In the Matter of B.B., A Child Alleged to be a Delinquent v. State of Indiana ( 2020 )

FILED
Jan 30 2020, 9:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of B.B., A Child January 30, 2020
Alleged to be a Delinquent, Court of Appeals Case No.
Appellant-Defendant, 19A-JV-1803
Appeal from the Fulton Circuit
v. Court
The Honorable Arthur Christopher
State of Indiana, Lee, Judge
Appellee-Plaintiff. Trial Court Cause No.
25C01-1804-JD-79
Tavitas, Judge.
Case Summary
[1] B.B., a minor, appeals his adjudication as a delinquent for an act that would be
considered intimidation if committed by an adult, a Level 6 felony. We affirm.
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Issue
[2] B.B. raises one issue on appeal, which we restate as whether there was sufficient
evidence to adjudicate B.B. as a delinquent for an act that would be considered
intimidation if committed by an adult, a Level 6 felony.
Facts
[3] B.B. spent a significant amount of time with his friend R.A., who was a tenth
grader at Rochester High School (the “high school”) in 2018. The pair had
been close friends for a long time, and R.A. was practically a member of B.B.’s
family. In 2018, B.B. communicated with R.A.—in person, on the phone, and
over Snapchat—about B.B.’s desire to shoot students at the high school. B.B.
did not attend the high school; he was homeschooled.1
[4] Initially, R.A. believed B.B. was joking about the shooting; however, in March
2018, R.A. began taking the statements seriously after B.B. made repeated
statements about his plan to shoot students, B.B.’s tone became more serious,
and B.B. had access to an assault rifle in his house. R.A. knew this assault rifle
was in B.B.’s home because B.B. and R.A. previously shot the assault rifle in
B.B.’s yard. 2 Additionally, one weekend, B.B. sent R.A. a picture of the assault
rifle and said: “[d]on’t come to school tomorrow.” Tr. Vol. II p. 44. One day
at B.B.’s house, B.B. showed R.A. a section of notes on B.B.’s phone that B.B.
1
According to B.B.’s mother, B.B. was homeschooled because B.B. has “anxiety issues” and has “thrived
much better at homeschool than he did in the large environment.” Tr. Vol. II p. 29.
2
At an earlier hearing, B.B.’s mother disputed that B.B. had access to this weapon.
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described as a “manifesto,” which described B.B.’s plan to shoot students at the
high school. Id. R.A. never read the “manifesto” and never kept any of the
messages B.B. sent to him over Snapchat or to R.A.’s phone.
[5] R.A. suspected the shooting would occur on April 20, 2018, which was the
anniversary of the Columbine High School shooting. According to R.A., B.B.
planned to get on the school bus, enter the high school, hide in a bathroom until
classes began, and then begin shooting. Out of fear that B.B. may actually go
through with the attack, R.A. told other students at the high school about B.B.’s
threats; however, he did not notify school administrators or the police.
Subsequently, the high school administrators became aware of the threats and
contacted local law enforcement. Beginning April 20, 2018, the high school
rerouted the school bus stops to prevent the bus from passing B.B.’s residence,
limited the high school entrance to one entry point, and implemented
additional security as a result of B.B.’s threats. Many students did not attend
the high school for several days.
[6] Officer Matt Campbell, with the Rochester City Police Department, led the
investigation into B.B.’s statements and actions. B.B. was interviewed with his
mother present, and Officer Campbell obtained consent to search B.B.’s cell
phone. Officer Campbell obtained assistance from Detective Travis Heishman,
with the Fulton County Sheriff’s Office, to extract information from the phone.
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Officers located the “manifesto” that R.A. described 3 and the notes that
contained ingredients required for a “flash powder,” which is an explosive,
along with photographs, and reference to writings attributed to the shooters in
the Columbine High School attack. Id. at 64, 66. The references to the
Columbine High School shooters were transmitted to another person via text
message from B.B.’s phone; however, the recipient of the text message was
never identified during the proceedings.
[7] The photos on B.B.’s phone included photographs of the assault rifle and of
B.B. holding the assault rifle. The “manifesto” on B.B.’s phone included
statements indicating that B.B. planned to harm others, such as: “I’m not doing
this because I’m mad at anyone, it’s just that suicide is overrated, if you want to
die take others with you,” and “[s]ometimes I wonder why I want to shoot up
the school but then I remember all of the hatred and loneliness I feel everyday,
knowing nobody.” State’s Ex. 2.
[8] On April 20, 2018, the State filed a petition alleging that B.B. was a delinquent
child for committing an act that would be considered intimidation if committed
by an adult, a Level 6 felony. The specific allegations in the petition for
delinquency were as follows:
Between January 2018 and April 18, 2018, [B.B.] did
communicate a threat to [R.A.] with the intent of interfering with
3
On B.B.’s phone, the notes were kept under the heading, “[J]ournal.” Tr. Vol. II p. 71. This document also
described B.B.’s depression, for which he was prescribed medication.
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the occupancy of Rochester High School, to wit: by sending a
threat about bringing guns to school and shooting people, which
act constitutes the Level 6 Felony of Intimidation if committed
by an adult, pursuant to IC 35-45-2-1(a)(3)(B)([i]) and (b)(1)(A).
Appellant’s App. Vol. II p. 11.
[9] The juvenile court held a fact finding hearing on June 6, 2019. Witnesses
testified to the foregoing facts. Jana Vance, superintendent of Rochester
Community Schools, testified that B.B.’s threats interfered with school
attendance. On June 17, 2019, the trial court entered an order adjudicating
B.B. a delinquent for committing an act that would be intimidation if
committed by an adult, a Level 6 felony. On July 22, 2019, the juvenile court
proceeded to disposition and ordered B.B. to serve sixty days, suspended, in
secure detention at Kinsey Youth Center. B.B. was placed on probation until
January 12, 2020. B.B. now appeals his adjudication.
Analysis
[10] B.B. argues the evidence was insufficient to support his adjudication as a
delinquent for an act that would be considered intimidation, a Level 6 felony,
because the State failed to prove that B.B. knew or had reason to know that his
statements regarding the planned shootings would be communicated to any
victims. When reviewing the sufficiency of the evidence in a juvenile
adjudication, “we do not reweigh the evidence or judge witness credibility.”
B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018) (citing K.S. v. State, 849 N.E.2d
538, 543 (Ind. 2006)). “We consider only the evidence favorable to the
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judgment and the reasonable inferences supporting it.” Id. “We will not
disturb the adjudication if there exists substantive evidence of probative value to
establish every material element of an offense beyond a reasonable doubt.”
E.H. v. State, 764 N.E.2d 681, 683 (Ind. Ct. App. 2002), trans. denied (citations
omitted).
[11] Indiana’s intimidation statute includes, in relevant part:
(a) A person who communicates a threat with the intent:
(1) that another person engage in conduct against the other
person’s will; [(“Subsection 1”)]
(2) that another person be placed in fear of retaliation for a
prior lawful act; [(“Subsection 2”)]
(3) of:
(A) causing:
(i) a dwelling, a building, or other structure;
or
(ii) a vehicle;
to be evacuated; or
(B) interfering with the occupancy of:
(i) a dwelling, building, or other structure; or
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(ii) a vehicle; or [(“Subsection 3”)]
(4) that another person be placed in fear that the threat will
be carried out, if the threat is a threat described in:
(A) subsection (d)(1) through (d)(5); or
(B) subsection (d)(7) through (d)(8); [(“Subsection
4”)]
commits intimidation, a Class A misdemeanor.
Ind. Code § 35-45-2-1(a).
[12] B.B. was alleged to be a delinquent child pursuant to Subsection 3, and
specifically, that B.B. interfered with the occupancy of the high school. See Ind.
Code § 35-45-2-1(a)(3)(B)(i). B.B.’s case was elevated to a Level 6 felony
because B.B.’s threat was “to commit a forcible felony.” Ind. Code § 35-45-2-
1(b)(1)(A).
[13] The statute defines “threat” as follows:
“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;
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(3) commit a crime;
(4) unlawfully withhold official action, or cause such
withholding;
(5) unlawfully withhold testimony or information with
respect to another person’s legal claim or defense, except
for a reasonable claim or witness fees or expenses;
(6) expose the person threatened to hatred, contempt,
disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the
person threatened; or
(8) cause the evacuation of a dwelling, a building, another
structure, or a vehicle.
Ind. Code § 35-45-2-1(d).
[14] “Whether a statement is a threat is an objective question for the trier of fact.”
Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans. denied. “A
defendant’s intent may be proven by circumstantial evidence alone, and
knowledge and intent may be inferred from the facts and circumstances of each
case.” Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016), trans. denied
(citations omitted).
[15] B.B.’s specific argument is that the evidence was insufficient because the State
failed to prove beyond a reasonable doubt that B.B. knew or reasonably should
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have known his plans to shoot students at the high school would be
communicated to the potential victims. B.B.’s argument is essentially that B.B.
did not intend his message to be repeated to anyone except R.A., and because
there is no evidence or indication that B.B. sought to shoot R.A., B.B. did not
threaten victims as B.B. claims the statute requires. See Appellant’s Br. p. 15.
[16] In support of his argument, B.B. cites J.T. v. State, 718 N.E.2d 1119 (Ind. Ct.
App. 1999). In J.T., a fifteen-year-old high school student typed a document,
which included statements that “someone shall choose to die” on a particular
day and identified a specific student at J.T.’s high school in the threat. J.T., 718
N.E.2d at 1121. J.T. printed the document on a printer at the school library,
and J.T. intended a second student, who was not the student targeted in the
document, to pick up the document and deliver it to J.T.; instead, the document
was intercepted by the school librarian. The librarian turned the document in
to the assistant principal, who notified law enforcement. After an investigation,
J.T. was accused of being a delinquent, and the charging information alleged
that J.T. “did communicate a threat to commit a forcible felony to [the student],
with the intent that [the student] be placed in fear of retaliation for a prior
lawful act. . . .” Id. at 1122. Accordingly, J.T. was alleged to be a delinquent
child under Subsection 2.
[17] In vacating J.T.’s adjudication, our Court found that J.T. did not know or have
good reason to know the document would reach the specific student identified
in the document. In doing so, our Court distinguished J.T.’s case from Ajabu v.
State, 677 N.E.2d 1035 (Ind. Ct. App. 1997), trans. denied, as follows:
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In [Ajabu], this court construed the phrase “communicates a
threat to another person” in the intimidation statute. There, the
defendant had made threats through the print, radio and
television media. The defendant sought reversal of his
convictions for intimidation and argued that the person alleged to
be threatened must be present for the threat to be communicated
under the statute. We recognized that the definition of
“communicate” requires that a person make a thing known or
transmit information to another, and that the text of the
intimidation statute does not limit the phrase “communicates a
threat to another person” to only those threats made directly to
or in the presence of the threatened party. Thus, we decided that
communication can be indirect, and we affirmed the conviction
because the defendant had used means of communication that he
“knew or had good reason to believe would reach” the victims.
J.T., 718 N.E.2d at 1123 (citations omitted).
[18] The State argues J.T. is distinguishable because J.T. was alleged to be a
delinquent child for committing an act that would be considered intimidation if
committed by an adult under Subsection 2; the threat in B.B.’s case, however,
was charged under Subsection 3. We agree with the State on this point.
Reading the plain language of the statute, it is clear that the legislature intended
that threats under Subsections 1 and 2 must be communicated 4 to a specific
victim, while Subsection 3 does not require the communication of the threat to
a specific victim. See Ind. Code § 35-45-2-1(a)(1) (Subsection 1) (requiring that
a person communicate a threat with the intent “that the other person engage in
4
As our cases have held, communication of a threat may be made directly to the victim, or indirectly, such as
through a news reporter. See Ajabu, 677 N.E.2d at 1043.
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conduct against the other person’s will”); see also Ind. Code § 35-45-2-1(a)(2)
(Subsection 2) (requiring that a person communicate a threat with the intent
“that another person be placed in fear of retaliation for a prior lawful act”).
[19] B.B.’s case is more similar to some of the facts in E.B. v. State, 89 N.E.3d 1087
(Ind. Ct. App. 2017). E.B., a high school student, who was displeased with
recent discipline he received at school, sent a text message to another student
warning the second student to wear red the following Tuesday because E.B.
“intended to shoot anybody who wasn’t wearing red.” E.B., 89 N.E.3d at 1089
(internal quotations omitted). E.B. also communicated to a third student a
similar warning and told the third student to “tell the ones that he cares about.”
Id. (citations omitted). E.B.’s sister overheard E.B. speaking on the phone
regarding E.B.’s plan to shoot the assistant principal based on E.B.’s displeasure
with his recent discipline. Students shared this information with the school
administrators, and law enforcement was notified.
[20] After an investigation, the State alleged that E.B. was a delinquent child for
committing two separate intimidation offenses: Count I related to E.B.’s
specific threat against the assistant principal, pursuant to Subsection 1; and
Count II related to E.B.’s communication for “interfering with the occupancy
of the school” by sending a text message to a student that he would shoot
anyone not wearing red, pursuant to Subsection 3. Id. at 1090. Our Court
found that, as to the threats against the assistant principal, no evidence existed
of the communicated threat to the assistant principal and, thus, the State could
not prove intimidation under Subsection 1 because E.B. did not place the
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assistant principal “in fear of retaliation for a prior lawful act.” Id. at 1091. On
the other hand, as to the second count under Subsection 3, our Court found
ample evidence that E.B. intended to interfere with the occupancy of the school
when E.B. told students to wear red and told others to share these instructions.
Our Court found that “it should have been foreseeable to E.B. that news of
E.B.’s plan would spread throughout the school. Word did spread, and after
the school informed parents about the incident, absenteeism more than doubled
the following day.” Id. at 1093.
[21] As in E.B., B.B.’s communication to R.A. evidenced B.B.’s threat to interfere
with the occupancy of the school pursuant to Subsection 3. 5 B.B. argues that
R.A. was not an intended victim, and accordingly, no threat was
communicated. At a minimum, B.B.’s intent was that R.A. would not attend
school to avoid the shooting, and thus, B.B. intended to interfere with the
occupancy of the school. R.A. ultimately shared B.B.’s threats, which resulted
in significant absences from school.
[22] Regardless, the State argues, and we agree, that B.B. should have known or had
good reason to know that his threats to shoot the students at the high school
would be communicated to others and the high school administration. B.B.
was not discreet in his plans to kill persons at the high school, evidenced by:
B.B.’s repeated statements to R.A., B.B.’s snapchats to R.A. regarding the
5
B.B. does not challenge any other element of the offense.
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same, and B.B. showing the manifesto to R.A. Unless R.A. was a co-
conspirator in the attack, and no such argument has been made, a reasonable
fact finder could conclude that B.B. knew or should have known that R.A.
would report a plan of mass murder to other students at the high school. R.A.
behaved in a predictable way when he exposed B.B.’s plans.
[23] The State presented sufficient evidence from which a trier of fact could
conclude B.B. committed intimidation to interfere with the occupancy of the
high school.
Conclusion
[24] The evidence was sufficient to adjudicate B.B. a delinquent child for an act that
would be considered intimidation if committed by an adult, a Level 6 felony.
We affirm.
[25] Affirmed.
Najam, J., and Vaidik, J., concur.
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