James Smalls v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Aug 31 2018, 8:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Smalls, August 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-433
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1611-F2-44593
Brown, Judge.
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[1] James Smalls appeals convictions for criminal confinement as a level 3 felony
and intimidation as a level 5 felony. We affirm.
Procedural History
[2] In August 2016, Michael McMuray lived in Indianapolis with his girlfriend
Heavenleigh Gentry. McMuray had met Smalls four or five months earlier
through their mutual friend Blossom Kirby. McMuray, Gentry, and Kirby
were at McMuray’s house on the evening of August 24, 2016. Kirby left the
house at around 1:00 a.m., and McMuray and Gentry fell asleep. 1
[3] At approximately 7:30 a.m. on August 25, 2016, Smalls and another man
knocked on the front door of McMuray’s house. Gentry was on the bed, and
McMuray was waking up on the couch.2 McMuray opened the door,
recognized Smalls but not the other man, and asked Smalls if he had the
seventy dollars McMuray had previously loaned him, and Smalls indicated that
he did not have the money. McMurray closed the door, turned to walk away,
and heard another knock on the door. When McMuray opened the door, a
third man, Ulysses Sanders, stuck his arm through the open door and pointed a
gun at McMuray’s face. McMuray pressed his body against the door in an
attempt to push Sanders out and close the door, but Sanders’s arm was already
1
McMuray testified that he, Gentry, and Kirby were “talking about a sexual endeavor” but that not
“everybody was feeling comfortable so we all just backed out.” Transcript Volume II at 21.
2
Photographs admitted into evidence show a mattress on the floor directly adjacent to a living room area and
couch.
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in the door, and McMuray tried to obtain control of the gun. Smalls and the
other two men forced their way into the home, knocked McMuray to the floor,
and started to punch, kick, and stomp on him. McMuray screamed for help,
yelled his neighbor’s name a couple of times, and tried to block the men’s
blows. Gentry “was crying and hysterical” and “was sitting up on the bed and
she watched the whole thing and screamed . . . .” Transcript Volume II at 28.
The three men dragged McMuray into the middle of the room, and Smalls
asked for money. Smalls and Sanders held guns, and the other man had a knife
with an eight- or nine-inch blade.
[4] Sanders walked over to Gentry, handed her his gun, and asked her to shoot
McMuray. Gentry refused. Sanders then took the gun from Gentry, gave it to
McMuray, and instructed him to shoot Gentry. McMuray also refused. Smalls
said, “he ain’t got no heart.” Id. at 31. Smalls asked McMuray where he kept
his money, McMuray said he had ten dollars on the computer stand, and
Smalls took the money. Smalls walked back and forth while holding his gun in
his hand, and Gentry was sitting on the bed. At some point, McMuray
indicated he would shoot Gentry. Sanders handed the gun to McMuray, and
McMuray pointed the gun at Sanders’s face and pulled the trigger, but the gun
did not fire. Sanders wrestled the gun from McMuray and repeatedly struck
him in the head with the butt of the gun, and Smalls pointed his gun at
McMuray and said, “I’ll shoot you, you dumb b----.” Id. at 38. Gentry
continued to sit on the bed, watch the attack, and cry. Smalls announced
“we’re gonna straighten this out right now” and called Kirby, and McMuray
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heard Smalls say, while on the phone, “who did you say raped you? Who did
you say robbed you?” Id. at 39. Smalls hung up and said “it don’t look good
for you.” Id. Sanders again passed his gun to Gentry and attempted to
convince her to shoot McMuray, and the intruders “were making comments
about what they were going to do with her after they killed and got [McMuray]
out of the why [sic].” Id. at 39-40. Kirby “burst in the door” and was “agitated
that [McMuray] was still alive.” Id. at 40. The three intruders turned to Kirby
and, when they were paying attention to her, McMuray jumped up and “bolted
out” the front door, ran toward a neighbor, and screamed for help and to call
the police. Id. Soon afterwards, McMuray saw Smalls, Sanders, and the third
man exit his home and go down the street. The responding police officer
observed McMuray’s injuries and that Gentry “seemed to be very scared at the
time.” Id. at 57. While law enforcement was gathering information, Kirby
approached and began yelling and screaming, and the officer detained her.
McMuray was treated at the hospital.
[5] The State charged Smalls with: Count I, burglary as a level 2 felony; Count II,
armed robbery as a level 3 felony; Count III, criminal confinement of McMuray
as a level 3 felony; Count IV, criminal confinement of Gentry as a level 3
felony; Count V, intimidation of McMuray as a level 5 felony; Count VI,
intimidation of Gentry as a level 5 felony; and Count VII, battery resulting in
moderate bodily injury to McMuray as a level 6 felony. At trial, Amber Fiers
testified that she was dating Smalls in August 2016, that August 24th was their
one-month anniversary, and that Smalls was with her the entire evening of
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August 24th and morning hours of August 25th. The jury found Smalls guilty
on all counts. The court sentenced Smalls to twenty-three years with five years
suspended on Count I, ordered that fourteen years of the sentence be served in
the Department of Correction and four years be served through community
corrections, and ordered that he serve one year on probation. The court also
sentenced him to ten years for each of his convictions under Counts II, III, and
IV, four years for each of his convictions under Counts V and VI, and one year
for his conviction under Count VII, all to run concurrently with his sentence
under Count I.
Discussion
[6] Smalls claims the evidence does not support his convictions of criminal
confinement of Gentry under Count IV and intimidation of Gentry under
Count VI. 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. We look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. The conviction
will be affirmed if there exists evidence of probative value from which a
reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
A conviction may be sustained on the uncorroborated testimony of a single
witness or victim. Lay v. State, 933 N.E.2d 38, 42 (Ind. Ct. App. 2010), trans.
denied. A verdict may be sustained based on circumstantial evidence alone if
that circumstantial evidence supports a reasonable inference of guilt. Maul v.
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State, 731 N.E.2d 438, 439 (Ind. 2000); Gonzalez v. State, 908 N.E.2d 338, 340
(Ind. Ct. App. 2009).
[7] Ind. Code § 35-42-3-3 provides in part that a person who knowingly or
intentionally confines another person without the other person’s consent
commits criminal confinement and that the offense is a level 3 felony if it is
committed while armed with a deadly weapon. “Confine” means to
substantially interfere with the liberty of a person. Ind. Code § 35-42-3-1. The
State, under Count IV, alleged that Smalls and his accomplices knowingly
confined Gentry without her consent while Smalls and/or Sanders were armed
with a handgun. Ind. Code § 35-45-2-1 provides in part that a person who
communicates a threat to another person, with the intent that the other person
engage in conduct against the other person’s will, commits intimidation and
that the offense is a level 5 felony if, while committing it, the person draws or
uses a deadly weapon. “Threat” means an expression, by words or action, of
an intention to, among other things, unlawfully injure the person threatened or
another person or unlawfully subject a person to physical confinement or
restraint, or commit a crime. Ind. Code § 35-45-2-1(d). The State, under Count
VI, alleged that Smalls and his accomplices communicated a threat to Gentry
with the intent that she engage in conduct against her will, to-wit, to shoot
McMuray, and in doing so they drew or used a handgun.
[8] Smalls argues that Gentry did not testify and the State did not admit any
statements she may have made to anyone. He argues “whether Gentry was in
fact confined and, if so, whether that confinement was against her will and
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whether whatever, if anything, was conveyed from Smalls to Gentry were
threats are wholly subjective inquiries” and “Gentry’s testimony is the only
evidence that could prove what the State has asserted.” Appellant’s Brief at 10.
[9] The State responds that it was not required to present Gentry’s testimony to
show that Smalls committed the crimes against her and points to the violence of
the home invasion, McMuray’s injuries, the fact the intruders were armed,
Gentry’s demeanor during the attack, that Smalls pointed his firearm at
McMuray and threatened to shoot, that the intruders openly discussed what
they would do with Gentry after they killed McMuray, and that the intruders
cajoled McMuray and Gentry into shooting one another. It maintains that
Smalls’s argument is simply a request to reweigh the evidence.
[10] The jury heard the testimony of McMuray regarding the violent actions of
Smalls and the other intruders during the home invasion. McMuray testified
regarding the men’s forceful entry into the residence while armed, the violent
attack upon him, that Gentry was sitting on the mattress on the floor near the
attack and witnessed the entire altercation, and that Gentry “was crying and
hysterical.” Transcript Volume II at 28. The State presented photographic
evidence of, and testimony describing, McMuray’s injuries as well as of the
location of Gentry on the mattress on the floor relative to the attack upon
McMuray in the residence. During the prolonged attack, Smalls and each of
the other attackers were armed. McMuray testified that Gentry “watched the
whole thing and screamed.” Id. Smalls pointed his gun at McMuray and said
he would shoot him. The men handed a gun to McMuray and directed him to
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shoot Gentry, which he refused to do, and they handed a gun to Gentry and
commanded her to shoot McMuray, which she refused to do. The intruders
discussed “what they were going to do with [Gentry] after they killed”
McMuray. Id. at 39. Kirby arrived and was agitated that McMuray was alive.
The officer responding to the scene observed that Gentry was “very scared.” Id.
at 57.
[11] A reasonable jury could find from the testimony and evidence presented that
Smalls and his accomplices, while armed, knowingly or intentionally
substantially interfered with Gentry’s liberty without her consent and that,
while using a deadly weapon, they communicated a threat to Gentry by words
or actions with the intent that she engage in conduct against her will to shoot
McMuray as charged. Smalls’s arguments constitute requests for this Court to
reweigh the evidence, which we will not do. See Jordan, 656 N.E.2d at 817.
Based upon the record, we conclude the State presented evidence of a probative
nature from which the jury could find beyond a reasonable doubt that Smalls
committed the offenses of criminal confinement of Gentry as a level 3 felony
and intimidation of Gentry as a level 5 felony. For the foregoing reasons, we
affirm Smalls’s convictions.
[12] Affirmed.
Altice, J., and Tavitas, J., concur.
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