                                                                          FILED
                                                                     Jun 28 2019, 9:15 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
A. David Hutson                                           Curtis T. Hill, Jr.
Hutson Legal                                              Attorney General of Indiana
Jeffersonville, Indiana                                   Ian McLean
                                                          Supervising Deputy
                                                          Attorney General
                                                          Indianapolis Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Josh McBride,                                             June 28, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-580
        v.                                                Appeal from the Dubois Circuit
                                                          Court
State of Indiana,                                         The Honorable Mark McConnell,
Appellee-Plaintiff.                                       Special Judge
                                                          Trial Court Cause No.
                                                          19C01-1603-F5-192



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019                              Page 1 of 19
                                Case Summary and Issues
[1]   Following a bench trial, Josh McBride was convicted of intimidation, a Level 5

      felony, and sentenced to four years in the Indiana Department of Correction,

      with one year to be served on adult day reporting and three years suspended to

      supervised probation. McBride now appeals his conviction, raising the

      following dispositive issue for our review: whether his conviction of

      intimidation is supported by sufficient evidence. The State cross-appeals,

      raising the issue of whether McBride should be unequivocally prohibited from

      possessing a firearm during his term of probation. Concluding there was

      sufficient evidence supporting McBride’s conviction of intimidation and that

      the State’s point is well-taken, we affirm the conviction and remand for further

      proceedings.



                            Facts and Procedural History
[2]   McBride lived with his longtime girlfriend, Karena Vonderheide, and their

      three children on property Vonderheide owned in Dubois County. Their

      property was situated immediately north of property owned by Anderson

      Valley Christian Church (“Church”). A large stone cross was situated on the

      south side of Vonderheide’s property facing the Church. Church members

      thought the cross was “beautiful,” Transcript, Volume 3 at 126, and

      “appreciated it[,]” id. at 199. McBride, Karena, and their children attended the

      Church. One Sunday in December 2015, Church member Danny Madden left

      the service to meet and escort a visitor into the Church. While he was outside,

      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019        Page 2 of 19
      one of McBride’s dogs bit Madden. When discussing the matter with McBride

      afterwards, Madden asked that the dogs be restrained or kept inside during

      church services from then on so no other churchgoers were hurt. Although

      McBride did restrain the dogs, he did not seem to take kindly to the request,

      because “it seemed like from that Sunday on [McBride and his family] were just

      very upset all the time.” Id. at 121. Church members were also “very uneasy”

      after the dog bite incident because they “didn’t know what to expect when

      [they] came to church.” Id. at 127-28. “[I]t was something every Sunday.

      [We] didn’t know what was going to happen. Something new came up every

      Sunday.” Id. at 203.


[3]   Sometime early in 2016, at least one of McBride’s dogs died, and McBride

      believed someone associated with the Church poisoned the dog. Following the

      dog’s death, McBride’s son, Damian, entered the Church during Sunday

      services in early February, walked to the altar and took the microphone without

      being invited to do so, called Madden a liar, and “just [told congregants] what

      he thought about us[.]” Id. at 198. He alleged there were drug dealers on the

      Church property and that congregants had “dishonored his mother” because

      she had been receiving threatening letters. Id. Around this same time, the

      words “Lying hypocrites” were spray painted in red on the horizontal bar of the

      cross that faced the Church. Id. at 127.


[4]   Shortly after the incident of Damian “coming in the church house and getting

      the microphone and talking[,]” id. at 220, Madden was on the Church property

      checking on the progress of a drain line the Church was installing when

      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019        Page 3 of 19
      McBride and his son approached and McBride told his son to “go get a 45,”

      Tr., Vol. 4 at 11, and threatened to bring guns to the Church next Sunday.

      Church members then discussed the matter with the Dubois County Sheriff’s

      Office. On February 21, 2016, Church elders signed a letter asking the

      McBrides not to return to the Church:


              We the officers of the [Church], come forward on behalf of the
              [Church] to let you know that you are not welcome to attend any
              services, or to be on the property owned by the [Church].


              Please allow this letter to serve as a no trespass warning. Failure
              to do so will be considered trespassing and law enforcement will
              be contacted.


      State’s Exhibit 2, Exhibit Index at 23. The sheriff’s office served the letter on

      the McBrides on February 22.


[5]   On Sunday, February 28, when Church members began arriving for services,

      they found “a decapitated dog [was] hanging from the cross.” Tr., Vol. 3 at 16.

      Shortly before services began at 9:00 a.m., congregants began hearing gunfire.

      Brenda Madden, Madden’s wife, stated that when they arrived at church,

      “immediately it was pow, pow, pow, pow, pow. I mean, it was really loud. . . .

      [T]here was just a lot of noise like gunfire and explosions. It was just

      something that I wasn’t expecting. It was kind of scary.” Id. at 108. Brenda

      told her husband, “Honey, I’ll take the next bullet if there’s a bullet coming for

      these people if we can get peace back in this church[.]” Id. The gunfire had

      already started when Lola Gilmore and her husband arrived at the Church;

      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019           Page 4 of 19
      Gilmore told her husband that “if he didn’t get killed, then [she’d] get out [of

      the car].” Id. at 195. “I was scared, but I thought God would protect me, and

      I’m 83 years old, so if I get shot going to church, what better way?” Id. at 202.

      She said the gunfire was rapid and “didn’t stop.” Id. at 191. Victor

      Rickenbaugh saw McBride walking along the property line, firing “just one

      after another” at the ground in front of him as he moved his arms “back and

      forth, left and right.” Id. at 148-49.


[6]   Inside the Church, Tamara Weyer was asked to call 911, which she did from a

      Sunday School room overlooking the McBride property. She described seeing

      McBride shooting his gun “towards the ground between the church and their

      house, towards the woods.” Id. at 19-20. While she was on the phone, she

      experienced what she described to 911 as a “[v]ery loud explosion. You kind of

      shook, the church shook, smoke.” Id. at 21. Several members described the

      sound as being “like bombs going off[.]” Id. at 163. In the meantime, Tamara’s

      husband, Jason, also saw McBride shooting a firearm outside the Church and

      took their two sons and other kids to the basement. Inside the Church, “[i]t

      was kind of panic, pretty intense.” Id. at 96. Jason felt the gunfire was

      communicating “[a]nger” about the dog bite incident. Id. at 101. Scott Weyer,

      who usually leads the Sunday service, stated the February 28 service was

      different because there “was a lot of anxiety and fear.” Id. at 181. He believed

      the discharge of firearms next door was “trying to scare us and disturb us and

      disrupt us. That’s the way I felt, and that’s what I can see on my congregation’s

      face.” Id. at 182. Tamara felt the gunfire was communicating the threat of

      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019            Page 5 of 19
      death to her and the congregation because she “didn’t know at any moment if

      they was [sic] going to turn and shoot towards the church.” Id. at 61. There is

      no dispute that McBride ultimately did not shoot at the Church, “[i]t’s just that

      they were right there beside the church[,]” id. at 236, “about on the line”

      separating the two properties, id. at 224.


[7]   Sergeant Chris Faulkenburg of Dubois County Sheriff’s Department was one of

      the officers who responded to the 911 call. When he arrived, he advised

      McBride of the disorderly conduct statute and asked him several times to cease

      making unreasonable noise. McBride yelled at officers to stay off his property,

      emphasized his Second Amendment right to have and shoot firearms on his

      own property, and accused Church members of poisoning his dog. McBride

      and Damian continued shooting their guns randomly into the dirt at no

      particular target. Sergeant Faulkenburg also observed McBride riding his ATV

      up and down the property line and instructing Damian to rev up the engine on

      a truck. Sergeant Faulkenburg described the ATV as “obnoxiously loud” and

      stated McBride rode up and down the property line multiple times “looking

      over at the church, looking [in officers’] direction. It seemed to be that there

      was no purpose to it, from my perspective, other than to just be loud.” Tr., Vol.

      4 at 55. Gilmore also noted that “when they got done shooting, they got a four-

      wheeler out and rip and tore and made noise. Then they got – had an old truck

      or something [and] revved it up[.]” Tr., Vol. 3 at 203. She believed they were

      being loud, “hopefully, I guess, so we couldn’t hear in church. But we could.”

      Id.


      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019          Page 6 of 19
[8]   Since the incident, regular attendance at the Church has declined by half which

      Church members attribute to this incident. Tamara Weyer “loved it when [her

      sons] had friends [stay over] on Saturday night because it meant they would go

      to church with us[,]” but for “quite a while” after this incident, she would not

      let her kids have friends over on Saturdays because she did not want “to bring

      another kid into church and have their life in danger.” Id. at 38. Brenda

      Madden stated she is now more aware of her surroundings and does not spend

      a lot of time at the Church when there is not a service. She is “a little cautious”

      if a visitor walks in, “[a]nd you shouldn’t feel that way. You should want to

      welcome someone to church and be glad they’re there.” Id. at 113-14.


[9]   The State charged McBride with Count I: intimidation as a Level 5 felony for

      communicating a threat by brandishing and/or discharging a firearm to several

      named members of the Church with the intent that they be placed in fear of

      retaliation for the prior lawful act of sending a no trespass letter to him and in

      committing said act, he drew or used a deadly weapon; Count II: intimidation

      as a Level 5 felony for communicating a threat by brandishing and/or

      discharging a firearm to certain named members of the Church with the intent

      that they alter their Sunday morning activity at the Church against their will

      and in doing so, drew or used a deadly weapon; Count III: criminal

      recklessness as a Level 6 felony for recklessly, knowingly, or intentionally

      discharging a deadly weapon in a way that bullets and/or shrapnel could have

      been sent toward the Church, creating a substantial risk of bodily injury to

      certain named members of the Church; Count V: disorderly conduct as a Class


      Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019           Page 7 of 19
B misdemeanor for recklessly, knowingly, or intentionally disrupting a lawful

assembly of persons at the Church; Count VI: disorderly conduct as a Class B

misdemeanor for recklessly, knowingly, or intentionally making an

unreasonable noise by discharging his firearm next door to the Church during

the Sunday service and continuing to do so after being asked to stop; and Count

VII: disorderly conduct as a Class B misdemeanor for recklessly, knowingly, or

intentionally making an unreasonable noise by riding an ATV next door to the

Church during the Sunday service and continuing to do so after being asked to

stop.1 McBride was tried to the bench, and at the conclusion of the trial, the

trial court found him guilty of Counts I, II, V, and VI. At McBride’s sentencing

hearing, the trial court stated:


           I do want to address that although I’ve entered convictions with
           regard to Counts I, II, V and VI, that the Court, based upon the
           continuous crime doctrine, finds that the Defendant’s actions
           share the same time, place, singleness of purpose and continuity
           of action, that they constitute a single transaction for which only
           one conviction can be entered. In other words, all of those
           counts are merged.


           The Court, therefore, is going to enter . . . judgment of conviction
           only with regard to Count II, intimidation, a Level 5 felony.


Tr., Vol. 4 at 205-06.




1
    Count IV was dismissed on the State’s motion prior to trial.


Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019                 Page 8 of 19
[10]   The trial court sentenced McBride to four years in the Department of

       Correction, with one year to be served on Level One Adult Day Reporting and

       three years suspended to supervised probation. One of the terms of his

       probation provided,


               You shall not purchase, possess, or use any firearm, destructive
               device or other dangerous or deadly weapon unless granted written
               permission by the Court or your Probation Officer.


       Appellant’s Appendix, Volume 3 at 222 (emphasis added). However, a No

       Contact Order While On Probation was also issued at the time of McBride’s

       sentencing stating that he was to have no contact with the Church and its

       members and that he was “to have no firearms, deadly weapons, or

       ammunition in [his] possession.” Id. at 226.



                                  Discussion and Decision
                                        I. McBride’s Appeal
                                       A. Standard of Review
[11]   When reviewing the sufficiency of the evidence required to support a criminal

       conviction, we do not reweigh the evidence or judge the credibility of the

       witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only

       the evidence supporting the verdict and any reasonable inferences that can be

       drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018),

       trans. denied. Thus, we consider conflicting evidence most favorably to the


       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019         Page 9 of 19
       verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will

       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Bailey, 907 N.E.2d at 1005. It is not necessary for the evidence to

       overcome every reasonable hypothesis of innocence; it is sufficient if an

       inference may reasonably be drawn from the evidence to support the verdict.

       Silvers, 114 N.E.3d at 936.


                                              B. Intimidation
                        1. Threat to Engage in Conduct Against One’s Will

[12]   McBride contends the evidence was insufficient to support his conviction for

       intimidation. The trial court entered judgment of conviction only on Count II,

       which charged McBride with intimidation for communicating a threat to

       certain named members of the Church by brandishing and/or discharging a

       firearm with the intent that they alter their Sunday morning activity at the

       Church pursuant to Indiana Code section 35-45-2-1(a)(1). To secure a

       conviction for intimidation under this subsection, the State is required to prove

       beyond a reasonable doubt that a person communicated a threat to another

       person with the intent that the other person engage in conduct against the other

       person’s will. The offense is a Level 5 felony if, while committing it, the person

       draws or uses a deadly weapon. Ind. Code § 35-45-2-1(b)(2)(A). McBride

       specifically challenges the evidence that his display and discharge of firearms

       communicated a threat to the congregation or that “his lawful use of firearms at



       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019         Page 10 of 19
       his personal residence was intended to force church members to alter their

       activities at church.” Brief of Appellant at 10.


[13]   The State did not articulate in the information the threat it alleged McBride

       made with his actions. However, as possibly pertinent to this case, “threat” is

       defined by the intimidation statute as:


               an expression, by words or action, of an intention to:
               (1) unlawfully injure the person threatened or another person, or
               damage property;
               ***
               (3) commit a crime;
               ***
               (8) cause the evacuation of a dwelling, a building, another
               structure, or a vehicle.


       Ind. Code § 35-45-2-1(d). Our courts have adopted an objective view of

       whether a communication is a threat. Owens v. State, 659 N.E.2d 466, 474 (Ind.

       1995). Further, whether a defendant intended that someone engage in conduct

       against his or her will depends on the facts and circumstances of each case. Id.

       Therefore, both whether the defendant intended that the victim engage in

       conduct against his or her will and whether his communications, objectively

       viewed, were threats are questions of fact for the fact finder to decide. Id. A

       threat is punishable if the speaker “intend[s] his communications to put his

       targets in fear for their safety, and that the communications were likely to

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

       Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), cert. denied, 135 S.Ct. 970

       (2015).

       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019         Page 11 of 19
[14]   McBride notes that in Gaddis v. State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997),

       trans. not sought, this court held that “the mere display of a weapon” which the

       person charged has a constitutional right to carry is insufficient to constitute a

       threat under the intimidation statute.2 In Gaddis, a driver on the interstate felt

       the car behind him was following two closely but was unable to change lanes

       due to heavy traffic. When traffic cleared, the defendant, driving the rear car,

       changed lanes and the two cars traveled side by side in adjoining lanes for a

       time long enough for the drivers to exchange hand gestures and words,

       although the windows of both cars where raised and neither could hear the

       other. The defendant also took his handgun from his glove box, displayed it at

       the window without pointing it at the other driver or his car and then placed it

       on the console. The other driver then slowed down and backed off as the

       defendant exited the interstate. The State charged the defendant with

       intimidation, alleging in part that he communicated a threat of an intent to

       harm the other driver by displaying his handgun. Gaddis was convicted

       following a bench trial. On appeal, we held these facts failed to demonstrate an

       intent to injure the other driver and therefore did not constitute a threat:

       although the “display of a firearm to another motorist while traveling in close

       proximity at a high rate of speed is foolish, . . . under the intimidation statute




       2
         The defendant in Gaddis was charged with Class A misdemeanor intimidation alleging he communicated a
       threat of intent to harm the other driver with the intent that the other driver be placed in fear of retaliation for
       the prior lawful act of occupying a high speed lane of traffic on the interstate. Id. at 861.

       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019                                      Page 12 of 19
       the mere display of a handgun does not express an intention to unlawfully

       injure a person or his property.” Id. at 862.


[15]   In Johnson v. State, 743 N.E.2d 755 (Ind. 2001), however, our supreme court

       seemed to question the result in Gaddis3 and held that when “the record shows

       the existence of words or conduct that are reasonably likely to incite

       confrontation, coupled with the display of a firearm, we are hard pressed to say

       that such facts are insufficient to prove that a threat has been communicated

       within the meaning of the intimidation statute.” Id. at 756-57. There, the

       defendant made multiple derogatory remarks to an out-of-uniform officer, and

       when the officer began to exit his vehicle to confront the defendant, the

       defendant lifted his jacket to display the top of a handgun as he stated, “Don’t

       even think it.” Id. at 756. The court affirmed the defendant’s conviction of

       intimidation because the defendant introduced the gun into an emotionally

       charged environment and suggested a willingness to use it. Id.


[16]   McBride cites Gaddis for the proposition that “[i]f one has a constitutional right

       to possess a firearm, the intimidation statute cannot criminalize lawful use of

       the firearm, without something more.” Br. of Appellant at 15-16 (noting in

       Johnson, the defendant displayed a firearm and made two obscene remarks and

       a threatening statement). However, McBride did not simply display a firearm




       3
         The court noted that the State had not sought transfer in Gaddis and therefore, although it agreed with the
       general proposition that the mere display of a handgun does not express intention to unlawfully injure a
       person or his property, it had not had the opportunity “to evaluate whether the facts in [Gaddis] demonstrated
       that the defendant went beyond the ‘mere display’ of a handgun.” Id. at 756.

       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019                                Page 13 of 19
       as in Gaddis, nor did he simply legally discharge a firearm on a given day. In

       the weeks leading up to this incident, McBride had spray painted an insult on

       the cross in such a manner that it was directly facing the church, threatened to

       bring guns to Church, and accused Church members of killing his dogs and

       lying. In the context of these escalating tensions between McBride and

       members of the Church, on February 28, McBride displayed a decapitated dog

       in clear and full view of the Church parking lot and discharged multiple rounds

       of ammunition into the ground along the property line with no discernible

       target from the time members of the Church began arriving for their Sunday

       service until police arrived some considerable time later. Several Church

       members expressed their belief they might be shot going into the Church, and

       many stated that the constant barrage of gunfire frightened them. McBride

       detonated explosions near enough to the Church building to cause it to shake.

       It is difficult to perceive McBride’s actions as anything other than a threat to

       cause the Church members or their building harm. Moreover, McBride’s

       actions altered the course of services that day, likely caused the regular

       attendance at the Church to go down, and changed the congregants’

       relationship to the Church building itself and to visitors.


[17]   As stated above, whether the defendant communicated a threat and intended

       that the victim engage in conduct against his or her will are questions for the

       fact finder to decide. Owens, 659 N.E.2d at 474. Multiple members of the

       Church testified that McBride’s actions that day caused them to fear they would

       be injured simply by attending their regular church services. Such fear was


       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019         Page 14 of 19
       likely to be instilled in a reasonable person in that situation, see Brewington, 7

       N.E.3d at 964, and therefore the evidence was sufficient to support the trial

       court’s finding that McBride was guilty of intimidation.


                             2. Threat in Retaliation for Prior Lawful Act

[18]   The trial court also found McBride guilty on Count I, which alleged McBride

       committed the offense of intimidation by communicating a threat by

       brandishing or discharging a firearm to those members of the Church who

       signed the no trespass letter with the intent that they be placed in fear of

       retaliation for their prior lawful act of sending the letter. See Ind. Code § 35-45-

       2-1(a)(2). Although the trial court did not enter judgment of conviction on this

       count, we briefly address McBride’s argument about the sufficiency of the

       evidence supporting it, noting that we have already decided above that the

       evidence supports the trial court’s determination that McBride’s actions

       communicated a threat.


[19]   McBride contends his case is similar to Ransley v. State, 850 N.E.2d 443, 448

       (Ind. Ct. App. 2006), trans. denied, in which this court reversed a conviction for

       intimidation where the defendant was in a longstanding property line dispute

       with a neighbor and displayed a firearm during an argument with the neighbor.

       He seeks a similar result here. In Ransley, the State charged the defendant with

       intimidation for communicating a threat to shoot his neighbor “with the intent

       that [the neighbor] would not come onto [the defendant’s] property and/or that

       [the neighbor] would be placed in fear for the prior lawful acts including

       arguing with [the defendant].” Id. at 446-47. The defendant stayed on his own
       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019           Page 15 of 19
       property while the two yelled at each other and although he possessed a

       handgun, he did not point it at the neighbor. In reversing, the court noted that

       the evidence was insufficient to support the defendant’s conviction based on

       keeping the neighbor off the defendant’s property because the alleged threat was

       intended to prevent future action rather than repay the neighbor for a prior act

       and because the neighbor entering the defendant’s property without permission

       would constitute an unlawful rather than lawful act. Id. at 447. The State was

       therefore left with proving that the defendant communicated a threat intending

       the neighbor be placed in fear for the prior lawful act of arguing. But even

       though the neighbor “was given the chance to testify that [the defendant] had

       threatened to kill or harm him for the prior lawful act of arguing, he made no

       such allegation.” Id. Thus, there was no evidence linking the defendant’s

       threat to the act of arguing. Id.


[20]   Here, the alleged prior lawful act was the sending of the no trespass letter. On

       February 21, the Church sent McBride a letter telling him he and his family

       were no longer welcome on Church property, and one week later, on the first

       Sunday after receiving the letter, McBride walked along the property line

       between his property and the Church’s, discharging his firearm repeatedly. It

       was within the Church’s rights to send the no trespass letter and the evidence

       was sufficient to show that McBride communicated a threat intending for




       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019        Page 16 of 19
       Church members to be placed in fear of retaliation for their prior lawful act of

       issuing the no trespass letter.4


                                      II. State’s Cross-Appeal
[21]   The State’s cross-appeal alleges this case should be remanded to the trial court

       to impose as a condition of probation that McBride is prohibited from

       possessing a firearm pursuant to 18 U.S.C. section 922(g). Specifically, the

       State takes issue with the language in McBride’s conditions of probation that he

       could be granted permission to have a firearm. The State argues neither the

       trial court nor the probation department would have authority to grant such

       permission, as a federal statute prohibits a convicted felon from possessing or

       receiving a firearm “in or affecting commerce.” 18 U.S.C. § 922(g)(1).

       McBride responds that the State’s argument is not ripe because there is no claim

       that McBride has even requested, let alone been granted, permission to possess

       a firearm.5




       4
        McBride was also found guilty of two counts of disorderly conduct. He claims on appeal that, as applied to
       him, the disorderly conduct statute violates the Second Amendment to the United States Constitution and
       Article 1, section 32 of the Indiana Constitution by impermissibly regulating his right to bear arms. His
       argument, however, is contingent on the outcome of the first issue, as he argues that if his intimidation
       conviction is reversed, the case should not be remanded for entry of judgment on the disorderly conduct
       counts because it would be unconstitutional to convict him of disorderly conduct under these circumstances.
       Because we have held above that his intimidation conviction was supported by sufficient evidence, we need
       not address this issue as there are no constitutional implications. We do note, however, that although a
       person has the right to own guns, he has no right to misuse them or to threaten other people with them.
       5
         Subsequent to this case being fully briefed, McBride submitted a notice to the court that his probation had
       been revoked and his probationary period unsuccessfully terminated. He therefore argues the State’s cross-
       appeal is moot and moves that it be dismissed. He also notes, however, that he is appealing the revocation of
       his probation, and therefore, the cross-appeal is not yet moot, as if he is successful on appeal, he may be
       restored to probation.

       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019                               Page 17 of 19
[22]   In sentencing McBride to a term of probation, the trial court imposed certain

       conditions of probation, including that McBride could not purchase, possess, or

       use any firearm “unless granted written permission by the Court or [his]

       Probation Officer.” Appellant’s App., Vol. 3 at 222. Contemporaneously, the

       trial court issued a No Contact Order While On Probation imposing, “in

       addition to all other conditions previously specified[,]” a condition prohibiting

       McBride from having contact with the Church or its member and stating that he

       “is ordered to have no firearms, deadly weapons, or ammunition in [his]

       possession.” Id. at 226. The no contact order also references 18 U.S.C. section

       922(g). It appears, therefore, that the trial court is aware of the restrictions on

       convicted felons contained in federal law. Nonetheless, there is an obvious

       conflict in the trial court’s orders. Further, with respect to McBride’s ripeness

       argument, the terms of probation may be modified at any time regardless of

       whether a probation violation has occurred. Ind. Code § 35-38-2-1.8; see also

       Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. We

       therefore remand this case for the trial court to modify the terms of McBride’s

       probation to remove the conditional language and unequivocally state that he is

       not permitted to have a firearm during his probation.



                                               Conclusion
[23]   The State presented sufficient evidence from which the trial court, as the trier of

       fact in McBride’s bench trial, could conclude that McBride was guilty beyond a

       reasonable doubt of intimidation. We therefore affirm McBride’s conviction.


       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019           Page 18 of 19
       However, because the trial court imposed a term of probation that both conflicts

       with another term and with federal law, we remand to the trial court to modify

       the terms of probation consistent with this opinion.


[24]   Affirmed in part and remanded in part.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019      Page 19 of 19
