ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD W. PAGOS STEVE CARTER
Michigan City, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
IN THE MATTER OF: ) ) H.J., ) ) Appellant-Respondent, ) ) vs. ) No. 46A04-0010-JV-434 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )
OPINION - FOR PUBLICATION
H.J. first argues that the States evidence is insufficient because the statements she
made to S.J. do not, as a matter of law, amount to threats.
She argues that the statement, Were gonna put a gun to your
head and Well pull the trigger and itll only hurt for 30 seconds,
can only amount to idle communication and not a threat as defined by
Ind. Code § 35-45-2-1. (R. 86). Our legislature has defined threat as,
an expression by words or action of an intention to unlawfully injure the
person threatened or another person, or damage property. Ind. Code § 35-45-2-1(c)
Hyde v. State, 531 N.E.2d 472, 473 (Ind. 1998), our
supreme court, with regard to the elements of Intimidation, stated, [e]stablishment of the
required intent to cause an individual to engage in conduct depends upon the
facts and circumstances surrounding the offense . . . Those facts and circumstances
are also relevant to whether the communication may be objectively viewed as a
Here, the evidence supports the finding S.J. viewed H.J.s statements as a true threat and not as a joke or idle communication as H.J. argues. S.J. asked H.J. whether the list was a joke; and H.J. told her that it was serious. S.J. believed H.J. and reported the list to school officials out of fear for her and her brothers lives. Additionally, after S.J. reported the list, H.J. threatened S.J. again by telling her, Were gonna put a gun to your head and Well pull the trigger and itll only hurt for 30 seconds. (R. 86). She also believed that her and her brothers names were put back on the list. Again, based on these statements, she feared for her life. S.J. testified at the fact finding hearing that she believed that the threats were real. The school official, Behenna, also testified that when S.J. reported the threats to her, she was visibly upset and needed to be transported to the nurses office. Viewed objectively and in the light most favorable to the judgment including all reasonable inferences, these threats could be considered real and qualify as such under the definition given in Ind. Code § 35-45-2-1. This is a question of fact which the trier could reasonably determine. H.J.s argument here is nothing more than an invitation to reweigh the evidence. We decline to accept this invitation.
H.J. next asserts that there was no evidence that the threats against S.J. were made in retaliation for the prior lawful act of reporting the list. In support of this contention, H.J. cites to Casey v. State 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997), in which this court stated that in order to sustain a conviction under the Intimidation statute the State must prove beyond a reasonable doubt that the accused intended to place the victim in fear of retaliation for a prior lawful act. In that case, Casey got into an altercation with Kimberly and her friends at a bar. Later that evening, Casey and his friends went to Kimberlys home. Kimberly went outside and pleaded with Casey to leave, but he refused, he instead told her, Get inside bitch, youre next. Id. at 1071. Casey then asked for his gun and told Kimberly and her friends that he was going to kill all of them. Shortly thereafter, Casey hit one of Kimberlys friends in the head with a baseball bat and yelled to Kimberly that she was going to be next. Based on those facts, the State charged Casey with Intimidation. At trial and on appeal, Casey argued that given those circumstances, it was not clear that Casey threatened Kimberly in order to place her in fear of retaliation for a prior lawful act. The State argued that Casey retaliated because Kimberly was engaged in the lawful acts of being a patron at a bar, and being at her house. This court disagreed, holding that given the circumstances along with the statements Casey made to Kimberly, it would not be reasonable to conclude that there was a retaliation for the prior lawful act of being at the bar. Id. at 1073. The State did not meet its burden of proof to convict Casey of Intimidation. Id. Therefore, this court vacated Caseys conviction and sentence for Intimidation. Id.
Based on Casey, H.J. proposes that we reverse her conviction for Intimidation because the statements themselves do not demonstrate the reasons for the threat. She argues that like Casey the evidence here is insufficient to show that H.J. made the statements to H.J. in retaliation for a prior lawful act of reporting the list.
In Casey this court said, the record does not support the States contention that he was retaliating for any of these actions. Under these circumstances, we cannot say that the State met its burden. Id. at 1073. However, in the instant case, there are circumstances that would lead a reasonable person to believe that H.J. retaliated against S.J. for a prior lawful act. Unlike Casey, where there was no evidence from which the trier of fact could reasonably infer that Casey had threatened Kimberly with the intent to place her in fear of retaliation for a prior lawful act, here the record does support the States charges that H.J. threatened to retaliate against S.J. for S.J.s prior lawful act of reporting the list. The record reveals that H.J. made threats of physical harm to S.J., knowing S.J. had spoken to school officials. S.J. testified that after she had reported the list to school officials, she became aware that the girls knew she had turned them in and then they threatened her by saying, Were gonna put a gun to your head and Well pull the trigger and itll only hurt for 30 seconds. (R. 86). Additionally, Menne testified that S.J. had spoken with him and was fearful for her life because she had reported the list. (R. 102). Another school official also testified to the fact that H.J. was retaliating against S.J. because she reported the list. He said, [S.J.] came into my office on that day to tell me that she had been threatened by [N.S.] and [H.J.] because she had come forward with this information and reported it to the administration and also to myself, and she was told that she was put back on the list and she was gonna be the first one to go. (R.111, 112).
Based on these circumstances and facts, we find there was sufficient evidence for the trier of fact to infer, beyond a reasonable doubt, that H.J. threatened S.J. with the intent of placing her in fear due to S.J.s report of the list.