MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Dec 15 2015, 5:46 am

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
David Becsey                                            Gregory F. Zoeller
Zeigler Cohen & Koch                                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Derrick Hart,                                           December 15, 2015
Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        49A02-1502-CR-102
        v.                                              Appeal from the Marion County
                                                        Superior Court
State of Indiana,                                       The Honorable Mark Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1408-F3-40932



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015      Page 1 of 9
                                             Case Summary

[1]   Derrick Hart appeals his conviction for Level 6 felony intimidation. We affirm.


                                                     Issue

[2]   The issue before us is whether there is sufficient evidence to convict Hart of

      intimidation.


                                                     Facts

[3]   The evidence most favorable to the conviction is that, Hart and Tabitha Parr

      entered into an agreement whereby Hart paid money to Parr and Parr allowed

      Hart to drive her vehicle. On August 21, 2014, Parr’s girlfriend reported Parr’s

      vehicle stolen to the police department, and it was impounded because Hart had

      refused to return the vehicle after Parr made multiple requests.                          Parr was

      informed that her vehicle had been towed later that same day when Hart

      contacted her while she was at work.               Parr contacted the impound lot to try to

      get the car back. As Parr attempted to remedy the situation, Hart became very

      upset on the phone and threatened Parr. Hart informed Parr that he was waiting

      at her neighbor’s house for her to return home from work, and “that he doesn’t

      play with his money.” Tr. p. 208. Hart also told Parr that “she would be sorry.”

      Id. at 208-09. After work, Parr went to the home of her friends, John Carr and

      Larry Tindle, because she was scared to return to her home. Parr requested Hart

      meet her at Carr and Tindle’s home to discuss the situation.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015    Page 2 of 9
[4]   When they met, Hart got into an argument with Parr and became very angry,

      ultimately threatening Parr. Hart threatened Parr because he thought Parr had

      reported the car as stolen. Hart told Parr “he was going to kick her a**” and “he

      was going to kill her.” Id. at 74. Further, Hart stated that Parr owed him money

      because she had “called the cops and said her car was stolen and he was the one

      driving it” when Parr knew she had loaned the car to Hart. Id. Hart also

      threatened to “beat the crap out of” Parr. Id. at 76. Carr told Hart to leave his

      home, and as Hart left, he told Carr he was not going to be able to save Parr.

      Hart left following this statement. After Hart left, Parr asked Carr to give her a

      ride home. He agreed and, when he opened the door to leave, Hart and Henry

      Gibson were standing on the porch with guns in their hands. Both started

      shooting. Carr was shot in the right elbow and the buttock.


[5]   The State charged Hart with aggravated battery, a Level 3 felony, battery, a Level

      5 felony, criminal recklessness, a Level 5 felony, intimidation, a Level 6 felony,

      and carrying a handgun without a license, a Level 5 felony. The State dismissed

      the felony enhancement of carrying a handgun without a license charge, making

      the charge a class A misdemeanor. The jury found Hart guilty on all counts.

      Hart now appeals only the sufficiency of the evidence supporting his conviction

      for Level 6 felony intimidation.


                                                  Analysis

[6]   Hart argues there is insufficient evidence to support his conviction for Level 6

      felony intimidation.         When reviewing a challenge to the sufficiency of the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 3 of 9
      evidence underlying a criminal conviction, we neither reweigh the evidence nor

      assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

      The evidence--even if conflicting--and all reasonable inferences drawn from it are

      viewed in a light most favorable to the conviction. Rohr v. State, 866 N.E.2d 242,

      248 (Ind. 2007). We 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).


[7]   To be convicted of Level 6 felony intimidation, the State must prove the

      defendant “communicate[d] a threat [to commit a forcible injury] to another

      person, with the intent. . . that the other person be placed in fear of retaliation for

      a prior lawful act. . .” Ind. Code § 35-45-2-1(a)(2), (b)(1). Hart was charged with

      communicating “a threat to commit a forcible felony, to-wit: threatened to beat

      and choke Tab[i]tha Parr, with the intent that Tab[i]tha Parr be placed in fear of

      retaliation for a prior lawful act, to-wit: reporting her vehicle stolen to the police.”

      Appellant’s App. p. 20. Hart contends he was mad and threatened Parr because

      she owed him money from the car rental agreement after the car he had paid to

      rent from Parr was impounded. Hart also argues that because Parr was not the

      one who reported her car stolen the State has failed to prove an essential element

      of the crime of intimidation.


[8]   When challenging the sufficiency of the evidence of the intimidation element of

      intent to place the victim in fear of retaliation for prior lawful conduct, “mere

      proof that the victim is engaged in an act which is not illegal at the time the threat

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 4 of 9
       is made is not sufficient.” Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App.

       2009) (citing Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997)). 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. Id.


[9]    Hart’s first argument requests this Court to reweigh the evidence to determine

       why he threated Parr, which we will not do. There is sufficient evidence for a

       reasonable jury to conclude Hart threatened Parr because he believed she had

       reported the vehicle stolen. It was exclusively within the jury’s province to

       determine whether Hart threatened Parr because the car was towed or because

       she owed him money. The reason Parr would have owed him money is because

       the vehicle was impounded in the first place. The money was related to the report

       of the vehicle as stolen.


[10]   At trial, Carr, an eye-witness to the confrontation, testified that Hart was “yelling

       and screaming” that Parr had “called the cops and said that her car was stolen

       and he was the one driving it. . .” and that Hart “was going to kill her, he was

       going to kick her a**.” Tr. p. 74. Carr testified Hart was arguing Parr had “called

       the cops and said the car was stolen when she knew that she loaned him the car.”

       Id. at 75. Carr testified Hart “threatened that he was going to kill her. . . beat the

       crap out of her if she did not fight like a man,” and Hart also stated Carr “wasn’t

       going to be able to save her.” Id. at 76-77. Perhaps most unfavorable to the

       Hart’s argument is his own testimony. Hart testified at trial, he threatened Parr

       because he thought Parr had reported the car as stolen. Thus, there is ample



       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 5 of 9
       evidence for a reasonable jury to conclude Hart threatened Parr because he

       believed she had reported the vehicle as stolen.


[11]   Hart cites several cases in support of his argument, but we find none of them

       persuasive. This case is distinguishable from Casey v. State, 676 N.E.2d 1069 (Ind.

       Ct. App. 1997), and McCaskill v. State, 3 N.E.3d 1047 (Ind. Ct. App. 2014),

       because in those cases testimony was lacking as to what the prior lawful act was.

       Here, the State proved its charge that the prior lawful act was the reporting of the

       vehicle Hart was renting from Parr as stolen. There is adequate testimony Hart

       threatened Parr because he believed she had reported the vehicle stolen.


[12]   Ransley v. State, 850 N.E.2d 443 (Ind. Ct. App. 2006), trans. denied, also is

       distinguishable from the present matter because the victim chose not to take the

       stand and establish for what prior lawful act the defendant had retaliated. This

       Court noted that anger without the intent of the defendant to retaliate is not

       enough to satisfy the requirement of Section 35-45-2-1(a)(2). Ransley, 850 N.E.2d

       at 447. The testimony present here indicates Hart retaliated against Parr because

       of the specific act of reporting her vehicle as stolen. In C.L. v. State, 2 N.E.3d 798

       (Ind. Ct. App. 2014), this court determined the defendant’s threats of violence

       were conditional and aimed at future conduct. As a result, the defendant’s threats

       of violence were not made in relation against the prior lawful acts of the victim.

       Id. at 801 (emphasis added). It is clear in this case that Hart’s threats of violence

       occurred after he learned the car was impounded. Further, he acted upon them

       the very same day the car was impounded.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 6 of 9
[13]   As to Hart’s second argument, it is clear the legal act was reporting the vehicle

       stolen and that it occurred prior to Hart’s threats against Parr. The question is

       whether the fact Parr’s girlfriend actually reported the vehicle stolen affects the

       State’s charge of the crime. We conclude that it does not. It is irrelevant whether

       the prior lawful act was actually that of Parr or her girlfriend. There is ample

       evidence supporting the presumption Hart threatened Parr because he thought

       she, not her girlfriend, had reported the vehicle stolen.


[14]   Further, as the State argued in its brief, the jury could have determined from the

       evidence that Parr had asked her girlfriend to report the vehicle stolen, which

       would constitute a prior lawful act for purposes of the statute. A defendant’s

       intent to place the victim in fear of retaliation may be proven by circumstantial

       evidence. Lee v. State, 973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied.

       “Intent can be inferred from a defendant’s conduct and that natural and usual

       sequence to which such conduct logically and reasonably points.” Id. At trial,

       Parr testified she had asked for her car back “a couple of times,” and

       subsequently, her girlfriend had reported it as stolen. Tr. p. 207. A jury could

       have reasonably concluded Parr requested her girlfriend call law enforcement and

       report it stolen, and it was lawful for Parr to do so after Hart refused to return

       Parr’s car to her.


[15]   We acknowledge this case is unusual in that Hart was mistaken in believing Parr

       had committed the prior lawful act. Indiana courts have long recognized the

       doctrine of “transferred intent.” Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998);

       White v. State, 638 N.E.2d 785, 786 (Ind. 1994). The doctrine is most commonly

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 7 of 9
       recognized by courts when the crime charged is murder or attempted murder.

       Blanche, 690 N.E.2d at 712; Straub v. State, 567 N.E.2d 87, 90-91 (Ind. 1991).

       Under the doctrine of transferred intent “a defendant’s intent to kill one person

       is transferred when, by mistake or inadvertence, the defendant kills a third

       person; the defendant may be found guilty of the murder of the person who was

       killed, even though the defendant intended to kill another.” Blanche, 690 N.E.2d

       at 712 (citing White, 638 N.E.2d at 786).


[16]   The doctrine of transferred intent has not previously been applied to the crime of

       intimidation. However, for purposes of this unique situation we find the doctrine

       to be instructive. Hart’s intent to intimidate Parr’s girlfriend, for the prior lawful

       act of reporting the vehicle stolen, was effectively transferred when, by his

       mistake, he intimidated Parr, based on his genuine belief she, not her girlfriend,

       was the one who had called the police. The doctrine of transferred intent might

       not apply in situations where a victim claims to be threatened for a random third

       party’s act that has no connection to the victim. Where, however, a defendant

       genuinely believes he or she is intimidating the person who performed the prior

       lawful act, this concern dissipates. Such is the case here.


[17]   We also note that, essentially, Hart made a mistake of fact about who precisely

       performed the lawful act of reporting Parr’s car stolen and, as a result, mistakenly

       threatened Parr instead of Parr’s girlfriend. However, a defendant’s mistake of

       fact is a defense to a crime only “if the mistake negates the culpability required

       for commission of the offense.” I.C. § 35-41-3-7. See also Chavers v. State, 991

       N.E.2d 148, 151 (Ind. Ct. App. 2013), trans. denied. Here, Hart clearly possessed

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 8 of 9
       the required intent to commit intimidation. A prior lawful act occurred, and Hart

       intended the person whom he believed committed that act to feel threatened for

       having committed it. The clear purpose of the intimidation statute is to prohibit

       placing persons in fear for committing lawful acts. Hart violated that clear

       purpose in threatening Parr, regardless of whether Parr had actually committed

       the lawful act in question.


                                                 Conclusion

[18]   There is sufficient evidence to support Hart’s conviction for Level 6 felony

       intimidation. We affirm.


[19]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-102 | December 15, 2015   Page 9 of 9
