Fronse W. Smith, Jr. v. State of Indiana (mem. dec.)
71A03-1511-CR-2098
| Ind. Ct. App. | Oct 13, 2016Background
- Smith and estranged wife Linda shared custody of their son; on May 29, 2015 Smith called Linda from a McDonald’s drive-through offering food; she declined.
- Smith became angry, called Linda names, and threatened to “split [her] chest open with an ax.” Linda knew he owned an ax and feared for her safety.
- Linda called 911, went to the police station, and later observed Smith walking into her house; officers arrested him and found an ax in his vehicle.
- The State charged Smith with Level 6 felony intimidation under Ind. Code § 35-45-2-1(a)(2), alleging the threat was intended to place Linda in fear of retaliation for a prior lawful act.
- The State amended the information the day before trial to specify the prior lawful act as an argument that arose because Linda refused McDonald’s; trial proceeded and a jury convicted Smith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for intimidation | The State: circumstantial evidence (threat, ax possession, context) shows intent to retaliate for Linda’s refusal of McDonald’s | Smith: no proof of a prior lawful act or nexus between any act and the threat; mere anger insufficient | Affirmed — evidence sufficient; Linda’s refusal was a lawful act and facts permit inference of retaliatory intent |
| Variance between charging information and proof | The State: amended information clarified prior lawful act; evidence matched theory that refusal of McDonald’s led to argument and threat | Smith: trial evidence emphasized broader acts (argument, rejection) different from amended pleading, causing potential prejudice | Rejected — no fatal variance; Smith had pretrial notice and was not prejudiced |
| Pretrial amendment of charging information (timing) | The State: amendment before trial did not prejudice defendant’s substantial rights | Smith: amendment one day before trial was untimely and prejudicial | Affirmed — trial court did not abuse discretion; amendment allowed because defendant retained reasonable opportunity to prepare |
Key Cases Cited
- Suggs v. State, 51 N.E.3d 1190 (Ind. 2016) (standard for sufficiency review in criminal cases)
- Casey v. State, 676 N.E.2d 1068 (Ind. Ct. App. 1997) (intimidation requires proof of threat made in retaliation for a specific prior lawful act)
- Johnson v. State, 837 N.E.2d 209 (Ind. Ct. App. 2005) (intent may be proven circumstantially)
- Blount v. State, 22 N.E.3d 559 (Ind. 2014) (variance between pleading and proof is fatal only if it prejudices defense or permits future prosecution under same evidence)