MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Sep 16 2019, 6:14 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.L.H.,                                                  September 16, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JV-564
        v.                                               Appeal from the
                                                         Dubois Circuit Court and the
State of Indiana,                                        Martin Circuit Court

Appellee-Petitioner.                                     The Honorable
                                                         Nathan A. Verkamp, Judge
                                                         (Dubois)
                                                         The Honorable
                                                         Lynne E. Ellis, Judge (Martin)
                                                         Trial Court Cause Nos.
                                                         19C01-1802-JD-72
                                                         51C01-1810-JD-85



Kirsch, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019            Page 1 of 7
[1]   Contending that the evidence was insufficient to support his adjudication as a

      delinquent child, M.L.H. appeals the juvenile court’s determination that he

      committed two counts of intimidation, which would have been Level 6 felonies

      if committed by an adult.


[2]   We affirm.


                                  Facts and Procedural History
[3]   M.L.H. was an eighth-grade student at Jasper Middle School in Dubois

      County, Indiana. On February 14, 2018, M.L.H. made threatening statements

      to three classmates. M.L.H. told T.W., a classmate, that M.L.H. wanted to

      commit a crime identical to the Parkland, Florida shootings. Tr. Vol. 2 at 59.

      Another classmate, N.R.H., heard M.L.H. say, “That he wanted -- that he

      hated everybody in the school and wanted to shoot the school up on the last

      day, and everybody in it.” Id. at 7. She also heard M.L.H. say that he planned

      to “shoot all the teachers and students” on the last day of school. State’s Ex. 2.

      Another student, H.R., heard M.L.H. talking about guns and his desire to shoot

      people; H.R. also heard that M.L.H. had a list of people to shoot. Tr. Vol. 2 at

      51-52.


[4]   School officials were notified two or three days after M.L.H. made the

      threatening statements. M.L.H. was suspended by school personnel for one

      day and then returned to his regular classes. He was again suspended by the

      school on the evening before the last day of classes.



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 2 of 7
[5]   On February 26, 2018, the State filed a petition alleging that M.L.H. had

      committed acts that, if committed by an adult, would constitute three separate

      acts of intimidation as a Level 6 felony. A fact-finding hearing was held in the

      Dubois Circuit Court on July 13, 2018, and, on July 18, 2018, the juvenile court

      found M.L.H. to be a delinquent child for having committed two counts of

      intimidation for the actions directed at T.W. and N.R.H.


[6]   After the hearing in Dubois County, M.L.H. moved his residence to Martin

      County, and the matter was transferred to the Martin Circuit Court on

      September 25, 2018. A dispositional hearing was held on December 19, 2018,

      and, pursuant to an agreed disposition, the juvenile court placed M.L.H. on

      probation for six months and ordered him to perform sixteen hours of

      community corrections, make restitution, submit to counselling, and pay the

      costs and fees of the proceeding. M.L.H. now appeals.


                                     Discussion and Decision
[7]   When the State petitions to have a juvenile adjudicated as a delinquent for

      committing an act that would be a crime if committed by an adult, it must

      prove every element of that crime beyond a reasonable doubt. H.J. v. State, 746

      N.E.2d 400, 402-03 (Ind. Ct. App. 2001). In reviewing a juvenile delinquency

      adjudication, we neither reweigh the evidence nor judge the credibility of

      witnesses, and we consider only the evidence most favorable to the judgment

      and the reasonable inferences therefrom. C.S. v. State, 735 N.E.2d 273, 276

      (Ind. Ct. App. 2000), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 3 of 7
[8]   At the time M.L.H. made his statements, the intimidation statute, Indiana

      Code section 35-45-2-1, provided, in relevant part:


              (a) A person who communicates a threat to another person, with
              the intent:


              ....


              (2) that the other person be placed in fear of retaliation for a prior
              lawful act; or


              (3) of:


              (A) causing:


              (i) a dwelling, a building, or other structure; or


               ....


              to be evacuated; or


              (B) interfering with the occupancy of:


              (i) a dwelling, building, or other structure; or


               ....


              commits intimidation, a Class A misdemeanor.


              (b) However, the offense is a:


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 4 of 7
              (1) Level 6 felony if:


              (A) the threat is to commit a forcible felony;


              ....


              (d) “Threat” means 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;[or]


              ....


              (8) cause the evacuation of a dwelling, a building, another
              structure, or a vehicle.


[9]   Whether any given statement constitutes a threat is an objective question for the

      trier of fact. Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans.

      denied. The defendant’s intent may be proven by circumstantial evidence alone,

      and knowledge and intent may be inferred from the facts and circumstances of

      each case. Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016), trans.

      denied. A defendant need not speak directly with a victim to communicate a

      threat for purposes of Indiana Code section 35-45-2-1. E.B. v. State, 89 N.E.3d

      1087, 1091 (Ind. Ct. App. 2017). To communicate a threat for purposes of the

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 5 of 7
       offense of intimidation, the statement must be transmitted in such a way that

       the defendant knows or has good reason to know the statement will reach the

       victim. See Ajabu v. State, 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997).


[10]   In S.D. v. State, 847 N.E.2d 255 (Ind. Ct. App. 2006), trans. denied, a juvenile

       told a teacher and several students that she would kill another teacher (who was

       not in the room) and use grenades to blow up the school, and she did not care if

       the listeners told the absent teacher. Id. at 256. This court determined S.D.

       communicated the threat because she knew or had good reason to know that

       the victim would hear her statements. Id. at 258-59. See also, Newell, 7 N.E.3d

       at 370 ( finding sufficient evidence that the defendant intended to communicate

       a threat to the victim, the manager of an apartment complex, because defendant

       made the threat in the presence of a security guard who the defendant knew

       would report the threat to the manager).


[11]   M.L.H. contends that he was just talking to himself when he made the

       statements at issue and that there was no communication of the threats. A

       number of M.L.H.’s classmates disputed M.L.H’s contention that he was just

       talking to himself when he made his threats. T.W. heard M.L.H. say that he

       wanted to mirror the Parkland, Florida shooting and “wanted to do the same

       thing.” Tr. Vol. 2 at 59. N.R.H., another classmate, said she heard M.L.H. say

       that he “hated most people in the school,” was “going to shoot up the school on

       the last day,” and “shoot all the teachers and students.” Id. at 7; State’s Ex. 2.

       Yet another classmate stated that she heard, on multiple occasions, M.L.H.

       talking about guns and his desire to shoot people. Tr. Vol. 2 at 51-52.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 6 of 7
[12]   Indiana Code section 35-45-2-1 defines the crime of intimidation, in operative

       part, as a person who communicates a threat with the intent of causing a

       building to be evacuated or interfering with the occupancy of a building. The

       offense is a Level 6 felony if the threat is to commit a forcible felony. Ind. Code

       § 35-45-2-1(b)(1)(A). Here, M.L.H.’s threats interfered with the occupancy of

       the school building by other students and constituted intimidation. As the last

       day of school approached, a number of students asked the principal whether it

       would be safe to attend on the last day of school and over 100 students did not

       attend -- the highest number of absences in the assistant principal’s memory.

       M.L.H. threatened to shoot his classmates. Had M.L.H. been an adult, his

       threat to commit a forcible felony would have constituted a Level 6 felony. The

       evidence presented was sufficient to support M.L.H.’s delinquency adjudication

       for two counts of intimidation.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-564 | September 16, 2019   Page 7 of 7
