Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                             FILED
                                                          Jul 13 2012, 9:08 am
collateral estoppel, or the law of the
case.                                                             CLERK
                                                                of the supreme court,
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ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

TIMOTHY J. LEMON                                 GREGORY F. ZOELLER
Knox, Indiana                                    Attorney General of Indiana

                                                 GARY R. ROM
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DONALD HUMPHREY,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 75A04-1111-CR-607
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE STARKE CIRCUIT COURT
                            The Honorable Kim Hall, Judge
                            Cause No. 75C01-1010-FC-39


                                       July 13, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                   STATEMENT OF THE CASE

          Donald Humphrey appeals his convictions for intimidation, as a class C felony, 1

and intimidation, as a class D felony.2

          We affirm.

                                            ISSUE


          Whether the State presented sufficient evidence to support the convictions.


                                            FACTS


          In 2009, Sandra Brooke left her husband David Palm after thirty-three years of

marriage. For two weeks, Palm tried to locate Sandra until he finally discovered that she

was staying with her brother, Jeff Brooke. Palm tried to contact Sandra by calling Jeff’s

house phone.

          In October of 2009, Palm went to Jeff’s house to talk to Sandra about their

marriage. Sandra came outside to Palm’s truck, which he had parked in the driveway,

and talked to him for about fifteen minutes. While Sandra and Palm were conversing,

Jeff came out and told Palm that he needed to leave his property and that he should never

come back. After Jeff told Palm that he was not welcome on Jeff’s property, Palm

replied, “Okay.” (Tr. 120). While at Jeff’s house, Palm encountered Humphrey riding

on a lawn mower. Before this instance, Palm does not recall ever having any contact

with Humphrey.

1
    Ind. Code § 35-45-2-1(b)(2).
2
    I.C. § 35-45-2-1(b)(1).

                                               2
       After Palm’s visit to Jeff’s house to talk to Sandra, he spoke with her a few times

on the phone. He also went to her job on one occasion and was told not to return. Palm

did not return to Jeff’s house or Sandra’s job.

       On or about December 2, 2009, Palm received a call on his cell phone. The caller

identified himself as Humphrey, who said he was going to kill Palm. After hearing this

threat, Palm hung up the phone and approximately five minutes later Humphrey called

back again, but this time Humphrey said that “he was going to bring half of Parkview

with him to [Palm’s] house and beat [Palm] to death with a ball bat . . . .” (Tr. 123).

Palm stated that he received three threatening phone calls from Humphrey.             Also,

Humphrey “went by [Palm’s] house and he yelled out the window that he was going to

kill [Palm].” (Tr. 124). Palm called the Starke County Sherriff’s Department and made a

police report regarding the phone calls.

       On or about December 14, 2009, Palm was at his home when he saw what he

recognized as Jeff’s Jeep drive past. Palm waited, and the Jeep went past Palm’s house

for a second time. At that time, Palm believed that Jeff and most likely Humphrey were

in the Jeep. Palm then left his house with his friend, Tim, who drove to another friend’s

house. As they were driving, Palm saw that Jeff had parked “sideways in the middle of

the road.” (Tr. 133). Next, Humphrey jumped out of the Jeep wearing a ski mask, waved

a knife, and said, “You don’t know who I am, but I am going to kill you.” Id. Tim

backed the car up, went around the Jeep, and continued to their friend’s house.

       While at his friend’s house, Palm called Sandra and informed her that Jeff had

parked his Jeep in the middle of the road and that Humphrey, with a knife in his hand,

                                              3
had gotten out of the Jeep and threatened to kill Palm. Palm also called the sheriff’s

department before he and Tim drove back to meet with the police. During the time that

Palm was at his house waiting for the police, his friend Sam came over. Additionally,

Jeff and Humphrey came back in the Jeep and pulled up near Palm’s house. Humphrey,

armed with a knife, got out of the Jeep and proceeded to walk across the yard of Palm’s

neighbor toward Palm’s house. As Humphrey got closer to Palm, Humphrey yelled out

once again that he was going to kill him.

       After hearing this threat, Palm told his two friends, Tim and Sam, to stay put and

then went to retrieve his old ax handle. When Palm came back he could not find

Humphrey, but Tim or Sam said that he was hiding behind a woodpile. Humphrey, who

was still hiding behind the woodpile, threatened three or four more times to kill Palm.

Palm then told Humphrey to come out from behind the woodpile. Humphrey came out,

saw that Palm was wielding the ax handle, and ran across the road. Meanwhile, Jeff

drove his jeep straight toward Palm. Palm thought Jeff was going to run him over so he

jumped out of the way and swung the ax handle two or three times, hitting Jeff’s Jeep

with it. Jeff then drove away.

      Officer Kelly Fisher arrived at Palm’s residence after Jeff had already left.

Believing she may have passed Jeff’s Jeep on her way to Palm’s residence, she got back

in her car to look for Jeff but could not locate him. Shortly thereafter, Officer Fisher

returned to Palm’s house. Sandra showed up at Palm’s house and stayed for a few

minutes before Officer Fisher told her to leave or she would arrest her for causing a

commotion.

                                            4
       After staying at Palm’s residence for about ten minutes, Officer Fisher went to

look for Humphrey. Officer Fisher sat in her squad car and used thermal imaging to

locate a man walking nearby. She got out of her car, went up to the man, and asked him

his name. The man identified himself as Donald Humphrey and stated that he knew there

were warrants out for his arrest. Officer Fisher handcuffed Humphrey and proceeded to

pat him down. During the pat down, Officer Fisher discovered a hunting knife in

Humphrey’s jacket.

       On October 21, 2010, the State charged Humphrey with count I, class C felony

intimidation; count II, class C felony intimidation; count III, class D felony intimidation;

and count IV, class B misdemeanor harassment.

       The jury found Humphrey guilty as charged on August 26, 2011. Following a

sentencing hearing on October 26, 2011, the trial court sentenced Humphrey to six years

for counts I and II, two years for count III, and six months for count IV. The trial court

ordered the sentences to be served concurrently.

                                        DECISION

       Humphrey asserts that the evidence is insufficient to support his three convictions

for intimidation. Specifically, Humphrey contends that the State failed to show that his

threats to Palm were intended to place him in fear of retaliation for prior lawful acts.

               Our standard of review with regard to sufficiency claims is well
       settled. In reviewing a sufficiency of the evidence claim, this Court does
       not reweigh the evidence or judge the credibility of the witnesses. We will
       consider only the evidence most favorable to the judgment and the
       reasonable inferences drawn therefrom and will affirm if the evidence and
       those inferences constitute substantial evidence of probative value to
       support the judgment. A conviction may be based upon circumstantial

                                              5
       evidence alone. Reversal is appropriate only when reasonable persons
       would not be able to form inferences as to each material element of the
       offense.

Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App. 2009) (internal citations omitted).

       To support a conviction for class D felony intimidation in this case, the State was

required to show that Humphrey: (1) communicated a threat; (2) which was to commit a

forcible felony; (3) to another person; (4) with the intent that the other person be placed

in fear of retaliation for a prior lawful act. I.C. § 35-45-2-1(b)(1). For a class C felony

intimidation conviction, the State had to show that Humphrey: (1) communicated a

threat; (2) to another person; (3) with the intent that the other person be placed in fear of

retaliation for a prior lawful act; (4) while drawing a deadly weapon. I.C. § 35-45-2-

1(b)(2). To convict Humphrey as charged for the class D felony, the State had the burden

to show that the lawful act was Palm contacting Sandra about their separation.

Additionally, for the class C felonies, the State had to show that the lawful act was Palm

going to Jeff’s home to talk to Sandra about their separation.

       On at least three occasions, Humphrey threatened to kill Palm and placed him in

fear of retaliation for calling Sandra a few times and going to talk to her once at Jeff’s

residence and once at Sandra’s job. On December 2, 2009, Humphrey called Palm on his

cell phone and threatened to kill him. Furthermore, on December 14, 2009, Humphrey

went to and near Palm’s residence and threatened multiple times to kill Palm, while

wielding a knife.

         Humphrey contends that he responded to Palm’s actions because they were

prior unlawful acts, not lawful acts. Humphrey alleges that Palm committed the unlawful

                                             6
acts of harassing and stalking Sandra and trespassing on Jeff’s property. The jury did not

find any evidence in the record that shows that Palm either harassed or stalked Sandra.

Palm testified that he only went to Jeff’s house and Sandra’s job once and called Sandra a

few times in hopes of talking to her about their marriage.3 Palm further testified that

“[he] had 33 years of [his] life wrapped up with [Sandra]. [He] wanted some kind of

explanation.” (Tr. 121). Sandra may have been annoyed or bothered by Palm contacting

her, but those contacts did not constitute unlawful acts. Additionally, the jury found that

Palm did not trespass on Jeff’s property. Palm testified that he did not return to Jeff’s

residence after Jeff told him not to come back. Humphrey wants us to believe the

testimonies of Sandra and Jeff instead of Palm’s testimony, but we will not reweigh the

evidence or judge the credibility of the witnesses.

        Given the above facts, the jury could reasonably infer that Humphrey intended to

place Palm in fear of retaliation for prior lawful acts by threatening him over the phone

and in person with a knife. Thus, we find the evidence sufficient to support Humphrey’s

convictions for intimidation.

        Affirmed.

NAJAM, J., and RILEY, J., concur.




3
 At trial, Sandra and Jeff testified that Palm went to Jeff’s house on December 14, 2009, but the jury
chose not to believe these testimonies.

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