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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: WILLIAM F. THOMS, JR. Thoms & Thoms Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LAWRENCE SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0702-CR-118

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark Stoner, Judge Cause No. 49F09-0605-FD-98101

October 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Lawrence Smith appeals his conviction of intimidation, a Class D felony. 1 He claims the evidence was insufficient to demonstrate his threat to a police officer occurred in response to the officer's lawful act. While the threatened officer was not one of the arresting officers, he was at the scene of Smith's arrest and, Smith's threat occurred in response to his arrest. conviction of intimidation. FACTS AND PROCEDURAL HISTORY On May 30, 2006, at approximately 8:30 p.m., three Indianapolis police officers were eating at a Hardee's restaurant on East 10th Street. As they were eating, Officer Steven Hayth and Officer Tracy Dobbs noticed Smith stumbling as he walked along a sidewalk. Smith smiled at the officers, shaped his right hand into a gun, and pretended to shoot at the officers. After walking a short distance further, Smith turned around to the officers and again pretended to shoot them with his hand. Officer Aaron Schlesinger was unable to see Smith's actions from where he was sitting. Officers Hayth and Dobbs finished eating and went outside to look for Smith. They found him stumbling through the back of the Hardee's parking lot. When they approached Smith, he smelled of alcohol and his eyes were glassy and bloodshot. They placed Smith under arrest for public intoxication and sat him on the ground to wait for the transport wagon. Therefore, we find the evidence sufficient to support the

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Ind. Code

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