                                                                               FILED
                                                                           Mar 27 2020, 6:37 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Thomas M. Leatherman                                      Curtis T. Hill, Jr.
      Leatherman & Miller Law Office                            Attorney General of Indiana
      Goshen, Indiana                                           Angela N. Sanchez
                                                                Assistant Section Chief
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jerry Rhodes,                                             March 27, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2422
              v.                                                Appeal from the
                                                                Elkhart Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff                                        Stephen R. Bowers, Judge
                                                                Trial Court Cause No.
                                                                20D02-1811-F5-328



      Vaidik, Judge.



                                           Case Summary
[1]   Jerry Rhodes was convicted of Level 5 felony intimidation for threatening his

      estranged wife. The charge was enhanced from a Class A misdemeanor based

      on the allegation that he “drew a deadly weapon” while committing the

      Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020                           Page 1 of 6
      offense. He now appeals, arguing that the evidence does not support the

      enhancement. We affirm.



                             Facts and Procedural History
[2]   On November 3, 2018, Rhodes became angry that his wife, A.R., was sending

      Facebook messages to other people and sent her a text message saying, “I can’t

      believe you I will kill you both I promise F**kin New it.” Ex. 1. After arguing

      with A.R. about her Facebook activity, Rhodes changed the locks to their

      home. The next day, A.R. moved out and went to live at her mother’s house

      along with her and Rhodes’s three daughters: D.R., H.R., and J.R.

[3]   Over the next few days, Rhodes sent H.R. several text messages threatening

      A.R. Those messages said, among other things:


                   • And you see [H.R.] that is true love I have for you mom I
                     would give my own life for her we have been together ever
                     since high school were high school sweethearts I will not
                     let some of these f**king idiots on Facebook that are
                     jealous that they don’t have what me and your mom have
                     tear me apart motherf**kers think I’m joking their gonna
                     push me to the point and I’ll kill somebody that’s f**ked
                     up that’s what true love does to people makes him do
                     crazy things


                   • I can promise you one thing I will burn in hell before I see
                     your mom with another man . . . If you don’t understand
                     ask your mom I will end it for both of us Maybe a little
                     crazy in love with her At least we’ll go together



      Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020            Page 2 of 6
                   • One last thing tell your mom keep play me like a fool And
                     will be together sooner than she thinks Playing her single
                     life on Facebook I know in my heart we’re gonna be
                     together forever


                   • Yeah I have lost my f**cking mind . . . Good bye
                     Remember this is your mom’s fault I sorry [H.R.] that it
                     has to end like this


                   • I warned [A.R.] I’m gonna have a couple more drinks and
                     I’ll be there And I promise you guys won’t be laughing
                     Your dad is one crazy son of b*tch gonna make a good
                     story


      Exs. 2-5.

[4]   On November 6, Rhodes called A.R. At the time, A.R. was at her mother’s

      house along with H.R. and D.R. A.R. answered her phone and put the call on

      speakerphone. H.R. overheard Rhodes asking A.R., “why would you do this to

      me, you’re a cheater, where are you, I’m going to kill you.” Tr. p. 38. The

      phone call ended, and five to ten minutes later, D.R. heard a truck pull up and

      said, “is that dad?” Id. at 39. H.R. looked out the window and saw Rhodes’s

      truck parked in front of the house. Id. at 40. H.R. then saw Rhodes come

      around the truck and noticed that he was holding an AR-15, which was

      propped up on his left shoulder with the barrel pointing up. See id. at 41. H.R.

      “immediately started to freak out” and “ran through the house” saying “he has

      a gun; he’s here.” Id. at 42. A.R. heard H.R. and then heard Rhodes kick the

      door and say, “open the f**king door.” Id. at 17. A.R. made sure that the door


      Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020          Page 3 of 6
      was locked and then grabbed her mother, hid in the basement, and called 911.

      Rhodes left before police arrived but was apprehended later the same day.

[5]   The State charged Rhodes with Level 5 felony intimidation, enhanced from a

      Class A misdemeanor for drawing a deadly weapon while committing the

      offense. The case proceeded to a bench trial in August 2019. The court found

      Rhodes guilty, explaining, “So when you show up at the door, the context is

      that it’s going to be perceived as a very real threat to kill somebody or to harm

      somebody.” Id. at 121.


[6]   Rhodes now appeals.



                                 Discussion and Decision
[7]   Rhodes argues that there is insufficient evidence to support the enhancement.

      When reviewing sufficiency-of-the-evidence claims, we neither reweigh the

      evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,

      1066 (Ind. 2015). We will only consider the evidence supporting the judgment

      and any reasonable inferences that can be drawn from the evidence. Id. A

      conviction will be affirmed if there is substantial evidence of probative value to

      support each element of the offense such that a reasonable trier of fact could

      have found the defendant guilty beyond a reasonable doubt. Id.


[8]   Indiana Code section 35-45-2-1(a)(2) provides that “[a] person who

      communicates a threat with the intent . . . that another person be placed in fear

      of retaliation for a prior lawful act . . . commits intimidation,” a Class A

      Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020         Page 4 of 6
      misdemeanor. However, 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).

      Here, the State alleged that Rhodes communicated a threat to A.R. with the

      intent that she be placed in fear for communicating with another person on

      Facebook and that in committing said act, Rhodes drew a rifle. Appellant’s

      App. Vol. II p. 25. Rhodes “does not dispute the statements he made on the

      phone or by text [qualify as threats] under the statute to be guilty of the class A

      misdemeanor.” Appellant’s Reply Br. p. 4. Rather, he argues that “[t]he

      evidence at trial completely failed to establish” that he “ever drew the weapon”

      or “drew the weapon while committing the crime.” Appellant’s Br. p. 6.

[9]   Rhodes first argues that he did not “draw” the AR-15 because he did not (1)

      remove it from an enclosure or (2) point it at anybody. But “the salient

      character of ‘drawing’ a weapon is the common-sense understanding of

      bringing it forth and preparing it for use.” United States v. Suggs, 624 F.3d 370,

      374 (7th Cir. 2010). There is no question that Rhodes brought forth the AR-15

      when he held it in his hand and propped it on his shoulder as he moved toward

      the house. And it can be reasonably inferred from his possession of the gun and

      his anger at A.R. that he was preparing to use it.1




      1
        Rhodes cites Daniels v. State, where we indicated that a weapon is “drawn” when it is “taken out of or
      removed for use from an enclosure.” 957 N.E.2d 1025, 1029 (Ind. Ct. App. 2011). For that proposition, we
      cited a 1961 decision from our Supreme Court, Dunkle v. State, 241 Ind. 548, 173 N.E.2d 657 (1961). As
      persuasively explained in Suggs, though, Dunkle is distinguishable because our Supreme Court was
      interpreting “several now-superceded statutory provisions,” not “Indiana’s modern statutory scheme.” 624
      F.3d at 374.

      Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020                            Page 5 of 6
[10]   Rhodes also argues that even if he did draw the AR-15, he did not do so “while

       committing” intimidation. He asserts that his threatening phone call to A.R.

       was “physically separated in time and distance from the separate act of

       possession of the gun at A.R.’s location.” Appellant’s Br. pp. 11-12. An

       enhanced conviction cannot stand if there is a break in the chain of events

       between the intimidation and the drawing of the weapon. Hall v. State, 837

       N.E.2d 159, 161 (Ind. Ct. App. 2005), trans. denied.


[11]   The evidence shows that on November 6, Rhodes called A.R. and told her,

       “I’m going to kill you.” Tr. p. 38. Then five to ten minutes later, Rhodes

       showed up at the house where A.R. was staying, got out of his truck, took his

       AR-15 out of the truck, and came around the truck. See id. at 39-41. He then

       walked to the door, kicked it, and yelled, “open the f**king door.” Id. at 17.

       This was one continuous chain of events. See Hall, 837 N.E.2d at 161.

       Accordingly, we hold that the evidence is sufficient to prove that Rhodes drew a

       deadly weapon while committing intimidation against A.R.

[12]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2422 | March 27, 2020        Page 6 of 6
