MEMORANDUM DECISION FILED Apr 30 2018, 8:17 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Jackson, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1711-CR-2549 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1706-F6-21380
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 1 of 6 Case Summary [1] Donald Jackson was convicted of Level 6 felony intimidation and Class B
misdemeanor battery. He appeals the sufficiency of the evidence to support his
intimidation conviction and the length of his battery sentence. We find that the
evidence is sufficient to support Jackson’s intimidation conviction. However,
because the trial court sentenced Jackson to 365 days for battery but the
maximum term for a Class B misdemeanor is 180 days, we reverse and remand
for the limited purpose of correcting the length of this sentence.
Facts and Procedural History [2] On the morning of June 6, 2017, Michael Evans parked his car in a surface
parking lot at the corner of Meridian and South Streets in downtown
Indianapolis. As Evans exited his car and was headed to work, he saw, in the
back of the parking lot, Jackson screaming at a woman using vulgar language
and hitting her in the face and upper body “very . . . intensely” with a closed
fist. Tr. Vol. II p. 8. Evans “started screaming” in hopes of distracting Jackson
and drawing the attention of others. Id. Evans then started walking toward
Jackson and the woman. As Evans got closer, Jackson “started coming after
[him].” Id. at 9. At this point, some bystanders intervened and shoved Jackson
to the ground. Evans called 911. Jackson got free and started to leave;
however, he returned and approached Evans, trying to convince him that he did
not see anything earlier between him and the woman.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 2 of 6 [3] In the meantime, Indianapolis Metropolitan Police Department Officer Thomas
Bordenkecher arrived on the scene. He described a scene of “chaos”: Evans
and Jackson were “facing each other,” Jackson was yelling, and Evans was in a
“guarded defensive position.” Id. at 28, 29. Jackson told the officer that he
“was attacked by some dudes.” Id. at 28. Officer Bordenkecher then spoke
with the woman, who had fresh injuries, and decided to arrest Jackson for
domestic battery. After being placed in handcuffs, Jackson yelled that he
wanted “justice” for what had happened to him. Id. at 34. Jackson then told
Officer Bordenkecher that he “knew where to find” him and that “he was
coming to kick [his] a**[].” Id. Jackson, who was about ten feet away from
Officer Bordenkecher, looked directly at the officer as he said this.
[4] The State charged Jackson with several offenses, including Level 6 felony
intimidation (of Officer Bordenkecher) and Class A misdemeanor domestic
battery. At the bench trial, Officer Bordenkecher testified that although Jackson
did not know his name at the time, he did not take Jackson’s comments
“lightly”; rather, he took Jackson’s comments as “threatening.” Id. at 39, 47-
48. Jackson was convicted of Level 6 felony intimidation and Class B
misdemeanor battery as a lesser-included offense of Class A misdemeanor
domestic battery.1 The trial court sentenced Jackson to 365 days on each count
1 The woman did not appear to testify at trial, and the State dismissed three charges concerning her. See Tr. Vol. II p. 52. The State conceded that it could not prove a domestic relationship for the remaining charge concerning the woman and asked the trial court to proceed on Class B misdemeanor battery as a lesser- included offense. Id. at 53. Finally, there was a second intimidation charge for an officer who had since retired and did not appear to testify at trial, and the court found Jackson not guilty of that count.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 3 of 6 (to be served on community corrections) and ordered the sentences to be served
concurrently.
[5] Jackson now appeals.
Discussion and Decision I. Sufficiency [6] Jackson contends that the evidence is insufficient to support his conviction for
Level 6 felony intimidation. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the judgment. Sallee v. State, 51
N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. It is not necessary that the
evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation
omitted). The evidence is sufficient if an inference may reasonably be drawn
from it to support the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007).
[7] Here, the State alleged that Jackson committed Level 6 felony intimidation by
communicating a threat to a law-enforcement officer (i.e., that Jackson knew
where to find Officer Bordenkecher and was going to “kick his a**[]”), with the
intent that the officer be placed in fear of retaliation for a prior lawful act (i.e.,
conducting an investigation and/or placing Jackson under arrest) and the threat
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 4 of 6 was communicated to the officer because of an act taken by him within the
scope of his occupation. See Appellant’s App. Vol. II pp. 20-21 (charging
information); Ind. Code § 35-45-2-1(a)(2), (b)(1)(B)(i).
[8] Jackson claims that the State presented insufficient evidence that Jackson
communicated a “true threat” to Officer Bordenkecher. The intimidation
statute defines “threat” as “an expression, by words or action, of an intention to
. . . unlawfully injure the person threatened . . . .” I.C. § 35-45-2-1(d)(1). Our
Supreme Court clarified in Brewington v. State that “true threats” depend on two
necessary elements: (1) that the speaker intend for 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. 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied. We find that the evidence is
sufficient to prove both elements. Officer Bordenkecher arrived on a chaotic
scene. After sorting through what happened and determining that Jackson had
battered the visibly injured woman, Officer Bordenkecher arrested and
handcuffed Jackson.
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MEMORANDUM DECISION FILED Apr 30 2018, 8:17 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Jackson, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1711-CR-2549 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1706-F6-21380
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 1 of 6 Case Summary [1] Donald Jackson was convicted of Level 6 felony intimidation and Class B
misdemeanor battery. He appeals the sufficiency of the evidence to support his
intimidation conviction and the length of his battery sentence. We find that the
evidence is sufficient to support Jackson’s intimidation conviction. However,
because the trial court sentenced Jackson to 365 days for battery but the
maximum term for a Class B misdemeanor is 180 days, we reverse and remand
for the limited purpose of correcting the length of this sentence.
Facts and Procedural History [2] On the morning of June 6, 2017, Michael Evans parked his car in a surface
parking lot at the corner of Meridian and South Streets in downtown
Indianapolis. As Evans exited his car and was headed to work, he saw, in the
back of the parking lot, Jackson screaming at a woman using vulgar language
and hitting her in the face and upper body “very . . . intensely” with a closed
fist. Tr. Vol. II p. 8. Evans “started screaming” in hopes of distracting Jackson
and drawing the attention of others. Id. Evans then started walking toward
Jackson and the woman. As Evans got closer, Jackson “started coming after
[him].” Id. at 9. At this point, some bystanders intervened and shoved Jackson
to the ground. Evans called 911. Jackson got free and started to leave;
however, he returned and approached Evans, trying to convince him that he did
not see anything earlier between him and the woman.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 2 of 6 [3] In the meantime, Indianapolis Metropolitan Police Department Officer Thomas
Bordenkecher arrived on the scene. He described a scene of “chaos”: Evans
and Jackson were “facing each other,” Jackson was yelling, and Evans was in a
“guarded defensive position.” Id. at 28, 29. Jackson told the officer that he
“was attacked by some dudes.” Id. at 28. Officer Bordenkecher then spoke
with the woman, who had fresh injuries, and decided to arrest Jackson for
domestic battery. After being placed in handcuffs, Jackson yelled that he
wanted “justice” for what had happened to him. Id. at 34. Jackson then told
Officer Bordenkecher that he “knew where to find” him and that “he was
coming to kick [his] a**[].” Id. Jackson, who was about ten feet away from
Officer Bordenkecher, looked directly at the officer as he said this.
[4] The State charged Jackson with several offenses, including Level 6 felony
intimidation (of Officer Bordenkecher) and Class A misdemeanor domestic
battery. At the bench trial, Officer Bordenkecher testified that although Jackson
did not know his name at the time, he did not take Jackson’s comments
“lightly”; rather, he took Jackson’s comments as “threatening.” Id. at 39, 47-
48. Jackson was convicted of Level 6 felony intimidation and Class B
misdemeanor battery as a lesser-included offense of Class A misdemeanor
domestic battery.1 The trial court sentenced Jackson to 365 days on each count
1 The woman did not appear to testify at trial, and the State dismissed three charges concerning her. See Tr. Vol. II p. 52. The State conceded that it could not prove a domestic relationship for the remaining charge concerning the woman and asked the trial court to proceed on Class B misdemeanor battery as a lesser- included offense. Id. at 53. Finally, there was a second intimidation charge for an officer who had since retired and did not appear to testify at trial, and the court found Jackson not guilty of that count.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 3 of 6 (to be served on community corrections) and ordered the sentences to be served
concurrently.
[5] Jackson now appeals.
Discussion and Decision I. Sufficiency [6] Jackson contends that the evidence is insufficient to support his conviction for
Level 6 felony intimidation. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the judgment. Sallee v. State, 51
N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. It is not necessary that the
evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation
omitted). The evidence is sufficient if an inference may reasonably be drawn
from it to support the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007).
[7] Here, the State alleged that Jackson committed Level 6 felony intimidation by
communicating a threat to a law-enforcement officer (i.e., that Jackson knew
where to find Officer Bordenkecher and was going to “kick his a**[]”), with the
intent that the officer be placed in fear of retaliation for a prior lawful act (i.e.,
conducting an investigation and/or placing Jackson under arrest) and the threat
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 4 of 6 was communicated to the officer because of an act taken by him within the
scope of his occupation. See Appellant’s App. Vol. II pp. 20-21 (charging
information); Ind. Code § 35-45-2-1(a)(2), (b)(1)(B)(i).
[8] Jackson claims that the State presented insufficient evidence that Jackson
communicated a “true threat” to Officer Bordenkecher. The intimidation
statute defines “threat” as “an expression, by words or action, of an intention to
. . . unlawfully injure the person threatened . . . .” I.C. § 35-45-2-1(d)(1). Our
Supreme Court clarified in Brewington v. State that “true threats” depend on two
necessary elements: (1) that the speaker intend for 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. 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied. We find that the evidence is
sufficient to prove both elements. Officer Bordenkecher arrived on a chaotic
scene. After sorting through what happened and determining that Jackson had
battered the visibly injured woman, Officer Bordenkecher arrested and
handcuffed Jackson. Jackson looked directly at Officer Bordenkecher and told
him not only that he “knew where to find” him but also that he “was coming to
kick [his] a**[].” Although Jackson argues on appeal that his “cliché”
statement was “surely relatively commonplace to a 26-year veteran police
officer,” Appellant’s Br. p. 10, Officer Bordenkecher testified otherwise at trial.
Specifically, the officer testified that he’s “seen this before: officers’ houses have
been attacked and shot at, so no, we don’t take [statements like this] lightly.”
Tr. Vol. II p. 39. Rather, Officer Bordenkecher took Jackson’s statement as a
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 5 of 6 threat. Id. at 47-48. The evidence is sufficient for the fact-finder to conclude
that Jackson’s words to Officer Bordenkecher represented a true threat. We
therefore affirm Jackson’s intimidation conviction.
II. Sentence [9] Jackson next contends that the trial court erred in sentencing him to 365 days
for Class B misdemeanor battery. See Appellant’s App. Vol. II pp. 15-16
(Sentencing Order). According to Indiana Code section 35-50-3-3, “A person
who commits a Class B misdemeanor shall be imprisoned for a fixed term of
not more than one hundred eighty (180) days . . . .” The State acknowledges
that the maximum sentence for a Class B misdemeanor is 180 days. See
Appellee’s Br. p. 12. Accordingly, we remand this case to the trial court with
instructions to correct the length of Jackson’s sentence for Class B misdemeanor
battery from 365 to 180 days.
[10] Affirmed in part and reversed and remanded in part.
Barnes, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018 Page 6 of 6