MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 18 2017, 6:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Howard Elam, August 18, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1704-CR-805 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela D. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 49G16-1701-F6-625
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 1 of 7 [1] Howard Elam appeals his convictions for Level 6 Felony Criminal
Confinement,1 Class A Misdemeanor Domestic Battery,2 and Class A
Misdemeanor Intimidation,3 arguing that the evidence is insufficient to support
the convictions. Finding the evidence sufficient, we affirm.
Facts [2] Elam dated Sydnea Embry on and off for two years. On December 19, 2016,
they were no longer dating, but he was living in her apartment. When she tried
to leave her apartment with her three-month-old son,4 Elam grabbed the infant
car seat and told her that she could leave but her son had to stay. He “knew
that [Embry] wasn’t going to leave without [her] child.” Tr. Vol. II p. 9.
Embry did not feel as though she could leave, so she went back into her
bedroom and tried to figure out how to leave with her baby. At one point,
Embry began to leave, but Elam intercepted her, grabbed her son’s arm, and
“tried to play tug of war” with Embry while attempting to strike her with his
other hand. Id. at 10. After thirty to forty-five minutes, a friend of Elam
knocked on the apartment door and Embry and her son were able to escape.
1 Ind. Code § 35-42-3-3(a). 2 I.C. § 35-42-2-1.3(a)(1). 3 Ind. Code § 35-45-2-1. 4 Elam is not the father of Embry’s son.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 2 of 7 [3] That night and the next morning, Elam sent Embry many text messages
demanding that she drive him to school the next morning:
• “I just kno I better be at dat school tomar [sic] to take my test” • “U gone take me . . . if I don’t get there don’t come bac” • “u better be here to take me to school tomar” • “don’t ever let me c u bac here if I ain’t at school in da morning” • “If I don’t get to school . . . don’t come back by yo self” • “B*tch f*ck u and die b*tch I better make it to school”
Tr. Ex. 1-3 (grammar, spelling, and capitalization original). Embry felt as
though she had to take Elam to school “[b]ecause [they] had a history of
physical abus[e] and mental abuse and [she] just felt intimidated.” Tr. Vol. II p.
26.
[4] When Embry arrived at her apartment to take Elam to school, he was still
asleep. She took some of her belongings to her car. When she returned, Elam
was awake and began accusing her of taking his house key. She said she would
wait for him in her car. As she walked out of her apartment, he grabbed her by
her hair and pulled her to the ground; he then grabbed her by her feet and
pulled her back into the apartment. When he let go of her, she ran to her car
and left. After she left, he texted her to say he was sorry: “I apologise for
grabbing u da way I did[.]” Tr. Ex. 4 (spelling and grammar original).
[5] On January 5, 2017, the State charged Elam with Level 6 felony criminal
confinement, Level 6 felony battery, Level 6 felony domestic battery, Level 6
felony kidnapping, Class A misdemeanor domestic battery, and Class A
misdemeanor intimidation. Elam’s bench trial took place on March 14, 2017. Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 3 of 7 The trial court dismissed the Level 6 felony domestic battery and kidnapping
charges, found Elam not guilty of Level 6 felony battery, and found Elam guilty
of the remaining charges. Following a March 21, 2017, sentencing hearing, the
trial court sentenced Elam to an aggregate term of two years imprisonment with
one year suspended. Elam now appeals.
Discussion [6] Elam argues that there is insufficient evidence supporting his convictions for
Level 6 felony criminal confinement, Class A misdemeanor domestic battery,
and Class A misdemeanor intimidation. When reviewing a claim of
insufficient evidence, we will consider only the evidence and reasonable
inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.
2011). We will affirm if, based on the evidence and inferences, a reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009).
[7] To convict Elam of Level 6 felony criminal confinement, the State was required
to prove beyond a reasonable doubt that he knowingly confined Embry without
her consent. I.C. § 35-42-3-3(a). To “confine” means “to substantially interfere
with the liberty of a person.” I.C. § 35-42-3-1.
[8] Elam argues that because he told Embry she could leave—albeit without her
infant son—she consented to the confinement. We cannot agree. Embry
testified that she tried to leave twice. First, Elam grabbed the car seat and told
her that her son had to stay. Second, Elam intercepted her, grabbed her son’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 4 of 7 arm, and played “tug of war” with Embry while trying to strike her with his
other hand. Tr. Vol. II p. 10. The fact that Elam told Embry she could leave
only if she left her baby with him is irrelevant. Offering a choice to a parent to
stay with her infant or leave him in the care of a threatening and violent person
is no choice at all. We cannot say that anything in the record leads to a
reasonable conclusion that Embry consented to this confinement, and Elam’s
arguments to the contrary amount to an impermissible request that we reweigh
the evidence. See Dewald v. State, 898 N.E.2d 488, 491-92 (Ind. Ct. App. 2008)
(where defendant blocked in victim’s van and argued that she could have left
the scene without her van, meaning she was not confined without consent,
defendant’s argument was merely a request to reweigh the evidence). Based on
this evidence, a reasonable factfinder could have found Elam guilty beyond a
reasonable doubt. The evidence is sufficient.
[9] To convict Elam of Class A misdemeanor domestic battery, the State was
required to prove beyond a reasonable doubt that Elam knowingly touched
Embry, a family or household member, in a rude, insolent, or angry manner.
I.C. § 35-42-2-1.3(a)(1). Elam argues that the State did not prove beyond a
reasonable doubt that Embry was his family or household member. There are
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 18 2017, 6:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Howard Elam, August 18, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1704-CR-805 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela D. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 49G16-1701-F6-625
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 1 of 7 [1] Howard Elam appeals his convictions for Level 6 Felony Criminal
Confinement,1 Class A Misdemeanor Domestic Battery,2 and Class A
Misdemeanor Intimidation,3 arguing that the evidence is insufficient to support
the convictions. Finding the evidence sufficient, we affirm.
Facts [2] Elam dated Sydnea Embry on and off for two years. On December 19, 2016,
they were no longer dating, but he was living in her apartment. When she tried
to leave her apartment with her three-month-old son,4 Elam grabbed the infant
car seat and told her that she could leave but her son had to stay. He “knew
that [Embry] wasn’t going to leave without [her] child.” Tr. Vol. II p. 9.
Embry did not feel as though she could leave, so she went back into her
bedroom and tried to figure out how to leave with her baby. At one point,
Embry began to leave, but Elam intercepted her, grabbed her son’s arm, and
“tried to play tug of war” with Embry while attempting to strike her with his
other hand. Id. at 10. After thirty to forty-five minutes, a friend of Elam
knocked on the apartment door and Embry and her son were able to escape.
1 Ind. Code § 35-42-3-3(a). 2 I.C. § 35-42-2-1.3(a)(1). 3 Ind. Code § 35-45-2-1. 4 Elam is not the father of Embry’s son.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 2 of 7 [3] That night and the next morning, Elam sent Embry many text messages
demanding that she drive him to school the next morning:
• “I just kno I better be at dat school tomar [sic] to take my test” • “U gone take me . . . if I don’t get there don’t come bac” • “u better be here to take me to school tomar” • “don’t ever let me c u bac here if I ain’t at school in da morning” • “If I don’t get to school . . . don’t come back by yo self” • “B*tch f*ck u and die b*tch I better make it to school”
Tr. Ex. 1-3 (grammar, spelling, and capitalization original). Embry felt as
though she had to take Elam to school “[b]ecause [they] had a history of
physical abus[e] and mental abuse and [she] just felt intimidated.” Tr. Vol. II p.
26.
[4] When Embry arrived at her apartment to take Elam to school, he was still
asleep. She took some of her belongings to her car. When she returned, Elam
was awake and began accusing her of taking his house key. She said she would
wait for him in her car. As she walked out of her apartment, he grabbed her by
her hair and pulled her to the ground; he then grabbed her by her feet and
pulled her back into the apartment. When he let go of her, she ran to her car
and left. After she left, he texted her to say he was sorry: “I apologise for
grabbing u da way I did[.]” Tr. Ex. 4 (spelling and grammar original).
[5] On January 5, 2017, the State charged Elam with Level 6 felony criminal
confinement, Level 6 felony battery, Level 6 felony domestic battery, Level 6
felony kidnapping, Class A misdemeanor domestic battery, and Class A
misdemeanor intimidation. Elam’s bench trial took place on March 14, 2017. Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 3 of 7 The trial court dismissed the Level 6 felony domestic battery and kidnapping
charges, found Elam not guilty of Level 6 felony battery, and found Elam guilty
of the remaining charges. Following a March 21, 2017, sentencing hearing, the
trial court sentenced Elam to an aggregate term of two years imprisonment with
one year suspended. Elam now appeals.
Discussion [6] Elam argues that there is insufficient evidence supporting his convictions for
Level 6 felony criminal confinement, Class A misdemeanor domestic battery,
and Class A misdemeanor intimidation. When reviewing a claim of
insufficient evidence, we will consider only the evidence and reasonable
inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.
2011). We will affirm if, based on the evidence and inferences, a reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009).
[7] To convict Elam of Level 6 felony criminal confinement, the State was required
to prove beyond a reasonable doubt that he knowingly confined Embry without
her consent. I.C. § 35-42-3-3(a). To “confine” means “to substantially interfere
with the liberty of a person.” I.C. § 35-42-3-1.
[8] Elam argues that because he told Embry she could leave—albeit without her
infant son—she consented to the confinement. We cannot agree. Embry
testified that she tried to leave twice. First, Elam grabbed the car seat and told
her that her son had to stay. Second, Elam intercepted her, grabbed her son’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 4 of 7 arm, and played “tug of war” with Embry while trying to strike her with his
other hand. Tr. Vol. II p. 10. The fact that Elam told Embry she could leave
only if she left her baby with him is irrelevant. Offering a choice to a parent to
stay with her infant or leave him in the care of a threatening and violent person
is no choice at all. We cannot say that anything in the record leads to a
reasonable conclusion that Embry consented to this confinement, and Elam’s
arguments to the contrary amount to an impermissible request that we reweigh
the evidence. See Dewald v. State, 898 N.E.2d 488, 491-92 (Ind. Ct. App. 2008)
(where defendant blocked in victim’s van and argued that she could have left
the scene without her van, meaning she was not confined without consent,
defendant’s argument was merely a request to reweigh the evidence). Based on
this evidence, a reasonable factfinder could have found Elam guilty beyond a
reasonable doubt. The evidence is sufficient.
[9] To convict Elam of Class A misdemeanor domestic battery, the State was
required to prove beyond a reasonable doubt that Elam knowingly touched
Embry, a family or household member, in a rude, insolent, or angry manner.
I.C. § 35-42-2-1.3(a)(1). Elam argues that the State did not prove beyond a
reasonable doubt that Embry was his family or household member. There are
multiple ways in which one individual can be a family or household member of
another individual, including when the individual “is dating or has dated the
other person[.]” Ind. Code § 35-31.5-2-128(2). It is undisputed that Elam and
Embry dated on and off for two years. Tr. Vol. II p. 6-7, 51. Therefore, the
evidence is sufficient to support this conviction.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 5 of 7 [10] Finally, to convict Elam of Class A misdemeanor intimidation, the State was
required to prove beyond a reasonable doubt that he communicated a threat to
Embry with the intent that she engage in conduct against her will. I.C. § 35-45-
2-1(a)(1). A “threat” is, among other things, “an expression, by words or
action, of an intention to . . . unlawfully injure the person threatened or another
person, or damage property.” I.C. § 35-45-2-1(d)(1). A threat is punishable if
the speaker “intend[s] his communications to put his target[] in fear for [her]
safety, and . . . 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).
[11] Elam argues that the evidence does not support a conclusion that Embry acted
against her will when she decided to give him a ride to school. He notes that
Embry testified that she ultimately decided to give him a ride to school because
she wanted to go to the apartment to pick up some of her things. Whatever
Embry’s motivations may have been on the morning she went to pick up Elam
are irrelevant. The crime of intimidation was complete as soon as Elam
communicated a threat to Embry with the intent that she engage in conduct
against her will. Therefore, as soon as he sent a litany of text messages to her
the night before threatening her with vague harm as well as telling her to “die”
if she did not pick him up the next morning, he had committed the crime of
intimidation. See Tr. Ex. 1-4. Whatever Embry’s decision-making process was
the next morning does not matter. We find the evidence sufficient to support
this conviction.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 6 of 7 [12] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 7 of 7