Robin Dale Kilgore Peppers v. State of Indiana ( 2020 )

FILED
Aug 31 2020, 10:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robin Dale Kilgore Peppers, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-796
v. Appeal from the
St. Joseph Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jeffrey L. Sanford, Judge
Trial Court Cause No.
71D03-1807-F6-714
Kirsch, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020 Page 1 of 17
[1] Robin Dale Kilgore Peppers (“Peppers”) appeals his conviction for
intimidation1 as a Class A misdemeanor.2 He raises two issues, which we
restate as:
I. Whether the State presented sufficient evidence to sustain
his conviction; and
II. Whether the trial court committed fundamental error in
the way it conducted voir dire.
[2] We affirm.
Facts and Procedural History
[3] On June 6, 2018, St. Joseph County Police Corporals Eric Dietrich (“Officer
Dietrich”) and Neil Hoover (“Officer Hoover”) executed an arrest warrant on
Peppers at his residence. Tr. Vol. 2 at 68-69, 77-78. The officers knocked on the
front door of the residence, but Peppers did not respond. Peppers “crawl[ed]
across the floor army style” toward the front door to lock it and then crawled
out of sight. Id. at 70, 79-80. Officer Hoover located an unlocked window,
opened it, and yelled into the house to announce the officers’ presence and to
inform Peppers that they were there to arrest him. Id. at 80. After receiving no
response from Peppers, Officer Hoover entered the residence through the
1
See Ind. Code § 35-45-2-1.
2
The jury found Peppers guilty of intimidation as a Level 6 felony, but the trial court entered a judgment of
conviction on the jury’s guilty verdict as a Class A misdemeanor. Appellant’s App. Vol. 2 at 26, 30-31; Tr. Vol.
2 at 141-42, 151.
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window, checked the nearby rooms, and opened the front door to allow Officer
Dietrich to enter. Id. at 70-71, 80-81. Officer Hoover had drawn his firearm for
officer safety, but Officer Dietrich had not. Id. at 71, 80-81. Eventually,
Peppers appeared around the corner from the basement door and was ordered
to show his hands. Id. at 71, 81-82. When Peppers complied, Officer Hoover
holstered his weapon and secured Peppers in handcuffs. Id. at 71-73, 81-82.
Peppers’s step-daughter, who was in the basement, was then allowed to come
upstairs. Id. at 71, 82-83. Once Peppers was arrested, he was cooperative with
Officers Dietrich and Hoover, and the officers had no issues with him. Id. at
73, 83, 85-86.
[4] Approximately one month after Peppers was arrested, he created a video titled
“To The Judges,” which was posted on a YouTube channel called “Death’s
Clown.” Id. at 53-54, 61; State’s Ex. 1. In the video, Peppers threatened to kill
“Big Country,” which is the nickname of Officer Dietrich, for pointing a gun in
Peppers’s face and at his step-daughter.3 Id. at 52-53, 59, 64-65, 67, 69, 78, 104-
05; State’s Ex. 1. The video post came to the attention of Assistant Chief Daniel
Gebo of the Mishawaka Police Department, and an investigation began. Tr.
Vol. 2 at 51, 53-54. Lieutenant Eric Beckham of the Mishawaka Police
Department (“Lieutenant Beckham”) interviewed Peppers about the video, and
Peppers stated that he was “venting” and seemed “very frustrated” but that he
3
As previously noted, Officer Hoover had his firearm drawn during the execution of the arrest warrant on
Peppers while Officer Dietrich did not. Tr. Vol. 2 at 71, 80-81.
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did not want to hurt anyone. Id. at 107-08, 111; State’s Ex. 2. Police obtained a
search warrant for Peppers’s cell phone. Tr. Vol. 2 at 54. Lieutenant Brandon
Ruth of the Mishawaka Police Department (“Lieutenant Ruth”) performed the
search of Peppers’s phone, which was also named “Death’s Clown.” Id. at 55-
56, 59-61. Lieutenant Ruth had viewed the video on YouTube before he
extracted it from Peppers’s phone and observed that the video extracted from
Peppers’s phone was the same as the one posted on YouTube. Id. at 63-64;
State’s Ex. 1. Peppers admitted to Lieutenant Beckham that people he did not
even know had responded to his post of the video on social media. Tr. Vol. 2 at
107. Officer Dietrich also viewed the video after St. Joseph County Police
Detective Mario Cavurro (“Detective Cavurro”) saw the video and told Officer
Dietrich about it. Id. at 66-67, 73.
[5] On July 26, 2018, the State charged Peppers with one count of intimidation as a
Level 6 felony. Appellant’s App. Vol. 2 at 220-21. The State amended the
charging information twice before trial. Id. at 100-02, 203-04. The parties also
submitted written questions for voir dire, and Peppers filed a motion to examine
the jury panel. Id. at 103-11. Peppers submitted eighty-six questions for the
prospective jurors, and the State submitted eight questions. Id. at 104-09, 110-
11. On January 16, 2020, the trial court held a jury trial. Id. at 14, 30-31.
[6] Pursuant to Indiana Trial Rule 47(D), which governs the examination of jurors,
the trial court questioned the panel of prospective jurors, using some of the
parties’ questions and some of its own. Tr. Vol. 2 at 10-38. At the conclusion of
the trial court’s examination and the parties’ brief opening statements to the
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jury, but before the parties selected who would serve on the jury, the following
exchange occurred:
MS. BEACHKOFSKY: I do want to make a quick record of
something else just for the record. Okay?
THE COURT: You want to make a quick record? Okay. About
what?
MS. BEACHKOFSKY: That I filed a motion to voir dire the
jury and there were several questions not asked.
THE COURT: I think I answered that the last time. Didn’t you
bring that up the last time?
MS. BEACHKOFSKY: I did, but I’m preserving it for the
record here.
THE COURT: Okay. And my reading of Trial Rule 47 is this, is
that you are -- have the right to question the jury, but it doesn’t
necessarily have to be oral. That’s the way the Supreme Court
has interpreted the rule. And you were given an opportunity to
address the jury, and you were given an opportunity to submit
questions. That’s the record I would make.
MS. BEACHKOFSKY: I would say for the record that I did
submit several questions --
THE COURT: Well, actually you submitted [86] questions, and
I think a lot of the questions were conditioning in nature and not
appropriate to ask the jury.
MS. BEACHKOFSKY: All [86]?
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THE COURT: Uh-huh. And what questions that weren’t asked
were already covered by my questions.
MS. BEACHKOFSKY: I would note that the majority of the
answers, if there were any that were given by the jury, were just
head nods. Most of these people didn’t speak or didn’t say
anything during the course of voir dire.
THE COURT: If they wished to speak, they can raise their
hand. I’ve had juries where nobody has raised their hand. I’ve
had other juries where we’ve had quite a bit of response. You
made your record, ma’am. Anything else that you want to say
on that issue?
MS. BEACHKOFSKY: Nothing. No, sir.
Id. at 31-33. Following this exchange, Peppers’s counsel exercised three
peremptory challenges. Id. at 33-36. She made no objection to the jury panel
before it was sworn. Id. at 38. The jury ultimately found Peppers guilty of
intimidation as a Level 6 felony. Appellant’s App. Vol. 2 at 30-31; Tr. Vol. 2 at
141-42. On February 25, 2020, the trial court entered judgment of conviction as
a Class A misdemeanor and sentenced Peppers to time served, 247 days.
Appellant’s App. Vol. 2 at 26; Tr. Vol. 2 at 151. Peppers now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[7] Peppers argues that the evidence was insufficient to sustain his intimidation
conviction. When we review the sufficiency of the evidence to support a
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conviction, we do not reweigh the evidence or assess the credibility of the
witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.
denied. We consider only the evidence most favorable to the trial court’s ruling
and the reasonable inferences that can be drawn from that evidence. Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in
the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,
875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is
substantial evidence of probative value that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt. Wolf v. State,
76 N.E.3d 911, 915 (Ind. Ct. App. 2017).
[8] Peppers was convicted of Class A misdemeanor intimidation. Appellant’s App.
Vol. 2 at 26. At the time Peppers committed the offense, Indiana’s intimidation
statute provided, in pertinent part, that “[a] person who communicates a threat
to another person, with the intent . . . that the other person be placed in fear of
retaliation for a prior lawful act . . . commits intimidation, a Class A
misdemeanor.” Ind. Code § 35-45-2-1(a)(2). The statute also provided that the
offense was enhanced to a Level 6 felony if, “the person to whom the threat is
communicated . . . is a law enforcement officer . . . .” Ind. Code § 35-45-2-
1(b)(1)(B)(i).4 The statute defined “communicates” as follows:
4
The terms “threat” and “law enforcement officer” are also defined terms. See Ind. Code § 35-31.5-2-185(a)
(defining “law enforcement officer”), Ind. Code § 35-45-2-1(d) (defining “threat” for purposes of Indiana
Code section 35-45-2-1). Peppers does not argue that the State failed to prove that the content of the
YouTube video was a threat or that Officer Dietrich was not a law enforcement officer.
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“‘Communicates’ includes posting a message electronically, including on a
social networking web site (as defined in IC 35-31.5-2-307).” Ind. Code § 35-
45-2-1(c).5 Thus, the State was required to prove beyond a reasonable doubt
that Peppers communicated a threat to Officer Dietrich with the intent that
Officer Dietrich be placed in fear of retaliation for a prior lawful act. Appellant’s
App. Vol. 2. at 102.
[9] Peppers limits his argument to whether the State failed to satisfy the
communication element of the intimidation statute. He argues that Officer
Dietrich’s viewing of the YouTube video five weeks after it was posted did not
satisfy the communication element of the intimidation statute. The State
maintains the evidence was sufficient to sustain Peppers’s conviction and that
he knew or had good reason to believe that the YouTube video would reach
Officer Dietrich.
[10] It is well-established that a defendant need not speak directly with a victim to
communicate a threat for purposes of Indiana Code section 35-45-2-1. E.B. v.
State, 89 N.E.3d 1087, 1091 (Ind. Ct. App. 2017). Indeed, to communicate a
threat for purposes of the offense of intimidation, the statement must be
transmitted in such a way that the defendant knows or has good reason to
believe the statement will reach the victim. Ajabu v. State, 677 N.E.2d 1035,
1043 (Ind. Ct. App. 1997), trans. denied. See also B.B. v. State, 141 N.E.3d 856,
5
Indiana Code section 35-45-2-1 was subsequently amended by SECTION 17 of P.L. 66-2019.
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861, n.4 (Ind. Ct. App. 2020) (noting that “communication of a threat may be
made directly to the victim, or indirectly, such as through a news reporter,”
(citing Ajabu, 677 N.E.2d at 1043)).
[11] Peppers directs us to Ajabu, E.B., and J.T. v. State, 718 N.E.2d 1119 (Ind. Ct.
App. 1999) in support of his position that he did not communicate a threat to
Officer Dietrich by posting the YouTube video. In Ajabu, the defendant had
made threats through the print, radio, and television media. Id. at 1037-38.
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. Id. at 1042. We explained that
communication was not limited to only those threats made directly to or in the
presence of the threatened party. Id. We held that communication can be
indirect and affirmed the conviction because the defendant had used means of
communication that he “knew or had good reason to believe would reach” the
victims. Id. at 1043.
[12] In J.T., J.T. and a friend printed a document in their school library. 718 N.E.2d
at 1121. The document contained a reference to sacrificing a fellow student in
an occult ritual. Id. The librarian saw the document and reported it to her
supervisors, who later alerted the student who was named in the document. Id.
at 1121-22. A juvenile court determined J.T. was a delinquent child because,
among other grounds, she committed an act that would have constituted
intimidation if committed by an adult. Id. at 1122. This court reversed that
portion of the adjudication, reasoning that there was no evidence that J.T. knew
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or had reason to believe that the document would reach the student named
therein. Id. at 1123-24. Instead, J.T. merely printed the document with the
expectation that the document would be returned directly to her. Id.
[13] In E.B., E.B. 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.” 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. Id.
Students shared this information with the school administrators, and law
enforcement was notified. Id. 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 Indiana Code
section 35-45-2-1(a)(2); 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 Indiana Code
section 35-45-2-1(a)(3). Id. at 1090-91. We reversed the portion of the
adjudication under Indiana Code section 35-45-2-1(a)(2) on the basis that no
evidence existed of the communicated threat to the assistant principal, and the
State failed to prove that E.B. placed the assistant principal “in fear of
retaliation for a prior lawful act.” Id. at 1091.
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[14] Here, the evidence was sufficient that Peppers communicated a threat to Officer
Dietrich. Unlike the defendants in J.T. and E.B., where we reversed portions of
their adjudications due to the lack of evidence that the statements were
communicated in ways that would reach their intended victims, Peppers posted
a video on YouTube. Tr. Vol. 2 at 54, 59, 67, 73, 104-05.6 The video was
created on Peppers’s phone, which he named “Death’s Clown,” and the video
was posted on a YouTube channel of the same name. Id. at 63. While there is
no specific evidence as to whether the YouTube video was listed as private or
public, the testimony at trial revealed that Lieutenant Ruth viewed the video on
YouTube before it was extracted pursuant to a search warrant from Peppers’s
phone and that Officer Dietrich viewed the video after he was alerted to its
presence by Detective Cavurro. Id. at 54, 63, 67, 73. In fact, Peppers admitted
to Lieutenant Beckham during his interview regarding the video that he
received feedback from “people he didn’t even know responding to the video on
social media.” Id. at 107. Peppers’s use of YouTube to post his video is more
similar to Ajabu where the defendant’s statement to the media was sufficient
evidence of communication of a threat to the victim, even though the victim
was not present when the defendant made the statement. Moreover, electronic
communications are specifically covered under the intimidation statute. See
Ind. Code § 35-45-2-1(c); McGuire v. State, 132 N.E.3d 438, 444, n.4 (Ind. Ct.
6
YouTube is an online video sharing platform that has over two billion users who daily view approximately
one billion hours of video. http://youtube.com/yt/press/statistics.html (last visited August 23, 2020). The
platform is viewed in over 100 countries and can be accessed in 80 languages. Id.
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Ohio App. 2019) (observing that the intimidation statute “specifically contemplates
threatening messages posted electronically”), trans. denied. See also
Commonwealth v. Beasley, 138 A.3d 39, 46-47 (Pa. Super. Ct. 2016) (affirming
Beasley’s conviction for making a terroristic threat by including a link on his
Facebook page to a violent rap video he posted on YouTube in which he
threatened to kill certain police officers and noting that Beasley “successfully
and intentionally communicated his threat”), appeal denied; Holcomb v.
Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 714-16 (2011) (affirming
Holcomb’s conviction for knowingly communicating a written threat in
violation of section 18.2-60(A)(1), Va. Code, by posting the threat on his
MySpace profile). In light of the evidence presented at trial, the jury could
reasonably infer that Peppers publicly posted the video and, as required under
our precedent, that he knew or would have had good reason to believe that the
video would reach Officer Dietrich. Therefore, the State presented sufficient
evidence from which a reasonable jury could determine that the
communication element of the intimidation statute was satisfied.
II. Voir Dire
[15] Peppers next contends that the trial court erred by failing to allow Peppers’s
trial counsel to conduct the examination of prospective jurors. The State argues
that Peppers has waived this issue by failing to submit additional questions for
the jury after his motion to orally examine the prospective jurors was denied or
to object to the jury panel before it was sworn, and that Peppers must show
fundamental error. Appellee’s Br. at 13-14; Tr. Vol. 2 at 31-33, 38. We agree with
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the State that Peppers has waived this issue for review. See Miller v. State, 623
N.E.2d 403, 412 (Ind. 1993) (noting that failure to object to the manner in
which the jury was chosen resulted in waiver); Bardonner v. State, 587 N.E.2d
1353, 1358 (Ind. Ct. App. 1992) (stating that the proper method to raise a
challenge during voir dire is “a motion to strike or discharge the jury panel or
[to] challenge the array” (citing Utterback v. State 261 Ind. 685, 310 N.E.2d 552
(1974))). Fundamental error is an extremely narrow exception to the waiver
doctrine that applies only when the error constitutes a blatant denial of basic
due process principles that makes it impossible to receive a fair trial. Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014). A matter rising to the level of
fundamental error is a matter that the trial court had a sua sponte duty to
correct. Id.
[16] Peppers argues that the trial court violated Indiana Trial Rule 47(D) by denying
his counsel the right to question the prospective jurors and to ask follow-up
questions of the prospective jurors, which he asserts denied him the right to a
fair trial. The State maintains that the trial court did not violate Indiana Trial
Rule 47(D) and that no error, fundamental or otherwise, occurred.
[17] Indiana Trial Rule 47(D) provides, in pertinent part, as follows:
The court shall permit the parties or their attorneys to conduct
the examination of prospective jurors, and may conduct
examination itself. The court’s examination may include
questions, if any, submitted in writing by any party or attorney.
If the court conducts the examination, it shall permit the parties
or their attorneys to supplement the examination by further
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inquiry. . . . The court may prohibit the parties and their
attorneys from examination which is repetitive, argumentative,
or otherwise improper but shall permit reasonable inquiry of the
panel and individual prospective jurors.
[18] Trial courts have broad discretionary power in regulating the form and
substance of voir dire. Logan v. State, 729 N.E.2d 125, 133 (Ind. 2000). The
decision of the trial court will be reversed only if there is a showing of a
manifest abuse of discretion and a denial of a fair trial. Id. This will usually
require a showing by the defendant that he was in some way prejudiced by the
voir dire. Id. In Gibson v. State, 43 N.E3d 231, 238 (Ind. 2015), the Indiana
Supreme Court discussed voir dire and explained that its purpose is:
[T]o ascertain whether prospective jurors can render an impartial
verdict based upon the law and the evidence, Von Almen v. State,
496 N.E.2d 55, 59 (Ind. 1986), and “weed out” those who show
they cannot be fair to either side. Burris v. State, 465 N.E.2d 171,
179 (Ind. 1984). Thus, the parties may “inquire into jurors’
biases or tendencies to believe or disbelieve certain things about
the nature of the crime itself or about a particular line of
defense.” Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981)
(finding no error where jurors were asked whether they would
disbelieve a witness that entered into a plea bargain). . . .
But, questions should be limited to “testing the capacity and
competency of prospective jurors.” Skaggs v. State, 438 N.E.2d
301, 304 (Ind. Ct. App. 1982). Those that “seek to shape the
favorable jury by deliberate exposure to the substantive issues in
the case” are not permitted. Davis v. State, 598 N.E.2d 1041,
1047 (Ind. 1992) (affirming trial court’s disallowing defense
counsel from essentially asking prospective jurors “how they
would vote in the present case”).
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[19] Here, as permitted under Indiana Trial Rule 47(D), the trial court conducted its
own examination of the prospective jurors, which was supplemented by
questions that had been submitted by the parties. Tr. Vol. 2 at 10-31; Appellant’s
App. Vol. 2 at 104-11. Indiana Trial Rule 47(D) does not mandate a specific
form of supplemental inquiry by the parties. See White v. State, 263 Ind. 302,
306, 330 N.E.2d 84, 86-87 (1975) (noting that the portion of what was then
Indiana Trial Rule 47(A) “cannot be read to require a particular form; such as,
verbal questioning” and stating that the trial court properly exercised its “broad
discretionary power to restrict interrogation to proper matters by regulating the
form as well as the substance of the interrogation.”); Tewell v. State, 264 Ind. 88,
93-94, 339 N.E.2d 792, 796 (1976) (same). The trial court did not ask all of
Peppers’s eighty-six questions nor did it ask all of the State’s eight questions,
but it permitted the parties to address the jury with a brief opening statement
concerning the nature of the case, which Peppers used to tell the jury that the
case was about free speech and the right to voice political speech. Tr. Vol. 2 at
10-31; Appellant’s App. Vol. 2 at 104-11.
[20] We are mindful that Indiana Trial Rule 47(D) states that the trial court “shall
permit the parties or their attorneys to conduct the examination” and that if the
trial court conducts the examination it “shall permit the parties or their
attorneys to supplement the examination court’s examination.” Indeed, in
Logan, the Indiana Supreme Court explained that although it was error under
Indiana Trial Rule 47(D) for the trial court to “not permit Logan or his attorney
to directly question prospective jurors concerning their views on life without
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parole,” the error was harmless because Logan could not show prejudice. 729
N.E.2d at 133-34. The Court noted that each juror was questioned regarding
his or her ability to base a sentencing recommendation on the law and the
evidence. Id. at 133. The trial court’s questioning of the jurors sought to reveal
any bias and determine whether the jurors could render a fair and impartial
recommendation, which is the purpose of voir dire. Id. (citation omitted). It
further explained that Logan did not indicate what questions he would have
asked and did not explain why the trial court’s procedure of asking questions
tendered by the parties was inadequate for purposes of empaneling a fair and
impartial jury. Id. The Court added that Logan failed to show that the trial
court’s procedure adversely impacted his ability to employ his peremptory
challenges or his challenges for cause and did not allege that any specific juror
should have been removed and was not. Id.
[21] Here, Peppers focuses on the quantity of his questions that went unasked, see
Appellant’s Br. at 13-15, 17-18, but he does not suggest what his verbal
supplement could have produced that could not have been achieved through the
written questions both parties submitted nor does he specify which of his
questions the trial court should have asked the prospective jurors. See Logan,
729 N.E.2d at 133; Bradberry v. State, 266 Ind. 530, 535, 364 N.E.2d 1183, 1186
(1977) (finding no error in the trial court’s conduct of voir dire where counsel
were not permitted to orally voir dire the jury and the defendant failed to state
how he was harmed by the trial court’s rejection or modification of his
questions). Peppers attempts to show that the trial court’s alleged error was
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prejudicial because two prospective jurors had family who were police officers.
Appellant’s Br. at 17. Peppers overlooks the fact that the trial court asked both
prospective jurors whether they could be fair and impartial, and although both
indicated that they could, neither of those individuals were chosen to sit on the
jury. Id. at 18, 38. Peppers was able to exercise his peremptory challenges, and
there is no indication that the jurors selected or the alternate were not able to
apply the law and the facts fairly and impartially in this case. Id. at 33-36. See
Logan, 729 N.E.2d at 133 (“[T]he Constitution presupposes that a jury selected
from a fair cross-section of the community is impartial, regardless of the mix of
individual viewpoints actually represented on the jury, so long as the jurors can
conscientiously and properly carry out their sworn duty to apply the law to the
facts of the particular case.” (citations omitted)). Peppers has failed to show
how the trial court’s voir procedure led to a jury panel that was not fair or
impartial, and we find no error, fundamental or otherwise, in the trial court’s
conduct of voir dire.
[22] Affirmed.
Pyle, J., and Tavitas, J., concur.
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