Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
                                                                        Jul 18 2013, 6:27 am
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ANDREW B. ARNETT                                  GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TODD D. KELLY,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 41A01-1212-CR-565
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE JOHNSON SUPERIOR COURT
                       The Honorable Judith A. Stewart, Special Judge
                             Cause No. 41D02-1203-CM-588




                                        July 18, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

          Todd D. Kelly appeals his conviction of intimidation, a Class A misdemeanor.

Kelly raises the sole issue of whether there was sufficient evidence to sustain his

conviction. Concluding the evidence was sufficient, we affirm.

                               Facts and Procedural History

          Kelly and his ex-wife, Saundra Kelly Bordenkecher, have been going through

contentious post-divorce proceedings for approximately twelve to fifteen years.      A

hearing was held in Johnson County on October 4, 2011, regarding a small claims action

filed by Kelly against Bordenkecher and a counter-claim filed on her behalf by her

attorney, John Norris, against him.     During the hearing, Kelly made a number of

statements both Bordenkecher and her attorney found threatening. As a result of those

statements, Bordenkecher obtained a protective order against Kelly and filed a police

report.

          Kelly was charged with intimidation as a Class A misdemeanor. A bench trial

took place and both Bordenkecher and her attorney testified. Attorney Norris testified

that after Kelly made the statements at issue, he saw fear in Bordenkecher’s eyes and

tears coming down her face. Bordenkecher testified that Kelly’s statements during the

hearing were threatening to her and intimidated her. The trial court found that some of

the statements made by Kelly were not threats but that his statements that he would do

whatever it took to destroy Bordenkecher and her husband, including bodily harm,

constituted intimidation. The court therefore found Kelly guilty as charged. Kelly now

appeals. Additional facts will be provided as necessary.


                                            2
                                 Discussion and Decision

                                 I. Standard of Review


       Our standard of review for sufficiency claims is well-settled. We do not reweigh

the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,

864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and

reasonable inferences supporting the verdict. Id. It is 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. Id. We will affirm the

conviction unless no reasonable finder of fact could find the elements of a crime proven

beyond a reasonable doubt. Id.

                               II. Sufficiency of Evidence


       Kelly was convicted of intimidation in violation of Indiana Code section 35-45-2-

1(a)(2).   The State was required to prove beyond a reasonable doubt that Kelly

communicated a threat to Bordenkecher with the intent to place her in fear of retaliation

for a prior lawful act. See id. Kelly argues that the evidence was insufficient to sustain

his conviction. We disagree.

       Kelly first contends that the statements he made were not threats. The trial court

found that several of the statements made by Kelly did not constitute threats, but that

based on his tenor and demeanor, his statement indicating that he would do whatever it

took to destroy Bordenkecher and her husband and his affirmative response, when asked

if this included bodily harm, did. A “threat” is defined, in part, as an expression of an

intention to “unlawfully injure the person threatened or another person.” Ind. Code § 35-

                                            3
45-2-1(c)(1). The evidence was sufficient for the trier of fact to conclude that Kelly

expressed an intention to unlawfully injure Bordenkecher and her husband. That Kelly

made his remarks during cross-examination has no bearing on this conclusion. And

Kelly’s argument that his statements merely indicated his resolve to win in the legal

proceedings is merely an invitation for us to reweigh the evidence and assess witness

credibility, which we cannot do on appeal. The trial court, as the trier of fact, was acting

within its province when it chose not to believe Kelly and to instead judge his actions and

words. The evidence was sufficient to support an inference that Kelly communicated a

threat to Bordenkecher.1

         Kelly also argues that there is no evidence that his statements were made with the

intent to place Bordenkecher in fear of retaliation for a prior lawful act. In so doing, he

relies on the case of Casey v. State, 676 N.E.2d 1069 (Ind. Ct. App. 1997), and contends

that like in Casey, the charging information did not specify the victim’s prior lawful act,

see 676 N.E.2d at 1073. However, the court in Casey did not base its decision on the lack

of detail in the charging information. Instead, the court held that even though the State

alleged that the victim was engaged in the lawful acts of being a patron at a bar, being at

her house, and being a witness to the defendant’s attack on a third party, the record did

not support the inference that the defendant was retaliating for any of those actions. Id. at

1073. Here, however, the evidence presented demonstrated that Kelly made the threats

during a hearing addressing, in part, the counter-claim Bordenkecher filed against him,


         1
           As the State notes, the opinion relied upon by Kelly to support the argument that his statement was not a
threat, Johnson v. State, 725 N.E.2d 984, 987 (Ind. Ct. App. 2000) (reversing the trial court), was vacated on transfer
to the Indiana Supreme Court and the trial court was affirmed, Johnson v. State, 743 N.E.2d 755, 756 (Ind. 2001).
We remind Kelly’s counsel of his duty of candor toward the tribunal under Indiana Professional Conduct Rule 3.3
and his responsibility to carefully check all citations for precedential value.
                                                          4
alleging abuse of process.      The cross-examination during which Kelly made the

threatening remarks specifically focused on Bordenkecher’s legal filings against him, his

filings against her, and his desire to win. Thus, the evidence supported an inference that

Kelly’s threats were made with the intent to place Bordenkecher in fear of retaliation for

the lawful act of pursuing legal action against him. We hold that the evidence was

sufficient to support Kelly’s conviction.

                                        Conclusion

       There was sufficient evidence to sustain Kelly’s conviction of intimidation and we

therefore affirm.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




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