Thomas Dullen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2016
• Docket: 49A05-1510-CR-1710
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 12 2016, 9:26 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Gregory F. Zoeller Jane Harris Conley Attorney General of Indiana Marion County Public Defender’s Office Tyler G. Banks Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Dullen, May 12, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1510-CR-1710 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff. Klineman, Judge Trial Court Cause No. 49G17-1504-F6-12844

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 1 of 9 Statement of the Case [1] Thomas Dullen (“Dullen”) appeals his conviction, following a bench trial, for

Level 6 felony intimidation.1 Dullen argues that there was insufficient evidence

to support his conviction. Concluding that Dullen’s argument is merely a

request to reweigh the evidence, we deny this request and affirm his

intimidation conviction.2

[2] We affirm.

Issue Whether sufficient evidence supports Dullen’s intimidation conviction.

Facts [3] Dullen and Laurina Manning (“Manning”) dated for several years and had a

child, D.D., together. In February 2015, Dullen and Manning were not living

together, and Dullen had visitation with five-year-old D.D. every other

weekend. For visitation purposes, they had a pre-arranged meeting spot at a

specific gas station in Marion County to drop off and pick up D.D. for his

scheduled visitations with Dullen. At that time, there was a no-verbal contact

order in place between Dullen and Manning. Therefore, when making a

visitation exchange, typically, both parents remained in their respective cars and

1 IND. CODE § 35-45-2-1. 2 Dullen was also convicted of Class A misdemeanor theft, but he does not challenge that conviction.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 2 of 9 D.D. would get out of one parent’s vehicle and walk over to the other parent’s

vehicle.

[4] However, on February 15, 2015, Dullen violated the order and talked to

Manning when he was returning D.D. to Manning in the gas station parking

lot. Upon seeing Dullen walking over to her truck, Manning took out her cell

phone and began a recording of him because of the no-contact order. Dullen

opened Manning’s back passenger-side door and put D.D. in Manning’s

vehicle. Dullen then “immediately began asking [her] for his paper.” (Tr. 9).

The paper was “in reference to his deceased grandmother, and some money.”

(Tr. 9). Dullen had previously accused Manning of taking the paper, and she

had always informed that she did not have it. While Dullen was leaning in

Manning’s truck, he told her that he wanted his paper, and she again told him

that she did not have it. Dullen continued to demand the return of his paper,

and Manning—while continuing to record him—told him to get out of her car.

Dullen told Manning that he was going to “take that ‘M’ effin’ (sic) phone.”

(Tr. 10). When he reached to the front of the vehicle to grab Manning’s phone,

she dropped the phone on the floor. Manning leaned down to reach for her

keys, and Dullen grabbed her keys that were hanging from the ignition. As he

“yanked” the key ring, he broke Manning’s ignition key and took the remaining

keys, which included her house keys, her mother’s house keys, and the key fob

for her truck. (Tr. 12). Dullen stood by the back passenger door, argued with

Manning, and yelled for her to get out of the truck and “come on around” to

where he was standing. (Tr. 13). Manning refused, and Dullen eventually

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 3 of 9 drove away with her keys. Manning immediately called the police, talked to

them at the gas station, and then drove to her mother’s house.

[5] Later that day, Dullen called Manning’s cell phone, and Manning’s niece

answered the phone and told Dullen to give the keys back. Manning grabbed

the phone and hung up on Dullen. When Dullen called back, Manning

answered the phone. Dullen told Manning that he would return her keys if she

gave him his paper. Manning told Dullen that she did not have the paper, and

he responded, “Now see, that’s what makes me snap, because you want to play

me like a fool. I know you got my paper.” (Tr. 17). After Manning repeated

that she did not have his paper, he said, “I’m going to tell you this, and you can

take it any way you want to. If I don’t get my paper back, our son is going to

be an orphan.” (Tr. 17). At trial, Manning testified that she “felt like he was

threatening [her] life” and that she was “afraid that he [wa]s going to do

something to [her].” (Tr. 17, 18). Manning “specifically asked [Dullen] if he

was threatening [her,]” and he replied that she “could take it any way [she]

want[ed] to.” (Tr. 18). Manning hung up the phone and texted Dullen,

instructing him to put her keys in her mailbox. Dullen never returned

Manning’s keys. Manning later contacted the police and changed her locks and

her mother’s locks.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 4 of 9 [6] Thereafter, the State charged Dullen with Count 1, Level 6 felony intimidation,

and Count 2, Class A misdemeanor theft.3 The trial court held a bench trial on

August 4, 2015. Manning testified regarding the facts of the intimidation

charge as described above. Following the State’s presentation of evidence,

Dullen moved for an involuntary dismissal of the intimidation charge, and the

trial court denied the motion. Dullen then testified on his own behalf. He

admitted that he had argued with Manning in her car about his paper, which he

testified was a “paper that [his] grandma left [him]” and was worth “over a half

of a million dollars[.]” (Tr. 24). Dullen accused Manning of “cash[ing] it in[,]”

and he denied that he had taken Manning’s keys.

[7] The trial court found Dullen guilty as charged on both counts. The trial court

imposed a 545 day sentence, with 180 days executed in Community

Corrections and 365 days suspended to probation, for Dullen’s intimidation

conviction, and it imposed a 365 day sentence, with 26 days executed and 339

days suspended, for his theft conviction. The trial court ordered that the

sentences were to run concurrently. Dullen now appeals his intimidation

conviction.

3 I.C. § 35-43-4-2.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 5 of 9 Decision [8] Dullen argues that the evidence was insufficient to support his intimidation

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

and citations omitted) (emphasis in original).

[9] The intimidation statute provides that a person who “communicates a threat to

another person, with the intent . . . that the other person engage in conduct

against the other person’s will” commits intimidation as a Class A

misdemeanor. I.C. §§ 35-45-2-1(a)(1). The offense is a Level 6 felony when the

threat is to commit a forcible felony. I.C. §§ 35-45-2-1(b)(1). In order to convict

Dullen of Level 6 felony intimidation as charged, the State was required to

prove beyond a reasonable doubt that he communicated a threat to commit the

forcible felony of murder, to Manning, with the intent that she engage in

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 6 of 9 conduct against her will, i.e., “to give [him] ‘the paper[.]’” (App. 17).

“[W]hether a defendant intended that someone engage in conduct against his or

her will depends on the facts and circumstances of each case.” Owens v. State,

659 N.E.2d 466, 474 (Ind. 1995) (citing Hyde v. State, 531 N.E.2d 472, 473 (Ind.

1988)), reh’g denied.

[10] Dullen challenges only the “threat” element of intimidation.4 He seems to

suggest that the evidence was insufficient to show that he made a threat because

his words were not “direct” and were conveyed by telephone. (Dullen’s Br. 9).

He also suggests that his words did not constitute a threat because Manning did

not immediately call the police after she hung up the phone with Dullen.

[11] The intimidation statute defines “threat” as an “expression, by words or action,

of an intention to . . . unlawfully injure the person threatened . . . [or] commit a

crime[.]” I.C. § 35-45-2-1(c)(1), (c)(3). Whether a particular communication

constitutes a threat is an objective question for the trier of fact. Owens, 659

N.E.2d at 474. “‘Written words or phrases take their character as threatening

or harmless from the context in which they are used, measured by the common

experience of the society in which they are published.’” Brewington v. State, 7

N.E.3d 946, 963 (Ind. 2014) (quoting United States v. Prochaska, 222 F.2d 1, 2

(7th Cir. 1955), cert. denied), reh’g denied, cert. denied. Thus, whether Dullen’s

4 He does not dispute that murder is a forcible felony.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 7 of 9 communication to Manning, objectively viewed, was a threat was a question of

fact for the trial court to decide.

[12] We first reject Dullen’s suggestion that his words did not constitute a threat

because he made them by telephone. “The text of the intimidation statute does

not limit the phrase ‘communicates a threat to another person’ to only those

threats made directly to or in the presence of the threatened party.” Ajabu v.

State, 677 N.E.2d 1035, 1042 (Ind. Ct. App. 1997), trans. denied. “The word

‘communicate’ encompasses those threats made known or transmitted to

another person, and the statute does not limit the means utilized to convey the

threat.” Id. (explaining that “threats include those a person makes known to

the victim through the print, radio[,] or television media with the requisite

intent”). See also I.C. § 35-45-2-1(c) (providing that a person’s communication

of a threat “includes posting a message electronically, including on a social

networking web site”).

[13] Dullen’s argument regarding the threat element is nothing more than a request

to reweigh the evidence. Here, the evidence showed that Dullen had, earlier in

the day, argued with Manning, accused her of taking his paper, struggled with

her in an attempt to take her cell phone, and grabbed and stole her house keys

and car key fob. He then phoned Manning and told her that if she did not give

his paper back to him then their “son [wa]s going to be an orphan.” (Tr. 17).

Manning—who “felt like [Dullen] was threatening [her] life” and was “afraid

that he [wa]s going to do something to [her]”—“specifically asked [Dullen] if he

was threatening [her,]” and he replied that she “could take it any way [she]

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 8 of 9 want[ed] to.” (Tr. 17, 18). Given the context in which the statement was

made, the trial court could have reasonably concluded that Dullen’s statement

was an implied threat to commit a forcible felony against Manning if she did

not give back his paper. We will not reweigh the evidence or the trial court’s

determination. See Drane, 867 N.E.2d at 146. Accordingly, we affirm Dullen’s

Level 6 felony intimidation conviction. See, e.g., Owens, 659 N.E.2d at 474-75

(rejecting the defendant’s argument that the evidence of a threat was insufficient

because his words were “neither serious nor taken seriously” and finding no

basis to disturb the jury’s verdict).

[14] Affirmed.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016 Page 9 of 9