MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 13 2017, 10:29 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alphonso Manns Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ken R. Anderson, October 13, 2017 Appellant-Defendant, Court of Appeals Case No. 88A01-1612-CR-2928 v. Appeal from the Washington Circuit Court State of Indiana, The Honorable Larry W. Medlock, Appellee-Plaintiff Judge Trial Court Cause No. 88C01-1605-F1-228
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 1 of 11 [1] Ken Anderson appeals his convictions for Level 5 Felony Intimidation1 and
Level 6 Felony Criminal Recklessness.2 He argues that the evidence is
insufficient to rebut his claim of self-defense or to support the convictions. We
find that the evidence is sufficient to rebut his claim of self-defense and to
support his criminal recklessness conviction, but we find the evidence is
insufficient to support his intimidation conviction. Therefore, we affirm in part,
reverse in part, and remand with instructions.
Facts [2] On May 14, 2016, at approximately 5:30 a.m., Kevin Lang was driving in
Washington County. Lang’s vehicle approached Anderson, who was driving
on the same road. Lang slowed his vehicle’s speed and was approximately
three car lengths behind Anderson’s vehicle when Anderson fired multiple
gunshots out the driver’s side window of his vehicle. Lang believed Anderson
was firing the gun up into the air. There were residential houses on both sides
of Anderson’s vehicle when he fired the shots.
[3] After Anderson fired the gunshots, Lang pulled over to the right side of the road
and called 911. Anderson then turned around so that his vehicle faced Lang’s
and stopped. Next, Anderson turned around again and continued driving; he
fired another shot out of his window, still in a residential area. Lang was still
1 Ind. Code § 35-45-2-1. 2 Ind. Code § 35-42-2-2.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 2 of 11 on the phone with the 911 operator and began following Anderson to track his
location for law enforcement.
[4] Anderson and Lang then both stopped their respective vehicles. While they
were stopped, another vehicle drove past them, and Anderson fired another
shot as the other vehicle drove past. Anderson was stopped in front of a
residence when he fired the shot. Eventually, Anderson was pulled over by law
enforcement and arrested.
[5] On May 16, 2016, the State charged Anderson with Level 1 felony attempted
murder, Level 6 felony pointing a firearm, and Level 6 felony criminal
recklessness. The State later added a charge of Level 5 felony intimidation and
dismissed the attempted murder and pointing a firearm charges. At Anderson’s
jury trial, which began on September 7, 2016, he raised defenses of insanity and
self-defense. The jury found him guilty as charged. The trial court merged the
criminal recklessness conviction into the intimidation conviction, entering
judgment only on the intimidation conviction and sentencing Anderson to
thirty-six months, with twenty-one months suspended to probation. Anderson
now appeals.
Discussion and Decision [6] Anderson argues that there is insufficient evidence rebutting his claim of self-
defense or supporting his two convictions. When reviewing the sufficiency of
the evidence supporting a conviction, we will examine only the probative
evidence and reasonable inferences that may be drawn therefrom in support of
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 3 of 11 the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014); see also Sanders v.
State, 704 N.E.2d 119, 123 (Ind. 1999) (holding that the standard of review of
the sufficiency of the evidence rebutting a claim of self-defense is the same as
for any other sufficiency claim). We will neither reweigh the evidence nor
assess witness credibility, and will affirm unless no reasonable factfinder could
find the elements of the crime proved beyond a reasonable doubt. Morgan, 22
N.E.3d at 573.
I. Self-Defense [7] First, Anderson contends that there is insufficient evidence rebutting his claim
of self-defense. To prevail on a claim of self-defense, a defendant must show
that he (1) was in a place where he had a right to be; (2) did not provoke,
instigate, or participate willingly in the violence; and (3) had a reasonable fear
of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002);
see also Ind. Code § 35-41-3-2. When a self-defense claim is raised and finds
support in the evidence, the State bears the burden of negating at least one of
the necessary elements beyond a reasonable doubt. Wilson, 770 N.E.2d at 800.
The State may meet its burden by offering evidence directly rebutting the
defense, affirmatively showing that the defendant did not act in self-defense, or
by relying on the sufficiency of the evidence from its case-in-chief. Miller v.
State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite a
claim of self-defense, we will reverse only if no reasonable person could say that
self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at
801.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 4 of 11 [8] Anderson insists that he was “basically attacked” by Lang when Lang touched
the back of Anderson’s car with his front fender. Appellant’s Br. p. 23. But the
record reveals that Lang unequivocally testified that when he approached
Anderson, he slowed down to forty-five miles per hour and was three car
lengths behind Anderson when Anderson opened fire. Tr. Vol. I p. 120-23.
Lang also testified that he never acted in an aggressive manner towards
Anderson while driving. Id. at 136. It was for the jury to listen to the
competing versions of events, weigh the evidence, assess the credibility of the
witnesses, and decide who to believe. McIver v. State, 654 N.E.2d 308, 311 (Ind.
Ct. App. 1995) (holding that the factfinder is entitled to disbelieve the defendant
and his evidence). There is evidence in the record establishing that Anderson
instigated the situation and that Anderson did not have a reasonable fear of
death or bodily harm under the circumstances. In other words, we find the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 13 2017, 10:29 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alphonso Manns Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ken R. Anderson, October 13, 2017 Appellant-Defendant, Court of Appeals Case No. 88A01-1612-CR-2928 v. Appeal from the Washington Circuit Court State of Indiana, The Honorable Larry W. Medlock, Appellee-Plaintiff Judge Trial Court Cause No. 88C01-1605-F1-228
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 1 of 11 [1] Ken Anderson appeals his convictions for Level 5 Felony Intimidation1 and
Level 6 Felony Criminal Recklessness.2 He argues that the evidence is
insufficient to rebut his claim of self-defense or to support the convictions. We
find that the evidence is sufficient to rebut his claim of self-defense and to
support his criminal recklessness conviction, but we find the evidence is
insufficient to support his intimidation conviction. Therefore, we affirm in part,
reverse in part, and remand with instructions.
Facts [2] On May 14, 2016, at approximately 5:30 a.m., Kevin Lang was driving in
Washington County. Lang’s vehicle approached Anderson, who was driving
on the same road. Lang slowed his vehicle’s speed and was approximately
three car lengths behind Anderson’s vehicle when Anderson fired multiple
gunshots out the driver’s side window of his vehicle. Lang believed Anderson
was firing the gun up into the air. There were residential houses on both sides
of Anderson’s vehicle when he fired the shots.
[3] After Anderson fired the gunshots, Lang pulled over to the right side of the road
and called 911. Anderson then turned around so that his vehicle faced Lang’s
and stopped. Next, Anderson turned around again and continued driving; he
fired another shot out of his window, still in a residential area. Lang was still
1 Ind. Code § 35-45-2-1. 2 Ind. Code § 35-42-2-2.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 2 of 11 on the phone with the 911 operator and began following Anderson to track his
location for law enforcement.
[4] Anderson and Lang then both stopped their respective vehicles. While they
were stopped, another vehicle drove past them, and Anderson fired another
shot as the other vehicle drove past. Anderson was stopped in front of a
residence when he fired the shot. Eventually, Anderson was pulled over by law
enforcement and arrested.
[5] On May 16, 2016, the State charged Anderson with Level 1 felony attempted
murder, Level 6 felony pointing a firearm, and Level 6 felony criminal
recklessness. The State later added a charge of Level 5 felony intimidation and
dismissed the attempted murder and pointing a firearm charges. At Anderson’s
jury trial, which began on September 7, 2016, he raised defenses of insanity and
self-defense. The jury found him guilty as charged. The trial court merged the
criminal recklessness conviction into the intimidation conviction, entering
judgment only on the intimidation conviction and sentencing Anderson to
thirty-six months, with twenty-one months suspended to probation. Anderson
now appeals.
Discussion and Decision [6] Anderson argues that there is insufficient evidence rebutting his claim of self-
defense or supporting his two convictions. When reviewing the sufficiency of
the evidence supporting a conviction, we will examine only the probative
evidence and reasonable inferences that may be drawn therefrom in support of
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 3 of 11 the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014); see also Sanders v.
State, 704 N.E.2d 119, 123 (Ind. 1999) (holding that the standard of review of
the sufficiency of the evidence rebutting a claim of self-defense is the same as
for any other sufficiency claim). We will neither reweigh the evidence nor
assess witness credibility, and will affirm unless no reasonable factfinder could
find the elements of the crime proved beyond a reasonable doubt. Morgan, 22
N.E.3d at 573.
I. Self-Defense [7] First, Anderson contends that there is insufficient evidence rebutting his claim
of self-defense. To prevail on a claim of self-defense, a defendant must show
that he (1) was in a place where he had a right to be; (2) did not provoke,
instigate, or participate willingly in the violence; and (3) had a reasonable fear
of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002);
see also Ind. Code § 35-41-3-2. When a self-defense claim is raised and finds
support in the evidence, the State bears the burden of negating at least one of
the necessary elements beyond a reasonable doubt. Wilson, 770 N.E.2d at 800.
The State may meet its burden by offering evidence directly rebutting the
defense, affirmatively showing that the defendant did not act in self-defense, or
by relying on the sufficiency of the evidence from its case-in-chief. Miller v.
State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite a
claim of self-defense, we will reverse only if no reasonable person could say that
self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at
801.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 4 of 11 [8] Anderson insists that he was “basically attacked” by Lang when Lang touched
the back of Anderson’s car with his front fender. Appellant’s Br. p. 23. But the
record reveals that Lang unequivocally testified that when he approached
Anderson, he slowed down to forty-five miles per hour and was three car
lengths behind Anderson when Anderson opened fire. Tr. Vol. I p. 120-23.
Lang also testified that he never acted in an aggressive manner towards
Anderson while driving. Id. at 136. It was for the jury to listen to the
competing versions of events, weigh the evidence, assess the credibility of the
witnesses, and decide who to believe. McIver v. State, 654 N.E.2d 308, 311 (Ind.
Ct. App. 1995) (holding that the factfinder is entitled to disbelieve the defendant
and his evidence). There is evidence in the record establishing that Anderson
instigated the situation and that Anderson did not have a reasonable fear of
death or bodily harm under the circumstances. In other words, we find the
evidence sufficient to support the jury’s conclusion that Anderson did not act in
self-defense.
II. Criminal Recklessness [9] Next, Anderson argues that the evidence is insufficient to support his conviction
for Level 6 felony criminal recklessness. To convict Anderson of this crime, the
State was required to prove beyond a reasonable doubt that he recklessly,
knowingly, or intentionally performed an act that created a substantial risk of
bodily injury to another person while armed with a deadly weapon. I.C. § 35-
42-2-2.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 5 of 11 [10] Anderson concedes that he knowingly shot a gun into the air but argues that the
evidence does not support a conclusion that his action created a substantial risk
of bodily injury to another person. We disagree. The record reveals that
Anderson fired his weapon from a vehicle on three separate occasions, each of
which occurred in a residential area. On one of those occasions, he fired his
weapon as another vehicle passed his car. Regardless of whether Anderson
aimed at Lang, another driver, or the sky, a reasonable jury could conclude that
discharging a firearm in the near vicinity of Lang’s vehicle, residences, and a
vehicle that was passing by carries a substantial risk of bodily injury to another
person. See Woods v. State, 768 N.E.2d 1024, 1028 (Ind. Ct. App. 2002)
(holding that the evidence was sufficient to establish a substantial risk of bodily
injury where the defendant fired several gunshots in a residential area near
other people). We find the evidence sufficient to support Anderson’s criminal
recklessness conviction.
III. Intimidation [11] Finally, Anderson argues that the evidence does not support his conviction for
Level 5 felony intimidation. To convict Anderson of this crime, the State was
required to prove beyond a reasonable doubt that Anderson, while armed with
a deadly weapon, communicated a threat to Lang with the intent that Lang
(1) engage in conduct against his will—here, to stop his motor vehicle on a
public roadway—or (2) be placed in fear of retaliation for a prior lawful act—
here, for the prior lawful act of driving on a public roadway. I.C. § 35-45-2-1.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 6 of 11 [12] It is undisputed that Anderson was armed with a deadly weapon, and we will
assume for argument’s sake that the act of discharging the gun into the air
constituted a threat of some sort. What must be determined is whether the
evidence supports a conclusion that Anderson made this threat with the specific
intent required by the statute.
[13] Initially, we note that the record reveals that Anderson first fired the shots into
the air while the vehicles were in motion. Then, after both vehicles came to a
stop, Anderson began driving again, and again fired the weapon out of his
window. Then, the vehicles came to a stop again and, while still stopped,
Anderson fired his weapon as another vehicle passed by. Under these
circumstances, a reasonable factfinder could not conclude that Anderson was
threatening Lang with the intent that Lang stop his vehicle, because Anderson
continued to fire his weapon even after Lang came to a stop.
[14] Consequently, the only possible avenue to convict Anderson of intimidation is
to find that the evidence supports a conclusion that Anderson was threatening
Lang with the intent to place Lang in fear for the lawful act of driving on a
public roadway. Initially, we note that aside from Anderson’s own testimony,
there is no direct evidence of his intent—the record does not reveal why he
repeatedly fired the gun. Likewise, there is no indirect or circumstantial
evidence tending to establish an intent to place Lang in fear for the act of
driving on the roadway. Anderson could have been afraid of Lang (as he
claims), he could have intended to warn Lang to back off, or he could have
fired the weapon for reasons having nothing whatsoever to do with Lang. We
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 7 of 11 simply do not know, and a reasonable factfinder could not draw an inference in
this regard from the evidence in the record. Consequently, we vacate the
intimidation conviction because the evidence is insufficient to support this
conviction.
[15] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to vacate the intimidation conviction, reinstate the
criminal recklessness conviction, and resentence Anderson accordingly.
Bailey, J., concurs. Altice, J., concurs in part and dissents in part with a separate opinion.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 8 of 11 IN THE COURT OF APPEALS OF INDIANA
Ken R. Anderson, Court of Appeals Case No. 88A01-1612-CR-2928 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Altice, Judge, concurring in part and dissenting in part.
[16] I concur with parts I and II of the majority’s decision but cannot agree that the
State presented insufficient evidence to support the conviction for intimidation.
The facts are much more menacing than represented by the majority and clearly
support a finding that Anderson threatened Lang, while armed with a deadly
weapon, with the intent that Lang stop following him on the public roadway.
[17] Lang’s testimony reveals that his vehicle approached Anderson’s at a higher
rate of speed going northbound on Voyles Road, causing Lang to slow down
behind Anderson and follow him at a distance of about three car lengths.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 9 of 11 Shortly thereafter, Lang’s vehicle slowed “way down” and then Lang fired
multiple gunshots into the air. Transcript Vol. 1 at 122. This caused Lang to
immediately pull to the side of the road and stop. Lang turned on his hazard
and bright lights while calling 911. Anderson also brought his vehicle to a stop
and shined a bright flashlight back toward Lang. Anderson then continued on
his way. Lang followed at a safe distance – about 300 to 400 feet away.
[18] After traveling about a third of a mile, Anderson backed into another roadway,
momentarily turned on his dome light, and then turned southbound on Voyles
Road heading in Lang’s direction. Lang felt threatened by this maneuver and
began backing up his vehicle to keep a distance from Lang. Anderson then
stopped and turned back northbound on Voyles Road. As he proceeded down
the road, Anderson fired another shot.
[19] Lang was afraid but continued to follow Anderson at a distance while he
continued to communicate with the 911 operator. Anderson then came to
another stop, as did Lang about 300 feet away. Another motorist passed Lang
and then Anderson, as Anderson fired another shot.
[20] During this episode, Lang called his girlfriend and complained that someone
was “following” him. Transcript Vol. 2 at 5. Further, Anderson testified that he
fired the shots to “warn him off” and “communicate to [Lang] to leave [him]
alone.” Id. at 30, 35. In other words, Anderson fired gunshots to communicate
a threat to Lang with the intent that Lang stop following him on the public
roadway (i.e., engage in conduct against his will).
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 10 of 11 [21] In my opinion, when the facts and inferences are viewed in a light most
favorable to the jury’s verdict, there is ample evidence to support Anderson’s
conviction for intimidation. Thus, I would affirm the judgment in all respects.
Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017 Page 11 of 11