MEMORANDUM DECISION                                                              FILED
                                                                             Apr 30 2018, 8:17 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

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
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Jackson,                                          April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1711-CR-2549
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1706-F6-21380



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018                Page 1 of 6
                                          Case Summary
[1]   Donald Jackson was convicted of Level 6 felony intimidation and Class B

      misdemeanor battery. He appeals the sufficiency of the evidence to support his

      intimidation conviction and the length of his battery sentence. We find that the

      evidence is sufficient to support Jackson’s intimidation conviction. However,

      because the trial court sentenced Jackson to 365 days for battery but the

      maximum term for a Class B misdemeanor is 180 days, we reverse and remand

      for the limited purpose of correcting the length of this sentence.



                            Facts and Procedural History
[2]   On the morning of June 6, 2017, Michael Evans parked his car in a surface

      parking lot at the corner of Meridian and South Streets in downtown

      Indianapolis. As Evans exited his car and was headed to work, he saw, in the

      back of the parking lot, Jackson screaming at a woman using vulgar language

      and hitting her in the face and upper body “very . . . intensely” with a closed

      fist. Tr. Vol. II p. 8. Evans “started screaming” in hopes of distracting Jackson

      and drawing the attention of others. Id. Evans then started walking toward

      Jackson and the woman. As Evans got closer, Jackson “started coming after

      [him].” Id. at 9. At this point, some bystanders intervened and shoved Jackson

      to the ground. Evans called 911. Jackson got free and started to leave;

      however, he returned and approached Evans, trying to convince him that he did

      not see anything earlier between him and the woman.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018   Page 2 of 6
[3]   In the meantime, Indianapolis Metropolitan Police Department Officer Thomas

      Bordenkecher arrived on the scene. He described a scene of “chaos”: Evans

      and Jackson were “facing each other,” Jackson was yelling, and Evans was in a

      “guarded defensive position.” Id. at 28, 29. Jackson told the officer that he

      “was attacked by some dudes.” Id. at 28. Officer Bordenkecher then spoke

      with the woman, who had fresh injuries, and decided to arrest Jackson for

      domestic battery. After being placed in handcuffs, Jackson yelled that he

      wanted “justice” for what had happened to him. Id. at 34. Jackson then told

      Officer Bordenkecher that he “knew where to find” him and that “he was

      coming to kick [his] a**[].” Id. Jackson, who was about ten feet away from

      Officer Bordenkecher, looked directly at the officer as he said this.


[4]   The State charged Jackson with several offenses, including Level 6 felony

      intimidation (of Officer Bordenkecher) and Class A misdemeanor domestic

      battery. At the bench trial, Officer Bordenkecher testified that although Jackson

      did not know his name at the time, he did not take Jackson’s comments

      “lightly”; rather, he took Jackson’s comments as “threatening.” Id. at 39, 47-

      48. Jackson was convicted of Level 6 felony intimidation and Class B

      misdemeanor battery as a lesser-included offense of Class A misdemeanor

      domestic battery.1 The trial court sentenced Jackson to 365 days on each count




      1
        The woman did not appear to testify at trial, and the State dismissed three charges concerning her. See Tr.
      Vol. II p. 52. The State conceded that it could not prove a domestic relationship for the remaining charge
      concerning the woman and asked the trial court to proceed on Class B misdemeanor battery as a lesser-
      included offense. Id. at 53. Finally, there was a second intimidation charge for an officer who had since
      retired and did not appear to testify at trial, and the court found Jackson not guilty of that count.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018              Page 3 of 6
      (to be served on community corrections) and ordered the sentences to be served

      concurrently.


[5]   Jackson now appeals.



                                 Discussion and Decision
                                              I. Sufficiency
[6]   Jackson contends that the evidence is insufficient to support his conviction for

      Level 6 felony intimidation. When reviewing the sufficiency of the evidence to

      support a conviction, appellate courts must consider only the probative

      evidence and reasonable inferences supporting the judgment. Sallee v. State, 51

      N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate

      courts, to assess witness credibility and weigh the evidence to determine

      whether it is sufficient to support a conviction. Id. It is not necessary that the

      evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation

      omitted). The evidence is sufficient if an inference may reasonably be drawn

      from it to support the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind.

      2007).


[7]   Here, the State alleged that Jackson committed Level 6 felony intimidation by

      communicating a threat to a law-enforcement officer (i.e., that Jackson knew

      where to find Officer Bordenkecher and was going to “kick his a**[]”), with the

      intent that the officer be placed in fear of retaliation for a prior lawful act (i.e.,

      conducting an investigation and/or placing Jackson under arrest) and the threat

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018   Page 4 of 6
      was communicated to the officer because of an act taken by him within the

      scope of his occupation. See Appellant’s App. Vol. II pp. 20-21 (charging

      information); Ind. Code § 35-45-2-1(a)(2), (b)(1)(B)(i).


[8]   Jackson claims that the State presented insufficient evidence that Jackson

      communicated a “true threat” to Officer Bordenkecher. The intimidation

      statute defines “threat” as “an expression, by words or action, of an intention to

      . . . unlawfully injure the person threatened . . . .” I.C. § 35-45-2-1(d)(1). Our

      Supreme Court clarified in Brewington v. State that “true threats” depend on two

      necessary elements: (1) that the speaker intend for his communications to put

      his targets in fear for their safety and (2) that the communications were likely to

      actually cause such fear in a reasonable person similarly situated to the

      target. 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied. We find that the evidence is

      sufficient to prove both elements. Officer Bordenkecher arrived on a chaotic

      scene. After sorting through what happened and determining that Jackson had

      battered the visibly injured woman, Officer Bordenkecher arrested and

      handcuffed Jackson. Jackson looked directly at Officer Bordenkecher and told

      him not only that he “knew where to find” him but also that he “was coming to

      kick [his] a**[].” Although Jackson argues on appeal that his “cliché”

      statement was “surely relatively commonplace to a 26-year veteran police

      officer,” Appellant’s Br. p. 10, Officer Bordenkecher testified otherwise at trial.

      Specifically, the officer testified that he’s “seen this before: officers’ houses have

      been attacked and shot at, so no, we don’t take [statements like this] lightly.”

      Tr. Vol. II p. 39. Rather, Officer Bordenkecher took Jackson’s statement as a


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018   Page 5 of 6
       threat. Id. at 47-48. The evidence is sufficient for the fact-finder to conclude

       that Jackson’s words to Officer Bordenkecher represented a true threat. We

       therefore affirm Jackson’s intimidation conviction.


                                                II. Sentence
[9]    Jackson next contends that the trial court erred in sentencing him to 365 days

       for Class B misdemeanor battery. See Appellant’s App. Vol. II pp. 15-16

       (Sentencing Order). According to Indiana Code section 35-50-3-3, “A person

       who commits a Class B misdemeanor shall be imprisoned for a fixed term of

       not more than one hundred eighty (180) days . . . .” The State acknowledges

       that the maximum sentence for a Class B misdemeanor is 180 days. See

       Appellee’s Br. p. 12. Accordingly, we remand this case to the trial court with

       instructions to correct the length of Jackson’s sentence for Class B misdemeanor

       battery from 365 to 180 days.


[10]   Affirmed in part and reversed and remanded in part.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2549 | April 30, 2018   Page 6 of 6
