                                                                                 FILED
                                                                          Aug 04 2016, 8:25 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                     Gregory F. Zoeller
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Brooklyn, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Harold E. Chastain,                                       August 4, 2016
      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                20A03-1510-CR-1839
              v.                                                Appeal from the Elkhart Superior
                                                                Court
      State of Indiana,                                         The Honorable Stephen R.
      Appellee-Plaintiff.                                       Bowers, Judge
                                                                Trial Court Cause No.
                                                                20D02-1303-FC-75



      Barnes, Judge.


                                              Case Summary
[1]   Harold Chastain appeals his conviction for Class C felony intimidation. We

      affirm.
      Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016                     Page 1 of 11
                                                        Issue
[2]   The sole issue before us is whether there is sufficient evidence to sustain

      Chastain’s conviction for Class C felony intimidation.


                                                        Facts
[3]   The evidence most favorable to the conviction is that, on the evening of March

      8, 2013, Justin Beegle was waiting for a table with his family at the Between the

      Buns restaurant in Elkhart. Beegle heard Chastain loudly arguing with a

      woman, Tracy Wilmore, in the parking lot, and, after he saw Chastain shove

      her, Beegle decided to intervene. He began walking toward Chastain and

      Wilmore. Chastain noticed Beegle walking toward him and said, “do you have

      a f***ing problem?” Tr. p. 237. Beegle stopped walking when he was about ten

      to fifteen feet from Chastain and had some argumentative words with

      Chastain.1 Chastain started walking toward Beegle, who told Chastain, “you

      don’t want to do that . . . .” Id. at 238. Chastain then turned around, went to

      his truck, retrieved a handgun, cocked and pointed it at Beegle, and then said

      “I’ll f***ing kill you” several times. Id. Beegle responded by telling Chastain

      he was a “f***ing p***y.” Id. at 265. The encounter ended shortly thereafter

      when Chastain got in his truck and drove away.




      1
       The evidence is unclear as to what exactly Beegle said to Chastain, but it seems uncontested that the words
      exchanged were argumentative in nature. Although testified to by a defense witness, the State does not
      dispute that Beegle said to Chastain as he was walking toward Chastain, “I’ll beat your a** if you don’t leave
      her alone.” Tr. p. 318.

      Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016                          Page 2 of 11
[4]   The State charged Chastain with Class C felony intimidation, Class D felony

      pointing a firearm, and Class B misdemeanor battery.2 The charging

      information did not specify what prior act Beegle allegedly had engaged in for

      which Chastain intended to place Beegle in fear of retaliation. At Chastain’s

      jury trial, however, the prosecutor argued that the prior lawful act was Beegle’s

      interruption of the fight between Chastain and Wilmore. After trial, Chastain

      was found guilty of all three charges. The trial court entered judgments of

      conviction for all three counts but later merged the pointing a firearm

      conviction into the intimidation conviction at sentencing. Chastain now

      appeals.


                                                      Analysis
[5]   Chastain contends there is insufficient evidence to sustain his conviction for

      Class C felony intimidation. In conducting such a review, we must consider

      only the probative evidence and reasonable inferences therefrom supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “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. We

      will affirm unless no reasonable fact-finder could have found the elements of the

      crime proven beyond a reasonable doubt. Id. The evidence need not overcome

      every reasonable hypothesis of innocence. Id.




      2
          The battery charge was related to Chastain’s shoving of Wilmore.


      Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 3 of 11
[6]   In order to convict Chastain of intimidation as charged, the State was required

      to prove that he communicated a threat to another person, with the intent that

      the other person be placed in fear of retaliation for a prior lawful act. See Ind.

      Code § 35-45-2-1(a)(2) (2013).3 The offense was a Class C felony if the

      defendant drew or used a deadly weapon while communicating that threat.

      I.C. § 35-45-2-1(b)(2) (2013).4 Here, the sole point of contention is whether the

      State adequately proved that Chastain intended to place Beegle in fear of

      retaliation for a prior lawful act when he pointed a firearm at and threatened to

      kill Beegle. We have held that, under the intimidation statute:

                 “[M]ere proof that the victim is engaged in an act which is not
                 illegal at the time the threat is made is not sufficient. Rather, the
                 State must establish that the legal act occurred prior to the threat
                 and that the defendant intended to place the victim in fear of
                 retaliation for that act.”


      Blackmon v. State, 32 N.E.3d 1178, 1182 (Ind. Ct. App. 2015) (quoting Casey v.

      State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997)).


[7]   As a general rule, penal statutes must be strictly construed against the State and

      any ambiguities they contain should be resolved in favor of the accused. Shuai

      v. State, 966 N.E.2d 619, 628 (Ind. Ct. App. 2012), trans. denied. Criminal




      3
       The State specifically charged Chastain under this subsection and not the portion of the intimidation statute
      prohibiting a person from forcing another person to engage in conduct against the other person’s will. I.C. §
      35-45-2-1(a)(1) (2013).
      4
          The offense of intimidation with a deadly weapon is now classified as a Level 5 felony.


      Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016                          Page 4 of 11
      statutes also should not “‘be enlarged by construction, implication, or

      intendment beyond the fair meaning of the language used.’” Id. (quoting Herron

      v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000), trans. denied). “However,

      penal statutes are not to be read so narrowly as to exclude instances the statute

      fairly covers or in a manner that disregards legislative purposes and intent.” Id.


[8]   Chastain urges that we should reverse his intimidation conviction in light of our

      reversal of intimidation convictions in Blackmon, Casey, and Ransley v. State, 850

      N.E.2d 443 (Ind. Ct. App. 2006), trans. denied. In Casey, the defendant got into

      a fight with one of the alleged victim’s friends while they were at a bar. Later,

      the victim returned home. The defendant went to the victim’s home with

      several friends. The victim went outside with two other persons and pleaded

      with the defendant to leave. Instead, the defendant told the victim to go inside.

      The defendant then struck one of the victim’s friends in the head with a baseball

      bat, and said to the victim, “You’re next b****” and that he was going to kill

      her. We held there was insufficient evidence as to a prior lawful act for which

      the defendant was intending to retaliate against the victim. Casey, 676 N.E.2d

      at 1073. We rejected the State’s attempts to claim that the defendant was

      retaliating against the victim for her acts of being a patron at the bar, for being

      at her house, or for witnessing the baseball bat attack on her friend. Id.


[9]   In Ransley, the defendant and alleged victim had an ongoing property-line

      dispute. On the day in question, the defendant called 911 following the victim

      having thrown items onto the defendant’s property and yelling at the defendant,

      causing the defendant to feel threatened. Later, while mowing the grass, the

      Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016     Page 5 of 11
       victim saw the defendant outside, stopped the mower, and began yelling again

       at the defendant. The defendant approached the victim, and the victim noticed

       that the defendant had a gun. The victim returned to his garage to grab an axe

       handle and walked back to the defendant, who then brandished his handgun.

       The victim did not remember the defendant saying anything at that time.

       Police then arrived and arrested the defendant, who was charged with and

       convicted of intimidation. We reversed, finding insufficient evidence that the

       defendant intended to communicate a threat to the victim for the purported

       prior lawful act of arguing over the property line. Ransley, 850 N.E.2d at 447-

       48. We acknowledged “that a person may be angry enough to commit

       intimidation. However, anger, without proof of intent to retaliate, is not

       enough to satisfy the requirements of the statute.” Id. at 447.


[10]   In Blackmon, the alleged victim believed that a neighbor or the neighbor’s friend,

       the defendant, was stealing water from his daughter’s home. The defendant

       went to the neighbor’s house to confront someone about it. The victim began

       yelling at the neighbor and the defendant on the neighbor’s driveway,

       demanding to know who had given them permission to use the water. The

       neighbor offered to pay for the water. The victim declined this offer and said he

       was going to call the police. At this point, the defendant pulled out a knife and

       held it above his head. The victim responded by implying that he would shoot

       the defendant. The defendant put the knife down, cursed at the victim, and

       walked away. The State specifically alleged in the charging information that

       the defendant had committed intimidation by putting the victim in fear of


       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 6 of 11
       retaliation for having caught the defendant stealing water. We reversed the

       defendant’s conviction. First, we noted there was insufficient evidence that the

       victim had actually caught the defendant stealing any water, as alleged in the

       charging information. Blackmon, 32 N.E.3d at 1182. Additionally, there was

       no evidence that the victim believed the defendant intended to retaliate against

       him for any prior act; the defendant did not draw his knife until after the victim

       said he was going to call the police, but the State did not charge the defendant

       under the part of the intimidation statute prohibiting a defendant from forcing a

       victim to act against his or her will. Id. at 1183.


[11]   Two other, recent cases from this court not discussed by the parties warrant

       mentioning. The first is Causey v. State, 45 N.E.3d 1239 (Ind. Ct. App. 2015).

       In that case, police officers responded to a report of a disturbance at the

       defendant’s residence. After officers arrived and attempted to speak with the

       defendant, he told the officers to get off his property and said, “if you come any

       closer I’ll shoot.” Causey, 45 N.E.2d at 1240. A panel of this court reversed the

       defendant’s intimidation conviction. It held that the defendant’s threat was

       “conditional” and intended to dissuade the officers from engaging in future

       conduct, i.e. coming any closer to the defendant, and was not a threat related to

       any past conduct of the officers. Causey, 45 N.E.3d at 1241 (citing C.L. v. State,

       2 N.E.3d 798, 801 (Ind. Ct. App. 2014)).5 The Causey panel also held that the



       5
         C.L. was a juvenile delinquency case where the defendant threatened to beat up his grandfather if the
       grandfather did not give him money for a new car, out of loan proceeds the grandfather expected to receive;
       the majority reversed the delinquency adjudication for intimidation. C.L., 2 N.E.3d at 801.

       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016                        Page 7 of 11
       defendant’s ranting before explicitly threatening to shoot the officers was

       insufficient to establish that he was threatening them for the act of having

       responded to the 911 call. Id. at 1242. It appears the Causey panel may have

       believed the officers were currently responding to a call when the defendant

       threatened them, not that they already had responded, and for this additional

       reason held there was insufficient evidence to support an intimidation

       conviction because there was no past act, only present engagement by the

       officers in a lawful act at the time of the threat. See Causey, 45 N.E.3d at 1242.


[12]   In Roar v. State, 52 N.E.3d 940 (Ind. Ct. App. 2016), a different panel of this

       court disagreed with the holding and reasoning in Causey. In Roar, the

       defendant observed the victim serve an eviction notice on the defendant’s sister.

       The defendant then immediately began yelling at the victim, calling her names

       and accusing her of being unprofessional; at the end of his tirade, he called the

       victim a “b****” and threatened to kill her “if [she] came back on the property.”

       Roar, slip op. at 3. The Roar majority disagreed with Causey and C.L. The

       majority opinion observed:


               Mere use of conditional language in the course of
               communicating a threat does not vitiate the statute’s application
               when the factual predicate for the threat was a prior lawful act of
               the victim. Stated another way, the language a defendant uses in
               communicating a threat may be relevant to the fact-finder’s
               assessment of the defendant’s intent, but the language used is not
               the only relevant consideration.




       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 8 of 11
       Id., slip op. at 6. The majority held there was sufficient evidence to support the

       defendant’s intimidation conviction, given the “clear nexus between the prior

       lawful act and the threat.” Id. at 7. Recently, our supreme court granted

       transfer in Roar but adopted the majority opinion’s analysis regarding

       sufficiency of the evidence. Roar v. State, No. 49S02-1607-CR-372 (Ind. July 12,

       2016). We presume that by doing so, our supreme court also disapproved of

       the analysis and holdings of Causey and C.L.


[13]   We conclude that this case is unlike Casey, Ransley, and Blackmon. And, to the

       extent this case is highly similar to both Causey and Roar, our supreme court has

       now made it clear that Roar is correct and Causey is not. Here, Beegle

       committed a distinct lawful act by interrupting Chastain’s argument and fight

       with Wilmore. Chastain then directed his anger toward Beegle. It is clear from

       the evidence that Chastain reacted in response to Beegle’s interruption. Beegle

       was not merely an “innocent bystander” as was the alleged victim in Casey;

       rather, he had taken positive but legal action in attempting to end the

       confrontation between Chastain and Wilmore. Unlike in Ransley, Beegle and

       Chastain were not involved in an ongoing dispute, with each side badgering the

       other and engaging in back-and-forth aggressive conduct. And, the result in

       Blackmon turned largely upon the particular wording of the charging

       information and the prior lawful act it alleged for which the defendant was

       seeking retaliation. Here, the charging information was silent on the particulars

       of the prior lawful act, and there is no argument that the information had to

       include such detail.

       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 9 of 11
[14]   We acknowledge that Chastain did not explicitly tell Beegle why he pointed a

       gun at Beegle and repeatedly said that he was going to kill Beegle. Still, we

       conclude it was reasonable to infer from the evidence that Chastain’s actions

       were prompted by the initial lawful act of Beegle interrupting his argument with

       Wilmore, and Chastain’s threat was communicated with the intent to place

       Beegle in fear for that act. There is nothing in the intimidation statute that

       requires a defendant to expressly state what the victim’s prior lawful act was for

       which a defendant intends to retaliate. It is well-settled that in criminal cases,

       the State “is not required to prove intent by direct and positive evidence.”

       Johnson v. State, 837 N.E.2d 209, 214 (Ind. Ct. App. 2005), 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. Id. (quoting Lykins v. State, 726 N.E.2d 1265, 1270 (Ind. Ct. App. 2000)).

       Roar applied this principle of law in deciding that all the facts and

       circumstances of the case allowed an inference that the defendant intended to

       threaten the victim with retaliation for a prior law act, despite the “conditional”

       language used by the defendant.


[15]   Furthermore, as a matter of public policy, we believe that persons in a position

       like that in which Beegle found himself should be able to attempt to defuse

       situations like the one between Chastain and Wilmore without being threatened

       with the use of deadly force for doing so. We believe the legislature intended to

       criminalize such conduct when it enacted the intimidation statute. To the

       extent Chastain contends that Beegle was engaged in a continuing act of


       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 10 of 11
       interfering with Chastain’s argument when the threat was issued, the reasonable

       inference most favorable to the jury’s verdict is that Chastain intended to

       threaten Beegle for his prior, completed lawful act of having already interrupted

       Chastain’s argument. There is no requirement in the intimidation statute that

       the prior lawful act has to be completed for any considerable length of time

       before a threat is made.


[16]   We conclude that, as held by this court in Roar and as adopted by our supreme

       court, a conviction under the intimidation statute should not depend upon a

       precise parsing of the threatening language used by a defendant or a detailed

       timeline of when a threat was issued in relation to a prior lawful act. Here, it is

       clear that Beegle engaged in a prior lawful act, and there was a clear nexus

       between that act and Chastain’s threat to kill Beegle while pointing a gun at

       him. Thus, there is sufficient evidence to support the jury’s finding that

       Chastain committed the crime of intimidation while drawing or using a deadly

       weapon.


                                                  Conclusion
[17]   There is sufficient evidence to sustain Chastain’s conviction for Class C felony

       intimidation. We affirm.


[18]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion|20A03-1510-CR-1839 |August 4, 2016   Page 11 of 11
