Jeffery Dean Scheel v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 5, 2024
• Docket: 23A-CR-01379
• Status: Published

Opinion

IN THE

Court of Appeals of Indiana FILED Jeffery Dean Scheel, Jun 05 2024, 8:56 am

Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court

v.

State of Indiana, Appellee-Plaintiff

June 5, 2024 Court of Appeals Case No. 23A-CR-1379 Appeal from the Decatur Superior Court The Honorable Matthew D. Bailey, Judge Trial Court Cause No. 16D01-2207-CM-623

Opinion by Judge Foley Judges May and Mathias concur.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 1 of 14 Foley, Judge.

[1] Following a bench trial, Jeffery Dean Scheel (“Scheel”) was convicted of Class

A misdemeanor remote aerial harassment 1 based on the way he operated a

drone. Scheel now appeals, claiming the State failed to present sufficient

evidence supporting the conviction. Identifying sufficient evidence, we affirm.

Facts and Procedural History 2 [2] In 2022, the State charged Scheel with remote aerial harassment as a Class A

misdemeanor. 3 The State specifically alleged that, “on or about a period

between the 29th day of April . . . 2022 and the 11th day of May . . . 2022,”

Scheel “[d]id operate an unmanned aerial vehicle in a manner that [was]

intended to subject another person to harass[]ment[.]” Appellant’s App. Vol. 2

p. 15. The matter progressed to a bench trial, which was held in April 2023.

[3] The trial focused on events in the spring of 2022. At that time, Scheel lived in

the Lake Santee subdivision in Decatur County, approximately 400 yards

1 Ind. Code § 35-45-10-6. 2 As part of our civic-education program known as “Appeals on Wheels,” we held an oral argument in this case on May 14, 2024, at Fort Wayne’s North Side High School. We thank the school’s leadership and personnel for the generous hospitality and commend the student-attendees for their respectful and engaged participation. We also extend our commendations to counsel, who not only provided skilled advocacy, but also provided insightful responses to myriad student inquiries regarding the life and skillsets of a practicing Hoosier lawyer. 3 The State also charged Scheel with Class A misdemeanor remote aerial voyeurism pursuant to Indiana Code Section 35-45-4-5(g)(1), but the trial court eventually dismissed the charge upon the State’s motion.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 2 of 14 across the lake from the Kennelly family—i.e., Kyle Kennelly (“Kyle”), Betsy

Kennelly (“Betsy”), and their three daughters, aged thirteen, eleven, and nine.

[4] Kyle testified that, when he was out fishing, a drone “would hover above [him]

and then follow [him] down the lake.” Tr. Vol. 2 p. 15. When asked if he saw

“the drone go anywhere after that,” Kyle said: “Multiple nights, we saw it go

back to [Scheel’s] place and observed [Scheel] on his porch flying it.” Id. at 16.

Kyle said he saw Scheel “on his lakeside porch with his goggles on”—“his VR

goggles” 4—with a “remote in hand” and the “drone flying around his area.” Id.

[5] Kyle testified that he encountered a drone “a couple [of] times” while fishing.

Id. at 15. Kyle also testified that, before April 29, 2022, there had been an issue

with a drone approaching his daughters and hovering near them. As Kyle put

it: “Multiple times, the girls would come in from the trampoline with [the

drone] hovering above the trampoline. Also, they would be out on their

kayak[s] and [the drone] would be . . . hovering above their kayaks.” Id. at 18–

19. Kyle said the drone appeared to be the same drone he saw in the past,

which was the drone “that had flown back to [Scheel’s] house.” Id. at 19. Kyle

further testified that his daughters seemed “scared” by those encounters. Id.

Betsy later testified that the drone flights “scare[d] [her] children.” Id. at 43.

4 VR is an abbreviation for virtual reality. See VR, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/VR (last visited Mar. 6, 2024) [https://perma.cc/CED2- Z5D2].

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 3 of 14 Betsy noted that she, too, had been impacted because she “ha[d] to comfort

them and explain to them what’s going on and try to . . . calm them down.” Id.

[6] Leading up to April 29, 2022, the Kennelly family had encountered a drone

“three to five” times. Id. at 21. Kyle did not record any video footage of those

encounters. However, Kyle recorded video footage when he encountered a

drone on April 29, 2022, and again on May 10, 2022. The video footage of

each encounter was admitted as State’s Exhibits 15 and 16, respectively.

[7] As for April 29, Kyle testified that he “followed the sound” of a drone when he

was getting home from work. Id. at 20. The State questioned Kyle as follows:

Q . . . And when you first pulled out your phone to start to capture the video, where was the drone at that point?

A Front of the house.

Q Okay. And where was it in relationship to your property and to the windows of the girls?

A I would say it was on my property, probably 20 feet from the windows or so.

Q Okay. And by the time you started to walk around to film, it had moved?

A It was . . . coming around . . . toward[] the other window, the other side . . . .

Id. at 20–21.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 4 of 14 [8] As for May 29, Kyle said the video captured an area on the lake to “the left side

of [his] house,” where his daughters were kayaking “out in the cove.” Id. at 22.

When asked which direction the drone was “flying away to,” he said: “Right

back to [Scheel’s] house.” Id. Eventually, Kyle confronted Scheel and told him

“he shouldn’t be flying around [the] girls’ windows.” Id. at 24. Kyle confirmed

that, during the conversation, Scheel “didn’t deny . . . flying the drone[.]” Id.

at 23. Rather, when confronted, he said “he wasn’t doing anything wrong.” Id.

[9] Detective Jean Burkert (“Detective Burkert”) of the Decatur County Sheriff’s

Office 5 testified about an investigation of the drone flights that ultimately led to

a warrant permitting a search of Scheel’s home. When executing the search

warrant in May 2022, law enforcement found “drone equipment,” including

two drones, a remote control, and “virtual reality goggles[.]” Id. at 7. State’s

Exhibits 1 through 14 are pictures documenting the search of Scheel’s home

and the drone equipment found there. At one point, the State asked Kyle

whether the drone photographed in State’s Exhibit 9 “ha[d] the same physical

characteristics of the drone that [he] had been seeing coming onto [his]

property[.]” Id. at 22. Kyle said: “Yes.” Id. Kyle also testified that the goggles

and the remote appeared to have the same characteristics as “what [he] saw on

[Scheel]” in the past. Id. Kyle further testified that he recognized the drone as

5 Detective Burkert introduced herself as a deputy sheriff, but the parties referred to her as a detective. See, e.g., Tr. Vol. 2 pp. 8, 9; Appellant’s Br. p. 7.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 5 of 14 Scheel’s because Scheel’s drone was “the only drone that’s been flying around

at the lake.” Id. at 35.

[10] In his closing argument, Scheel claimed there was insufficient evidence that he

was the one who flew the drone, arguing as follows: “[B]oth of the eyewitnesses

say they knew [Scheel] had a drone, they saw him fly a drone around his house,

and when it flew near their house, they assumed it was his. But that’s certainly

not proof beyond a reasonable doubt that [the complained-of drone was] even

[Scheel’s] drone.” Id. at 46. Scheel asserted that all drones had the same

general appearance, arguing: “I think they all basically match. It’s four little

propellers in a cross shape.” Id. Scheel also argued that there was “no evidence

presented that . . . whomever was flying that drone was intending to harass

anyone.” Id. at 47. He argued that “the lake is a common area” and “we do

not own the airspace above our home.” Id. at 46. Scheel added that “[t]here’s

no evidence of a reason why [Scheel] would want to harass” Kyle. Id. at 47.

Scheel also contended that the drone flights at issue were not harassing. Scheel

referred to the video evidence, which he claimed contradicted Kyle’s testimony

that, at one point, the drone hovered twenty feet away from a child’s window.

[11] The trial court found Scheel guilty as charged, noting that it found “Kyle . . . to

be a credible witness” and that the State had ultimately “met its burden of

proof[.]” Id. at 48–49. The trial court later held a sentencing hearing and

imposed a sentence of 360 days in the Decatur County Jail with 8 days

executed and 352 days suspended to probation. Scheel now appeals.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 6 of 14 Discussion and Decision [12] Scheel challenges the sufficiency of the evidence supporting his conviction for

remote aerial harassment. “When reviewing a challenge to the sufficiency of

evidence supporting a conviction, we neither reweigh the evidence nor assess

the credibility of witnesses.” Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022).

Rather, we consider “only the probative evidence and the reasonable

inferences” supporting the conviction. Id. We reverse only if “no reasonable

fact-finder could find the elements of the crime proven beyond a reasonable

doubt.” Id. (quoting Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016)).

[13] Here, Scheel was convicted of Class A misdemeanor remote aerial harassment.

“A person who operates an unmanned aerial vehicle in a manner that is

intended to subject another person to harassment commits remote aerial

harassment, a Class A misdemeanor.” Ind. Code § 35-45-10-6. 6 Moreover, as

discussed later herein, “harassment” has the specific definition set forth in

Indiana Code section 35-45-10-2.

6 Scheel does not dispute that a drone is an “unmanned aerial vehicle.” Our legislature defined this term in Indiana Code section 35-31.5-2-342.3, which provides as follows: “Unmanned aerial vehicle” means an aircraft that does not carry a human operator and that is capable of flight under remote control or autonomous programming. The term includes the following: (1) An unmanned aircraft and an unmanned aircraft system (both as defined in the Federal Aviation Administration Modernization and Reform Act of 2012 (P.L.112-95, 126 Stat. 11). (2) A small unmanned aircraft and a small unmanned aircraft system (both as defined in 14 CFR 107.3).

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 7 of 14 [14] Scheel claims there was insufficient evidence that (1) he was the person who

flew the drone, (2) he intended to harass anyone, and (3) the drone flights met

the definition of harassment. We address each of Scheel’s contentions in turn.

I. Identity [15] In every case, the State must prove beyond a reasonable doubt that the accused

was the person who committed the charged offense. Cf., e.g., Taylor v. State, 86

N.E.3d 157, 163 (Ind. 2017). “Identity may be established entirely by

circumstantial evidence and the logical inferences drawn therefrom.” Cherry v.

State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016), trans. denied. For there to be

sufficient evidence regarding identity, the “[i]dentification testimony need not

necessarily be unequivocal[.]” Id. Moreover, to the extent the case involves

circumstantial evidence identifying the defendant, the evidence is sufficient if a

“reasonable [fact-finder] could have inferred that the defendant committed the

crime[] charged.” Young v. State, 198 N.E.3d 1172, 1182 (Ind. 2022).

[16] In challenging the sufficiency of the State’s identification evidence, Scheel

generally focuses on the evidence least favorable to his conviction. For

example, Scheel directs the court to Kyle’s testimony acknowledging that

drones “all look pretty similar.” Tr. Vol. 2 p. 22. He also points out that, at

one point, Kyle testified that the drone was a black drone, but black was “not

the color of either of . . . Scheel’s drones.” Appellant’s Br. p. 10. Scheel argues

that, “[w]ithout positively identifying the drone, observing . . . Scheel[,] or even

seeing the drone return to . . . Scheel’s property” on the two occasions captured

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 8 of 14 on video, “there is simply no proof that the drones [Kyle and Betsy] saw were

being operated by [Scheel].” Id. Scheel suggests that Kyle was motivated to

accuse him because Kyle had “heard negative things about [him].” Id. Scheel

also discusses hypothetical evidence that, if presented, would have made for a

stronger case against Scheel. That is, Scheel suggests that the State should have

presented “images or photographs . . . found to have been taken with [his]

drones” that corresponded with the encounters Kyle described. Id. at 7. All in

all, Scheel challenges the reasonableness of the inferences to be drawn from the

evidence, and argues Kyle and Betsy made “assumptions without corroboration

of any kind” that Scheel was the person who operated the drone. Id. at 10.

[17] The State points out that, by focusing on the evidence least favorable to his

conviction, Scheel’s appellate arguments amount to “a request to reweigh the

evidence, which this [c]ourt does not do.” Appellee’s Br. p. 8. We agree with

the State. Consistent with our standard of review, we must focus on evidence

supporting the conviction, which includes evidence that (1) on more than one

occasion, Kyle was followed by a drone that flew back to Scheel; (2) Kyle saw

Scheel operating the drone with VR goggles; (3) Scheel’s drone was “the only

drone that’s been flying around at the lake,” Tr. Vol. 2 p. 35; (4) when Kyle told

Scheel “he shouldn’t be flying around [the] girls’ windows,” Scheel responded

only that “he wasn’t doing anything wrong” id. at 23; and (5) Scheel possessed

drone equipment consistent with Kyle’s observations. We ultimately conclude

that, based on the evidence presented, a fact-finder could reasonably infer that

Scheel was the person who repeatedly flew a drone near the Kennelly family.

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 9 of 14 II. Intent to Harass and Nature of the Drone Flights [18] Scheel challenges the sufficiency of the evidence that he intended to harass

anyone when operating a drone. As to intent, our legislature criminalized

operating a drone “in a manner that is intended to subject another person to

harassment[.]” I.C. § 35-45-10-6. Here, the parties agree the pertinent inquiry

is whether Scheel intended to harass the Kennelly family by his operation of the

drone. “A person engages in conduct ‘intentionally’ if, when he engages in the

conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2. In general,

“[i]ntent can be inferred from a defendant’s conduct and the natural and usual

sequence to which such conduct logically and reasonably points.” Hightower v.

State, 866 N.E.2d 356, 368 (Ind. Ct. App. 2007) (quoting E.H. v. State, 764

N.E.2d 681, 683 (Ind. Ct. App. 2002), trans. denied), trans. denied. Moreover, we

have previously noted that “[i]ntent is a mental function; hence, absent a

confession, it often must be proven by circumstantial evidence.” Id.

[19] In this case, the State attempted to prove intent by relying on evidence about

the nature of the drone flights. Thus, whether the State presented sufficient

evidence of Scheel’s intent depends on whether there is sufficient evidence that

the drone flights themselves satisfied the statutory definition of harassment. Cf.

Appellant’s Br. p. 10 (encouraging us to “look, objectively, at the actions taken

by the remote aerial vehicle and, perhaps, the context of the relationship

between the parties, to determine [whether the drone] was operated with the

intent to harass”); Appellee’s Br. p. 8 (focusing on Scheel’s conduct, asserting:

“The natural consequence to which Scheel’s conduct points is that he intended

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 10 of 14 to subject the Kennelly family to harassment because his conduct was targeted,

repetitive, and alarming.”). We therefore turn to Scheel’s contention that there

was insufficient evidence that use of the drone constituted statutory harassment.

[20] Regarding Scheel’s operation of the drone, the State was required to prove that

Scheel’s conduct directed toward the Kennelly family amounted to harassment.

Our legislature adopted the following definition of harassment:

As used in this chapter, “harassment” means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.

I.C. § 35-45-10-2. On appeal, Scheel focuses on the objective and subjective

elements of harassment expressed in the statute. That is, he challenges the

sufficiency of evidence that the drone flights “would cause a reasonable person

to suffer emotional distress” and “actually cause[d] . . . emotional distress.” Id.

[21] Regarding subjective emotional distress, there was evidence that the drone

flights “scare[d] [the] children.” Tr. Vol. 2 p. 43. As a result, Betsy—who felt

“uncomfortable” because of the drone flights—“ha[d] to comfort [the children]

and explain to them what’s going on . . . to try to calm them down.” Tr. Vol. 2

p. 43. Furthermore, Scheel’s conduct led Kyle to record two drone encounters

and ultimately confront Scheel about the way he flew the drone, telling Scheel

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 11 of 14 “he shouldn’t be flying around [the] girls’ windows.” Id. at 23. We conclude

the foregoing evidence was sufficient to prove the Kennellys were emotionally

distressed due to the drone flights. To the extent Scheel argues otherwise, his

arguments amount to a request to reweigh the evidence, which we decline.

[22] As for objective emotional distress, Scheel claims the State failed to prove that a

reasonable person would have been distressed by the drone flights. In general,

Scheel focuses on the video footage, asserting that “[n]o reasonable person

observing what was in those videos would be distressed.” Appellant’s Br. p. 12.

Scheel also claims there was insufficient evidence that a reasonable person

would be distressed by the drone flights because “any emotional distress felt by

the Kennelly[s] was less from the fact that they saw a drone and more because

they thought it was . . . Scheel’s drone. They had heard bad things about . . .

Scheel and that is what gave them concern. Not a drone, only . . . Scheel’s

drone.” Id. According to Scheel: “It simply cannot be the case that seeing a

drone that you think is being operated by someone you don’t like is what the

legislature was seeking to prevent when it made remote aerial harassment a

crime.” Id. Scheel also asserts that this court “should not find that a drone

flying in public airspace constitutes impermissible conduct.” Id.

[23] We conclude that the record discloses sufficient evidence that a reasonable

person would have experienced emotional distress under the circumstances.

That is, the State proved there were multiple drone flights directed toward the

Kennelly family, including a flight near the Kennelly residence and other flights

that hovered over the children as they kayaked in the lake and jumped on the

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 12 of 14 trampoline. Having seen a drone returning to the same person—Scheel—a

reasonable person would feel targeted by these drone flights. Moreover, it is a

common assumption that a drone features video capabilities and, here, Scheel

was seen controlling a drone with VR goggles. Thus, in light of the repeated

drone flights targeting the Kennelly family—drone flights that were focused on

minors and invasive of their privacy, especially in light of the VR equipment

involved—we conclude that the State presented sufficient evidence that a

reasonable person would suffer emotional distress under the circumstances.

Furthermore, based on the nature of the drone flights, we also conclude that the

State presented sufficient evidence that Scheel had the required intent to harass.

Conclusion [24] The State presented sufficient evidence that Scheel committed Class A

misdemeanor remote aerial harassment.

[25] Affirmed.

May, J., Mathias, J., concur.

ATTORNEY FOR APPELLANT Ross G. Thomas Indianapolis, Indiana

ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 13 of 14 Alexandria N. Sons Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-1379 | June 5, 2024 Page 14 of 14