Joshua H. Field v. State of Indiana ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 9:54 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua H. Field, April 26, 2016
Appellant-Defendant, Court of Appeals Cause No.
11A04-1505-CR-296
v. Appeal from the Clay Circuit
Court
State of Indiana, The Honorable Joseph D.
Appellee-Plaintiff. Trout, Judge
Trial Court Cause No.
11C01-1412-F5-947
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 1 of 9
Case Summary
[1] Joshua Field appeals his convictions for Level 5 felony intimidation and Class
A misdemeanor theft. We affirm.
Issues
[2] Field raises two issues, which we restate as:
I. whether the trial court properly allowed the
jury to hear the recording of the 911 call twice
during deliberations; and
II. whether the evidence is sufficient to support
his conviction for Level 5 felony intimidation.
Facts
[3] Field and Mary Riddell dated, and Field lived with Riddell until October 2014,
when they broke up and Field moved out. Dustyn Clark also lived at the
residence.
[4] On November 21, 2014, Field and Riddell argued over the telephone. Riddell
was getting ready for bed when she heard a loud noise from a truck outside.
Riddell woke Clark up, and when Clark opened the front door, Field pushed his
way into the house. Clark’s girlfriend, Shelby Hull, woke up because Field was
yelling. Hull went into the living room and saw that Field had a “machete.”
Tr. p. 272. She told him to put it away, and he said, “If anybody’s here, I’m
going to kill them.” Id. Hull told Field that no one was there, and he put the
machete away. Field went into Riddell’s bedroom, smelled a pair of her
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 2 of 9
underwear, ripped the underwear, took some of her money, and returned to the
living room. Hull called 911 for assistance, and when Field realized that Hull
had called 911, Field “started going crazy and yelling and waiving [sic] the
machete everywhere.” Id. Riddell got on the telephone with the 911 operator
because Hull did not know the address, and Hull got in front of Riddell to
protect her from Field. Field then left the house and damaged the porch light
and porch railings with the machete as he left.
[5] Field walked to the nearby residence of Ricki Luedeman, Clark’s mother. Field
talked to Luedeman and then left. Officers arrived searching for Field, but they
were unable to locate him. After the officers left, Field knocked on Luedeman’s
door again, but Luedeman made him leave. The next day, Luedeman found a
machete on her property.
[6] The State charged Field with Level 5 felony intimidation, Class A misdemeanor
theft, and Class B misdemeanor criminal mischief. With respect to the
intimidation charge, the State alleged that Field:
did communicate a threat to [Riddell] with the intent that
[Riddell] be placed in fear of retaliation for a prior lawful act to
wit: swinging a large knife in the presence of Mary Riddell in
retaliation for Shelby Hull and Mary Riddell calling the police to
report [Field’s] threat to kill whoever was in the house, and in
doing so Joshua H. Field drew or used a deadly weapon to wit: a
large knife . . . .
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 3 of 9
App. p. 93. During Hull’s testimony during the jury trial, the State played the
recording of the 911 call to the jury. During deliberations, the jury requested to
listen to the recording of the 911 call twice. The trial court noted:
[W]hen the jury first heard the recording they were
approximately I’d say fifteen (15) to twenty (20) feet away from
the speakers that the State was using to play the 911 call, and it
was somewhat difficult to hear, especially in regard to the catch of
voices in the background. By stipulation and agreement of the
parties, the jury was brought back into Court . . . . They listened
to the recording and returned to the jury room. Subsequently,
there was additional request by the jury to hear the 911 call
again. . . . . [A]pparently and we’ll never know, there was
something that someone . . . there perhaps a discrepancy between
jurors as to what they heard the first time and it was played
again. No objection from the State, the defense did object to
them listening to the 911 call for a second time. The Court
allowed the jury, without commenting on what they were
listening for or what they heard, to listen to exhibit two (2) a
second time and they have returned to the jury room for
deliberations.
Tr. pp. 382-83. The trial court also noted that the jury had indicated to the
bailiff “some confusion . . . about what they had heard” and that they needed
“further clarification.” Id. at 385. The jury found Field guilty as charged. Due
to double jeopardy concerns, the trial court entered judgment of conviction for
the intimidation and theft verdicts only. The trial court sentenced Field to an
aggregate sentence of six years with two years suspended to probation. Field
now appeals.
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 4 of 9
Analysis
I. Recording of 911 Call
[7] Field first argues that the trial court abused its discretion by playing the
recording of the 911 call for a second time during deliberations. Field does not
challenge the earlier replaying of the recording during the jury’s deliberations.
[8] “Under our Jury Rules, which went into effect in 2003, trial courts ‘have greater
leeway to facilitate and assist jurors in the deliberative process, in order to avoid
mistrials.’” Parks v. State, 921 N.E.2d 826, 830 (Ind. Ct. App. 2010) (quoting
Ronco v. State, 862 N.E.2d 257, 259 (Ind. 2007)) (internal citations omitted),
trans. denied. Additionally, Indiana Code Section 34-36-1-6 governs a jury’s
deliberations and provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the
testimony; or
(2) the jury desires to be informed as to any point of law arising
in the case;
the jury may request the officer to conduct them into court,
where the information required shall be given in the presence of,
or after notice to, the parties or the attorneys representing the
parties.
[9] Regarding the second playing of the recording, the trial court here noted that
the jury had indicated to the bailiff “some confusion . . . about what they had
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 5 of 9
heard” and that they needed “further clarification.” Tr. p. 385. We cannot say
that this record indicates that the jurors had a “disagreement.” Because the
record here does not reflect a disagreement over the content of the recording,
the mandatory language of Indiana Code Section 34-1-21-6 does not apply.
Consequently, the decision to allow the jury to listen to the recording again was
a matter of the trial court’s discretion. See Blanchard v. State, 802 N.E.2d 14, 31
(Ind. Ct. App. 2004); Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). The
trial court “must exercise its discretion extremely cautiously . . . .” Foster, 698
N.E.2d at 1170.
[10] Field argues that replaying the recording a second time during deliberations
unduly emphasized one piece of evidence. He suggests that the jury based its
guilty finding “largely on that piece of evidence.” Appellant’s Br. p. 13. We
conclude that the trial court was well within its discretion to replay the
recording for the jury. The trial court first replayed the recording because the
jury had been seated fifteen to twenty feet from the speakers, and the jurors
sought to sit closer to the speakers, so they could hear the recording better. The
trial court then replayed the recording because the jury indicated some
confusion and needed clarification. There is no indication that the jury’s verdict
was unduly influenced by the recording. Rather, the jury simply needed
clarification, which they were entitled to receive. The trial court did not abuse
its discretion by replaying the recording a second time at the jury’s request
during the deliberations.
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 6 of 9
II. Sufficiency of the Evidence
[11] Field argues that the evidence is insufficient to sustain his conviction for Level 5
felony intimidation. When reviewing the sufficiency of the evidence needed to
support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider
only the evidence supporting the judgment and any reasonable inferences that
can be drawn from such evidence.” Id. We will affirm if there is substantial
evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt. Id.[12] The offense of intimidation is governed by Indiana Code Section 35-45-2-1(a),
which provides in part: “A person who communicates a threat to another
person, with the intent . . . (2) that the other person be placed in fear of
retaliation for a prior lawful act . . . commits intimidation.” The offense is a
Level 5 felony if “while committing it, the person draws or uses a deadly
weapon.” Ind. Code § 35-45-2-1(b)(2). A threat means:
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 . . . .
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 7 of 9
I.C. 35-45-2-1(d).
[13] Here, the State alleged that Field:
did communicate a threat to [Riddell] with the intent that
[Riddell] be placed in fear of retaliation for a prior lawful act to
wit: swinging a large knife in the presence of Mary Riddell in
retaliation for Shelby Hull and Mary Riddell calling the police to
report [Field’s] threat to kill whoever was in the house, and in
doing so Joshua H. Field drew or used a deadly weapon to wit: a
large knife . . . .
App. p. 93. Field argues that the State failed to demonstrate that he
communicated a threat, that he did so with the intent that Riddell be placed in
fear of retaliation for a prior lawful act, or that he drew or used the knife while
committing the offense.
[14] The State presented evidence that Hull called 911 for assistance. Hull testified
that, when Field realized that she had called 911, Field “started going crazy and
yelling and waiving [sic] the machete everywhere.” Tr. p. 272. Riddell testified
that, when Field realized that they had called 911, Field “just went crazy . . .
flipping out.” Id. at 293. Riddell testified that Hull stepped in front of her
because Field was “coming after” her with the knife. Id. Clark testified that
Field’s behavior “got worse for sure” after they called 911. Id. at 311. Field was
waving the knife around, went outside, and said, “Why would you let them
call the cops on me, Dustyn?” Id.Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 8 of 9
[15] Field points out discrepancies in the testimonies of Hull, Riddell, and Clark and
differences between their deposition testimonies and their trial testimonies.
However, Field’s arguments are requests to reweigh the evidence, which we
cannot do. The State presented evidence that Field threatened Riddell by
waving the large knife at her because Hull and Riddell called 911 to report
Field’s actions. We conclude that the State presented sufficient evidence that
Field communicated a threat to Riddell with the intent that Riddell be placed in
fear of retaliation for a prior lawful act and that Field used a knife while
committing the intimidation. The evidence is sufficient to sustain Field’s
conviction.
Conclusion
[16] The trial court did not abuse its discretion by replaying the recording of the 911
call to the jury a second time during deliberations. Further, the evidence is
sufficient to sustain Field’s conviction for intimidation. We affirm.
[17] Affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 11A04-1505-CR-296| April 26, 2016 Page 9 of 9