MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 13 2019, 9:18 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 David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Suan Patrick Mahoney, June 13, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3042 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff Judge Trial Court Cause No. 48C04-1708-F5-2082
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 1 of 9 [1] Suan Mahoney appeals his convictions for two counts of Level 5 Felony
Intimidation While Drawing or Using a Deadly Weapon,1 arguing that the jury
received an erroneous instruction and that the evidence was insufficient to
support the convictions. Finding no error and the evidence sufficient, we affirm.
Facts [2] In August 2017, Anderson Street Department employees were working next to
a local restaurant called Bobber’s Cafe on various projects, including paving a
trailway, cleaning out weeds around a nearby lake, and spreading gravel on a
parking lot. In order to spread the gravel, the city employees frequently asked
Bobber’s Cafe patrons to move their cars off the pavement.
[3] On August 14, 2017, Eric Hamilton, a skilled operator for the Anderson Street
Department, went into Bobber’s Cafe and asked a restaurant employee, Rick
Shaw, if he would ask the customers to move their vehicles off the pavement.
Most customers complied with the request, moved their vehicles, and returned
to the restaurant. Mahoney, who was at Bobber’s Cafe that day, also left the
restaurant but began spewing racial epithets at the city employees. Before
anyone could intervene, Mahoney got into his vehicle and left the area. The city
employees told their foreman, Steve Turner, about the incident. He stated that
1 Ind. Code §§ 35-45-2-1(a)(2), -1(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 2 of 9 if there were any other issues, they were to take down Mahoney’s license plate
number and contact him.
[4] The next day, on August 15, 2017, Mahoney returned to Bobber’s Cafe.
Customers were again asked to move their vehicles off the parking lot, which
most did. Inside, Hamilton noticed Mahoney, approached him, and expressed
that he hoped Mahoney was in a “better mood” that day since Mahoney was
going to have to move his vehicle like the day before. Tr. Vol. II p. 211. This
comment set Mahoney off “[l]ike . . . a firecracker.” Id. at 212. Once again,
Mahoney started shouting racial epithets as he and Hamilton left the restaurant.
[5] While outside, another Anderson Street Department employee, Marquis
McCloud, asked Mahoney why he was using such offensive racial slurs and
demanded that he stop calling them derogatory names. Mahoney escalated the
situation by screaming at the city employees and telling them that they needed
to leave. Enraged, McCloud approached Mahoney. While other city employees
attempted to intervene, Mahoney reached for the holster on his waist and
started “jerking on his gun[]” and continuously “pulling it up and down as he
was saying . . . what he would do with the gun.” Id. at 209, 213. He kept saying,
“I’ll shoot you” and “I’m gonna kill, I’m gonna shoot ‘em,” and repeatedly
called McCloud, Hamilton, and the other employees the “N-word.” Id. at 203;
Vol. III p. 123. Fearing for their lives, the city employees tried to find cover.
[6] Shaw, the restaurant employee, had just returned from moving a vehicle off the
pavement when he saw Mahoney threatening the city employees. Shaw
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 3 of 9 demanded that Mahoney leave, and as he left, Mahoney held onto his gun and
told the city employees that “you all deserve bullets in your head.” Tr. Vol. II p.
213. Mahoney continued standing next to his vehicle when Shaw witnessed “a
gun laying on the seat with [Mahoney’s] hands on the gun.” Tr. Vol. III p. 25.
After Shaw again told Mahoney to leave the area, Mahoney drove off. Turner,
the foreman for the city employees, arrived soon thereafter and called the
police. The police arrested Mahoney later that day and confiscated his firearm.
[7] On August 16, 2017, the State charged Mahoney with two counts of Level 5
felony intimidation while drawing or using a deadly weapon. At Mahoney’s
October 22-24, 2018, jury trial, the trial court instructed the jury on what it
means to “use” a firearm:
“Use,” defined
In the context of the crime of Intimidation, to “use” a firearm includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.
Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. App. 2011)
Appellant’s App. Vol. II p. 123. Mahoney did not object to this instruction.
[8] The jury found Mahoney guilty as charged. On November 20, 2018, the trial
court sentenced Mahoney to four years in the Department of Correction, with
two years suspended to probation. Mahoney now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 4 of 9 Discussion and Decision
I. Jury Instruction [9] First, Mahoney argues that the jury received an erroneous instruction. Because
Mahoney did not object to the final instruction, we must determine whether
there was fundamental error.
[10] To determine whether an instruction is fundamentally erroneous, we will
review the record in its entirety to determine whether an honest and fair-minded
jury would have rendered a guilty verdict absent use of the erroneous
instruction. Coleman v. State, 630 N.E.2d 1376, 1378 (Ind. Ct. App. 1994).
Furthermore, we do not evaluate the alleged erroneous instruction in isolation,
but rather in context of all relevant information given to the jury to determine if
the jury was misled as to a correct understanding of the law. Boesch v. State, 778
N.E.2d 1276, 1279 (Ind. 2002).
[11] Mahoney concedes that Daniels v. State, 957 N.E.2d 1025 (Ind. Ct. App. 2011),
is valid precedent, but argues that the definition of “use” found in that case is
erroneous. Mahoney essentially asks us to revisit Daniels and to rule that its
definition of use of a firearm—including the acts of displaying and
brandishing—is incorrect as a matter of law due to its breadth and vagueness.
[12] In Trice v. State, this Court found that mere possession of a firearm does not
amount to use, holding as follows:
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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 Jun 13 2019, 9:18 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 David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Suan Patrick Mahoney, June 13, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3042 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff Judge Trial Court Cause No. 48C04-1708-F5-2082
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 1 of 9 [1] Suan Mahoney appeals his convictions for two counts of Level 5 Felony
Intimidation While Drawing or Using a Deadly Weapon,1 arguing that the jury
received an erroneous instruction and that the evidence was insufficient to
support the convictions. Finding no error and the evidence sufficient, we affirm.
Facts [2] In August 2017, Anderson Street Department employees were working next to
a local restaurant called Bobber’s Cafe on various projects, including paving a
trailway, cleaning out weeds around a nearby lake, and spreading gravel on a
parking lot. In order to spread the gravel, the city employees frequently asked
Bobber’s Cafe patrons to move their cars off the pavement.
[3] On August 14, 2017, Eric Hamilton, a skilled operator for the Anderson Street
Department, went into Bobber’s Cafe and asked a restaurant employee, Rick
Shaw, if he would ask the customers to move their vehicles off the pavement.
Most customers complied with the request, moved their vehicles, and returned
to the restaurant. Mahoney, who was at Bobber’s Cafe that day, also left the
restaurant but began spewing racial epithets at the city employees. Before
anyone could intervene, Mahoney got into his vehicle and left the area. The city
employees told their foreman, Steve Turner, about the incident. He stated that
1 Ind. Code §§ 35-45-2-1(a)(2), -1(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 2 of 9 if there were any other issues, they were to take down Mahoney’s license plate
number and contact him.
[4] The next day, on August 15, 2017, Mahoney returned to Bobber’s Cafe.
Customers were again asked to move their vehicles off the parking lot, which
most did. Inside, Hamilton noticed Mahoney, approached him, and expressed
that he hoped Mahoney was in a “better mood” that day since Mahoney was
going to have to move his vehicle like the day before. Tr. Vol. II p. 211. This
comment set Mahoney off “[l]ike . . . a firecracker.” Id. at 212. Once again,
Mahoney started shouting racial epithets as he and Hamilton left the restaurant.
[5] While outside, another Anderson Street Department employee, Marquis
McCloud, asked Mahoney why he was using such offensive racial slurs and
demanded that he stop calling them derogatory names. Mahoney escalated the
situation by screaming at the city employees and telling them that they needed
to leave. Enraged, McCloud approached Mahoney. While other city employees
attempted to intervene, Mahoney reached for the holster on his waist and
started “jerking on his gun[]” and continuously “pulling it up and down as he
was saying . . . what he would do with the gun.” Id. at 209, 213. He kept saying,
“I’ll shoot you” and “I’m gonna kill, I’m gonna shoot ‘em,” and repeatedly
called McCloud, Hamilton, and the other employees the “N-word.” Id. at 203;
Vol. III p. 123. Fearing for their lives, the city employees tried to find cover.
[6] Shaw, the restaurant employee, had just returned from moving a vehicle off the
pavement when he saw Mahoney threatening the city employees. Shaw
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 3 of 9 demanded that Mahoney leave, and as he left, Mahoney held onto his gun and
told the city employees that “you all deserve bullets in your head.” Tr. Vol. II p.
213. Mahoney continued standing next to his vehicle when Shaw witnessed “a
gun laying on the seat with [Mahoney’s] hands on the gun.” Tr. Vol. III p. 25.
After Shaw again told Mahoney to leave the area, Mahoney drove off. Turner,
the foreman for the city employees, arrived soon thereafter and called the
police. The police arrested Mahoney later that day and confiscated his firearm.
[7] On August 16, 2017, the State charged Mahoney with two counts of Level 5
felony intimidation while drawing or using a deadly weapon. At Mahoney’s
October 22-24, 2018, jury trial, the trial court instructed the jury on what it
means to “use” a firearm:
“Use,” defined
In the context of the crime of Intimidation, to “use” a firearm includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.
Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. App. 2011)
Appellant’s App. Vol. II p. 123. Mahoney did not object to this instruction.
[8] The jury found Mahoney guilty as charged. On November 20, 2018, the trial
court sentenced Mahoney to four years in the Department of Correction, with
two years suspended to probation. Mahoney now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 4 of 9 Discussion and Decision
I. Jury Instruction [9] First, Mahoney argues that the jury received an erroneous instruction. Because
Mahoney did not object to the final instruction, we must determine whether
there was fundamental error.
[10] To determine whether an instruction is fundamentally erroneous, we will
review the record in its entirety to determine whether an honest and fair-minded
jury would have rendered a guilty verdict absent use of the erroneous
instruction. Coleman v. State, 630 N.E.2d 1376, 1378 (Ind. Ct. App. 1994).
Furthermore, we do not evaluate the alleged erroneous instruction in isolation,
but rather in context of all relevant information given to the jury to determine if
the jury was misled as to a correct understanding of the law. Boesch v. State, 778
N.E.2d 1276, 1279 (Ind. 2002).
[11] Mahoney concedes that Daniels v. State, 957 N.E.2d 1025 (Ind. Ct. App. 2011),
is valid precedent, but argues that the definition of “use” found in that case is
erroneous. Mahoney essentially asks us to revisit Daniels and to rule that its
definition of use of a firearm—including the acts of displaying and
brandishing—is incorrect as a matter of law due to its breadth and vagueness.
[12] In Trice v. State, this Court found that mere possession of a firearm does not
amount to use, holding as follows:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 5 of 9 [T]he definitions of the term “misuse” can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable. Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun.
114 N.E.3d 496, 501 (Ind. Ct. App. 2018) (emphases in original), trans. denied.
To arrive at its determination, the Trice Court relied heavily on the definition of
“use” in Daniels.
[13] Notwithstanding the fact that Daniels is precedent that has not been overturned,
Mahoney still argues that the trial court provided an incorrect jury instruction
because its core definition of “use” is wrong. Mahoney’s argument is
unavailing. Trice and Daniels reasonably relied on Indiana Supreme Court
precedent in determining that “use” of a firearm may include such actions as
“brandishing, displaying, bartering, striking with, and . . . firing or attempting
to fire, a firearm.” Daniels, 957 N.E.2d at 1030. In other words, the Daniels
Court analyzed numerous sources of law—including references to a federal
circuit court case and secondary material—and synthesized that information
into a coherent, reasonable, and appropriate definition.
[14] We are not persuaded that the definition of “use” as established in Daniels was
legally incorrect. Daniels appropriately clarified what “use” of a firearm means
for future cases. In evaluating precedent, deference to the legislature, and a
strict construction of criminal statutes against the State with ambiguities
resolved in favor of the defendant, see Chastain v. State, 58 N.E.3d 235, 238 (Ind.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 6 of 9 Ct. App. 2016), trans. denied, we find that the jury instruction is reasonable and
describes actions that distinguish between possession and use, including the acts
of displaying and brandishing. Consequently, this jury instruction was not
incorrect or misleading. Therefore, there was no fundamental error.
II. Sufficiency of Evidence [15] Next, Mahoney argues that the evidence was insufficient to support his
convictions for two counts of Level 5 felony intimidation while drawing or
using a deadly weapon.
[16] When reviewing the sufficiency of the evidence supporting a conviction, we
must affirm if the probative evidence and reasonable inferences drawn
therefrom could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). It is not our job to reweigh the evidence or to judge the credibility of the
witnesses, and we consider any conflicting evidence most favorably to the trial
court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
[17] To convict Mahoney of Level 5 felony intimidation while drawing or using a
deadly weapon, the State was required to prove beyond a reasonable doubt that
while drawing or using a deadly weapon, Mahoney communicated a threat to
another person with the intent that the other person be placed in fear of
retaliation for a prior lawful act. I.C. §§ 35-45-2-1(a)(2), -1(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 7 of 9 [18] First, it is undisputed that Mahoney communicated a threat with the intent to
place others in fear of retaliation for a prior lawful act. Mahoney deliberately
targeted the city employees because of their race and spewed racial obscenities
at them. As he left, Mahoney told the city employees that “you all deserve
bullets in your head[,]” tr. vol. II p. 213, while jerking his gun up and down in
his holster. Additionally, when confronted by both Hamilton and McDonald,
Mahoney told them that “I’ll shoot you[]” while repeatedly calling them the
“N-word.” Tr. Vol. III p. 123. The fact that the city employees attempted to
hide from Mahoney is further evidence that he threatened them and placed
them in fear for the lawful act of asking Mahoney to move his car off the
pavement.
[19] Then, as to whether Mahoney used a deadly weapon while communicating that
threat, Mahoney openly carried his firearm around his waist and outside his
clothing. Though Mahoney claims that he did not intentionally display his
firearm because it was already exposed and that he was merely in possession of
it, there is evidence that he reached for the holster on his waist and started
“jerking on his gun[]” and continuously “pulling it up and down as he was
saying . . . what he would do with the gun.” Tr. Vol. II p. 209, 213. Multiple
witnesses confirmed that Mahoney did just that. Additionally, Shaw testified
that he saw “a gun laying on the seat [of Mahoney’s vehicle] with [Mahoney’s]
hands on the gun.” Tr. Vol. III p. 25. This evidence could have allowed a
reasonable trier of fact to conclude that Mahoney was using—and not just
possessing—his firearm by displaying it. Mahoney went even further, jerking
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 8 of 9 his firearm up and down, communicating his desire to shoot people, and
holding onto the gun when it was outside the holster and in his vehicle. Thus,
the evidence is sufficient.
[20] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019 Page 9 of 9