incident.
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Officer Schultz’s testimony, but we may not reweigh evidence on appeal. See
Harrison, 32 N.E.3d at 247.
B. Intimidation
[17] Crawford also claims that the State failed to produce evidence sufficient to
support either of her convictions for Level 6 felony intimidation. The statute
defining the crime of intimidation provides in relevant part:
(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.
Ind. Code § 35-45-2-1. However, the offense is a Level 6 felony if the threat is to
commit a forcible felony. Id. at § 1(b)(1)(A).
[18] With regard to her conviction for intimidation under Count 2, Crawford claims
that the State failed to prove that she threatened Summers with the intent that
Summers engage in conduct against her will. Again, we disagree. The State
presented evidence that Crawford yelled and screamed at Summers because
Crawford thought Summers had caused her termination as caregiver for
Summers’s mother. Summers testified that when she began to cry and
attempted to walk away from Crawford, Crawford stated, “don’t cry on me,
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bitch[.] I’ll f**king kill you.” Jury Trial Tr. p. 102. She then pushed Summers
up against the restroom wall, blocking her from leaving. From this, the jury
could reasonably infer that Crawford threatened Summers to stop her from
leaving the restroom. This is sufficient to prove that Crawford threatened
Summers with the intent that Summers engage in conduct against her will, i.e.,
remain in the restroom.
[19] With regard to her conviction for intimidation under Count 3, Crawford claims
that the State failed to prove that she threatened Summers with the intent that
Summers be placed in fear of retaliation for a prior lawful act. I.C. § 35-45-2-
1(a)(2). We, however, agree with the State that the jury could reasonably infer
that Crawford also threatened Summers with the intent to place Summers in
fear of retaliation for her role in having removed Crawford as the caregiver to
Summers’s mother. Indeed, this was the root of the dispute between the two
women.
C. Double Jeopardy
[20] Although we conclude that there was sufficient evidence to support Crawford’s
convictions, we also conclude sua sponte that Crawford’s two convictions for
intimidation are based upon the one act of threatening Summers and therefore
constitute common law double jeopardy.
In addition to the instances covered by Richardson [v. State, 717
N.E.2d 32 (Ind. 1999)], “we have long adhered to a series of rules
of statutory construction and common law that are often
described as double jeopardy, but are not governed by the
constitutional test set forth in Richardson.” One of these
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categories prohibits “conviction and punishment for a crime
which consists of the very same act as another crime for which
the defendant has been convicted and punished.”
Phillips v. State, 25 N.E.3d 1284, 1291 (Ind. Ct. App. 2015) (internal quotations
omitted) (citing Guyton v. State, 771 N.E.2d 1141, 1143)).
[21] Here, the State did not allege that Crawford committed two separate acts of
intimidation. It simply alleged that “Nansee Crawford did communicate a
threat to commit a forcible felony to Dora Summers, with the intent that said
Dora Summers engage in conduct against his/her will,” and that “Nansee
Crawford did communicate a threat to commit a forcible felony to Dora
Summers, with the intent that said Dora Summers be placed in fear of
retaliation for a prior lawful act.” Appellant’s App. p. 4. The trial court’s final
instructions similarly did not distinguish between the allegations of
intimidation. Id. at 57–58. And the prosecuting attorney’s closing argument
clearly referred to the one threat Crawford made to Summers in the restroom as
the basis for both convictions. Jury Trial Tr. pp. 221–22.
[22] Under these facts and circumstances, we can only conclude that Crawford was
convicted of two counts of intimidation based on one act—threatening to kill
Summers in the restroom. Although there may have been sufficient evidence to
support both of these convictions, Crawford cannot properly be convicted of
both counts because they are based on the same act. See Chappell v. State, 966
N.E.2d 124, 132 (Ind. Ct. App. 2012) (concluding sua sponte that defendant’s
convictions for Class A felony burglary and Class B felony burglary constituted
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impermissible double jeopardy where both convictions were based on the same
act of breaking and entering into one house), trans. denied. The remedy for a
double jeopardy conviction is to vacate the problem conviction. See Orta v. State,
940 N.E.2d 370, 377 (Ind. Ct. App. 2011) (noting that the remedy for a double
jeopardy violation is to vacate one of the offenses if reducing either conviction
to a less serious form of the same offense will not suffice), trans. denied. Here,
both of the convictions at issue were for Level 6 felony intimidation. We choose
to reverse Crawford’s conviction on Count 3.
Conclusion
[23] The State presented evidence sufficient to support Crawford’s convictions for
strangulation and intimidation. However, because both convictions for
intimidation were based on the same threat, they constitute double jeopardy.
We therefore reverse Crawford’s conviction for intimidation under Count 3 and
remand with instructions that the trial court vacate the judgment and sentence
thereon.
[24] Affirmed in part, reversed in part, and remanded.
Najam, J., and Barnes, J., concur.
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