MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     May 11 2015, 10:39 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         Jonathan R. Sichtermann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bruce Jackson,                                          May 11, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1410-CR-698
        v.                                              Appeal from the Marion County
                                                        Superior Court Criminal Division 16

State of Indiana,                                       Cause No. 49G16-1404-FD-02175
Appellee-Plaintiff
                                                        The Honorable Helen Marchal,
                                                        Judge




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015       Page 1 of 8
[1]   Bruce Jackson appeals his convictions of two counts of Intimidation1, a class D

      felony, and Possession of Paraphernalia2, a class A misdemeanor. Jackson

      presents the following restated issues for review:

                  1. Did the State present sufficient evidence to establish intimidation?
                  2. Was the evidence sufficient to sustain Jackson’s conviction for
                     possession of paraphernalia?
[2]   We affirm in part and reverse in part.

[3]   On April 26, 2014, Phillip Wright was working as the night manager at Allied

      Liquors on East 38th Street in Indianapolis. Joe Klein, the store owner, was also at

      the store working in his office. At approximately 1:00 a.m., Wright observed

      Jackson loitering outside in front of the store. Wright told Jackson he was not

      supposed to be there and asked him to leave the premises. Jackson told Wright

      that he would leave, and when Jackson was still in the parking lot twenty-five

      minutes later, Wright called the police.

[4]   When the police arrived, Jackson was in the back seat of a vehicle with two

      women. The responding officer asked Jackson to exit the car, which he finally did,

      although he was agitated and angry. Another officer eventually handcuffed




         1
           The version of the governing statute in effect at the time this offense was committed classified it as a class D
         felony. See Ind. Code Ann § 35-45-2-1 (West, Westlaw 2013). This statute has since been revised and in its
         current form reclassifies this offense as a Level 6 Felony. See I.C. § 35-45-2-1 (West, Westlaw current with
         legislation of the 2015 First Regular Session of the 119th General Assembly effective through March 24,
         2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. Because
         this offense was committed before that date, it retains the former classification.
         2
           Ind. Code Ann. § 35-48-4-8.3 (West, Westlaw current with legislation of the 2015 First Regular Session of
         the 119th General Assembly effective through March 24, 2015)

         Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015                     Page 2 of 8
      Jackson because he would not calm down. After Jackson was in handcuffs,

      Wright and Klein came outside. Jackson began to yell at Wright and Klein that he

      was going to shoot Klein with an AK 47 assault rifle, cut off Wright’s head, and

      shoot up the store. Police officers on scene repeatedly asked Jackson to stop

      yelling, but he did not stop for some time. Before transporting Jackson to jail,

      police conducted a search of his person, which revealed a brass fitting with a steel

      wool pad in Jackson’s pocket. The officers knew these items to be typically used as

      a makeshift crack cocaine pipe.3

[5]   Jackson was charged with two counts of class D felony intimidation, one count of

      invasion of privacy as a class A misdemeanor, one count of possession of

      paraphernalia as a class A misdemeanor, one count of trespass as a class A

      misdemeanor, and one count of class B misdemeanor disorderly conduct. On

      August 14, 2014, a jury found Jackson guilty on all counts. The trial court

      subsequently sentenced Jackson to a three-year aggregate sentence. Jackson now

      appeals.

                                                                    1.
[6]   Jackson argues there is insufficient evidence to sustain his two convictions of class

      D felony intimidation. Specifically, Jackson argues the evidence fails to establish




         3
           The steel wool is used as a filter to prevent burning narcotic embers from being sucked into the body when
         the pad is lit.

         Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015                 Page 3 of 8
      that he intended to place the victims in fear when he made the statements. Our

      standard of review is well settled.

                 When reviewing a challenge to the sufficiency of the evidence
                 underlying a criminal conviction, we neither reweigh the
                 evidence nor assess the credibility of witnesses. The evidence—
                 even if conflicting—and all reasonable inferences drawn from it
                 are viewed in a light most favorable to the conviction. “[W]e
                 affirm if there is substantial evidence of probative value
                 supporting each element of the crime from which a reasonable
                 trier of fact could have found the defendant guilty beyond a
                 reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
                 2004).
      Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[7]   To convict Jackson of intimidation as a class D felony the State was required to

      prove Jackson communicated a threat to Klein and to Wright with intent that they

      be placed in fear of retaliation for a prior lawful act, i.e., calling the police. See I.C.

      § 35-45-2-1(a)(2). As pertinent here, I.C. § 35-45-2-1(d)(1), (3) defines threat as, an

      expression, by words or action, of an intention to unlawfully injure the person threatened

      or another person, or damage property, or commit a crime.


[8]   Jackson argues that although he threatened to commit a number of violent acts

      against Wright and Klein, he did not intend to place them in fear of bodily harm.

      Jackson asserts that he was simply, “engaging [in] verbal grandstanding.”

      Appellant’s Brief at 9.


[9]   In Brewington v. State, the Indiana Supreme Court held that it does not matter

      whether the speaker intends to carry out the threat, but rather whether he intends


         Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015   Page 4 of 8
   to “plac[e] the victim in fear of bodily harm or death.” 7 N.E.3d 946, 963 (Ind.

   2014) (quoting Virginia v. Black, 538 U.S. 343, 360 (2003)). A determination of

   intent is a mens rea determination that, “is almost inevitably, absent a defendant’s

   confession or admission, a matter of circumstantial proof.” Hampton v. State, 961

   N.E.2d 480, 487 (Ind. 2012). As for the inferential nature of circumstantial

   evidence, the mens rea determination will often depend on whether a reasonable

   person would recognize the statements threatening potential. Brewington v. State , 7

   N.E.3d 946.

[10] Here,   Jackson was agitated and angry from the initial encounter with the police

   officers. After being placed in handcuffs, he did not calm down or cooperate

   despite repeated requests by the officers. Jackson continued to yell, curse, and

   threaten for twenty-five to thirty minutes to commit violent acts towards Wright

   and Klein. Jackson threatened to return to the store and use an AK 47 to shoot

   Wright and to “shoot up” the store. Transcript at 99, 163. Jackson told Klein that

   he was “going to cut off his head and make him suck his own dick.” Id. at 98.

   Jackson also told the police officers that they were going to have to come back and

   “recover[] bodies in body bags.” Id. at 203. Klein testified that, “I believed what he

   said” and believed that the threats were meant to put him in fear of Jackson. Id. at

   144. Jackson’s specific statements, combined with his conduct, clearly implied

   credible threats to the victims’ safety and were more than an outburst of

   frustration. See Brewington v. State, 7 N.E.3d 969. Based upon the foregoing, we

   conclude that there is sufficient evidence to sustain Jackson’s convictions for class

   D felony intimidation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015   Page 5 of 8
                                                           2.
[11] Jackson    argues that there is insufficient evidence to sustain his conviction for

    possession of paraphernalia because there is no evidence that he had specific intent

    to use the object to pass a controlled substance into his body. To convict Jackson

    of a class A misdemeanor possession of paraphernalia as charged, the State was

    required to prove that Jackson knowingly or intentionally possessed a raw

    material, instrument, device, or other object with the intent to introduce a

    controlled substance into his body. See I.C. § 35-48-4-8.3(a)(1), (b).


[12] The   intent to introduce a controlled substance into one’s body may be inferred

    from circumstantial evidence. See Dabner v. State, 258 Ind. 179, 279 N.E.2d 797 (

    1972) (puncture marks over the veins of the defendant’s forearm evincing recent

    injections, were sufficient to establish intent); Trigg v. State, 725 N.E.2d 446 (Ind.

    Ct. App. 2000) (residue-encrusted crack cocaine pipe found where defendant was

    sitting was sufficient to establish intent to use the pipe to smoke crack); McConnell

    v. State, 540 N.E.2d 100 (Ind. Ct. App. 1989) (expert testimony that paraphernalia

    contained drug residue was sufficient to establish intent). Intent may not be

    inferred, however, merely from proof that the instruments possessed were normally

    used or adapted for use with illegal drugs. McConnell v. State, 540 N.E.2d 755.


[13] In   Taylor v. State, the Supreme Court held that intent was not sufficiently

    established despite the evidence that the defendant possessed a hypodermic needle,

    an eye-dropper covered with an unknown sticky substance, a bottle cap that had

    been burned on the bottom, and an empty Excedrin bottle. 256 Ind. 170, 267 N.E.

    2d 383 (1971). The Court observed “there was no evidence of flight or any other

          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015   Page 6 of 8
    behavior indicating consciousness of guilt.” 256 Ind. 170, at 172, 267 N.E. 2d 383

    at 385 (Ind. 1971). There was no evidence that the defendant had previous

    convictions for the use or possession of narcotic drugs. Id. Applying an earlier

    version of the statute,4 the Court explained:

                  To permit such a conviction [without proving intent] would be in
                  effect to amend the statute. We assume the Legislature did not do a
                  useless act in including the element of intent; if they had intended to
                  punish the mere possession of adapted instruments they would not
                  have included that element. The fact that the Legislature included the
                  requirement that intent be proved necessarily implies that they
                  recognized that there could be cases of possession of adapted
                  instruments which would not be punishable under the statute.
    Id.


[14] In   the present case, the evidence showed Jackson was in possession of an adapted

    instrument commonly known to be used for ingesting drugs. The State, however,

    presented no evidence bearing on the element of intent. The State’s only evidence

    was the testimony of Officer Drew Sedam, who has experience with over 100 cases

    involving narcotics, in which he identified the device. He further testified that the

    steel wool was burnt and blackened, meaning that it had been used. As noted

    above, however, mere possession of an adapted device does not establish the

    element of intent. The State did not introduce any evidence that Jackson was a

    crack cocaine user or had previous drug convictions. There is no evidence that he




          4
           The statute discussed in Taylor, I.C. § 35–24–1–2 (1971), was repealed in 1976. P.L. 148–1976, Sec. 24. An
          earlier version of the statute under which Sluder was charged was added to the Indiana Code in the same
          Act. See P.L. No. 148–1976, Sec. 8.

          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015                Page 7 of 8
   was given a drug test, and he did not admit to being an addict or using a controlled

   substance. There is no evidence the adapted device contained any residue, and

   there is no evidence that it was tested to determine if it contained a controlled

   substance.

[15] Under   these circumstances the State presented insufficient evidence to establish

   that Jackson intended to use the pipe to introduce a controlled substance into his

   body. Accordingly, we reverse his conviction for possession of paraphernalia.

[16] Judgment   affirmed in part and reversed in part.

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




      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-698| May 11, 2015   Page 8 of 8
