      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                               FILED
      this Memorandum Decision shall not be                            Sep 28 2016, 5:59 am
      regarded as precedent or cited before any                            CLERK
      court except for the purpose of establishing                     Indiana Supreme Court
                                                                          Court of Appeals
      the defense of res judicata, collateral                               and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                       Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rodney Bradford,                                         September 28, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1512-CR-2294
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Leah Cannon,
      Appellee-Plaintiff.                                      Judge Pro Tempore
                                                               Trial Court Cause No.
                                                               49G10-1501-CM-110



      Brown, Judge.


[1]   Rodney Bradford appeals his convictions for intimidation as a class A

      misdemeanor and malicious mischief as a class B misdemeanor. Bradford

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 1 of 14
      raises two issues which we consolidate and restate as whether the evidence is

      sufficient to sustain his convictions. We affirm in part and reverse in part.


                                      Facts and Procedural History

[2]   In 2014, Bradford had a disagreement about insurance coverage with a private

      insurance company. In February 2014, he submitted a complaint to the Indiana

      Department of Insurance (“IDOI”). The IDOI investigated, negotiated a

      settlement for Bradford with the insurance company, and closed his case in

      August 2014. When IDOI informed Bradford that his case was closed because

      there was nothing more it could do for him, he indicated “he was not going to

      let this, uh, let this go.” Transcript at 94. He asserted the closing of his case

      was “unacceptable, and that he would take this to . . . a higher level.” Id.

      Bradford was “quite angry and uh, convinced that we at the [IDOI] had not

      done our job and that we were violating his civil rights.” Id. at 96.


[3]   On August 20, 2014, the Security Coordinator for IDOI, Charles Michael

      Herndon, began investigating Bradford because of concerns raised by IDOI

      employees who had interacted with Bradford. Among Bradford’s tweets,

      Herndon found multiple references to a 2005 case in which a judge’s family had

      been killed because of a “medical claim dispute.” Id. at 114. Bradford’s tweets

      indicated “other government officials . . . should be concerned because of that

      case.” Id. at 119. Herndon relayed the information to the Capitol Police. He

      printed a picture of Bradford from government records, warned the

      receptionists, and posted Bradford’s picture at the IDOI reception area.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 2 of 14
[4]   On December 22, 2015, when IDOI employee Charles Johnson was opening

      mail addressed to the IDOI, he noticed the mail room “smelled like poop.” Id.

      at 23. As he opened a package from Bradford, “the smell was just incredible.”

      Id. Bradford’s package was addressed to the Commissioner of the IDOI,

      Stephen Robertson, and to an employee in Governor Mike Pence’s office,

      Kristin Kane. The package contained a letter and a sandwich bag holding

      tissue paper covered with blood and feces. The letter had originated at the

      IDOI and been sent to Bradford to explain why the IDOI could not help him

      further with his complaint against the private health insurance company.

      Bradford had added a hand-written note on the letter’s cover-page that said:

      “Merry F------ Christmas To You Gov. Pence.” State’s Exhibit 3. On one of

      the other pages, Bradford had written “Fix The Godamn [sic] Problem Mikey!”

      Id.


[5]   Johnson immediately contacted Commissioner Robertson’s executive assistant,

      Dawn Bopp. When Johnson showed the package to Bopp, she recognized

      Bradford’s name. Bopp had answered calls from Bradford while he was trying

      to reach the Commissioner, and she expected the letter from him to be angry.

      When she saw the contents of the plastic baggie, she felt “very uncomfortable . .

      . because [she] felt that that was more of a threat that he had taken a step

      further.” Transcript at 41. She “wasn’t sure what it was, or . . . if [a person]

      could be contaminated by it, even thought [sic] it was in a baggie and [she] had

      gloves.” Id. Bopp called in Anna Amick, who is part of the security team for

      the IDOI.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 3 of 14
[6]   When Amick arrived and saw the envelope, she recognized Bradford’s name

      because he was on a list of “certain individuals that we keep, uh, an eye out

      for.” Id. at 57-58. His picture is kept up at the front of the IDOI because they

      “were aware of him as a potential threat.” Id. at 59. Amick contacted Capitol

      Police, and Detective Charles Meneely, Jr., was among those who responded.

      Detective Meneely helped secure the biohazardous material and conducted

      further investigation of Bradford.


[7]   The State charged Bradford with intimidation as a class A misdemeanor and

      malicious mischief as a Class B misdemeanor, and following a bench trial, the

      court found Bradford guilty of the charged offenses. The court sentenced

      Bradford to 365 days for his conviction for intimidation and 180 days for his

      conviction for malicious mischief, each suspended except for time served, to be

      served concurrently.


                                         Discussion and Decision

[8]   When the sufficiency of the evidence supporting a conviction is challenged, we

      will neither reweigh the evidence nor judge the credibility of the witnesses.

      McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). The conviction will be

      affirmed if there is substantial evidence of probative value supporting each

      element of the crime from which a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 4 of 14
[9]    On a claim of insufficient evidence, we have a duty “to examine the evidence

       closely, not with a view towards resolving conflicts thereon, but for the purpose

       of determining whether [], after resolving all reasonable doubts in favor of the

       verdict, it may be said that, on such evidence, a reasonable [person] could have

       reached such a verdict, beyond a reasonable doubt.” Smith v. State, 21 N.E.3d

       121, 124 (Ind. Ct. App. 2014) (citing Woods v. State, 274 Ind. 624, 629, 413

       N.E.2d 572, 575 (1980)).


                                                  Intimidation

[10]   Ind. Code § 35-45-2-1 governs the offense of intimidation and provides in part

       that “[a] person who communicates a threat to another person, with the intent:

       (1) that the other person engage in conduct against the other person’s will; [or]

       (2) that the other person be placed in fear of retaliation for a prior lawful act . . .

       commits intimidation, a Class A misdemeanor.” Ind. Code § 35-45-2-1(a).

       Bradford asserts “there was no evidence that what Mr. Bradford expressed was

       a threat.” Appellant’s Brief at 10.


[11]   Ind. Code § 35-45-2-1(d) provides:

               “Threat” means an expression, by words or actions, of an
               intention to:

                       (1)      unlawfully injure the person threatened or another
                                person, or damage property;

                       (2)      unlawfully subject a person to physical confinement
                                or restraint;

                       (3)      commit a crime;

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 5 of 14
                       (4)      unlawfully withhold official action, or cause such
                                withholding;

                       (5)      unlawfully withhold testimony or information with
                                respect to another person’s legal claim or defense,
                                except for a reasonable claim for witness fees or
                                expenses;

                       (6)      expose the person threatened to hatred, contempt,
                                disgrace, or ridicule;

                       (7)      falsely harm the credit or business reputation of the
                                person threatened; or

                       (8)      cause evacuation of a dwelling, a building, another
                                structure, or a vehicle.


[12]   The Indiana Supreme Court recently explained the difficulty the State faces

       when it attempts to prosecute for intimidation based on the defamatory

       statements included as threats in subsections (d)(6) and (d)(7) of Indiana Code §

       35-45-2-1, if the statements were made about “public figures or issues of public

       concern.” Brewington v. State, 7 N.E.3d 946, 962 (Ind. 2014) (such prosecutions

       are “all but impossible” because of First Amendment free-speech protections),

       reh’g denied, cert. denied. Because Bradford’s communication was prompted by

       his perceived inability to obtain a particular form of health insurance and was

       directed at Indiana’s Governor and the Commissioner of the IDOI, the State

       would face a heavy burden to prove his statements could be threats to “(6)

       expose the person threatened to hatred, contempt, disgrace, or ridicule” or to

       “(7) falsely harm the credit or business reputation of the person threatened”

       under Ind. Code § 35-45-2-1(d), as public officials are “subject to ‘vehement,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 6 of 14
       caustic, and sometimes unpleasantly sharp attacks.’” Brewington, 7 N.E.3d at

       959 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988)). Even if

       “those attacks are unfair, offensive, or ignorant, the First Amendment protects

       them so that legitimate debate will not be stifled.” Id.


[13]   Nevertheless, the State can convict Bradford for threats against public officials

       that “communicate a serious expression of an intent to commit an act of

       unlawful violence to a particular individual or group of individuals.” Id. at 963

       (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). Thus, we must determine

       whether Bradford made a “true threat.” See id.


[14]   We first note that our analysis of whether Bradford expressed a “true threat”

       includes more than just his words. Because “a threat is an expression, by words

       or actions,” Ind. Code § 35-45-2-1(d), we also consider the message expressed

       by the enclosure of a plastic bag containing tissue paper with blood and feces on

       it. See, e.g., Black, 538 U.S. at 357 (“the burning of a cross is symbolic

       expression”).


[15]   We further note that “threats, particularly veiled threats, are heavily dependent

       on all of the contextual factors.” Brewington, 7 N.E.3d at 964 (internal

       quotation marks and citation omitted).


               As the Seventh Circuit has long recognized, “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.”
               Particularly with implied threats, then, juries are not bound to
               “rigid adherence to the literal meaning of a communication”
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 7 of 14
                while turning a blind eye “to its reasonable connotations derived
                from its ambience”—because doing so “would render
                [prohibitions on threats] powerless against the ingenuity of
                threateners who can instill in the victim’s mind as clear an
                apprehension of impending injury by an implied menace as by a
                literal threat.” Nor are juries “preclude[d from] finding . . . a
                threat any time the defendant can conjure up some conceivable
                alternative explanation for his words.” The true meaning of a
                facially ambiguous threat is for a jury to decide, as long as the
                State presents “sufficient extrinsic evidence, capable of showing
                beyond a reasonable doubt that an ordinary and reasonable
                recipient familiar with the context of the [statement] would interpret
                it as a threat.”


       Id. at 963-964 (internal citations omitted).


[16]   Here, Bradford’s angry interactions with IDOI staff had led to him being

       investigated by IDOI security as a possible threat. That investigation uncovered

       Bradford’s online references to a judge’s family that was killed because of a

       dispute over a medical claim. IDOI warned its staff to watch for Bradford and

       posted his picture in its reception area. Into this context, he sent a bag of

       bloody feces with notes that included expletives telling the Governor to “Fix”

       the problem. State’s Exhibit 3. Bradford admitted that, if he received

       somebody’s fecal matter or blood in the mail, “[t]hat would be (inaudible) cause

       for concern.” Transcript at 189.1




       1
         Bradford also testified he was “trying to call for help, cry for help . . . [and] there was never any intent to,
       uh, cause harm or fear or panic in any way.” Transcript at 162. The court as the trier of fact was not
       required to credit Bradford’s testimony, and we will not reweigh the evidence or judge the credibility of the
       witnesses. See McElfresh, 51 N.E.3d at 107.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016              Page 8 of 14
[17]   Based upon the record, the State presented evidence from which a reasonable

       trier of fact could have found that “an ordinary and reasonable recipient,”

       Brewington, 7 N.E.3d at 964, of the package containing the handwritten notes

       and plastic bag containing blood and feces, and who is also “familiar with the

       context” of Bradford’s previous interactions with the IDOI and his social media

       comments, id., would interpret the receipt of the package as a threat to

       unlawfully injure the person threatened or another person or damage property

       under Ind. Code § 35-45-5-1(d)(1) or to commit a crime under Ind. Code § 35-

       45-2-1(d)(3) if the IDOI did not resolve his case in a manner that satisfied him.

       See Brewington, 7 N.E.3d at 963 (“The ‘intent’ that matters is not whether the

       speaker really means to carry out the threat, but only whether he intends to

       ‘plac[e] the victim in fear of bodily harm or death.’”) (quoting Black, 538 U.S. at

       359-360). We conclude the State presented evidence of probative value from

       which a reasonable trier of fact could have determined beyond a reasonable

       doubt that Bradford committed the offense of intimidation as a class A

       misdemeanor.


                                              Malicious Mischief

[18]   Ind. Code § 35-45-16-2 governs the offense of malicious mischief and provides

       in part that “[a] person who recklessly, knowingly, or intentionally places

       human: (1) body fluid; or (2) fecal waste; in a location with the intent that

       another person will involuntarily touch the body fluid or fecal waste commits

       malicious mischief, a Class B misdemeanor.” Ind. Code § 35-45-16-2(c). The

       term “body fluid” includes blood. Ind. Code § 35-45-16-2(a). A person engages

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016   Page 9 of 14
       in conduct “intentionally” if, “when he engages in the conduct, it is his

       conscious objective to do so,” and a person engages in conduct “knowingly” if,

       “when he engages in the conduct, he is aware of a high probability that he is

       doing so.” Ind. Code § 35-41-2-2. The State’s charging information alleged

       that Bradford “did knowingly place human blood and/or fecal waste in a

       location, to-wit: an envelope addressed to Stephen Robertson, with the intent

       that Stephen Robertson would involuntarily touch it.” Appellant’s Appendix at

       22.


[19]   Bradford contends the State failed to prove beyond a reasonable doubt he

       committed the crime of malicious mischief because there was no evidence that

       he intended Commissioner Robertson to involuntarily touch blood or fecal

       waste. He argues that he “sealed the toilet paper smeared with blood and feces

       inside of a plastic bag” and that “[t]hus, the only way for Mr. [Robertson] to

       touch the blood or fecal waste would be to do so voluntarily – by opening the

       bag.” Appellant’s Brief at 18. The State responds that Bradford’s argument

       “assumes that the Commissioner would be aware of the contents of the baggie,

       which would not necessarily be the case,” that “[t]his is particularly plausible if

       he were in a hurry and did not pay attention to the contents of the baggie—and

       he would certainly not be expecting a baggie containing bloody feces,” and that

       “[i]t may be inferred that [Bradford] placed the bloody feces in the plastic

       baggie . . . with the intent that during transit it would be compromised and the

       contents exposed within the mailing envelope such that when the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016 Page 10 of 14
       Commissioner opened the envelope he could inadvertently touch the bloody

       feces.” Appellee’s Brief at 18.


[20]   In order to have committed the offense of malicious mischief, Ind. Code § 35-

       45-16-2 provides that Bradford must have intended that another person

       “involuntarily touch the body fluid or fecal waste.” The State presented

       evidence that Bradford placed tissue paper with blood and feces on it into a

       transparent plastic bag.2 Bradford placed the plastic bag and several sheets of

       paper, at least two of which contained his handwritten notes, into an envelope,

       and the enclosed sheets of paper were not inside the plastic bag. 3 The State

       does not point to evidence or testimony that the contents of the transparent

       plastic bag had escaped or leaked from the bag. Moreover, it is significant that

       the plastic bag containing the blood and fecal matter was transparent. We do

       not believe that a reasonable factfinder could find beyond a reasonable doubt

       that Bradford, by selecting a transparent bag in which to place tissue paper with

       blood and feces on it, intended that the recipient would open the bag or that the

       act of placing the tissue paper in the transparent bag would reasonably result in

       the recipient of the bag choosing to open it and touch its contents.




       2
         Based on State’s Exhibit 3, the bag appears to be a sandwich-size bag, approximately six inches in length by
       six inches in width, with a zip-lock seal.
       3
         Based on State’s Exhibit 3, the envelope appears to be approximately twelve inches in length by nine inches
       in width.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016 Page 11 of 14
[21]   Based upon the record, including the size of the smaller plastic bag relative to

       the larger envelope, the fact that the plastic bag was transparent, and the fact

       that Bradford included handwritten notes on papers which were not inside the

       plastic bag, we conclude that the State did not present evidence from which a

       reasonable trier of fact could determine beyond a reasonable doubt that

       Bradford intended for the person opening the envelope or another person to

       involuntarily touch the contents of the enclosed transparent bag. Accordingly,

       we reverse Bradford’s conviction for malicious mischief.


                                                       Conclusion

[22]   For the foregoing reasons, we affirm Bradford’s conviction for intimidation as a

       class A misdemeanor and reverse his conviction for malicious mischief as a

       class B misdemeanor.4


[23]   Affirmed in part and reversed in part.


       Baker, J., concurs.


       May, J., concurs in part and dissents in part with separate opinion.




       4
        Bradford’s aggregate sentence is not affected as the court ordered his sentence for his conviction for
       malicious mischief to be served concurrently with his sentence for his conviction for intimidation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016 Page 12 of 14
                                                  IN THE
              COURT OF APPEALS OF INDIANA

       Rodney Bradford,                                         September 28, 2016
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                49A02-1512-CR-2294
                  v.                                            Appeal from the Marion Superior
                                                                Court
       State of Indiana,                                        The Honorable Leah Cannon,
       Appellee-Plaintiff.                                      Judge Pro Tempore
                                                                Trial Court Cause No.
                                                                49G10-1501-CM-110



       May, Judge, concurring in part and dissenting in part.


[24]   I concur with the majority’s decision to affirm Bradford’s conviction of Class A

       misdemeanor intimidation.5 However, I would not reverse Bradford’s




       5
           Ind. Code § 35-45-2-1(a)(1) (2014).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016 Page 13 of 14
       conviction of Class B misdemeanor malicious mischief. 6 Accordingly, I

       respectfully dissent in part.


[25]   I believe a reasonable trier of fact could infer Bradford intended Commissioner

       Robertson to involuntarily touch the fecal waste or blood upon opening the

       package. Whether a person acted intentionally is “almost inevitably, absent a

       defendant’s confession or admission, a matter of circumstantial proof.”

       Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012). Intent “may be inferred

       from the actor’s conduct and the natural and usual sequence to which such

       conduct usually points.” Delagrange v. State, 5 N.E.3d 354, 357 (Ind. 2014)

       (quoting Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000)).


[26]   The package in which Bradford placed the bag containing the blood and feces

       had only addresses and postage stamps; Bradford did not indicate someone

       opening the package should be cautious, nor did he request the post office treat

       the package as fragile or stamp it by hand. IDOI employees testified the

       package smelled of feces, which suggests the plastic bag either was not sealed or

       had come opened in transit. Because we must consider conflicting evidence

       most favorably to the trial court’s ruling, McElfresh v. State, 51 N.E.3d 103, 107

       (Ind. 2016), I would affirm Bradford’s conviction of Class B misdemeanor

       malicious mischief, and I dissent from that part of the majority’s decision.




       6
           Ind. Code § 35-45-16-2(c) (2014).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2294 | September 28, 2016 Page 14 of 14
