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McBride v. State

Court of Appeals of Indiana

June 28, 2019

Josh McBride, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Dubois Circuit Court The Honorable Mark McConnell, Special Judge Trial Court Cause No. 19C01-1603-F5-192

          ATTORNEY FOR APPELLANT A. David Hutson Hutson Legal Jeffersonville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis Indiana

          ROBB, JUDGE.

         Case Summary and Issues

         [¶1] Following a bench trial, Josh McBride was convicted of intimidation, a Level 5 felony, and sentenced to four years in the Indiana Department of Correction, with one year to be served on adult day reporting and three years suspended to supervised probation. McBride now appeals his conviction, raising the following dispositive issue for our review: whether his conviction of intimidation is supported by sufficient evidence. The State cross-appeals, raising the issue of whether McBride should be unequivocally prohibited from possessing a firearm during his term of probation. Concluding there was sufficient evidence supporting McBride's conviction of intimidation and that the State's point is well-taken, we affirm the conviction and remand for further proceedings.

         Facts and Procedural History

         [¶2] McBride lived with his longtime girlfriend, Karena Vonderheide, and their three children on property Vonderheide owned in Dubois County. Their property was situated immediately north of property owned by Anderson Valley Christian Church ("Church"). A large stone cross was situated on the south side of Vonderheide's property facing the Church. Church members thought the cross was "beautiful," Transcript, Volume 3 at 126, and "appreciated it[, ]" id. at 199. McBride, Karena, and their children attended the Church. One Sunday in December 2015, Church member Danny Madden left the service to meet and escort a visitor into the Church. While he was outside, one of McBride's dogs bit Madden. When discussing the matter with McBride afterwards, Madden asked that the dogs be restrained or kept inside during church services from then on so no other churchgoers were hurt. Although McBride did restrain the dogs, he did not seem to take kindly to the request, because "it seemed like from that Sunday on [McBride and his family] were just very upset all the time." Id. at 121. Church members were also "very uneasy" after the dog bite incident because they "didn't know what to expect when [they] came to church." Id. at 127-28. "[I]t was something every Sunday. [We] didn't know what was going to happen. Something new came up every Sunday." Id. at 203.

         [¶3] Sometime early in 2016, at least one of McBride's dogs died, and McBride believed someone associated with the Church poisoned the dog. Following the dog's death, McBride's son, Damian, entered the Church during Sunday services in early February, walked to the altar and took the microphone without being invited to do so, called Madden a liar, and "just [told congregants] what he thought about us[.]" Id. at 198. He alleged there were drug dealers on the Church property and that congregants had "dishonored his mother" because she had been receiving threatening letters. Id. Around this same time, the words "Lying hypocrites" were spray painted in red on the horizontal bar of the cross that faced the Church. Id. at 127.

         [¶4] Shortly after the incident of Damian "coming in the church house and getting the microphone and talking[, ]" id. at 220, Madden was on the Church property checking on the progress of a drain line the Church was installing when McBride and his son approached and McBride told his son to "go get a 45," Tr., Vol. 4 at 11, and threatened to bring guns to the Church next Sunday. Church members then discussed the matter with the Dubois County Sheriff's Office. On February 21, 2016, Church elders signed a letter asking the McBrides not to return to the Church:

We the officers of the [Church], come forward on behalf of the [Church] to let you know that you are not welcome to attend any services, or to be on the property owned by the [Church].
Please allow this letter to serve as a no trespass warning. Failure to do so will be considered trespassing and law enforcement will be contacted.

         State's Exhibit 2, Exhibit Index at 23. The sheriff's office served the letter on the McBrides on February 22.

         [¶5] On Sunday, February 28, when Church members began arriving for services, they found "a decapitated dog [was] hanging from the cross." Tr., Vol. 3 at 16. Shortly before services began at 9:00 a.m., congregants began hearing gunfire. Brenda Madden, Madden's wife, stated that when they arrived at church, "immediately it was pow, pow, pow, pow, pow. I mean, it was really loud. . . . [T]here was just a lot of noise like gunfire and explosions. It was just something that I wasn't expecting. It was kind of scary." Id. at 108. Brenda told her husband, "Honey, I'll take the next bullet if there's a bullet coming for these people if we can get peace back in this church[.]" Id. The gunfire had already started when Lola Gilmore and her husband arrived at the Church; Gilmore told her husband that "if he didn't get killed, then [she'd] get out [of the car]." Id. at 195. "I was scared, but I thought God would protect me, and I'm 83 years old, so if I get shot going to church, what better way?" Id. at 202. She said the gunfire was rapid and "didn't stop." Id. at 191. Victor Rickenbaugh saw McBride walking along the property line, firing "just one after another" at the ground in front of him as he moved his arms "back and forth, left and right." Id. at 148-49.

         [¶6] Inside the Church, Tamara Weyer was asked to call 911, which she did from a Sunday School room overlooking the McBride property. She described seeing McBride shooting his gun "towards the ground between the church and their house, towards the woods." Id. at 19-20. While she was on the phone, she experienced what she described to 911 as a "[v]ery loud explosion. You kind of shook, the church shook, smoke." Id. at 21. Several members described the sound as being "like bombs going off[.]" Id. at 163. In the meantime, Tamara's husband, Jason, also saw McBride shooting a firearm outside the Church and took their two sons and other kids to the basement. Inside the Church, "[i]t was kind of panic, pretty intense." Id. at 96. Jason felt the gunfire was communicating "[a]nger" about the dog bite incident. Id. at 101. Scott Weyer, who usually leads the Sunday service, stated the February 28 service was different because there "was a lot of anxiety and fear." Id. at 181. He believed the discharge of firearms next door was "trying to scare us and disturb us and disrupt us. That's the way I felt, and that's what I can see on my congregation's face." Id. at 182. Tamara felt the gunfire was communicating the threat of death to her and the congregation because she "didn't know at any moment if they was [sic] going to turn and shoot towards the church." Id. at 61. There is no dispute that McBride ultimately did not shoot at the Church, "[i]t's just that they were right there beside the church[, ]" id. at 236, "about on the line" separating the two properties, id. at 224.

         [¶7] Sergeant Chris Faulkenburg of Dubois County Sheriff's Department was one of the officers who responded to the 911 call. When he arrived, he advised McBride of the disorderly conduct statute and asked him several times to cease making unreasonable noise. McBride yelled at officers to stay off his property, emphasized his Second Amendment right to have and shoot firearms on his own property, and accused Church members of poisoning his dog. McBride and Damian continued shooting their guns randomly into the dirt at no particular target. Sergeant Faulkenburg also observed McBride riding his ATV up and down the property line and instructing Damian to rev up the engine on a truck. Sergeant Faulkenburg described the ATV as "obnoxiously loud" and stated McBride rode up and down the property line multiple times "looking over at the church, looking [in officers'] direction. It seemed to be that there was no purpose to it, from my perspective, other than to just be loud." Tr., Vol. 4 at 55. Gilmore also noted that "when they got done shooting, they got a four-wheeler out and rip and tore and made noise. Then they got - had an old truck or something [and] revved it up[.]" Tr., Vol. 3 at 203. She believed they were being loud, "hopefully, I guess, so we couldn't hear in church. But we could." Id.

         [¶8] Since the incident, regular attendance at the Church has declined by half which Church members attribute to this incident. Tamara Weyer "loved it when [her sons] had friends [stay over] on Saturday night because it meant they would go to church with us[, ]" but for "quite a while" after this incident, she would not let her kids have friends over on Saturdays because she did not want "to bring another kid into church and have their life in danger." Id. at 38. Brenda Madden stated she is now more aware of her surroundings and does not spend a lot of time at the Church when there is not a service. She is "a little cautious" if a visitor walks in, "[a]nd you shouldn't feel that way. You should want to welcome someone to church and be glad they're there." Id. at 113-14.

         [¶9] The State charged McBride with Count I: intimidation as a Level 5 felony for communicating a threat by brandishing and/or discharging a firearm to several named members of the Church with the intent that they be placed in fear of retaliation for the prior lawful act of sending a no trespass letter to him and in committing said act, he drew or used a deadly weapon; Count II: intimidation as a Level 5 felony for communicating a threat by brandishing and/or discharging a firearm to certain named members of the Church with the intent that they alter their Sunday morning activity at the Church against their will and in doing so, drew or used a deadly weapon; Count III: criminal recklessness as a Level 6 felony for recklessly, knowingly, or intentionally discharging a deadly weapon in a way that bullets and/or shrapnel could have been sent toward the Church, creating a substantial risk of bodily injury to certain named members of the Church; Count V: disorderly conduct as a Class B misdemeanor for recklessly, knowingly, or intentionally disrupting a lawful assembly of persons at the Church; Count VI: disorderly conduct as a Class B misdemeanor for recklessly, knowingly, or intentionally making an unreasonable noise by discharging his firearm next door to the Church during the Sunday service and continuing to do so after being asked to stop; and Count VII: disorderly conduct as a Class B misdemeanor for ...

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