May 22, 2015, Decided
As Corrected May 27, 2015.
Appeal from the St. Joseph Superior Court. The Honorable Jane Woodward. Miller, Special Judge. Cause No. 71D01-1407-F5-9.
ATTORNEY FOR APPELLANT: Mark S. Lenyo, South Bend, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller Attorney, General of Indiana; Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana; Brian Reitz, Deputy Attorney General, Indianapolis, Indiana.
Baker, Judge. May, J., concurs, and Bradford, J., dissents with an opinion.
[¶1] Leonard Blackmon appeals his conviction for Intimidation, a Level 5 felony. Finding that the evidence was insufficient to prove that Blackmon acted with the intent that Donald Courtway be placed in fear of retaliation for a prior lawful act, as required by the intimidation statute, we reverse.
[¶2] On July 23, 2014, Donald Courtway was at his daughter Megan's house watching
her children. At some point in the afternoon, he noticed the sound of running water and went to see where it was coming from. Courtway eventually discovered that water was running from a spigot on the outside of the house. He went outside and found a bucket underneath the spigot. The spigot had been locked, but the locking device had been broken off.
[¶3] Courtway knew that Megan's neighbor, Winifred Hale, did not have running water and had been borrowing water from neighbors. He picked up the bucket, dumped out the water, and walked on to Hale's driveway. Courtway noticed music coming from Hale's garage and yelled " hey" to try to get someone's attention. Hale and Blackmon exited the garage and walked up the driveway to meet Courtway. Hale and Blackmon eventually moved to a position about fifteen feet away from Courtway.
[¶4] Courtway threw the bucket towards Hale's house and asked, in an elevated voice, who had broken off the lock to the spigot. He then asked who had given them permission to use the water. Hale told Courtway that she would pay for the water. Courtway declined this offer and told her that he was going to call the police.
[¶5] Blackmon, who had been silent up to this point, pulled out an open pocket knife and held it above himself. Courtway then placed his hand on his pocket and said " I hope you enjoy your last day on earth" in an effort to make it appear as though he was armed. Tr. p. 33-34. Blackmon said " oh, you gonna shoot me?" Tr. p. 34. Blackmon then put the pocket knife down, offered a few parting expletives, and returned to the garage. Courtway went back to his daughter's house and called the police.
[¶6] The police arrested Blackmon later that evening. When questioned by an officer, Blackmon admitted to stealing water. He was charged with Level 5 felony intimidation and class A misdemeanor possession of paraphernalia. On October 21, 2014, a jury found Blackmon guilty as charged. The trial court sentenced Blackmon to four years for intimidation and one year for possession of paraphernalia, to be served concurrently. Blackmon now appeals.
Discussion and Decision
I. Standard of Review
[¶7] On appeal, Blackmon contends that the evidence is insufficient to support his conviction. When reviewing a claim for insufficient evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Casey v. State, 676 N.E.2d 1069, 1072 (Ind.Ct.App. 1997). We consider only the evidence most favorable to the verdict and the reasonable inferences drawn therefrom. Id. If substantial evidence of probative value supports the trier of fact's conclusion, we will affirm. Id.
[¶8] Indiana's intimidation statute provides:
(a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person's will; [or]
(2) that the other person be placed in fear of retaliation for a prior lawful act; . . .
commits intimidation, a Class A misdemeanor.
Ind. Code § 35-45-2-1. The offense is raised to a Level 5 felony if " while committing it, the person draws or uses a deadly weapon." Id. Here, the State chose to charge Blackmon under subdivision (a)(2) of the statute, seeking to prove at trial that Blackmon had threatened Courtway with the intent that Courtway be placed in ...