MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Dec 05 2018, 8:00 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                      Curtis T. Hill, Jr.
Montgomery Law Office                                   Attorney General of Indiana
Lafayette, Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnathon Dalton,                                       December 5, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1268
        v.                                              Appeal from the Clinton Superior
                                                        Court
State of Indiana,                                       The Honorable Justin H. Hunter,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        12D01-1604-F6-369



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018                  Page 1 of 8
[1]   Johnathon Dalton appeals his conviction of Level 6 felony intimidation. 1 He

      asserts the State did not present sufficient evidence he held a gun to the victim’s

      head and intimidated the victim into giving him a watch. We affirm.



                               Facts and Procedural History                                 2




[2]   In late 2015 or early 2016, Dalton borrowed $500 from Bradley Wratten

      (“Bradley”), and he provided a watch and some neon signs as collateral. When

      Dalton heard Bradley had sold the signs, Dalton was upset and wanted to

      retrieve his watch.


[3]   On April 18, 2016, Dalton, Kristan Weiss (“Weiss”), Eugene Lucas

      (“Eugene”), and Christopher Lucas (“Christopher”) were riding together in

      Weiss’ truck. Weiss and Eugene were remodeling a vehicle and stopped at

      Bradley’s store to check on some parts. Bradley went out to Weiss’ truck to talk

      to Dalton. The men argued heatedly, with both using obscenities. When

      Bradley saw Dalton reach behind himself, Bradley turned to walk away. He

      then felt something cold pressed to the back of his neck. Bradley testified that




      1
          Ind. Code § 35-45-2-1 (2014).
      2
        We remind counsel for Appellant that a Statement of Facts in an appellate brief is to be presented “in
      accordance with the standard of review appropriate to the judgment or order being appealed.” Ind. Appellate
      Rule 46(A)(6)(b). Counsel asks us to review the sufficiency of the evidence supporting the judgment, which
      requires we consider only those facts and inferences most favorable to the judgment, without reviewing the
      evidence or reassessing the credibility of the witnesses. See Chatham v. State, 845 N.E.2d 203, 205 (Ind. Ct.
      App. 2006) (setting forth the standard of review for sufficiency of evidence appeals). Dalton’s Statement of
      Facts, by contrast, includes facts only favorable to Dalton and facts with no apparent relevance to the issues
      presented on appeal. See, e.g., Vaillancourt v. State, 695 N.E.2d 606, 608 n.2 (Ind. Ct. App. 1998) (addressing
      merits despite counsel’s failure to give appropriate statement of facts), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018                   Page 2 of 8
      although he did not see what was pressed to the back of his neck, he was

      “scared for [his] life[.]” (Tr. at 126.) He could not remember exactly what

      Dalton said but testified Dalton “was making things crystal clear this or else . . .

      either go [get the watch] or else.” (Id.)


[4]   At that same time, Bradley’s son, Jonathon Wratten (“Jonathon”), was walking

      around the business property. When he was “fifteen probably twenty five feet

      from the truck directly in front of it to the side of the passenger door[,]” (id. at

      112), he saw what “looked like a black Glock stuck to the side of [his] dad’s

      head.” (Id. at 113.) Dalton was behind Bradley at the time. Jonathon heard

      Dalton mention the watch. In an effort to “de-escalate the situation[,]” (id. at

      114), Jonathon offered to retrieve the watch. Bradley followed Jonathon inside.

      Bradley called the police while Jonathon drove home to retrieve the watch.


[5]   Eugene, who was sitting in the passenger seat of Weiss’ truck, had seen the men

      arguing but did not pay attention to it. He saw something dark in Dalton’s

      hand but was unable to identify it. Christopher was in the back seat of the truck

      but had been sleeping. He woke when the men were arguing but “closed [his]

      eyes again because it was none of [his] business.” (Id. at 105.) Dalton returned

      to the back seat of the truck.


[6]   While everyone waited for Weiss to return to the truck, the police arrived at the

      scene. Dalton told them they were going to find a gun under the seat of the

      truck. They found what “[a]t first glance [] appeared to be a real semi

      automatic handgun[,]” (id. at 138), but was later revealed to be a BB gun


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 3 of 8
      “underneath the seat[,] the back seat driver side.” (Id.) The police arrested

      Dalton.


[7]   The State charged Dalton with Level 6 felony intimidation. On December 12,

      2017, the trial court held a jury trial. The jury found Dalton guilty. The trial

      court entered the conviction and sentenced Dalton accordingly.



                                Discussion and Decision
[8]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.


[9]   To prove Dalton intimidated Bradley, the State had to prove Dalton

      “communicate[d] a threat to commit a forcible felony, to-wit: held a BB Gun

      that appeared to be a pistol to Bradley Wratten’s head, with the intent that said


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 4 of 8
       Bradley Wratten engage in conduct against the will of said other person, to-wit:

       get him a watch[.] (App. Vol. II at 13.) See also Ind. Code §§ 35-45-2-1(a)(1) &

       (b)(1)(A) (2014) (elements of intimidation).


[10]   Dalton contends the State did not present sufficient evidence he used a firearm

       to intimidate Bradley; therefore, no threat was communicated to satisfy that

       element of intimidation. “Threat” is defined as


               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;


                       (4) unlawfully withhold official action, or cause such
                       withholding;


                       (5) unlawfully withhold testimony or information with
                       respect to another person’s legal claim or defense, except
                       for a reasonable claim for witness fees or expenses;


                       (6) expose the person threatened to hatred, contempt,
                       disgrace, or ridicule;


                       (7) falsely harm the credit or business reputation of the
                       person threatened; or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 5 of 8
                       (8) cause the evacuation of a dwelling, a building, another
                       structure, or a vehicle.


       Ind. Code § 35-45-2-1(d).


[11]   Dalton argues only Jonathon saw a gun and “no witness ever testified that a

       threat was ‘communicated’ to Bradley Wratten from Dalton.” (Br. of

       Appellant at 15.) Dalton likens his case to Gaddis v. State, 680 N.E.2d 860 (Ind.

       Ct. App. 1997). In that case, Gaddis displayed his lawfully possessed firearm

       during a road-rage situation by taking it out of the glove box, flashing it at the

       other motorist, and then placing it on the console. Id. at 861. A panel of this

       court held that simply displaying a weapon is not sufficient to communicate a

       threat to another person. Id. at 862.


[12]   Here, the State presented evidence Eugene saw an object of “dark color” in

       Dalton’s hand when Dalton was outside arguing with Bradley. (Tr. at 92.)

       Bradley testified he felt something cold pressed against the back side of his

       neck. When asked about the specifics of where the gun was placed on his neck,

       Bradley stated, “To tell you the truth I don’t know if it was up, down, lower.

       All I know is I about shit my pants.” (Id. at 125.) Bradley testified he did not

       remember exactly what Dalton said but the “nature” of what Dalton said was

       that he “was making things crystal clear this or else . . . either go [get the watch]

       or else.” (Id.) As Jonathon was walking around the business, he saw Dalton

       holding “the gun[,] it looked like a black Glock[,] stuck to the side of [his] dad’s

       head.” (Id. at 114.)


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 6 of 8
[13]   Dalton did not simply display a firearm as in Gaddis. Dalton and Bradley were

       in a heated argument. Both were yelling obscenities at the other. Bradley

       turned to leave when he saw Dalton reach behind himself. Dalton then held

       what appeared to be a real gun to the back of Bradley’s neck and told Bradley to

       get the watch “or else.” (Id. at 125.)


[14]   In Johnson v. State, 743 N.E.2d 755 (Ind. 2001), our Indiana Supreme Court

       addressed the implications of “introducing a handgun into an emotionally

       charged environment[.]” Id. at 756. Johnson and the victim had an

       argumentative verbal exchange followed by Johnson pulling up his shirt to

       display a firearm and saying, “Don’t even think it.” Id. Unequivocally, the

       Court stated that when the “record shows the existence of words or conduct

       that are reasonably likely to incite confrontation, coupled with the display of a

       firearm, we are hard pressed to say that such facts are insufficient to prove that

       a threat has been communicated within the meaning of the intimidation

       statute.” Id. at 756-57.


[15]   The heated argument between Dalton and Bradley, together with the

       presentation of the firearm and the statements to retrieve the watch “or else[,]”

       (Tr. at 125), communicates a threat based on our Indiana Supreme Court’s

       holding in Johnson. Dalton’s actions accompanied by his words conveyed a

       threat of a forcible felony to Bradley if Bradley did not retrieve Dalton’s watch.

       Dalton’s arguments to the contrary are unavailing. Dalton’s assertions that,

       because only Jonathon testified to seeing the gun, the State did not prove he

       had produced a gun are an invitation for us to reweigh the evidence, which we

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 7 of 8
       cannot do. See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (appellate

       court does not reweigh evidence or judge the credibility of witnesses).



                                               Conclusion
[16]   The State presented sufficient evidence Dalton communicated a threat that he

       would shoot Bradley if Bradley did not retrieve Dalton’s watch. Accordingly,

       we affirm.


[17]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1268 | December 5, 2018   Page 8 of 8
