MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 17 2016, 9:32 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicholas A. Siler Gregory F. Zoeller West Baden Springs, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark A. Drescher, October 17, 2016 Appellant-Defendant, Court of Appeals Case No. 19A01-1602-CR-298 v. Appeal from the Dubois Circuit Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff McConnell, Special Judge Trial Court Cause No. 19C01-1412-F5-923
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 1 of 6 [1] Mark Drescher appeals his conviction for Level 5 Felony Intimidation,1 arguing
that the evidence is insufficient. He also appeals his sentence, contending that it
is inappropriate in light of the nature of the offense and his character. Finding
the evidence sufficient and the sentence not inappropriate, we affirm.
Facts [2] In December 2014, Drescher and Eugenia Neukam had been in an on-and-off
relationship for nearly three years. On December 27, 2014, they broke up and
Drescher began removing his belongings from their residence. He returned
later that afternoon and asked Neukam to go for a ride with him so that they
could talk. Neukam agreed, and they left in Drescher’s truck. As they drove
around the countryside, Drescher proposed to Neukam. He travels frequently
for his job and asked that Neukam give up custody of her children to her ex-
husband, marry Drescher, leave her home and the children, and go on the road
with him. Tr. p. 59-61. Neukam refused to agree to those terms, and they
became embroiled in a heated argument, with Drescher calling Neukam “all of
the bad” names such as “crazy bitch,” “slut,” and “whore.” Tr. p. 64-65.
Drescher began to pull her hair, bang her head into the truck window, and hit
her.
[3] At one point, Drescher stopped the truck, walked around to the passenger side,
and pulled Neukam out. He held her up against the side of the truck, hit her,
1 Ind. Code § 35-45-2-1.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 2 of 6 pulled her hair, and yanked her head around. He dragged her to a ditch and
asked her if she was ready to die, and then took her back to the truck. He
pulled out a knife, asked her again if she was ready to die, poked her in the
chest with the knife, and told her, “I’m going to cut up your titties; then nobody
else will want you.” Id. at 69-71. Drescher threatened Neukam and her family
and told her that he would save her for last. Neukam was scared, shocked, and
afraid that Drescher would kill her. Drescher eventually drove Neukam to the
Dubois County Sheriff’s Office, let her out of the truck, and drove away.
Neukam gave a video-recorded statement and signed, under oath, an affidavit
for probable cause. The deputy observed various injuries to Neukam’s chest
and neck. Neukam went to the emergency room, where a nurse and a doctor
observed and treated her injuries. Neukam told both the nurse and the doctor
that her injuries were knife wounds inflicted by Drescher.
[4] On January 5, 2015, the State charged Drescher with Level 5 felony battery and
Level 5 intimidation. Drescher’s jury trial began on July 14, 2015. At the trial,
Neukam testified and largely recanted her prior statement to law enforcement
officers, but the State impeached her testimony with the prior statement. At the
conclusion of the trial, the jury found Drescher not guilty of battery but guilty of
intimidation. On September 8, 2015, the trial court sentenced Drescher to six
years imprisonment for the Level 5 intimidation conviction. Drescher now
appeals.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 3 of 6 Discussion and Decision I. Sufficiency [5] First, Drescher argues that the evidence is insufficient to support his Level 5
felony intimidation conviction. 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). To convict Drescher of Level 5 felony
intimidation, the State was required to prove beyond a reasonable doubt that he
communicated a threat to Neukam, with the intent that Neukam be placed in
fear of retaliation for a prior lawful act—her refusal to leave her home and
children and go on the road with him. I.C. § 35-45-2-1.
[6] The evidence in the record supporting the verdict establishes that Drescher
asked Neukam to marry him, give up custody of her children, leave her home
and children, and go on the road with him. She refused, as she was entitled to
do. He then became very angry and they became embroiled in a heated
argument. During the argument, among other things, Drescher threatened her
family, twice asked Neukam if she was ready to die, and said that he would
save Neukam for last. Tr. p. 94-95. A reasonable juror could conclude from
this evidence that Drescher threatened Neukam to place her in fear for her prior
lawful act of refusing his proposal. Drescher’s arguments to the contrary
amount to requests that we reweigh the evidence and assess witness Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 4 of 6 credibility—requests we decline. We find that the evidence is sufficient to
support the conviction.
II. Appropriateness [7] Next, Drescher argues that the sentence imposed by the trial court is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[8] For a Level 5 felony conviction, Drescher faced a possible sentence of one to six
years, with an advisory term of three years imprisonment. Ind. Code § 35-50-2-
6(b). The trial court imposed a maximum six-year term.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 17 2016, 9:32 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicholas A. Siler Gregory F. Zoeller West Baden Springs, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark A. Drescher, October 17, 2016 Appellant-Defendant, Court of Appeals Case No. 19A01-1602-CR-298 v. Appeal from the Dubois Circuit Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff McConnell, Special Judge Trial Court Cause No. 19C01-1412-F5-923
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 1 of 6 [1] Mark Drescher appeals his conviction for Level 5 Felony Intimidation,1 arguing
that the evidence is insufficient. He also appeals his sentence, contending that it
is inappropriate in light of the nature of the offense and his character. Finding
the evidence sufficient and the sentence not inappropriate, we affirm.
Facts [2] In December 2014, Drescher and Eugenia Neukam had been in an on-and-off
relationship for nearly three years. On December 27, 2014, they broke up and
Drescher began removing his belongings from their residence. He returned
later that afternoon and asked Neukam to go for a ride with him so that they
could talk. Neukam agreed, and they left in Drescher’s truck. As they drove
around the countryside, Drescher proposed to Neukam. He travels frequently
for his job and asked that Neukam give up custody of her children to her ex-
husband, marry Drescher, leave her home and the children, and go on the road
with him. Tr. p. 59-61. Neukam refused to agree to those terms, and they
became embroiled in a heated argument, with Drescher calling Neukam “all of
the bad” names such as “crazy bitch,” “slut,” and “whore.” Tr. p. 64-65.
Drescher began to pull her hair, bang her head into the truck window, and hit
her.
[3] At one point, Drescher stopped the truck, walked around to the passenger side,
and pulled Neukam out. He held her up against the side of the truck, hit her,
1 Ind. Code § 35-45-2-1.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 2 of 6 pulled her hair, and yanked her head around. He dragged her to a ditch and
asked her if she was ready to die, and then took her back to the truck. He
pulled out a knife, asked her again if she was ready to die, poked her in the
chest with the knife, and told her, “I’m going to cut up your titties; then nobody
else will want you.” Id. at 69-71. Drescher threatened Neukam and her family
and told her that he would save her for last. Neukam was scared, shocked, and
afraid that Drescher would kill her. Drescher eventually drove Neukam to the
Dubois County Sheriff’s Office, let her out of the truck, and drove away.
Neukam gave a video-recorded statement and signed, under oath, an affidavit
for probable cause. The deputy observed various injuries to Neukam’s chest
and neck. Neukam went to the emergency room, where a nurse and a doctor
observed and treated her injuries. Neukam told both the nurse and the doctor
that her injuries were knife wounds inflicted by Drescher.
[4] On January 5, 2015, the State charged Drescher with Level 5 felony battery and
Level 5 intimidation. Drescher’s jury trial began on July 14, 2015. At the trial,
Neukam testified and largely recanted her prior statement to law enforcement
officers, but the State impeached her testimony with the prior statement. At the
conclusion of the trial, the jury found Drescher not guilty of battery but guilty of
intimidation. On September 8, 2015, the trial court sentenced Drescher to six
years imprisonment for the Level 5 intimidation conviction. Drescher now
appeals.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 3 of 6 Discussion and Decision I. Sufficiency [5] First, Drescher argues that the evidence is insufficient to support his Level 5
felony intimidation conviction. 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). To convict Drescher of Level 5 felony
intimidation, the State was required to prove beyond a reasonable doubt that he
communicated a threat to Neukam, with the intent that Neukam be placed in
fear of retaliation for a prior lawful act—her refusal to leave her home and
children and go on the road with him. I.C. § 35-45-2-1.
[6] The evidence in the record supporting the verdict establishes that Drescher
asked Neukam to marry him, give up custody of her children, leave her home
and children, and go on the road with him. She refused, as she was entitled to
do. He then became very angry and they became embroiled in a heated
argument. During the argument, among other things, Drescher threatened her
family, twice asked Neukam if she was ready to die, and said that he would
save Neukam for last. Tr. p. 94-95. A reasonable juror could conclude from
this evidence that Drescher threatened Neukam to place her in fear for her prior
lawful act of refusing his proposal. Drescher’s arguments to the contrary
amount to requests that we reweigh the evidence and assess witness Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 4 of 6 credibility—requests we decline. We find that the evidence is sufficient to
support the conviction.
II. Appropriateness [7] Next, Drescher argues that the sentence imposed by the trial court is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[8] For a Level 5 felony conviction, Drescher faced a possible sentence of one to six
years, with an advisory term of three years imprisonment. Ind. Code § 35-50-2-
6(b). The trial court imposed a maximum six-year term.
[9] As for the nature of Drescher’s offense, he threatened to harm Neukam and her
family in retaliation for her refusing to leave her home and children behind to
go on the road with him. As he was threatening her, he was also physically
assaulting her—pulling her hair, hitting her, and banging her head into a
window. Then, he pulled out a knife and cut her in multiple places with the
weapon, threatening to cut up her breasts so that no one else would want her.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 5 of 6 Neukam feared for her life and had to go to the hospital as a result of her
injuries.
[10] Turning to Drescher’s character, his involvement with law enforcement dates
back to when he was nine years old. Throughout his life, he has been charged
with seventy-seven separate criminal offenses. At least twelve of his arrests
have been for physically violent offenses, and he has had probation revoked at
least five times. At the time of his sentencing in this matter, Drescher was
facing twenty-five counts for violating protective orders. He has accumulated
nine battery convictions, four operating while intoxicated convictions, three
driving while suspended convictions, two criminal recklessness convictions, two
leaving the scene of an accident convictions, and nine other convictions—
including a prior conviction for intimidation. While Drescher’s offense may
not be the worst of the worst, his character very nearly is. He evinces no respect
for the law or his fellow citizens and is either unable or unwilling to lead a law-
abiding life. He has had multiple opportunities to turn his life around but has
failed or refused to do so. Under these circumstances, we find that the six-year
sentence imposed by the trial court is not inappropriate in light of the nature of
the offense and Drescher’s character.
[11] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A01-1602-CR-298 | October 17, 2016 Page 6 of 6