ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SEAN P. HILGENDORF KAREN M. FREEMAN-WILSON
Hilgendorf & Hilgendorf Attorney General of Indiana
South Bend, Indiana
ANDREW L. HEDGES
Deputy Attorney General
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
JARON Q. JOHNSON, )
Appellant-Defendant, ) Supreme Court Cause Number
) Court of Appeals Cause Number
STATE OF INDIANA, ) 71A03-9906-CR-225
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William T. Means, Judge
Cause No. 71D01-9811-CM-9697
ON PETITION TO TRANSFER
March 9, 2001
When a person utters what can only charitably be called fighting words, then
displays a handgun, and next says dont even think it, we conclude the
person has communicated a threat within the meaning of the intimidation statute.
We therefore grant transfer and affirm the trial court.
On the afternoon of November 5, 1998, Sergeant Jerome Kreczmer of the South
Bend Police Department stopped directly behind a gray Ford Tempo at a red
traffic light in St. Joseph County, Indiana. Although Kreczmer was on duty,
he was out-of-uniform and driving an unmarked car. While the traffic light
was still red, Jaron Q. Johnson exited the Tempo and approached a man
holding a sign that read Will Work for Food. Johnson greeted the
man and gave him money. When the traffic light turned green, Johnson
was still outside the Tempo talking with the man holding the sign.
Kreczmer rolled down his window and told Johnson that the traffic light was
green and that he wanted to go. Johnson responded, F*** you.
R. at 30. Again, Kreczmer told Johnson that the traffic light was
green, that the Tempo was obstructing traffic, and that he wanted to go.
This time Johnson replied, Suck my d***. R. at 30.
When Kreczmer started to exit his car, Johnson lifted his jacket revealing the
top of an automatic handgun and stated, Dont even think it. R.
at 31. Apparently recognizing that discretion was the better part of valor,
Kreczmer wisely remained in his vehicle. Johnson then got into the Tempo
and drove away. Kreczmer immediately called police dispatch. Shortly thereafter, officers
of the Mishawaka Police Department pulled the Tempo over and arrested Johnson.
In his possession, officers found a
loaded 9 mm automatic handgun along with two clips and a holster.
He also possessed a valid handgun permit.
Johnson was charged with intimidation as a Class A misdemeanor. After a
bench trial he was convicted as charged. The trial court sentenced Johnson
to 180 days imprisonment with 160 days suspended. Citing Gaddis v. State,
680 N.E.2d 860 (Ind. Ct. App. 1997), as dispositive controlling authority, the Court
of Appeals reversed in a two to one decision finding the evidence insufficient
to sustain the conviction. Johnson v. State, 725 N.E.2d 984 (Ind. Ct.
App. 2000) (Kirsch, J., dissenting).
See footnote We grant transfer and affirm the judgment
of the trial court.
Gaddis involved an encounter between two motorists on I-465 in Indianapolis during rush
hour. Gaddis and the other motorist, each apparently troubled by the others
driving, pulled beside one another, exchanged hand gestures, and spoke to each other
through closed windows. Gaddis then removed his handgun from the glove box,
displayed it by the window at a 45-degree angle, and placed it near
the console. Gaddis, 680 N.E.2d at 861. Gaddis was subsequently convicted of
intimidation. On review, the Court of Appeals vacated the conviction, holding the
mere display of a handgun does not express an intention to unlawfully injure
a person or his property. Id. at 862. We agree with
this general proposition. However, the State did not seek transfer in Gaddis,
and accordingly, this Court had no opportunity to evaluate whether the facts in
that case demonstrated that the defendant went beyond the mere display of a
handgun. In any event, we observe that introducing a handgun into an
emotionally charged environment can easily lead to a physical confrontation with tragic consequences.
Indeed, as the Court of Appeals majority observed in this case, By
revealing his weapon to Kreczmer and suggesting his willingness to use it as
needed, Johnson engaged in a brinkmanship style of street diplomacy that can only
escalate to actual violence. His actions were both foolish and dangerous .
. . . Johnson, 725 N.E.2d at 987. We agree. See
also P.J. Cook, The Role of Firearms in Violent Crime, in Criminal Violence
236-91 (M.E. Wolfgang & N.A. Werner eds., 1982) (commenting that a large number
of murders may arise from unintentional fits of rage that are quickly regretted).
Thus, where as here the record shows the existence of words or
conduct that are reasonably likely to incite confrontation, coupled with the display of
a firearm, we are hard pressed to say that such facts are insufficient
to prove that a threat has been communicated within the meaning of the
When reviewing a claim of insufficient evidence, we consider only the evidence that
supports the verdict and draw all reasonable inferences therefrom. Warren v. State,
725 N.E.2d 828, 834 (Ind. 2000). We do not reweigh the evidence
or judge the credibility of witnesses. Id. We uphold a conviction
if there is substantial evidence of probative value from which a reasonable trier
of fact could have found the defendant guilty beyond a reasonable doubt.
To support a conviction for intimidation in this case, the State was required
to show that the defendant: (1) communicated a threat; (2) to another person;
(3) with the intent that the other person be placed in fear of
retaliation for a prior lawful act. Ind.Code § 35-45-2-1; McIntire v. State,
717 N.E.2d 96, 99 (Ind. 1999). A threat is defined as an
expression, by words or action, of an intention to . . . unlawfully
injure the person threatened . . . . I.C. § 35-42-2-1(c)(1).
In this case, evidence that Johnson displayed a firearm combined with telling
Kreczmer dont even think it, which was preceded by two obscene remarks, was
sufficient for a trier of fact to conclude that Johnson communicated a threat
within the meaning of the intimidation statute, namely: Johnson expressed by his words
and actions an intention to unlawfully injure Kreczmer. The evidence was also
sufficient to show that Johnson threatened Kreczmer with the intent to place him
in fear of retaliation for a prior lawful act, namely: asking Johnson to
move the car.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
In his dissenting opinion Judge Kirsch observed:
The majority concludes that the defendants vague remark is insufficient to constitute a
threat under the intimidation statute. In the
Dirty Harry movies, Clint Eastwoods
famous Go on . . . make my day line was equally vague,
but neither the derelicts invited to make Harrys day in the movie, nor
the millions of movie goers who viewed it, had any doubt as to
whether Harry was communicating a threat. So too, here.
Johnson, 725 N.E.2d at 987-88. We agree with Judge Kirsch.