MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 29 2018, 10:17 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Darlene R. Seymour Curtis T. Hill, Jr. Bryan L. Ciyou Attorney General of Indiana Ciyou & Dixon, P.C. Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dean Penry, August 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-665 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff. Judge Trial Court Cause No. 12D01-1705-CM-513
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 1 of 6 Statement of the Case [1] Dean Penry appeals his conviction, following a bench trial, for intimidation, as
a Class A misdemeanor. Penry raises a single issue for our review, which we
restate as whether the State presented sufficient evidence to support his
conviction. We affirm.
Facts and Procedural History [2] Penry and Mary Hamilton have two children together, a son and a daughter,
but Penry and Hamilton have not been in a relationship together for six or
seven years. Instead, for the last four years Hamilton has been in a relationship
with Mike Oldham. Penry “has a[ ]lot of animosity” toward Hamilton and
Oldham. Tr. at 27. Penry “doesn’t like [Oldham] being around the children”
and has “made threats to [Hamilton] about not wanting [Oldham] around [the]
children in [Hamilton’s] home.” Id.
[3] In May of 2017, Hamilton and Oldham went to a funeral together. As they
were returning to Hamilton’s Frankfort home and pulling into the driveway,
Penry drove past and saw them together. Penry had his son in his truck with
him. Penry shouted obscenities at Hamilton but then drove away. He then
called Hamilton and said he wanted to pick up some of their son’s things from
her house, and Hamilton told him that she and Oldham would leave so he
could do so.
[4] Hamilton then drove away from her house in her SUV and Oldham followed
her on his motorcycle. Just a few moments after they had left Hamilton’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 2 of 6 residence, while they were stopped at an intersection, Penry drove past them
and again yelled obscenities. Penry then pulled his vehicle to the side of the
road about two car lengths behind Hamilton and exited his vehicle. As he did
so, he grabbed his son’s aluminum baseball bat out of his vehicle and began to
approach Oldham while continuing to shout at Oldham. Penry carried the bat
above his waist and appeared “ready to swing it,” saying to Oldham that he
was “gonna beat [Oldham’s] ass.” Id. at 25-26. Oldham jumped off his
motorcycle to defend himself and did not have time to put the kickstand down.
However, when it was clear that Oldham was going to stand his ground, Penry
“hopped in his truck and ran home and locked . . . himself in his house.” Id. at
28.
[5] The State charged Penry with intimidation, as a Class A misdemeanor.
Following a bench trial, the court found Penry guilty and entered its judgment
of conviction and sentenced him accordingly. This appeal ensued.
Discussion and Decision [6] Penry asserts on appeal that the State failed to present sufficient evidence to
show that he had committed intimidation, as a Class A misdemeanor. Our
standard of review on a claim of insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 3 of 6 could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[7] To prove intimidation, as a Class A misdemeanor, the State was required to
prove, first, that Penry “communicate[d] a threat” to Oldham and, second, that
he did so with the intent that Oldham “be placed in fear of retaliation for a prior
lawful act.” Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), adopted, 54
N.E.3d 1001, 1002 (Ind. 2016). According to the State’s charging information,
Penry committed the alleged offense when he communicated a threat to
Oldham with the intent that Oldham be placed in fear of retaliation for the prior
lawful acts of dating Hamilton and/or being around Hamilton and Penry’s
children. On appeal, Penry argues that the State’s evidence fails to show “any
connection between the threat and any prior lawful conduct” by Oldham.
Appellant’s Br. at 10. Penry further asserts that the merely “holding a baseball
bat” is not evidence of an intent to injure Oldham. Id. at 13.
[8] Penry cites several cases in support of his argument, but we are not persuaded
by them. This case is distinguishable from Casey v. State, 676 N.E.2d 1069,
1072-73 (Ind. Ct. App. 1997), Ransley v. State, 850 N.E.2d 443, 446-48 (Ind. Ct.
App. 2006), trans. denied, and McCaskill v. State, 3 N.E.3d 1047, 1050-51 (Ind.
Ct. App. 2014). In each of those cases, we held that the State wholly failed to
identify and present evidence of what the prior lawful act was.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 4 of 6 [9] Here, however, the State proved its charge that the prior lawful act was
Oldham’s relationship with Hamilton and/or being around Penry’s children.
In particular, the record demonstrates that Oldham unambiguously testified
that Penry had “animosity” toward Oldham for his relationship with Hamilton,
and that Penry had a history of threatening Oldham for being around Penry’s
children at Hamilton’s residence. Tr. at 27. Consistent with that background,
on the day in question here Penry observed Oldham with Hamilton at
Hamilton’s residence while Penry had his son with him. Penry immediately
began confronting Hamilton and Oldham, first with obscenities and then by
exiting his vehicle with the bat and approaching Oldham in a threatening
manner. A reasonable fact-finder could readily conclude from the State’s
evidence that Penry communicated a threat to Oldham with the intent that
Oldham be placed in fear of retaliation for the prior lawful acts of either dating
Hamilton or being around Hamilton and Penry’s children.
[10] Still, Penry suggests that the State’s evidence is insufficient because, in the
course of his conduct, Penry did not specifically say why he was acting as he
was, and as such the State’s evidence only relates to a possible future act rather
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 29 2018, 10:17 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Darlene R. Seymour Curtis T. Hill, Jr. Bryan L. Ciyou Attorney General of Indiana Ciyou & Dixon, P.C. Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dean Penry, August 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-665 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff. Judge Trial Court Cause No. 12D01-1705-CM-513
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 1 of 6 Statement of the Case [1] Dean Penry appeals his conviction, following a bench trial, for intimidation, as
a Class A misdemeanor. Penry raises a single issue for our review, which we
restate as whether the State presented sufficient evidence to support his
conviction. We affirm.
Facts and Procedural History [2] Penry and Mary Hamilton have two children together, a son and a daughter,
but Penry and Hamilton have not been in a relationship together for six or
seven years. Instead, for the last four years Hamilton has been in a relationship
with Mike Oldham. Penry “has a[ ]lot of animosity” toward Hamilton and
Oldham. Tr. at 27. Penry “doesn’t like [Oldham] being around the children”
and has “made threats to [Hamilton] about not wanting [Oldham] around [the]
children in [Hamilton’s] home.” Id.
[3] In May of 2017, Hamilton and Oldham went to a funeral together. As they
were returning to Hamilton’s Frankfort home and pulling into the driveway,
Penry drove past and saw them together. Penry had his son in his truck with
him. Penry shouted obscenities at Hamilton but then drove away. He then
called Hamilton and said he wanted to pick up some of their son’s things from
her house, and Hamilton told him that she and Oldham would leave so he
could do so.
[4] Hamilton then drove away from her house in her SUV and Oldham followed
her on his motorcycle. Just a few moments after they had left Hamilton’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 2 of 6 residence, while they were stopped at an intersection, Penry drove past them
and again yelled obscenities. Penry then pulled his vehicle to the side of the
road about two car lengths behind Hamilton and exited his vehicle. As he did
so, he grabbed his son’s aluminum baseball bat out of his vehicle and began to
approach Oldham while continuing to shout at Oldham. Penry carried the bat
above his waist and appeared “ready to swing it,” saying to Oldham that he
was “gonna beat [Oldham’s] ass.” Id. at 25-26. Oldham jumped off his
motorcycle to defend himself and did not have time to put the kickstand down.
However, when it was clear that Oldham was going to stand his ground, Penry
“hopped in his truck and ran home and locked . . . himself in his house.” Id. at
28.
[5] The State charged Penry with intimidation, as a Class A misdemeanor.
Following a bench trial, the court found Penry guilty and entered its judgment
of conviction and sentenced him accordingly. This appeal ensued.
Discussion and Decision [6] Penry asserts on appeal that the State failed to present sufficient evidence to
show that he had committed intimidation, as a Class A misdemeanor. Our
standard of review on a claim of insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 3 of 6 could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[7] To prove intimidation, as a Class A misdemeanor, the State was required to
prove, first, that Penry “communicate[d] a threat” to Oldham and, second, that
he did so with the intent that Oldham “be placed in fear of retaliation for a prior
lawful act.” Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), adopted, 54
N.E.3d 1001, 1002 (Ind. 2016). According to the State’s charging information,
Penry committed the alleged offense when he communicated a threat to
Oldham with the intent that Oldham be placed in fear of retaliation for the prior
lawful acts of dating Hamilton and/or being around Hamilton and Penry’s
children. On appeal, Penry argues that the State’s evidence fails to show “any
connection between the threat and any prior lawful conduct” by Oldham.
Appellant’s Br. at 10. Penry further asserts that the merely “holding a baseball
bat” is not evidence of an intent to injure Oldham. Id. at 13.
[8] Penry cites several cases in support of his argument, but we are not persuaded
by them. This case is distinguishable from Casey v. State, 676 N.E.2d 1069,
1072-73 (Ind. Ct. App. 1997), Ransley v. State, 850 N.E.2d 443, 446-48 (Ind. Ct.
App. 2006), trans. denied, and McCaskill v. State, 3 N.E.3d 1047, 1050-51 (Ind.
Ct. App. 2014). In each of those cases, we held that the State wholly failed to
identify and present evidence of what the prior lawful act was.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 4 of 6 [9] Here, however, the State proved its charge that the prior lawful act was
Oldham’s relationship with Hamilton and/or being around Penry’s children.
In particular, the record demonstrates that Oldham unambiguously testified
that Penry had “animosity” toward Oldham for his relationship with Hamilton,
and that Penry had a history of threatening Oldham for being around Penry’s
children at Hamilton’s residence. Tr. at 27. Consistent with that background,
on the day in question here Penry observed Oldham with Hamilton at
Hamilton’s residence while Penry had his son with him. Penry immediately
began confronting Hamilton and Oldham, first with obscenities and then by
exiting his vehicle with the bat and approaching Oldham in a threatening
manner. A reasonable fact-finder could readily conclude from the State’s
evidence that Penry communicated a threat to Oldham with the intent that
Oldham be placed in fear of retaliation for the prior lawful acts of either dating
Hamilton or being around Hamilton and Penry’s children.
[10] Still, Penry suggests that the State’s evidence is insufficient because, in the
course of his conduct, Penry did not specifically say why he was acting as he
was, and as such the State’s evidence only relates to a possible future act rather
than a prior act. But Penry’s argument here fails to consider this court’s
opinion in Roar v. State, where we rejected the defendant’s argument that the
words he used, or failed to use, in his communicated threat was the end-all-be-
all of the evidence that the State may present to support its charge of
intimidation. 52 N.E.3d at 943-44. As we stated in Roar, “when the factual
predicate for the threat was a prior lawful act of the victim,” the language used
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 5 of 6 or not used by the defendant during his communication of a threat “does not
vitiate the statute’s application.” Id. at 943. We thus reject Penry’s argument.
[11] We further hold that the State’s evidence readily shows that Penry did not
merely brandish the bat. Rather, Penry displayed the bat toward Oldham in a
manner that demonstrated that Penry was “ready to swing it.” Tr. at 25.
Further, while he was displaying the bat in that manner, Penry exclaimed that
he was “gonna beat [Oldham’s] ass.” Id. at 26. Thus, the facts here are unlike
those in Gaddis v. State, where the defendant merely brandished a firearm but
did not display the firearm in a specifically threatening way or say any words
that were likely to incite a confrontation. 680 N.E.2d 860, 862 (Ind. Ct. App.
1997); see also Johnson v. State, 743 N.E.2d 755, 756 (Ind. 2001) (holding that
“where . . . the record shows the existence of words or conduct that are
reasonably likely to incite confrontation, coupled with the display of a firearm,”
there is sufficient evidence to prove that a threat has been communicated under
the intimidation statute). Thus, we reject Penry’s arguments on appeal, and we
conclude that the State presented sufficient evidence to support Penry’s
conviction.
[12] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018 Page 6 of 6