MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                          Aug 29 2018, 10:17 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darlene R. Seymour                                       Curtis T. Hill, Jr.
Bryan L. Ciyou                                           Attorney General of Indiana
Ciyou & Dixon, P.C.
Indianapolis, Indiana                                    Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dean Penry,                                              August 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-665
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1705-CM-513



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018                     Page 1 of 6
                                       Statement of the Case
[1]   Dean Penry appeals his conviction, following a bench trial, for intimidation, as

      a Class A misdemeanor. Penry raises a single issue for our review, which we

      restate as whether the State presented sufficient evidence to support his

      conviction. We affirm.


                                 Facts and Procedural History
[2]   Penry and Mary Hamilton have two children together, a son and a daughter,

      but Penry and Hamilton have not been in a relationship together for six or

      seven years. Instead, for the last four years Hamilton has been in a relationship

      with Mike Oldham. Penry “has a[ ]lot of animosity” toward Hamilton and

      Oldham. Tr. at 27. Penry “doesn’t like [Oldham] being around the children”

      and has “made threats to [Hamilton] about not wanting [Oldham] around [the]

      children in [Hamilton’s] home.” Id.


[3]   In May of 2017, Hamilton and Oldham went to a funeral together. As they

      were returning to Hamilton’s Frankfort home and pulling into the driveway,

      Penry drove past and saw them together. Penry had his son in his truck with

      him. Penry shouted obscenities at Hamilton but then drove away. He then

      called Hamilton and said he wanted to pick up some of their son’s things from

      her house, and Hamilton told him that she and Oldham would leave so he

      could do so.


[4]   Hamilton then drove away from her house in her SUV and Oldham followed

      her on his motorcycle. Just a few moments after they had left Hamilton’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018   Page 2 of 6
      residence, while they were stopped at an intersection, Penry drove past them

      and again yelled obscenities. Penry then pulled his vehicle to the side of the

      road about two car lengths behind Hamilton and exited his vehicle. As he did

      so, he grabbed his son’s aluminum baseball bat out of his vehicle and began to

      approach Oldham while continuing to shout at Oldham. Penry carried the bat

      above his waist and appeared “ready to swing it,” saying to Oldham that he

      was “gonna beat [Oldham’s] ass.” Id. at 25-26. Oldham jumped off his

      motorcycle to defend himself and did not have time to put the kickstand down.

      However, when it was clear that Oldham was going to stand his ground, Penry

      “hopped in his truck and ran home and locked . . . himself in his house.” Id. at

      28.


[5]   The State charged Penry with intimidation, as a Class A misdemeanor.

      Following a bench trial, the court found Penry guilty and entered its judgment

      of conviction and sentenced him accordingly. This appeal ensued.


                                     Discussion and Decision
[6]   Penry asserts on appeal that the State failed to present sufficient evidence to

      show that he had committed intimidation, as a Class A misdemeanor. Our

      standard of review on a claim of insufficient evidence is well settled:


              For a sufficiency of the evidence claim, we look only at the
              probative evidence and reasonable inferences supporting the
              [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
              do not assess the credibility of witnesses or reweigh the evidence.
              Id. We will affirm the conviction unless no reasonable fact-finder


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018   Page 3 of 6
              could find the elements of the crime proven beyond a reasonable
              doubt. Id.


      Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[7]   To prove intimidation, as a Class A misdemeanor, the State was required to

      prove, first, that Penry “communicate[d] a threat” to Oldham and, second, that

      he did so with the intent that Oldham “be placed in fear of retaliation for a prior

      lawful act.” Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), adopted, 54

      N.E.3d 1001, 1002 (Ind. 2016). According to the State’s charging information,

      Penry committed the alleged offense when he communicated a threat to

      Oldham with the intent that Oldham be placed in fear of retaliation for the prior

      lawful acts of dating Hamilton and/or being around Hamilton and Penry’s

      children. On appeal, Penry argues that the State’s evidence fails to show “any

      connection between the threat and any prior lawful conduct” by Oldham.

      Appellant’s Br. at 10. Penry further asserts that the merely “holding a baseball

      bat” is not evidence of an intent to injure Oldham. Id. at 13.


[8]   Penry cites several cases in support of his argument, but we are not persuaded

      by them. This case is distinguishable from Casey v. State, 676 N.E.2d 1069,

      1072-73 (Ind. Ct. App. 1997), Ransley v. State, 850 N.E.2d 443, 446-48 (Ind. Ct.

      App. 2006), trans. denied, and McCaskill v. State, 3 N.E.3d 1047, 1050-51 (Ind.

      Ct. App. 2014). In each of those cases, we held that the State wholly failed to

      identify and present evidence of what the prior lawful act was.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018   Page 4 of 6
[9]    Here, however, the State proved its charge that the prior lawful act was

       Oldham’s relationship with Hamilton and/or being around Penry’s children.

       In particular, the record demonstrates that Oldham unambiguously testified

       that Penry had “animosity” toward Oldham for his relationship with Hamilton,

       and that Penry had a history of threatening Oldham for being around Penry’s

       children at Hamilton’s residence. Tr. at 27. Consistent with that background,

       on the day in question here Penry observed Oldham with Hamilton at

       Hamilton’s residence while Penry had his son with him. Penry immediately

       began confronting Hamilton and Oldham, first with obscenities and then by

       exiting his vehicle with the bat and approaching Oldham in a threatening

       manner. A reasonable fact-finder could readily conclude from the State’s

       evidence that Penry communicated a threat to Oldham with the intent that

       Oldham be placed in fear of retaliation for the prior lawful acts of either dating

       Hamilton or being around Hamilton and Penry’s children.


[10]   Still, Penry suggests that the State’s evidence is insufficient because, in the

       course of his conduct, Penry did not specifically say why he was acting as he

       was, and as such the State’s evidence only relates to a possible future act rather

       than a prior act. But Penry’s argument here fails to consider this court’s

       opinion in Roar v. State, where we rejected the defendant’s argument that the

       words he used, or failed to use, in his communicated threat was the end-all-be-

       all of the evidence that the State may present to support its charge of

       intimidation. 52 N.E.3d at 943-44. As we stated in Roar, “when the factual

       predicate for the threat was a prior lawful act of the victim,” the language used


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018   Page 5 of 6
       or not used by the defendant during his communication of a threat “does not

       vitiate the statute’s application.” Id. at 943. We thus reject Penry’s argument.


[11]   We further hold that the State’s evidence readily shows that Penry did not

       merely brandish the bat. Rather, Penry displayed the bat toward Oldham in a

       manner that demonstrated that Penry was “ready to swing it.” Tr. at 25.

       Further, while he was displaying the bat in that manner, Penry exclaimed that

       he was “gonna beat [Oldham’s] ass.” Id. at 26. Thus, the facts here are unlike

       those in Gaddis v. State, where the defendant merely brandished a firearm but

       did not display the firearm in a specifically threatening way or say any words

       that were likely to incite a confrontation. 680 N.E.2d 860, 862 (Ind. Ct. App.

       1997); see also Johnson v. State, 743 N.E.2d 755, 756 (Ind. 2001) (holding that

       “where . . . the record shows the existence of words or conduct that are

       reasonably likely to incite confrontation, coupled with the display of a firearm,”

       there is sufficient evidence to prove that a threat has been communicated under

       the intimidation statute). Thus, we reject Penry’s arguments on appeal, and we

       conclude that the State presented sufficient evidence to support Penry’s

       conviction.


[12]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-665 | August 29, 2018   Page 6 of 6
