MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jun 13 2019, 9:18 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Suan Patrick Mahoney,                                    June 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3042
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C04-1708-F5-2082



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019                 Page 1 of 9
[1]   Suan Mahoney appeals his convictions for two counts of Level 5 Felony

      Intimidation While Drawing or Using a Deadly Weapon,1 arguing that the jury

      received an erroneous instruction and that the evidence was insufficient to

      support the convictions. Finding no error and the evidence sufficient, we affirm.


                                                       Facts
[2]   In August 2017, Anderson Street Department employees were working next to

      a local restaurant called Bobber’s Cafe on various projects, including paving a

      trailway, cleaning out weeds around a nearby lake, and spreading gravel on a

      parking lot. In order to spread the gravel, the city employees frequently asked

      Bobber’s Cafe patrons to move their cars off the pavement.


[3]   On August 14, 2017, Eric Hamilton, a skilled operator for the Anderson Street

      Department, went into Bobber’s Cafe and asked a restaurant employee, Rick

      Shaw, if he would ask the customers to move their vehicles off the pavement.

      Most customers complied with the request, moved their vehicles, and returned

      to the restaurant. Mahoney, who was at Bobber’s Cafe that day, also left the

      restaurant but began spewing racial epithets at the city employees. Before

      anyone could intervene, Mahoney got into his vehicle and left the area. The city

      employees told their foreman, Steve Turner, about the incident. He stated that




      1
          Ind. Code §§ 35-45-2-1(a)(2), -1(b)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 2 of 9
      if there were any other issues, they were to take down Mahoney’s license plate

      number and contact him.


[4]   The next day, on August 15, 2017, Mahoney returned to Bobber’s Cafe.

      Customers were again asked to move their vehicles off the parking lot, which

      most did. Inside, Hamilton noticed Mahoney, approached him, and expressed

      that he hoped Mahoney was in a “better mood” that day since Mahoney was

      going to have to move his vehicle like the day before. Tr. Vol. II p. 211. This

      comment set Mahoney off “[l]ike . . . a firecracker.” Id. at 212. Once again,

      Mahoney started shouting racial epithets as he and Hamilton left the restaurant.


[5]   While outside, another Anderson Street Department employee, Marquis

      McCloud, asked Mahoney why he was using such offensive racial slurs and

      demanded that he stop calling them derogatory names. Mahoney escalated the

      situation by screaming at the city employees and telling them that they needed

      to leave. Enraged, McCloud approached Mahoney. While other city employees

      attempted to intervene, Mahoney reached for the holster on his waist and

      started “jerking on his gun[]” and continuously “pulling it up and down as he

      was saying . . . what he would do with the gun.” Id. at 209, 213. He kept saying,

      “I’ll shoot you” and “I’m gonna kill, I’m gonna shoot ‘em,” and repeatedly

      called McCloud, Hamilton, and the other employees the “N-word.” Id. at 203;

      Vol. III p. 123. Fearing for their lives, the city employees tried to find cover.


[6]   Shaw, the restaurant employee, had just returned from moving a vehicle off the

      pavement when he saw Mahoney threatening the city employees. Shaw


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 3 of 9
      demanded that Mahoney leave, and as he left, Mahoney held onto his gun and

      told the city employees that “you all deserve bullets in your head.” Tr. Vol. II p.

      213. Mahoney continued standing next to his vehicle when Shaw witnessed “a

      gun laying on the seat with [Mahoney’s] hands on the gun.” Tr. Vol. III p. 25.

      After Shaw again told Mahoney to leave the area, Mahoney drove off. Turner,

      the foreman for the city employees, arrived soon thereafter and called the

      police. The police arrested Mahoney later that day and confiscated his firearm.


[7]   On August 16, 2017, the State charged Mahoney with two counts of Level 5

      felony intimidation while drawing or using a deadly weapon. At Mahoney’s

      October 22-24, 2018, jury trial, the trial court instructed the jury on what it

      means to “use” a firearm:


              “Use,” defined

                       In the context of the crime of Intimidation, to “use” a
                       firearm includes brandishing, displaying, bartering, striking
                       with, and most obviously, firing or attempting to fire, a
                       firearm.

              Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. App. 2011)


      Appellant’s App. Vol. II p. 123. Mahoney did not object to this instruction.


[8]   The jury found Mahoney guilty as charged. On November 20, 2018, the trial

      court sentenced Mahoney to four years in the Department of Correction, with

      two years suspended to probation. Mahoney now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 4 of 9
                               Discussion and Decision

                                       I. Jury Instruction
[9]    First, Mahoney argues that the jury received an erroneous instruction. Because

       Mahoney did not object to the final instruction, we must determine whether

       there was fundamental error.


[10]   To determine whether an instruction is fundamentally erroneous, we will

       review the record in its entirety to determine whether an honest and fair-minded

       jury would have rendered a guilty verdict absent use of the erroneous

       instruction. Coleman v. State, 630 N.E.2d 1376, 1378 (Ind. Ct. App. 1994).

       Furthermore, we do not evaluate the alleged erroneous instruction in isolation,

       but rather in context of all relevant information given to the jury to determine if

       the jury was misled as to a correct understanding of the law. Boesch v. State, 778

       N.E.2d 1276, 1279 (Ind. 2002).


[11]   Mahoney concedes that Daniels v. State, 957 N.E.2d 1025 (Ind. Ct. App. 2011),

       is valid precedent, but argues that the definition of “use” found in that case is

       erroneous. Mahoney essentially asks us to revisit Daniels and to rule that its

       definition of use of a firearm—including the acts of displaying and

       brandishing—is incorrect as a matter of law due to its breadth and vagueness.


[12]   In Trice v. State, this Court found that mere possession of a firearm does not

       amount to use, holding as follows:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 5 of 9
               [T]he definitions of the term “misuse” can best be applied here to
               mean that a conviction for the misuse of a firearm must involve
               some use of the firearm that is incorrect, improper, or unsuitable.
               Trice did not use the handgun; rather, he was merely in possession
               of it. Thus, it defies logic and relevant precedent to say that he
               misused the handgun.


       114 N.E.3d 496, 501 (Ind. Ct. App. 2018) (emphases in original), trans. denied.

       To arrive at its determination, the Trice Court relied heavily on the definition of

       “use” in Daniels.


[13]   Notwithstanding the fact that Daniels is precedent that has not been overturned,

       Mahoney still argues that the trial court provided an incorrect jury instruction

       because its core definition of “use” is wrong. Mahoney’s argument is

       unavailing. Trice and Daniels reasonably relied on Indiana Supreme Court

       precedent in determining that “use” of a firearm may include such actions as

       “brandishing, displaying, bartering, striking with, and . . . firing or attempting

       to fire, a firearm.” Daniels, 957 N.E.2d at 1030. In other words, the Daniels

       Court analyzed numerous sources of law—including references to a federal

       circuit court case and secondary material—and synthesized that information

       into a coherent, reasonable, and appropriate definition.


[14]   We are not persuaded that the definition of “use” as established in Daniels was

       legally incorrect. Daniels appropriately clarified what “use” of a firearm means

       for future cases. In evaluating precedent, deference to the legislature, and a

       strict construction of criminal statutes against the State with ambiguities

       resolved in favor of the defendant, see Chastain v. State, 58 N.E.3d 235, 238 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 6 of 9
       Ct. App. 2016), trans. denied, we find that the jury instruction is reasonable and

       describes actions that distinguish between possession and use, including the acts

       of displaying and brandishing. Consequently, this jury instruction was not

       incorrect or misleading. Therefore, there was no fundamental error.


                             II. Sufficiency of Evidence
[15]   Next, Mahoney argues that the evidence was insufficient to support his

       convictions for two counts of Level 5 felony intimidation while drawing or

       using a deadly weapon.


[16]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn

       therefrom could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[17]   To convict Mahoney of Level 5 felony intimidation while drawing or using a

       deadly weapon, the State was required to prove beyond a reasonable doubt that

       while drawing or using a deadly weapon, Mahoney communicated a threat to

       another person with the intent that the other person be placed in fear of

       retaliation for a prior lawful act. I.C. §§ 35-45-2-1(a)(2), -1(b)(2)(A).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 7 of 9
[18]   First, it is undisputed that Mahoney communicated a threat with the intent to

       place others in fear of retaliation for a prior lawful act. Mahoney deliberately

       targeted the city employees because of their race and spewed racial obscenities

       at them. As he left, Mahoney told the city employees that “you all deserve

       bullets in your head[,]” tr. vol. II p. 213, while jerking his gun up and down in

       his holster. Additionally, when confronted by both Hamilton and McDonald,

       Mahoney told them that “I’ll shoot you[]” while repeatedly calling them the

       “N-word.” Tr. Vol. III p. 123. The fact that the city employees attempted to

       hide from Mahoney is further evidence that he threatened them and placed

       them in fear for the lawful act of asking Mahoney to move his car off the

       pavement.


[19]   Then, as to whether Mahoney used a deadly weapon while communicating that

       threat, Mahoney openly carried his firearm around his waist and outside his

       clothing. Though Mahoney claims that he did not intentionally display his

       firearm because it was already exposed and that he was merely in possession of

       it, there is evidence that he reached for the holster on his waist and started

       “jerking on his gun[]” and continuously “pulling it up and down as he was

       saying . . . what he would do with the gun.” Tr. Vol. II p. 209, 213. Multiple

       witnesses confirmed that Mahoney did just that. Additionally, Shaw testified

       that he saw “a gun laying on the seat [of Mahoney’s vehicle] with [Mahoney’s]

       hands on the gun.” Tr. Vol. III p. 25. This evidence could have allowed a

       reasonable trier of fact to conclude that Mahoney was using—and not just

       possessing—his firearm by displaying it. Mahoney went even further, jerking


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 8 of 9
       his firearm up and down, communicating his desire to shoot people, and

       holding onto the gun when it was outside the holster and in his vehicle. Thus,

       the evidence is sufficient.


[20]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3042 | June 13, 2019   Page 9 of 9
