MEMORANDUM DECISION                                                               FILED
                                                                             May 12 2016, 9:26 am
Pursuant to Ind. Appellate Rule 65(D),                                            CLERK
this Memorandum Decision shall not be                                         Indiana Supreme Court
                                                                                 Court of Appeals
regarded as precedent or cited before any                                          and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                        Gregory F. Zoeller
Jane Harris Conley                                      Attorney General of Indiana
Marion County Public Defender’s Office
                                                        Tyler G. Banks
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas Dullen,                                          May 12, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1510-CR-1710
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Christina R.
Appellee-Plaintiff.                                     Klineman, Judge
                                                        Trial Court Cause No.
                                                        49G17-1504-F6-12844



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016               Page 1 of 9
                                           Statement of the Case
[1]   Thomas Dullen (“Dullen”) appeals his conviction, following a bench trial, for

      Level 6 felony intimidation.1 Dullen argues that there was insufficient evidence

      to support his conviction. Concluding that Dullen’s argument is merely a

      request to reweigh the evidence, we deny this request and affirm his

      intimidation conviction.2


[2]   We affirm.


                                                          Issue
              Whether sufficient evidence supports Dullen’s intimidation conviction.


                                                         Facts
[3]   Dullen and Laurina Manning (“Manning”) dated for several years and had a

      child, D.D., together. In February 2015, Dullen and Manning were not living

      together, and Dullen had visitation with five-year-old D.D. every other

      weekend. For visitation purposes, they had a pre-arranged meeting spot at a

      specific gas station in Marion County to drop off and pick up D.D. for his

      scheduled visitations with Dullen. At that time, there was a no-verbal contact

      order in place between Dullen and Manning. Therefore, when making a

      visitation exchange, typically, both parents remained in their respective cars and




      1
          IND. CODE § 35-45-2-1.
      2
          Dullen was also convicted of Class A misdemeanor theft, but he does not challenge that conviction.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016                Page 2 of 9
      D.D. would get out of one parent’s vehicle and walk over to the other parent’s

      vehicle.


[4]   However, on February 15, 2015, Dullen violated the order and talked to

      Manning when he was returning D.D. to Manning in the gas station parking

      lot. Upon seeing Dullen walking over to her truck, Manning took out her cell

      phone and began a recording of him because of the no-contact order. Dullen

      opened Manning’s back passenger-side door and put D.D. in Manning’s

      vehicle. Dullen then “immediately began asking [her] for his paper.” (Tr. 9).

      The paper was “in reference to his deceased grandmother, and some money.”

      (Tr. 9). Dullen had previously accused Manning of taking the paper, and she

      had always informed that she did not have it. While Dullen was leaning in

      Manning’s truck, he told her that he wanted his paper, and she again told him

      that she did not have it. Dullen continued to demand the return of his paper,

      and Manning—while continuing to record him—told him to get out of her car.

      Dullen told Manning that he was going to “take that ‘M’ effin’ (sic) phone.”

      (Tr. 10). When he reached to the front of the vehicle to grab Manning’s phone,

      she dropped the phone on the floor. Manning leaned down to reach for her

      keys, and Dullen grabbed her keys that were hanging from the ignition. As he

      “yanked” the key ring, he broke Manning’s ignition key and took the remaining

      keys, which included her house keys, her mother’s house keys, and the key fob

      for her truck. (Tr. 12). Dullen stood by the back passenger door, argued with

      Manning, and yelled for her to get out of the truck and “come on around” to

      where he was standing. (Tr. 13). Manning refused, and Dullen eventually


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 3 of 9
      drove away with her keys. Manning immediately called the police, talked to

      them at the gas station, and then drove to her mother’s house.


[5]   Later that day, Dullen called Manning’s cell phone, and Manning’s niece

      answered the phone and told Dullen to give the keys back. Manning grabbed

      the phone and hung up on Dullen. When Dullen called back, Manning

      answered the phone. Dullen told Manning that he would return her keys if she

      gave him his paper. Manning told Dullen that she did not have the paper, and

      he responded, “Now see, that’s what makes me snap, because you want to play

      me like a fool. I know you got my paper.” (Tr. 17). After Manning repeated

      that she did not have his paper, he said, “I’m going to tell you this, and you can

      take it any way you want to. If I don’t get my paper back, our son is going to

      be an orphan.” (Tr. 17). At trial, Manning testified that she “felt like he was

      threatening [her] life” and that she was “afraid that he [wa]s going to do

      something to [her].” (Tr. 17, 18). Manning “specifically asked [Dullen] if he

      was threatening [her,]” and he replied that she “could take it any way [she]

      want[ed] to.” (Tr. 18). Manning hung up the phone and texted Dullen,

      instructing him to put her keys in her mailbox. Dullen never returned

      Manning’s keys. Manning later contacted the police and changed her locks and

      her mother’s locks.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 4 of 9
[6]   Thereafter, the State charged Dullen with Count 1, Level 6 felony intimidation,

      and Count 2, Class A misdemeanor theft.3 The trial court held a bench trial on

      August 4, 2015. Manning testified regarding the facts of the intimidation

      charge as described above. Following the State’s presentation of evidence,

      Dullen moved for an involuntary dismissal of the intimidation charge, and the

      trial court denied the motion. Dullen then testified on his own behalf. He

      admitted that he had argued with Manning in her car about his paper, which he

      testified was a “paper that [his] grandma left [him]” and was worth “over a half

      of a million dollars[.]” (Tr. 24). Dullen accused Manning of “cash[ing] it in[,]”

      and he denied that he had taken Manning’s keys.


[7]   The trial court found Dullen guilty as charged on both counts. The trial court

      imposed a 545 day sentence, with 180 days executed in Community

      Corrections and 365 days suspended to probation, for Dullen’s intimidation

      conviction, and it imposed a 365 day sentence, with 26 days executed and 339

      days suspended, for his theft conviction. The trial court ordered that the

      sentences were to run concurrently. Dullen now appeals his intimidation

      conviction.




      3
          I.C. § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 5 of 9
                                                  Decision
[8]   Dullen argues that the evidence was insufficient to support his intimidation

      conviction.

              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. 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. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.

      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

      and citations omitted) (emphasis in original).


[9]   The intimidation statute provides that a person who “communicates a threat to

      another person, with the intent . . . that the other person engage in conduct

      against the other person’s will” commits intimidation as a Class A

      misdemeanor. I.C. §§ 35-45-2-1(a)(1). The offense is a Level 6 felony when the

      threat is to commit a forcible felony. I.C. §§ 35-45-2-1(b)(1). In order to convict

      Dullen of Level 6 felony intimidation as charged, the State was required to

      prove beyond a reasonable doubt that he communicated a threat to commit the

      forcible felony of murder, to Manning, with the intent that she engage in

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 6 of 9
       conduct against her will, i.e., “to give [him] ‘the paper[.]’” (App. 17).

       “[W]hether a defendant intended that someone engage in conduct against his or

       her will depends on the facts and circumstances of each case.” Owens v. State,

       659 N.E.2d 466, 474 (Ind. 1995) (citing Hyde v. State, 531 N.E.2d 472, 473 (Ind.

       1988)), reh’g denied.


[10]   Dullen challenges only the “threat” element of intimidation.4 He seems to

       suggest that the evidence was insufficient to show that he made a threat because

       his words were not “direct” and were conveyed by telephone. (Dullen’s Br. 9).

       He also suggests that his words did not constitute a threat because Manning did

       not immediately call the police after she hung up the phone with Dullen.


[11]   The intimidation statute defines “threat” as an “expression, by words or action,

       of an intention to . . . unlawfully injure the person threatened . . . [or] commit a

       crime[.]” I.C. § 35-45-2-1(c)(1), (c)(3). Whether a particular communication

       constitutes a threat is an objective question for the trier of fact. Owens, 659

       N.E.2d at 474. “‘Written words or phrases take their character as threatening

       or harmless from the context in which they are used, measured by the common

       experience of the society in which they are published.’” Brewington v. State, 7

       N.E.3d 946, 963 (Ind. 2014) (quoting United States v. Prochaska, 222 F.2d 1, 2

       (7th Cir. 1955), cert. denied), reh’g denied, cert. denied. Thus, whether Dullen’s




       4
           He does not dispute that murder is a forcible felony.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 7 of 9
       communication to Manning, objectively viewed, was a threat was a question of

       fact for the trial court to decide.


[12]   We first reject Dullen’s suggestion that his words did not constitute a threat

       because he made them by telephone. “The text of the intimidation statute does

       not limit the phrase ‘communicates a threat to another person’ to only those

       threats made directly to or in the presence of the threatened party.” Ajabu v.

       State, 677 N.E.2d 1035, 1042 (Ind. Ct. App. 1997), trans. denied. “The word

       ‘communicate’ encompasses those threats made known or transmitted to

       another person, and the statute does not limit the means utilized to convey the

       threat.” Id. (explaining that “threats include those a person makes known to

       the victim through the print, radio[,] or television media with the requisite

       intent”). See also I.C. § 35-45-2-1(c) (providing that a person’s communication

       of a threat “includes posting a message electronically, including on a social

       networking web site”).


[13]   Dullen’s argument regarding the threat element is nothing more than a request

       to reweigh the evidence. Here, the evidence showed that Dullen had, earlier in

       the day, argued with Manning, accused her of taking his paper, struggled with

       her in an attempt to take her cell phone, and grabbed and stole her house keys

       and car key fob. He then phoned Manning and told her that if she did not give

       his paper back to him then their “son [wa]s going to be an orphan.” (Tr. 17).

       Manning—who “felt like [Dullen] was threatening [her] life” and was “afraid

       that he [wa]s going to do something to [her]”—“specifically asked [Dullen] if he

       was threatening [her,]” and he replied that she “could take it any way [she]

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 8 of 9
       want[ed] to.” (Tr. 17, 18). Given the context in which the statement was

       made, the trial court could have reasonably concluded that Dullen’s statement

       was an implied threat to commit a forcible felony against Manning if she did

       not give back his paper. We will not reweigh the evidence or the trial court’s

       determination. See Drane, 867 N.E.2d at 146. Accordingly, we affirm Dullen’s

       Level 6 felony intimidation conviction. See, e.g., Owens, 659 N.E.2d at 474-75

       (rejecting the defendant’s argument that the evidence of a threat was insufficient

       because his words were “neither serious nor taken seriously” and finding no

       basis to disturb the jury’s verdict).


[14]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1710 | May 12, 2016   Page 9 of 9
