MEMORANDUM DECISION
[1] Gabriel Francisco Garcia-Fraire appeals following his two convictions of Level 5 felony intimidation with a deadly weapon.
1
Garcia-Fraire presents one issue for our review, which we revise and restate as whether the State presented sufficient evidence to support his two convictions of intimidation with a deadly weapon when he argues his “sole threat,” (Br. of Appellant at 10), was directed toward only one victim. We affirm.
Facts and Procedural History
[2] In 2021, Helen Velich lived in a condominium building that had a common entrance for four units (hereinafter “Common Area”). Velich lived in one of two upstairs units and Garcia-Fraire lived in one of two downstairs units. Each unit had both a front door and a back door, and the Common Area contained a set of stairs for both the front and back entrances of the upstairs units. The condominium complex did not provide cleaning services for the Common Area, so Velich decided to clean the Common Area with her friend Alexander Dorosan on the evening of July 16, 2021.
[3] That evening, Garcia-Fraire had fallen asleep on his couch after consuming wine and a couple shots of alcohol. About 8:00 p.m., after vacuuming and cleaning the floors outside Garcia-Fraires front door, Velich accidentally dropped Garcia-Fraires door mat against his front door. Garcia-Fraire woke up and answered the door. Velich explained that she had dropped the door mat and she apologized. Garcia-Fraire closed his front door and went back to sleep on his couch.
[4] About an hour later, Velich and Dorosan were cleaning the staircase outside Garcia-Fraires back door and again woke him. Garcia-Fraire yelled through his back door “[w]hy are you clean -- why are you doing noise at midnight, youre son of bitch.” (Tr. Vol. 2 at 220) (errors in original). Garcia-Fraire opened the door, pulled a handgun out of his waistband, pointed it at Dorosan, and said “fuck it. What are you going to say now if I going to fucking kill you – if I kill you?” (Id. at 188) (errors in original). Velich stepped between Garcia-Fraire and Dorosan and attempted to calm Garcia-Fraire. Dorosan stepped toward the stairs and called 911. Dorosan and Velich retreated to her apartment to wait for police to arrive. When the police arrived, Dorosan and Velich warned police that Garcia-Fraire was drunk and had a gun.
[5] Officer Thaddeus Spyrnal with the Schererville Police Department was one of four officers responding to the scene. Officer Spyrnal observed that Garcia-Fraire seemed disoriented and was surprised police were there. Garcia-Fraire initially claimed no firearm was involved, but minutes later he admitted a firearm was involved and claimed he had believed he was being robbed. (See Tr. Vol. 3 at 11.) Officers took possession of Garcia-Fraires firearm, which had a live round inside the chamber.
[6] The State charged Garcia-Fraire with Level 5 felony intimidation with a deadly weapon of Velich, Level 5 felony intimidation with a deadly weapon of Dorosan, and Level 6 felony pointing a firearm.
2
On October 17, 2023, a jury found Garcia-Fraire guilty of all three counts. On November 14, 2023, the State moved to vacate the conviction of Level 6 felony pointing a firearm. The trial court granted that motion. Following a sentencing hearing, the trial court imposed concurrent four-year sentences for the two convictions of Level 5 felony intimidation.
Discussion and Decision
[7] Garcia-Fraire argues the State failed to present sufficient evidence to prove he intimidated Velich. Our standard of review regarding such claims is well-settled:
Sufficiency-of-the-evidence claims ․ warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.
Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020).
[8] “A person who communicates a threat with the intent that another person engage in conduct against the other persons will” commits Level 5 felony intimidation if “the person draws or uses a deadly weapon.” Ind. Code § 35-45-2-1(a)(1). The Indiana Code defines a “threat” as “an expression, by words or action,” with the intent to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another persons legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of a person; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.
Ind. Code § 35-45-2-1(c).
[9] Garcia-Fraire argues the State failed to prove he communicated a threat to Velich. To constitute a “true threat” two elements must be met: (1) “that the speaker intend his communications to put his targets in fear for their safety” and (2) “that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target.” Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), rehg denied, cert. denied 574 U.S. 1077 (2015), rehg denied 574 U.S. 1203 (2015). “Intent is a mental function and, absent a confession, usually must be proved by circumstantial evidence.” Merriweather v. State, 128 N.E.3d 503, 515 (Ind. Ct. App. 2019), trans. denied. A defendants intent may be proven by circumstantial evidence alone, with the fact-finder inferring intent from the facts and circumstances of the case. B.B. v. State, 141 N.E.3d 856, 860 (Ind. Ct. App. 2020). “Whether a statement is a threat is an objective question for the trier of fact.” Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans. denied.
[10] We agree with the State that the sequence of events and Garcia-Fraires conduct could allow a reasonable trier of fact to determine Garcia-Fraire intended to communicate a threat to both Dorosan and Velich. Garcia-Fraire interacted with Velich around 8:00 p.m. when she apologized for hitting his front door with the door mat. Around 9:00 p.m., both Velich and Dorosan had been vacuuming outside Garcia-Fraires back door when Garcia-Fraire shouted through the door at Dorosan and Velich: “Why are you clean – why are you doing noise at midnight, youre son of bitch.” (Tr. Vol. 2 at 220) (errors in original). Velich further testified:
A: ․ At one point in time, I realized that [Garcia-Fraire] opened the apartment door. He was talking to me on a condescending tone, something like – am I allowed to use derogatory terms here in court?
Q: Exactly what he said, please.
A: He took the pistol outside his underwear, pointed the gun towards [Dorosan], and he said, “fuck it. What are you going to say now if I going to fucking kill you – if I kill you?”
Q: And what was his demeanor like during all of this?
A: He was laughing in a very superior, grinning smile towards me and take us like we were worth nothing.
(Id. at 188) (errors in original).
[11] Garcia-Fraire argues his threat to kill “you” shows a singular threat directed toward only Dorosan. He further argues that the fact Velich felt it necessary to stand between Garcia-Fraire and Dorosan shows that Garcia-Fraire was only engaged with Dorosan. We disagree with Garcia-Fraires interpretation of the events.
[12] As Thesaurus.com explains: “The word you is the second-person personal pronoun. You can be either singular or plural and can be used as either a subject or an object. You will often need to use context to determine if you is being used to refer to one person or multiple people.” Thesaurus.com, What Is A Second-Person Pronoun? Definition And Examples (October 13, 2021) (italics in original), https://www.thesaurus.com/e/grammar/second-person-pronouns/ [https://perma.cc/4FXL-9YZH]. Garcia-Fraire yelled “you” through the back door as he complained about someone cleaning after he had spoken to Velich when she had bumped his front door while cleaning one hour earlier. Velich testified that Garcia-Fraire was talking to her after opening his door. After Velich stepped in front of Dorosan, Garcia-Fraire did not lower the gun.
3
Therefore, a reasonable fact-finder could determine Garcia-Fraire also intended to communicate a threat to Velich. See, e.g., Gates v. State, 192 N.E.3d 222, 226-27 (Ind. Ct. App. 2022) (evidence of intimidation is sufficient when it shows the defendant intended the victim to believe he would carry out the threat).
[13] Garcia-Fraires threat also satisfies the second element of a “true threat” because his communications were likely to cause fear in a reasonable person. Velich testified to her feelings that day:
Q: How did it make you feel to have that gun pointed at you?
A: I could only tell you that the next day that I woke up towards the afternoon, I said to myself you know what, today I could have been a dead woman. Thats how I felt.
Q: Were you afraid ․ when all of this was happening?
A: Yes, I was very panic [sic].
(Tr. Vol. 2 at 189-190.) Earlier that same night, Garcia-Fraire and Velich had a calm interaction after she accidentally hit his door with the door mat while cleaning. It was reasonable for Velich to fear Garcia-Fraires second response to being woken up by Velich and Dorosan cleaning because that response was exceedingly amplified and anger-fueled, unlike the first interaction. See Fleming v. State, 85 N.E.3d 626, 629-630 (Ind. Ct. App. 2017) (an objectively reasonable person would fear physical harm from a threat made directly while the defendant was angry).
[14] Because the evidence most favorable to the judgment could lead a reasonable fact-finder to determine that Garcia-Fraire intended to place Velich in fear for her safety and that a reasonable person in Velichs circumstances would have feared physical harm, Garcia-Fraire communicated a true threat to Velich. We accordingly affirm Garcia-Fraires conviction of Level 5 felony intimidation with a deadly weapon against Velich. See Johnson v. State, 743 N.E.2d 755, 756-757 (Ind. 2001) (the court is “hard pressed” to say a defendant did not communicate a threat within the meaning of the intimidation statute when the record shows words or conduct likely to incite confrontation and the display of a firearm).
Conclusion
[15] The State presented sufficient evidence that Garcia-Fraire communicated a threat against Velich, thereby committing a second count of Level 5 felony intimidation with a deadly weapon. We accordingly affirm the judgment of the trial court.
[16] Affirmed.
FOOTNOTES
1
. Ind. Code § 35-45-2-1(a)(1).
2
. Ind. Code § 35-47-4-3.
3
. Nor do we find controlling the fact that the gun was initially pointed directly at Dorosan, as the evidence is sufficient to prove a threat was communicated regardless of where the gun was pointed. See Johnson v. State, 743 N.E.2d 755, 756 (Ind. 2001) (evidence was sufficient to prove a threat was communicated where “words or conduct that are reasonably likely to incite confrontation [are] coupled with the display of a firearm”).
May, Judge.
Brown, J., and Pyle, J., concur.