MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 18 2017, 6:26 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Borschel                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Howard Elam,                                             August 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1704-CR-805
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela D. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G16-1701-F6-625



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017        Page 1 of 7
[1]   Howard Elam appeals his convictions for Level 6 Felony Criminal

      Confinement,1 Class A Misdemeanor Domestic Battery,2 and Class A

      Misdemeanor Intimidation,3 arguing that the evidence is insufficient to support

      the convictions. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   Elam dated Sydnea Embry on and off for two years. On December 19, 2016,

      they were no longer dating, but he was living in her apartment. When she tried

      to leave her apartment with her three-month-old son,4 Elam grabbed the infant

      car seat and told her that she could leave but her son had to stay. He “knew

      that [Embry] wasn’t going to leave without [her] child.” Tr. Vol. II p. 9.

      Embry did not feel as though she could leave, so she went back into her

      bedroom and tried to figure out how to leave with her baby. At one point,

      Embry began to leave, but Elam intercepted her, grabbed her son’s arm, and

      “tried to play tug of war” with Embry while attempting to strike her with his

      other hand. Id. at 10. After thirty to forty-five minutes, a friend of Elam

      knocked on the apartment door and Embry and her son were able to escape.




      1
          Ind. Code § 35-42-3-3(a).
      2
          I.C. § 35-42-2-1.3(a)(1).
      3
          Ind. Code § 35-45-2-1.
      4
          Elam is not the father of Embry’s son.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 2 of 7
[3]   That night and the next morning, Elam sent Embry many text messages

      demanding that she drive him to school the next morning:


            •   “I just kno I better be at dat school tomar [sic] to take my test”
            •   “U gone take me . . . if I don’t get there don’t come bac”
            •   “u better be here to take me to school tomar”
            •   “don’t ever let me c u bac here if I ain’t at school in da morning”
            •   “If I don’t get to school . . . don’t come back by yo self”
            •   “B*tch f*ck u and die b*tch I better make it to school”

      Tr. Ex. 1-3 (grammar, spelling, and capitalization original). Embry felt as

      though she had to take Elam to school “[b]ecause [they] had a history of

      physical abus[e] and mental abuse and [she] just felt intimidated.” Tr. Vol. II p.

      26.


[4]   When Embry arrived at her apartment to take Elam to school, he was still

      asleep. She took some of her belongings to her car. When she returned, Elam

      was awake and began accusing her of taking his house key. She said she would

      wait for him in her car. As she walked out of her apartment, he grabbed her by

      her hair and pulled her to the ground; he then grabbed her by her feet and

      pulled her back into the apartment. When he let go of her, she ran to her car

      and left. After she left, he texted her to say he was sorry: “I apologise for

      grabbing u da way I did[.]” Tr. Ex. 4 (spelling and grammar original).


[5]   On January 5, 2017, the State charged Elam with Level 6 felony criminal

      confinement, Level 6 felony battery, Level 6 felony domestic battery, Level 6

      felony kidnapping, Class A misdemeanor domestic battery, and Class A

      misdemeanor intimidation. Elam’s bench trial took place on March 14, 2017.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 3 of 7
      The trial court dismissed the Level 6 felony domestic battery and kidnapping

      charges, found Elam not guilty of Level 6 felony battery, and found Elam guilty

      of the remaining charges. Following a March 21, 2017, sentencing hearing, the

      trial court sentenced Elam to an aggregate term of two years imprisonment with

      one year suspended. Elam now appeals.


                                                Discussion
[6]   Elam argues that there is insufficient evidence supporting his convictions for

      Level 6 felony criminal confinement, Class A misdemeanor domestic battery,

      and Class A misdemeanor intimidation. When reviewing a claim of

      insufficient evidence, we will consider only the evidence and reasonable

      inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.

      2011). We will affirm if, based on the evidence and inferences, a reasonable

      jury could have found the defendant guilty beyond a reasonable doubt. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009).


[7]   To convict Elam of Level 6 felony criminal confinement, the State was required

      to prove beyond a reasonable doubt that he knowingly confined Embry without

      her consent. I.C. § 35-42-3-3(a). To “confine” means “to substantially interfere

      with the liberty of a person.” I.C. § 35-42-3-1.


[8]   Elam argues that because he told Embry she could leave—albeit without her

      infant son—she consented to the confinement. We cannot agree. Embry

      testified that she tried to leave twice. First, Elam grabbed the car seat and told

      her that her son had to stay. Second, Elam intercepted her, grabbed her son’s

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 4 of 7
      arm, and played “tug of war” with Embry while trying to strike her with his

      other hand. Tr. Vol. II p. 10. The fact that Elam told Embry she could leave

      only if she left her baby with him is irrelevant. Offering a choice to a parent to

      stay with her infant or leave him in the care of a threatening and violent person

      is no choice at all. We cannot say that anything in the record leads to a

      reasonable conclusion that Embry consented to this confinement, and Elam’s

      arguments to the contrary amount to an impermissible request that we reweigh

      the evidence. See Dewald v. State, 898 N.E.2d 488, 491-92 (Ind. Ct. App. 2008)

      (where defendant blocked in victim’s van and argued that she could have left

      the scene without her van, meaning she was not confined without consent,

      defendant’s argument was merely a request to reweigh the evidence). Based on

      this evidence, a reasonable factfinder could have found Elam guilty beyond a

      reasonable doubt. The evidence is sufficient.


[9]   To convict Elam of Class A misdemeanor domestic battery, the State was

      required to prove beyond a reasonable doubt that Elam knowingly touched

      Embry, a family or household member, in a rude, insolent, or angry manner.

      I.C. § 35-42-2-1.3(a)(1). Elam argues that the State did not prove beyond a

      reasonable doubt that Embry was his family or household member. There are

      multiple ways in which one individual can be a family or household member of

      another individual, including when the individual “is dating or has dated the

      other person[.]” Ind. Code § 35-31.5-2-128(2). It is undisputed that Elam and

      Embry dated on and off for two years. Tr. Vol. II p. 6-7, 51. Therefore, the

      evidence is sufficient to support this conviction.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 5 of 7
[10]   Finally, to convict Elam of Class A misdemeanor intimidation, the State was

       required to prove beyond a reasonable doubt that he communicated a threat to

       Embry with the intent that she engage in conduct against her will. I.C. § 35-45-

       2-1(a)(1). A “threat” is, among other things, “an expression, by words or

       action, of an intention to . . . unlawfully injure the person threatened or another

       person, or damage property.” I.C. § 35-45-2-1(d)(1). A threat is punishable if

       the speaker “intend[s] his communications to put his target[] in fear for [her]

       safety, and . . . 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).


[11]   Elam argues that the evidence does not support a conclusion that Embry acted

       against her will when she decided to give him a ride to school. He notes that

       Embry testified that she ultimately decided to give him a ride to school because

       she wanted to go to the apartment to pick up some of her things. Whatever

       Embry’s motivations may have been on the morning she went to pick up Elam

       are irrelevant. The crime of intimidation was complete as soon as Elam

       communicated a threat to Embry with the intent that she engage in conduct

       against her will. Therefore, as soon as he sent a litany of text messages to her

       the night before threatening her with vague harm as well as telling her to “die”

       if she did not pick him up the next morning, he had committed the crime of

       intimidation. See Tr. Ex. 1-4. Whatever Embry’s decision-making process was

       the next morning does not matter. We find the evidence sufficient to support

       this conviction.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 6 of 7
[12]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017   Page 7 of 7
