Merriweather v. State, Court of Appeals Case No. 18A-CR-2270

• Docket Nº: Court of Appeals Case No. 18A-CR-2270
• Citation: 128 N.E.3d 503
• Case Date: June 28, 2019
• Court: Court of Appeals of Indiana

128 N.E.3d 503

Gabriel A. MERRIWEATHER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-2270

Court of Appeals of Indiana.

FILED June 28, 2019

Attorney for Appellant: Stanley L. Campbell, Fort Wayne, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana

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 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

[128 N.E.3d 508

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.

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 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.

[128 N.E.3d 509

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.

[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 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

[128 N.E.3d 510

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 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...