Derrick Hart v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 15 2015, 5:46 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David Becsey Gregory F. Zoeller
Zeigler Cohen & Koch Attorney General of Indiana
Indianapolis, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derrick Hart, December 15, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1502-CR-102
v. Appeal from the Marion County
Superior Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1408-F3-40932
Barnes, Judge.
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Case Summary
[1] Derrick Hart appeals his conviction for Level 6 felony intimidation. We affirm.
Issue
[2] The issue before us is whether there is sufficient evidence to convict Hart of
intimidation.
Facts
[3] The evidence most favorable to the conviction is that, Hart and Tabitha Parr
entered into an agreement whereby Hart paid money to Parr and Parr allowed
Hart to drive her vehicle. On August 21, 2014, Parr’s girlfriend reported Parr’s
vehicle stolen to the police department, and it was impounded because Hart had
refused to return the vehicle after Parr made multiple requests. Parr was
informed that her vehicle had been towed later that same day when Hart
contacted her while she was at work. Parr contacted the impound lot to try to
get the car back. As Parr attempted to remedy the situation, Hart became very
upset on the phone and threatened Parr. Hart informed Parr that he was waiting
at her neighbor’s house for her to return home from work, and “that he doesn’t
play with his money.” Tr. p. 208. Hart also told Parr that “she would be sorry.”
Id. at 208-09. After work, Parr went to the home of her friends, John Carr and
Larry Tindle, because she was scared to return to her home. Parr requested Hart
meet her at Carr and Tindle’s home to discuss the situation.
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[4] When they met, Hart got into an argument with Parr and became very angry,
ultimately threatening Parr. Hart threatened Parr because he thought Parr had
reported the car as stolen. Hart told Parr “he was going to kick her a**” and “he
was going to kill her.” Id. at 74. Further, Hart stated that Parr owed him money
because she had “called the cops and said her car was stolen and he was the one
driving it” when Parr knew she had loaned the car to Hart. Id. Hart also
threatened to “beat the crap out of” Parr. Id. at 76. Carr told Hart to leave his
home, and as Hart left, he told Carr he was not going to be able to save Parr.
Hart left following this statement. After Hart left, Parr asked Carr to give her a
ride home. He agreed and, when he opened the door to leave, Hart and Henry
Gibson were standing on the porch with guns in their hands. Both started
shooting. Carr was shot in the right elbow and the buttock.
[5] The State charged Hart with aggravated battery, a Level 3 felony, battery, a Level
5 felony, criminal recklessness, a Level 5 felony, intimidation, a Level 6 felony,
and carrying a handgun without a license, a Level 5 felony. The State dismissed
the felony enhancement of carrying a handgun without a license charge, making
the charge a class A misdemeanor. The jury found Hart guilty on all counts.
Hart now appeals only the sufficiency of the evidence supporting his conviction
for Level 6 felony intimidation.
Analysis
[6] Hart argues there is insufficient evidence to support his conviction for Level 6
felony intimidation. When reviewing a challenge to the sufficiency of the
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evidence underlying a criminal conviction, we neither reweigh the evidence nor
assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
The evidence--even if conflicting--and all reasonable inferences drawn from it are
viewed in a light most favorable to the conviction. Rohr v. State, 866 N.E.2d 242,
248 (Ind. 2007). We affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Davis v. State, 813
N.E.2d 1176, 1178 (Ind. 2004).
[7] To be convicted of Level 6 felony intimidation, the State must prove the
defendant “communicate[d] a threat [to commit a forcible injury] to another
person, with the intent. . . that the other person be placed in fear of retaliation for
a prior lawful act. . .” Ind. Code § 35-45-2-1(a)(2), (b)(1). Hart was charged with
communicating “a threat to commit a forcible felony, to-wit: threatened to beat
and choke Tab[i]tha Parr, with the intent that Tab[i]tha Parr be placed in fear of
retaliation for a prior lawful act, to-wit: reporting her vehicle stolen to the police.”
Appellant’s App. p. 20. Hart contends he was mad and threatened Parr because
she owed him money from the car rental agreement after the car he had paid to
rent from Parr was impounded. Hart also argues that because Parr was not the
one who reported her car stolen the State has failed to prove an essential element
of the crime of intimidation.
[8] When challenging the sufficiency of the evidence of the intimidation element of
intent to place the victim in fear of retaliation for prior lawful conduct, “mere
proof that the victim is engaged in an act which is not illegal at the time the threat
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is made is not sufficient.” Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App.
2009) (citing Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997)). The
State must establish that the legal act occurred prior to the threat and that the
defendant intended to place the victim in fear of retaliation for that act. Id.[9] Hart’s first argument requests this Court to reweigh the evidence to determine
why he threated Parr, which we will not do. There is sufficient evidence for a
reasonable jury to conclude Hart threatened Parr because he believed she had
reported the vehicle stolen. It was exclusively within the jury’s province to
determine whether Hart threatened Parr because the car was towed or because
she owed him money. The reason Parr would have owed him money is because
the vehicle was impounded in the first place. The money was related to the report
of the vehicle as stolen.
[10] At trial, Carr, an eye-witness to the confrontation, testified that Hart was “yelling
and screaming” that Parr had “called the cops and said that her car was stolen
and he was the one driving it. . .” and that Hart “was going to kill her, he was
going to kick her a**.” Tr. p. 74. Carr testified Hart was arguing Parr had “called
the cops and said the car was stolen when she knew that she loaned him the car.”
Id. at 75. Carr testified Hart “threatened that he was going to kill her. . . beat the
crap out of her if she did not fight like a man,” and Hart also stated Carr “wasn’t
going to be able to save her.” Id. at 76-77. Perhaps most unfavorable to the
Hart’s argument is his own testimony. Hart testified at trial, he threatened Parr
because he thought Parr had reported the car as stolen. Thus, there is ample
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evidence for a reasonable jury to conclude Hart threatened Parr because he
believed she had reported the vehicle as stolen.
[11] Hart cites several cases in support of his argument, but we find none of them
persuasive. This case is distinguishable from Casey v. State, 676 N.E.2d 1069 (Ind.
Ct. App. 1997), and McCaskill v. State, 3 N.E.3d 1047 (Ind. Ct. App. 2014),
because in those cases testimony was lacking as to what the prior lawful act was.
Here, the State proved its charge that the prior lawful act was the reporting of the
vehicle Hart was renting from Parr as stolen. There is adequate testimony Hart
threatened Parr because he believed she had reported the vehicle stolen.
[12] Ransley v. State, 850 N.E.2d 443 (Ind. Ct. App. 2006), trans. denied, also is
distinguishable from the present matter because the victim chose not to take the
stand and establish for what prior lawful act the defendant had retaliated. This
Court noted that anger without the intent of the defendant to retaliate is not
enough to satisfy the requirement of Section 35-45-2-1(a)(2). Ransley, 850 N.E.2d
at 447. The testimony present here indicates Hart retaliated against Parr because
of the specific act of reporting her vehicle as stolen. In C.L. v. State, 2 N.E.3d 798(Ind. Ct. App. 2014), this court determined the defendant’s threats of violence
were conditional and aimed at future conduct. As a result, the defendant’s threats
of violence were not made in relation against the prior lawful acts of the victim.
Id. at 801 (emphasis added). It is clear in this case that Hart’s threats of violence
occurred after he learned the car was impounded. Further, he acted upon them
the very same day the car was impounded.
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[13] As to Hart’s second argument, it is clear the legal act was reporting the vehicle
stolen and that it occurred prior to Hart’s threats against Parr. The question is
whether the fact Parr’s girlfriend actually reported the vehicle stolen affects the
State’s charge of the crime. We conclude that it does not. It is irrelevant whether
the prior lawful act was actually that of Parr or her girlfriend. There is ample
evidence supporting the presumption Hart threatened Parr because he thought
she, not her girlfriend, had reported the vehicle stolen.
[14] Further, as the State argued in its brief, the jury could have determined from the
evidence that Parr had asked her girlfriend to report the vehicle stolen, which
would constitute a prior lawful act for purposes of the statute. A defendant’s
intent to place the victim in fear of retaliation may be proven by circumstantial
evidence. Lee v. State, 973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied.
“Intent can be inferred from a defendant’s conduct and that natural and usual
sequence to which such conduct logically and reasonably points.” Id. At trial,
Parr testified she had asked for her car back “a couple of times,” and
subsequently, her girlfriend had reported it as stolen. Tr. p. 207. A jury could
have reasonably concluded Parr requested her girlfriend call law enforcement and
report it stolen, and it was lawful for Parr to do so after Hart refused to return
Parr’s car to her.
[15] We acknowledge this case is unusual in that Hart was mistaken in believing Parr
had committed the prior lawful act. Indiana courts have long recognized the
doctrine of “transferred intent.” Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998);
White v. State, 638 N.E.2d 785, 786 (Ind. 1994). The doctrine is most commonly
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recognized by courts when the crime charged is murder or attempted murder.
Blanche, 690 N.E.2d at 712; Straub v. State, 567 N.E.2d 87, 90-91 (Ind. 1991).
Under the doctrine of transferred intent “a defendant’s intent to kill one person
is transferred when, by mistake or inadvertence, the defendant kills a third
person; the defendant may be found guilty of the murder of the person who was
killed, even though the defendant intended to kill another.” Blanche, 690 N.E.2d
at 712 (citing White, 638 N.E.2d at 786).
[16] The doctrine of transferred intent has not previously been applied to the crime of
intimidation. However, for purposes of this unique situation we find the doctrine
to be instructive. Hart’s intent to intimidate Parr’s girlfriend, for the prior lawful
act of reporting the vehicle stolen, was effectively transferred when, by his
mistake, he intimidated Parr, based on his genuine belief she, not her girlfriend,
was the one who had called the police. The doctrine of transferred intent might
not apply in situations where a victim claims to be threatened for a random third
party’s act that has no connection to the victim. Where, however, a defendant
genuinely believes he or she is intimidating the person who performed the prior
lawful act, this concern dissipates. Such is the case here.
[17] We also note that, essentially, Hart made a mistake of fact about who precisely
performed the lawful act of reporting Parr’s car stolen and, as a result, mistakenly
threatened Parr instead of Parr’s girlfriend. However, a defendant’s mistake of
fact is a defense to a crime only “if the mistake negates the culpability required
for commission of the offense.” I.C. § 35-41-3-7. See also Chavers v. State, 991
N.E.2d 148, 151 (Ind. Ct. App. 2013), trans. denied. Here, Hart clearly possessed
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the required intent to commit intimidation. A prior lawful act occurred, and Hart
intended the person whom he believed committed that act to feel threatened for
having committed it. The clear purpose of the intimidation statute is to prohibit
placing persons in fear for committing lawful acts. Hart violated that clear
purpose in threatening Parr, regardless of whether Parr had actually committed
the lawful act in question.
Conclusion
[18] There is sufficient evidence to support Hart’s conviction for Level 6 felony
intimidation. We affirm.
[19] Affirmed.
Kirsch, J., and Najam, J., concur.
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