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 ...