                                                                                FILED
                                                                           Dec 19 2017, 8:52 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Debra S. Andry                                            Curtis T. Hill, Jr.
      Lawrence County Public Defender                           Attorney General of Indiana
      Agency
      Bedford, Indiana                                          Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      E.B.,                                                     December 19, 2017

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                47A04-1706-JV-1263
              v.                                                Appeal from the Lawrence Circuit
                                                                Court.
                                                                The Honorable Andrea K. McCord,
      State of Indiana,                                         Judge.
      Appellee-Petitioner.                                      The Honorable John M. Plummer,
                                                                III, Referee.
                                                                Trial Court Cause Nos.
                                                                47C01-1702-JD-99
                                                                47C01-1702-JD-86




      Barteau, Senior Judge


                                      Statement of the Case
[1]   A juvenile court determined E.B. is a delinquent child for committing acts that,

      if committed by an adult, would have constituted two counts of intimidation,
      Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017                   Page 1 of 12
                                     1
      both Level 6 felonies. E.B. appeals the court’s determination. We affirm in

      part and reverse in part.


                                                      Issue
[2]   E.B. raises one issue, which we restate as: whether there is sufficient evidence

      to sustain the juvenile court’s adjudication of delinquency.


                                   Facts and Procedural History
[3]   E.B. attended high school in Lawrence County. In January 2017, Assistant

      Principal Todd Tanksley disciplined E.B. for misconduct in the school cafeteria.

      Tanksley called E.B.’s father to make him aware of the situation.


[4]   In mid-February 2017, E.B. sent a text message to a fellow student, J.G. E.B.

      advised J.G. to wear red on the following Tuesday, explaining that he intended

      to shoot “anybody who wasn’t wearing red.” Tr. Vol. 2, p. 16. E.B. later sent a

      text message to J.B., another fellow student. E.B. told J.B. that next Tuesday,

      he should “wear red and get under the desk” when he heard music. Id. at 24.

      E.B. further told J.B. to tell “the ones that [he] care[s] about.” Id. at 25. J.B.

      shared E.B.’s instructions with several of his fellow students via text messages.


[5]   Later that same evening, E.B.’s sister, Em.B., was walking by E.B.’s room

      when she heard him talking on the phone with an unknown person. E.B. said




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


      Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 2 of 12
      he was going to bring a gun to school and shoot Tanksley because “he didn’t

      like him.” Id. at 53.


[6]   The next morning, on February 15, 2017, J.B. approached three students in the

      school cafeteria. He told them to wear red next Tuesday and get under their

      desks when they heard heavy metal music over the public-address system. He

      further told them the instructions came from E.B. and directed them to spread

      the word to other students.


[7]   One of the students J.B. spoke with went to Tanksley’s office later that

      morning, at 8:30 a.m., and told him what J.B. had said. The student did not

      know J.B.’s name, so Tanksley consulted security video recordings of the

      cafeteria and identified J.B. He spoke with J.B. and confirmed that J.B. had

      told other students to wear red next Tuesday and get under their desks when

      they heard certain music over the public-address system. Next, Tanksley spoke

      with Em.B., who was also a student at the school. She informed Tanksley of

      E.B.’s statement that E.B. intended to bring a gun to school and shoot him.

      E.B. was not at school that day.


[8]   Tanksley called the police, and two detectives were dispatched to the school.

      Tanksley contacted E.B.’s father and asked him to come to the school. Upon

      arriving, E.B.’s father spoke with Tanksley and the detectives. The detectives

      asked E.B.’s father for permission to search E.B.’s bedroom, and he signed a

      written form granting consent to search.




      Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 3 of 12
[9]    The detectives followed E.B.’s father to his house and searched E.B.’s bedroom

       pursuant to the signed consent form. E.B. was in the house. The detectives

       found a handwritten document entitled “Checklist for Project . . . School

       Shooting.” Tr. Vol. 3, State’s Ex. 8. The document listed items he intended to

       take with him to school, including a rifle, a handgun, and a knife, as well as

       ammunition, a holster, and a radio. E.B. further listed “areas of completion or

       major targets,” including “Tanksly [sic],” the cafeteria, and “anyone I can.” Id.

       Finally, the document listed people not to be shot, including “anyone the [sic]

       wears red” and J.G. Id. The officers also found the following items in E.B.’s

       bedroom: several shotgun shells and bullets, a holster, and a tactical vest.


[10]   After the search, the detectives arrested E.B. and took him to the Sheriff’s

       Department. E.B.’s father followed them there. Both E.B. and his father

       signed a document permitting the officers to question E.B. E.B. conceded

       during the interview that he wrote the document that the detectives found in his

       room. He further conceded that he told several people to wear red on Tuesday.

       E.B. further stated he put Tanksley’s name on the list of targets because

       Tanksley did not like him.


[11]   Later that day, school officials notified parents about the situation via a phone

       message. On an average day, 150 students are absent from school. The day

       after the school notified parents, 588 students were absent.


[12]   On February 21, 2017, the State filed a Verified Petition Alleging Delinquency

       in Cause Number 47C01-1702-JD-99, in which the State contended as


       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 4 of 12
       “Specification One” that E.B. committed an act that would have been

       intimidation, a Level 6 felony if committed by an adult, for his actions

       involving Tanksley. Appellant’s App. Vol. II, p. 9. The State later amended its

       petition to add “Specification Two,” alleging E.B. committed an act that

       constituted a second act of intimidation, also a Level 6 felony, for interfering

       with the occupancy of the school. Id. at 38. The juvenile court held a fact-

       finding hearing and determined E.B. had committed both acts of delinquency as

       alleged by the State and was a delinquent child. The court issued a
                                                                   2
       dispositional order, and this appeal followed.


                                     Discussion and Decision
[13]   When the State petitions to have a juvenile adjudicated as a delinquent for

       committing an act that would be an offense if committed by an adult, the State

       must prove every element of that offense beyond a reasonable doubt. H.J. v.

       State, 746 N.E.2d 400, 402-03 (Ind. Ct. App. 2001). On review of a juvenile

       delinquency adjudication, we neither reweigh the evidence nor judge the

       credibility of witnesses. C.S. v. State, 735 N.E.2d 273, 276 (Ind. Ct. App. 2000),

       trans. denied. Instead, we consider only the evidence most favorable to the

       judgment and the reasonable inferences therefrom. Id.




       2
         In Cause Number 47C01-1702-JD-86 (JD-86), the State alleged E.B. was a delinquent based on an incident
       not related to the events at issue here. The juvenile court determined E.B. was a delinquent in that case.
       E.B. initially sought to appeal the judgment in JD-86 along with the judgment in Cause Number 47C01-
       1702-JD-99, but he now “finds no disputable issue” arising from JD-86 and does not present any claims for
       review as to that case. Appellant’s Br. p. 4.

       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017                    Page 5 of 12
[14]   The statute that defines the offense of intimidation provides, in relevant part:

               (a) 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;
               (2) that the other person be placed in fear of retaliation for a prior
               lawful act; or
               (3) of:
               (A) causing:
               (i) a dwelling, a building, or other structure; or
               (ii) a vehicle;
               to be evacuated; or
               (B) interfering with the occupancy of:
               (i) a dwelling, building, or other structure; or
               (ii) a vehicle;
               commits intimidation, a Class A misdemeanor.
               (b) However, the offense is a:
               (1) Level 6 felony if:
               (A) the threat is to commit a forcible felony . . . .

       Ind. Code § 35-45-2-1. The statute further defines a “threat” as:

               An expression, by words or action, 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;
               (4) unlawfully withhold official action, or cause such
               withholding;


       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 6 of 12
               (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 the evacuation of a dwelling, a building, another
               structure, or a vehicle.

       Id.


[15]   Whether a statement is a threat is an objective question for the trier of fact.

       Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans. denied. A

       defendant’s intent may be proven by circumstantial evidence alone, and

       knowledge and intent may be inferred from the facts and circumstances of each

       case. Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016), trans. denied.

       Criminal statutes must be strictly construed against the State, may not be

       enlarged beyond the fair meaning of the language used, and may not be held to

       include offenses other than those clearly defined. J.T. v. State, 718 N.E.2d 1119,

       1124 (Ind. Ct. App. 1999).


[16]   The State alleged that E.B. committed two acts of intimidation. The State first

       alleged under Specification One that E.B.: (1) communicated a threat (2) to

       commit a forcible felony (3) to another person (4) with the intent (4) that

       Tanksley be placed in fear of retaliation for a prior lawful act. Ind. Code § 35-

       45-2-1(a) & (b); Appellant’s App. Vol. 2, p. 9. E.B. argues the State failed to

       prove that he communicated a threat with the intent of placing Tanksley in fear.

       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 7 of 12
       In response, the State argues the evidence is sufficient because E.B.’s sister told

       Tanksley that she had overheard E.B. talking on the telephone.


[17]   It is well-established that a defendant need not speak directly with a victim to

       communicate a threat for purposes of Indiana Code section 35-45-2-1. For

       example, in Ajabu v. State, 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997), trans.

       denied, the defendant told reporters that a person who had supported the

       imposition of the death penalty against the defendant’s son might be subjected

       to the death penalty herself and further indicated that the person was eligible for

       such a punishment. This Court deemed the defendant’s statement to the media

       was sufficient evidence of communication of a threat to the victim, even though

       she was not present when the defendant made the statement.


[18]   Similarly, in S.D. v. State, 847 N.E.2d 255, 258-59 (Ind. Ct. App. 2006), trans.

       denied, a juvenile told a teacher and several students that she would kill another

       teacher (who was not in the room) and use grenades to blow up the school, and

       she did not care if the listeners told the absent teacher. This Court determined

       S.D. communicated the threat because she knew or had good reason to know

       that the victim would hear her statements. See also Newell, 7 N.E.3d at 370

       (there was sufficient evidence defendant intended to communicate a threat to

       the victim, the manager of an apartment complex, because defendant made the

       threat in the presence of a security guard that the defendant knew would report

       the threat to the manager).




       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 8 of 12
[19]   Nevertheless, it remains true that to communicate a threat for purposes of the

       offense of intimidation, the statement must be transmitted in such a way that

       the defendant knows or has good reason to know the statement will reach the

       victim. Ajabu, 677 N.E.2d at 1043. In J.T. v. State, J.T. and a friend printed a

       document in their school library. 718 N.E.2d at 1121. The document

       contained a reference to sacrificing a fellow student in an occult ritual. The

       librarian saw the document and reported it to her supervisors, who later told the

       student who was named in the document.


[20]   A juvenile court determined J.T. was a delinquent child because, among other

       grounds, she committed an act that would have constituted intimidation if

       committed by an adult. This Court reversed that portion of the adjudication,

       reasoning that there was no evidence that J.T. knew or had reason to believe

       that the document would reach the student named therein. Instead, J.T. merely

       printed the document with the expectation that it would be returned to her.


[21]   In the current case, Em.B. was passing by E.B.’s room when she overheard him

       talking with someone on the telephone. She heard him say that he was going to

       bring a gun to school and shoot Tanksley because he did not like him. We do

       not know who E.B. was talking with or what else was said during the

       conversation. E.B. did not tell anyone else about shooting Tanksley. Em.B.

       told Tanksley about E.B.’s statement, but E.B. did not direct her to do that.

       There is no evidence that E.B. made his statement with knowledge or reason to

       believe that his statement would reach Tanksley. The circumstances here more

       closely resemble those of J.T. than those of Ajabu, S.D., or Newell. In J.T., the

       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 9 of 12
       librarian’s interception of J.T.’s document led to the discovery of its contents.

       In this case, Em.B.’s eavesdropping on E.B. led to the discovery of his private

       phone conversation. In both cases, there is no evidence of communication of a

       threat by the juvenile in question.


[22]   There is no dispute that E.B.’s statement was disturbing, and Tanksley had

       every right to be concerned. Regardless, E.B.’s conduct does not meet the

       statutory definition of intimidation due to lack of evidence regarding whether

       he communicated a threat, and we must reverse that portion of the juvenile

       court’s adjudication.


[23]   We reach a different conclusion with respect to the second allegation of

       intimidation, Specification Two. The State alleged that E.B. committed the

       offense of intimidation by: (1) communicating a threat (2) to J.B. (3) to commit

       a forcible felony (4) with the intent (5) of interfering with the occupancy of the

       high school. Ind. Code § 35-45-2-1(a) & (b); Appellant’s App. Vol. 2, p. 38.


[24]   E.B. argues he never intended to interfere with the occupancy of the school and

       lacked the means to carry out the shooting. The State responds that there is

       ample evidence that he intended to disrupt the occupancy of the high school.

       We agree with the State. E.B. told J.B. that on the following Tuesday, J.B.

       should “wear red and get under the desk” when he heard music. Id. at 24. E.B.

       encouraged J.B. to share these instructions, advising him to tell “the ones that

       [he] care[s] about.” Id. at 25. J.B. followed E.B.’s directives, telling fellow

       students via text messages and in personal conversations that they needed to


       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 10 of 12
       wear red next Tuesday and hide under their desks when they heard music over

       the public-address system. J.B. told his fellow students that the instructions

       came from E.B. and that they should share the instructions with others.


[25]   A reasonable person could extrapolate from J.B.’s communications that E.B.

       was threatening to engage in an act of violence, and the wearing of a red shirt

       would be a signal that the person should be spared. Furthermore, having told

       J.B. to share the instructions with anyone he cared about, without limitation, it

       should have been foreseeable to E.B. that news of E.B.’s plan would spread

       throughout the school. Word did spread, and after the school informed parents

       about the incident, absenteeism more than doubled the following day.


[26]   In addition, the officers found a plan of attack and some of the items listed on

       the plan in E.B.’s bedroom, which is further evidence of his intent to disrupt the

       occupancy of the school, regardless of whether he actually possessed guns on

       the day his room was searched. This is sufficient evidence from which the

       finder of fact could have determined beyond a reasonable doubt that E.B.

       intended to commit intimidation through interfering with the occupancy of his

       high school.


                                                 Conclusion
[27]   We reverse the juvenile court’s determination that E.B. was a delinquent child

       for committing an act that, if committed by an adult, would have constituted

       intimidation of Tanksley (Specification One). We affirm the juvenile court’s



       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 11 of 12
       delinquency adjudication as to the second act of intimidation, interfering with

       the occupancy of a school (Specification Two).


[28]   Affirmed in part and reversed in part.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017   Page 12 of 12
