MEMORANDUM DECISION                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                             Apr 26 2016, 9:54 am

this Memorandum Decision shall not be                                   CLERK
                                                                    Indiana Supreme Court
regarded as precedent or cited before any                              Court of Appeals
                                                                         and Tax Court
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
Kimberly A. Jackson                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA

Joshua H. Field,                                          April 26, 2016
Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          11A04-1505-CR-296
        v.                                                Appeal from the Clay Circuit
                                                          Court
State of Indiana,                                         The Honorable Joseph D.
Appellee-Plaintiff.                                       Trout, Judge
                                                          Trial Court Cause No.
                                                          11C01-1412-F5-947



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016         Page 1 of 9
                                              Case Summary
[1]   Joshua Field appeals his convictions for Level 5 felony intimidation and Class

      A misdemeanor theft. We affirm.


                                                     Issues
[2]   Field raises two issues, which we restate as:

                       I.       whether the trial court properly allowed the
                                jury to hear the recording of the 911 call twice
                                during deliberations; and

                       II.      whether the evidence is sufficient to support
                                his conviction for Level 5 felony intimidation.


                                                      Facts
[3]   Field and Mary Riddell dated, and Field lived with Riddell until October 2014,

      when they broke up and Field moved out. Dustyn Clark also lived at the

      residence.

[4]   On November 21, 2014, Field and Riddell argued over the telephone. Riddell

      was getting ready for bed when she heard a loud noise from a truck outside.

      Riddell woke Clark up, and when Clark opened the front door, Field pushed his

      way into the house. Clark’s girlfriend, Shelby Hull, woke up because Field was

      yelling. Hull went into the living room and saw that Field had a “machete.”

      Tr. p. 272. She told him to put it away, and he said, “If anybody’s here, I’m

      going to kill them.” Id. Hull told Field that no one was there, and he put the

      machete away. Field went into Riddell’s bedroom, smelled a pair of her


      Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 2 of 9
      underwear, ripped the underwear, took some of her money, and returned to the

      living room. Hull called 911 for assistance, and when Field realized that Hull

      had called 911, Field “started going crazy and yelling and waiving [sic] the

      machete everywhere.” Id. Riddell got on the telephone with the 911 operator

      because Hull did not know the address, and Hull got in front of Riddell to

      protect her from Field. Field then left the house and damaged the porch light

      and porch railings with the machete as he left.


[5]   Field walked to the nearby residence of Ricki Luedeman, Clark’s mother. Field

      talked to Luedeman and then left. Officers arrived searching for Field, but they

      were unable to locate him. After the officers left, Field knocked on Luedeman’s

      door again, but Luedeman made him leave. The next day, Luedeman found a

      machete on her property.


[6]   The State charged Field with Level 5 felony intimidation, Class A misdemeanor

      theft, and Class B misdemeanor criminal mischief. With respect to the

      intimidation charge, the State alleged that Field:


              did communicate a threat to [Riddell] with the intent that
              [Riddell] be placed in fear of retaliation for a prior lawful act to
              wit: swinging a large knife in the presence of Mary Riddell in
              retaliation for Shelby Hull and Mary Riddell calling the police to
              report [Field’s] threat to kill whoever was in the house, and in
              doing so Joshua H. Field drew or used a deadly weapon to wit: a
              large knife . . . .




      Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 3 of 9
App. p. 93. During Hull’s testimony during the jury trial, the State played the

recording of the 911 call to the jury. During deliberations, the jury requested to

listen to the recording of the 911 call twice. The trial court noted:

        [W]hen the jury first heard the recording they were
        approximately I’d say fifteen (15) to twenty (20) feet away from
        the speakers that the State was using to play the 911 call, and it
        was somewhat difficult to hear, especially in regard to the catch of
        voices in the background. By stipulation and agreement of the
        parties, the jury was brought back into Court . . . . They listened
        to the recording and returned to the jury room. Subsequently,
        there was additional request by the jury to hear the 911 call
        again. . . . . [A]pparently and we’ll never know, there was
        something that someone . . . there perhaps a discrepancy between
        jurors as to what they heard the first time and it was played
        again. No objection from the State, the defense did object to
        them listening to the 911 call for a second time. The Court
        allowed the jury, without commenting on what they were
        listening for or what they heard, to listen to exhibit two (2) a
        second time and they have returned to the jury room for
        deliberations.


Tr. pp. 382-83. The trial court also noted that the jury had indicated to the

bailiff “some confusion . . . about what they had heard” and that they needed

“further clarification.” Id. at 385. The jury found Field guilty as charged. Due

to double jeopardy concerns, the trial court entered judgment of conviction for

the intimidation and theft verdicts only. The trial court sentenced Field to an

aggregate sentence of six years with two years suspended to probation. Field

now appeals.




Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 4 of 9
                                                      Analysis
                                             I. Recording of 911 Call

[7]      Field first argues that the trial court abused its discretion by playing the

         recording of the 911 call for a second time during deliberations. Field does not

         challenge the earlier replaying of the recording during the jury’s deliberations.


[8]   “Under our Jury Rules, which went into effect in 2003, trial courts ‘have greater

         leeway to facilitate and assist jurors in the deliberative process, in order to avoid

         mistrials.’” Parks v. State, 921 N.E.2d 826, 830 (Ind. Ct. App. 2010) (quoting

         Ronco v. State, 862 N.E.2d 257, 259 (Ind. 2007)) (internal citations omitted),

         trans. denied. Additionally, Indiana Code Section 34-36-1-6 governs a jury’s

         deliberations and provides:

                 If, after the jury retires for deliberation:


                 (1) there is a disagreement among the jurors as to any part of the
                 testimony; or


                 (2) the jury desires to be informed as to any point of law arising
                 in the case;


                 the jury may request the officer to conduct them into court,
                 where the information required shall be given in the presence of,
                 or after notice to, the parties or the attorneys representing the
                 parties.


[9]      Regarding the second playing of the recording, the trial court here noted that

         the jury had indicated to the bailiff “some confusion . . . about what they had

         Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 5 of 9
       heard” and that they needed “further clarification.” Tr. p. 385. We cannot say

       that this record indicates that the jurors had a “disagreement.” Because the

       record here does not reflect a disagreement over the content of the recording,

       the mandatory language of Indiana Code Section 34-1-21-6 does not apply.

       Consequently, the decision to allow the jury to listen to the recording again was

       a matter of the trial court’s discretion. See Blanchard v. State, 802 N.E.2d 14, 31

       (Ind. Ct. App. 2004); Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). The

       trial court “must exercise its discretion extremely cautiously . . . .” Foster, 698

       N.E.2d at 1170.

[10]   Field argues that replaying the recording a second time during deliberations

       unduly emphasized one piece of evidence. He suggests that the jury based its

       guilty finding “largely on that piece of evidence.” Appellant’s Br. p. 13. We

       conclude that the trial court was well within its discretion to replay the

       recording for the jury. The trial court first replayed the recording because the

       jury had been seated fifteen to twenty feet from the speakers, and the jurors

       sought to sit closer to the speakers, so they could hear the recording better. The

       trial court then replayed the recording because the jury indicated some

       confusion and needed clarification. There is no indication that the jury’s verdict

       was unduly influenced by the recording. Rather, the jury simply needed

       clarification, which they were entitled to receive. The trial court did not abuse

       its discretion by replaying the recording a second time at the jury’s request

       during the deliberations.




       Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 6 of 9
                                       II. Sufficiency of the Evidence

[11]   Field argues that the evidence is insufficient to sustain his conviction for Level 5

       felony intimidation. When reviewing the sufficiency of the evidence needed to

       support a criminal conviction, we neither reweigh evidence nor judge witness

       credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence.” Id. We will affirm if there is substantial

       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt. Id.


[12]   The offense of intimidation is governed by Indiana Code Section 35-45-2-1(a),

       which provides in part: “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 . . . commits intimidation.” The offense is a

       Level 5 felony if “while committing it, the person draws or uses a deadly

       weapon.” Ind. Code § 35-45-2-1(b)(2). A threat means:


               an expression, by words or action, of an intention to:


               (1)      unlawfully injure the person threatened or another person,
                        or damage property;


               (2)      unlawfully subject a person to physical confinement or
                        restraint;


               (3)      commit a crime . . . .



       Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 7 of 9
       I.C. 35-45-2-1(d).


[13]   Here, the State alleged that Field:

               did communicate a threat to [Riddell] with the intent that
               [Riddell] be placed in fear of retaliation for a prior lawful act to
               wit: swinging a large knife in the presence of Mary Riddell in
               retaliation for Shelby Hull and Mary Riddell calling the police to
               report [Field’s] threat to kill whoever was in the house, and in
               doing so Joshua H. Field drew or used a deadly weapon to wit: a
               large knife . . . .


       App. p. 93. Field argues that the State failed to demonstrate that he

       communicated a threat, that he did so with the intent that Riddell be placed in

       fear of retaliation for a prior lawful act, or that he drew or used the knife while

       committing the offense.

[14]   The State presented evidence that Hull called 911 for assistance. Hull testified

       that, when Field realized that she had called 911, Field “started going crazy and

       yelling and waiving [sic] the machete everywhere.” Tr. p. 272. Riddell testified

       that, when Field realized that they had called 911, Field “just went crazy . . .

       flipping out.” Id. at 293. Riddell testified that Hull stepped in front of her

       because Field was “coming after” her with the knife. Id. Clark testified that

       Field’s behavior “got worse for sure” after they called 911. Id. at 311. Field was

       waving the knife around, went outside, and said, “Why would you let them

       call the cops on me, Dustyn?” Id.




       Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016   Page 8 of 9
[15]   Field points out discrepancies in the testimonies of Hull, Riddell, and Clark and

       differences between their deposition testimonies and their trial testimonies.

       However, Field’s arguments are requests to reweigh the evidence, which we

       cannot do. The State presented evidence that Field threatened Riddell by

       waving the large knife at her because Hull and Riddell called 911 to report

       Field’s actions. We conclude that the State presented sufficient evidence that

       Field communicated a threat to Riddell with the intent that Riddell be placed in

       fear of retaliation for a prior lawful act and that Field used a knife while

       committing the intimidation. The evidence is sufficient to sustain Field’s

       conviction.


                                                  Conclusion
[16]   The trial court did not abuse its discretion by replaying the recording of the 911

       call to the jury a second time during deliberations. Further, the evidence is

       sufficient to sustain Field’s conviction for intimidation. We affirm.


[17]   Affirmed.

       Robb, J., and Altice, J., concur.




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