MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Oct 13 2017, 10:29 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alphonso Manns                                           Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ken R. Anderson,                                         October 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         88A01-1612-CR-2928
        v.                                               Appeal from the Washington
                                                         Circuit Court
State of Indiana,                                        The Honorable Larry W. Medlock,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         88C01-1605-F1-228



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017     Page 1 of 11
[1]   Ken Anderson appeals his convictions for Level 5 Felony Intimidation1 and

      Level 6 Felony Criminal Recklessness.2 He argues that the evidence is

      insufficient to rebut his claim of self-defense or to support the convictions. We

      find that the evidence is sufficient to rebut his claim of self-defense and to

      support his criminal recklessness conviction, but we find the evidence is

      insufficient to support his intimidation conviction. Therefore, we affirm in part,

      reverse in part, and remand with instructions.


                                                     Facts
[2]   On May 14, 2016, at approximately 5:30 a.m., Kevin Lang was driving in

      Washington County. Lang’s vehicle approached Anderson, who was driving

      on the same road. Lang slowed his vehicle’s speed and was approximately

      three car lengths behind Anderson’s vehicle when Anderson fired multiple

      gunshots out the driver’s side window of his vehicle. Lang believed Anderson

      was firing the gun up into the air. There were residential houses on both sides

      of Anderson’s vehicle when he fired the shots.


[3]   After Anderson fired the gunshots, Lang pulled over to the right side of the road

      and called 911. Anderson then turned around so that his vehicle faced Lang’s

      and stopped. Next, Anderson turned around again and continued driving; he

      fired another shot out of his window, still in a residential area. Lang was still




      1
          Ind. Code § 35-45-2-1.
      2
          Ind. Code § 35-42-2-2.


      Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 2 of 11
      on the phone with the 911 operator and began following Anderson to track his

      location for law enforcement.


[4]   Anderson and Lang then both stopped their respective vehicles. While they

      were stopped, another vehicle drove past them, and Anderson fired another

      shot as the other vehicle drove past. Anderson was stopped in front of a

      residence when he fired the shot. Eventually, Anderson was pulled over by law

      enforcement and arrested.


[5]   On May 16, 2016, the State charged Anderson with Level 1 felony attempted

      murder, Level 6 felony pointing a firearm, and Level 6 felony criminal

      recklessness. The State later added a charge of Level 5 felony intimidation and

      dismissed the attempted murder and pointing a firearm charges. At Anderson’s

      jury trial, which began on September 7, 2016, he raised defenses of insanity and

      self-defense. The jury found him guilty as charged. The trial court merged the

      criminal recklessness conviction into the intimidation conviction, entering

      judgment only on the intimidation conviction and sentencing Anderson to

      thirty-six months, with twenty-one months suspended to probation. Anderson

      now appeals.


                                   Discussion and Decision
[6]   Anderson argues that there is insufficient evidence rebutting his claim of self-

      defense or supporting his two convictions. When reviewing the sufficiency of

      the evidence supporting a conviction, we will examine only the probative

      evidence and reasonable inferences that may be drawn therefrom in support of

      Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 3 of 11
      the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014); see also Sanders v.

      State, 704 N.E.2d 119, 123 (Ind. 1999) (holding that the standard of review of

      the sufficiency of the evidence rebutting a claim of self-defense is the same as

      for any other sufficiency claim). We will neither reweigh the evidence nor

      assess witness credibility, and will affirm unless no reasonable factfinder could

      find the elements of the crime proved beyond a reasonable doubt. Morgan, 22

      N.E.3d at 573.


                                            I. Self-Defense
[7]   First, Anderson contends that there is insufficient evidence rebutting his claim

      of self-defense. To prevail on a claim of self-defense, a defendant must show

      that he (1) was in a place where he had a right to be; (2) did not provoke,

      instigate, or participate willingly in the violence; and (3) had a reasonable fear

      of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002);

      see also Ind. Code § 35-41-3-2. When a self-defense claim is raised and finds

      support in the evidence, the State bears the burden of negating at least one of

      the necessary elements beyond a reasonable doubt. Wilson, 770 N.E.2d at 800.

      The State may meet its burden by offering evidence directly rebutting the

      defense, affirmatively showing that the defendant did not act in self-defense, or

      by relying on the sufficiency of the evidence from its case-in-chief. Miller v.

      State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite a

      claim of self-defense, we will reverse only if no reasonable person could say that

      self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at

      801.

      Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 4 of 11
[8]   Anderson insists that he was “basically attacked” by Lang when Lang touched

      the back of Anderson’s car with his front fender. Appellant’s Br. p. 23. But the

      record reveals that Lang unequivocally testified that when he approached

      Anderson, he slowed down to forty-five miles per hour and was three car

      lengths behind Anderson when Anderson opened fire. Tr. Vol. I p. 120-23.

      Lang also testified that he never acted in an aggressive manner towards

      Anderson while driving. Id. at 136. It was for the jury to listen to the

      competing versions of events, weigh the evidence, assess the credibility of the

      witnesses, and decide who to believe. McIver v. State, 654 N.E.2d 308, 311 (Ind.

      Ct. App. 1995) (holding that the factfinder is entitled to disbelieve the defendant

      and his evidence). There is evidence in the record establishing that Anderson

      instigated the situation and that Anderson did not have a reasonable fear of

      death or bodily harm under the circumstances. In other words, we find the

      evidence sufficient to support the jury’s conclusion that Anderson did not act in

      self-defense.


                                  II. Criminal Recklessness
[9]   Next, Anderson argues that the evidence is insufficient to support his conviction

      for Level 6 felony criminal recklessness. To convict Anderson of this crime, the

      State was required to prove beyond a reasonable doubt that he recklessly,

      knowingly, or intentionally performed an act that created a substantial risk of

      bodily injury to another person while armed with a deadly weapon. I.C. § 35-

      42-2-2.



      Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 5 of 11
[10]   Anderson concedes that he knowingly shot a gun into the air but argues that the

       evidence does not support a conclusion that his action created a substantial risk

       of bodily injury to another person. We disagree. The record reveals that

       Anderson fired his weapon from a vehicle on three separate occasions, each of

       which occurred in a residential area. On one of those occasions, he fired his

       weapon as another vehicle passed his car. Regardless of whether Anderson

       aimed at Lang, another driver, or the sky, a reasonable jury could conclude that

       discharging a firearm in the near vicinity of Lang’s vehicle, residences, and a

       vehicle that was passing by carries a substantial risk of bodily injury to another

       person. See Woods v. State, 768 N.E.2d 1024, 1028 (Ind. Ct. App. 2002)

       (holding that the evidence was sufficient to establish a substantial risk of bodily

       injury where the defendant fired several gunshots in a residential area near

       other people). We find the evidence sufficient to support Anderson’s criminal

       recklessness conviction.


                                           III. Intimidation
[11]   Finally, Anderson argues that the evidence does not support his conviction for

       Level 5 felony intimidation. To convict Anderson of this crime, the State was

       required to prove beyond a reasonable doubt that Anderson, while armed with

       a deadly weapon, communicated a threat to Lang with the intent that Lang

       (1) engage in conduct against his will—here, to stop his motor vehicle on a

       public roadway—or (2) be placed in fear of retaliation for a prior lawful act—

       here, for the prior lawful act of driving on a public roadway. I.C. § 35-45-2-1.



       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 6 of 11
[12]   It is undisputed that Anderson was armed with a deadly weapon, and we will

       assume for argument’s sake that the act of discharging the gun into the air

       constituted a threat of some sort. What must be determined is whether the

       evidence supports a conclusion that Anderson made this threat with the specific

       intent required by the statute.


[13]   Initially, we note that the record reveals that Anderson first fired the shots into

       the air while the vehicles were in motion. Then, after both vehicles came to a

       stop, Anderson began driving again, and again fired the weapon out of his

       window. Then, the vehicles came to a stop again and, while still stopped,

       Anderson fired his weapon as another vehicle passed by. Under these

       circumstances, a reasonable factfinder could not conclude that Anderson was

       threatening Lang with the intent that Lang stop his vehicle, because Anderson

       continued to fire his weapon even after Lang came to a stop.


[14]   Consequently, the only possible avenue to convict Anderson of intimidation is

       to find that the evidence supports a conclusion that Anderson was threatening

       Lang with the intent to place Lang in fear for the lawful act of driving on a

       public roadway. Initially, we note that aside from Anderson’s own testimony,

       there is no direct evidence of his intent—the record does not reveal why he

       repeatedly fired the gun. Likewise, there is no indirect or circumstantial

       evidence tending to establish an intent to place Lang in fear for the act of

       driving on the roadway. Anderson could have been afraid of Lang (as he

       claims), he could have intended to warn Lang to back off, or he could have

       fired the weapon for reasons having nothing whatsoever to do with Lang. We

       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 7 of 11
       simply do not know, and a reasonable factfinder could not draw an inference in

       this regard from the evidence in the record. Consequently, we vacate the

       intimidation conviction because the evidence is insufficient to support this

       conviction.


[15]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to vacate the intimidation conviction, reinstate the

       criminal recklessness conviction, and resentence Anderson accordingly.


       Bailey, J., concurs.
       Altice, J., concurs in part and dissents in part with a separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 8 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Ken R. Anderson,                                         Court of Appeals Case No.
                                                                88A01-1612-CR-2928
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




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


[16]   I concur with parts I and II of the majority’s decision but cannot agree that the

       State presented insufficient evidence to support the conviction for intimidation.

       The facts are much more menacing than represented by the majority and clearly

       support a finding that Anderson threatened Lang, while armed with a deadly

       weapon, with the intent that Lang stop following him on the public roadway.


[17]   Lang’s testimony reveals that his vehicle approached Anderson’s at a higher

       rate of speed going northbound on Voyles Road, causing Lang to slow down

       behind Anderson and follow him at a distance of about three car lengths.


       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 9 of 11
       Shortly thereafter, Lang’s vehicle slowed “way down” and then Lang fired

       multiple gunshots into the air. Transcript Vol. 1 at 122. This caused Lang to

       immediately pull to the side of the road and stop. Lang turned on his hazard

       and bright lights while calling 911. Anderson also brought his vehicle to a stop

       and shined a bright flashlight back toward Lang. Anderson then continued on

       his way. Lang followed at a safe distance – about 300 to 400 feet away.


[18]   After traveling about a third of a mile, Anderson backed into another roadway,

       momentarily turned on his dome light, and then turned southbound on Voyles

       Road heading in Lang’s direction. Lang felt threatened by this maneuver and

       began backing up his vehicle to keep a distance from Lang. Anderson then

       stopped and turned back northbound on Voyles Road. As he proceeded down

       the road, Anderson fired another shot.


[19]   Lang was afraid but continued to follow Anderson at a distance while he

       continued to communicate with the 911 operator. Anderson then came to

       another stop, as did Lang about 300 feet away. Another motorist passed Lang

       and then Anderson, as Anderson fired another shot.


[20]   During this episode, Lang called his girlfriend and complained that someone

       was “following” him. Transcript Vol. 2 at 5. Further, Anderson testified that he

       fired the shots to “warn him off” and “communicate to [Lang] to leave [him]

       alone.” Id. at 30, 35. In other words, Anderson fired gunshots to communicate

       a threat to Lang with the intent that Lang stop following him on the public

       roadway (i.e., engage in conduct against his will).


       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 10 of 11
[21]   In my opinion, when the facts and inferences are viewed in a light most

       favorable to the jury’s verdict, there is ample evidence to support Anderson’s

       conviction for intimidation. Thus, I would affirm the judgment in all respects.




       Court of Appeals of Indiana | Memorandum Decision 88A01-1612-CR-2928 | October 13, 2017   Page 11 of 11
