Thomas Dullen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
May 12 2016, 9:26 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Ann Johnson Gregory F. Zoeller
Jane Harris Conley Attorney General of Indiana
Marion County Public Defender’s Office
Tyler G. Banks
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Dullen, May 12, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1510-CR-1710
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1504-F6-12844
Pyle, Judge.
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Statement of the Case
[1] Thomas Dullen (“Dullen”) appeals his conviction, following a bench trial, for
Level 6 felony intimidation.1 Dullen argues that there was insufficient evidence
to support his conviction. Concluding that Dullen’s argument is merely a
request to reweigh the evidence, we deny this request and affirm his
intimidation conviction.2
[2] We affirm.
Issue
Whether sufficient evidence supports Dullen’s intimidation conviction.
Facts
[3] Dullen and Laurina Manning (“Manning”) dated for several years and had a
child, D.D., together. In February 2015, Dullen and Manning were not living
together, and Dullen had visitation with five-year-old D.D. every other
weekend. For visitation purposes, they had a pre-arranged meeting spot at a
specific gas station in Marion County to drop off and pick up D.D. for his
scheduled visitations with Dullen. At that time, there was a no-verbal contact
order in place between Dullen and Manning. Therefore, when making a
visitation exchange, typically, both parents remained in their respective cars and
1
IND. CODE § 35-45-2-1.
2
Dullen was also convicted of Class A misdemeanor theft, but he does not challenge that conviction.
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D.D. would get out of one parent’s vehicle and walk over to the other parent’s
vehicle.
[4] However, on February 15, 2015, Dullen violated the order and talked to
Manning when he was returning D.D. to Manning in the gas station parking
lot. Upon seeing Dullen walking over to her truck, Manning took out her cell
phone and began a recording of him because of the no-contact order. Dullen
opened Manning’s back passenger-side door and put D.D. in Manning’s
vehicle. Dullen then “immediately began asking [her] for his paper.” (Tr. 9).
The paper was “in reference to his deceased grandmother, and some money.”
(Tr. 9). Dullen had previously accused Manning of taking the paper, and she
had always informed that she did not have it. While Dullen was leaning in
Manning’s truck, he told her that he wanted his paper, and she again told him
that she did not have it. Dullen continued to demand the return of his paper,
and Manning—while continuing to record him—told him to get out of her car.
Dullen told Manning that he was going to “take that ‘M’ effin’ (sic) phone.”
(Tr. 10). When he reached to the front of the vehicle to grab Manning’s phone,
she dropped the phone on the floor. Manning leaned down to reach for her
keys, and Dullen grabbed her keys that were hanging from the ignition. As he
“yanked” the key ring, he broke Manning’s ignition key and took the remaining
keys, which included her house keys, her mother’s house keys, and the key fob
for her truck. (Tr. 12). Dullen stood by the back passenger door, argued with
Manning, and yelled for her to get out of the truck and “come on around” to
where he was standing. (Tr. 13). Manning refused, and Dullen eventually
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drove away with her keys. Manning immediately called the police, talked to
them at the gas station, and then drove to her mother’s house.
[5] Later that day, Dullen called Manning’s cell phone, and Manning’s niece
answered the phone and told Dullen to give the keys back. Manning grabbed
the phone and hung up on Dullen. When Dullen called back, Manning
answered the phone. Dullen told Manning that he would return her keys if she
gave him his paper. Manning told Dullen that she did not have the paper, and
he responded, “Now see, that’s what makes me snap, because you want to play
me like a fool. I know you got my paper.” (Tr. 17). After Manning repeated
that she did not have his paper, he said, “I’m going to tell you this, and you can
take it any way you want to. If I don’t get my paper back, our son is going to
be an orphan.” (Tr. 17). At trial, Manning testified that she “felt like he was
threatening [her] life” and that she was “afraid that he [wa]s going to do
something to [her].” (Tr. 17, 18). Manning “specifically asked [Dullen] if he
was threatening [her,]” and he replied that she “could take it any way [she]
want[ed] to.” (Tr. 18). Manning hung up the phone and texted Dullen,
instructing him to put her keys in her mailbox. Dullen never returned
Manning’s keys. Manning later contacted the police and changed her locks and
her mother’s locks.
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[6] Thereafter, the State charged Dullen with Count 1, Level 6 felony intimidation,
and Count 2, Class A misdemeanor theft.3 The trial court held a bench trial on
August 4, 2015. Manning testified regarding the facts of the intimidation
charge as described above. Following the State’s presentation of evidence,
Dullen moved for an involuntary dismissal of the intimidation charge, and the
trial court denied the motion. Dullen then testified on his own behalf. He
admitted that he had argued with Manning in her car about his paper, which he
testified was a “paper that [his] grandma left [him]” and was worth “over a half
of a million dollars[.]” (Tr. 24). Dullen accused Manning of “cash[ing] it in[,]”
and he denied that he had taken Manning’s keys.
[7] The trial court found Dullen guilty as charged on both counts. The trial court
imposed a 545 day sentence, with 180 days executed in Community
Corrections and 365 days suspended to probation, for Dullen’s intimidation
conviction, and it imposed a 365 day sentence, with 26 days executed and 339
days suspended, for his theft conviction. The trial court ordered that the
sentences were to run concurrently. Dullen now appeals his intimidation
conviction.
3
I.C. § 35-43-4-2.
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Decision
[8] Dullen argues that the evidence was insufficient to support his intimidation
conviction.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original).
[9] The intimidation statute provides that a person who “communicates a threat to
another person, with the intent . . . that the other person engage in conduct
against the other person’s will” commits intimidation as a Class A
misdemeanor. I.C. §§ 35-45-2-1(a)(1). The offense is a Level 6 felony when the
threat is to commit a forcible felony. I.C. §§ 35-45-2-1(b)(1). In order to convict
Dullen of Level 6 felony intimidation as charged, the State was required to
prove beyond a reasonable doubt that he communicated a threat to commit the
forcible felony of murder, to Manning, with the intent that she engage in
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conduct against her will, i.e., “to give [him] ‘the paper[.]’” (App. 17).
“[W]hether a defendant intended that someone engage in conduct against his or
her will depends on the facts and circumstances of each case.” Owens v. State,
659 N.E.2d 466, 474 (Ind. 1995) (citing Hyde v. State, 531 N.E.2d 472, 473 (Ind.
1988)), reh’g denied.
[10] Dullen challenges only the “threat” element of intimidation.4 He seems to
suggest that the evidence was insufficient to show that he made a threat because
his words were not “direct” and were conveyed by telephone. (Dullen’s Br. 9).
He also suggests that his words did not constitute a threat because Manning did
not immediately call the police after she hung up the phone with Dullen.
[11] The intimidation statute defines “threat” as an “expression, by words or action,
of an intention to . . . unlawfully injure the person threatened . . . [or] commit a
crime[.]” I.C. § 35-45-2-1(c)(1), (c)(3). Whether a particular communication
constitutes a threat is an objective question for the trier of fact. Owens, 659
N.E.2d at 474. “‘Written words or phrases take their character as threatening
or harmless from the context in which they are used, measured by the common
experience of the society in which they are published.’” Brewington v. State, 7
N.E.3d 946, 963 (Ind. 2014) (quoting United States v. Prochaska, 222 F.2d 1, 2
(7th Cir. 1955), cert. denied), reh’g denied, cert. denied. Thus, whether Dullen’s
4
He does not dispute that murder is a forcible felony.
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communication to Manning, objectively viewed, was a threat was a question of
fact for the trial court to decide.
[12] We first reject Dullen’s suggestion that his words did not constitute a threat
because he made them by telephone. “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.” Ajabu v.
State, 677 N.E.2d 1035, 1042 (Ind. Ct. App. 1997), trans. denied. “The word
‘communicate’ encompasses those threats made known or transmitted to
another person, and the statute does not limit the means utilized to convey the
threat.” Id. (explaining that “threats include those a person makes known to
the victim through the print, radio[,] or television media with the requisite
intent”). See also I.C. § 35-45-2-1(c) (providing that a person’s communication
of a threat “includes posting a message electronically, including on a social
networking web site”).
[13] Dullen’s argument regarding the threat element is nothing more than a request
to reweigh the evidence. Here, the evidence showed that Dullen had, earlier in
the day, argued with Manning, accused her of taking his paper, struggled with
her in an attempt to take her cell phone, and grabbed and stole her house keys
and car key fob. He then phoned Manning and told her that if she did not give
his paper back to him then their “son [wa]s going to be an orphan.” (Tr. 17).
Manning—who “felt like [Dullen] was threatening [her] life” and was “afraid
that he [wa]s going to do something to [her]”—“specifically asked [Dullen] if he
was threatening [her,]” and he replied that she “could take it any way [she]
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want[ed] to.” (Tr. 17, 18). Given the context in which the statement was
made, the trial court could have reasonably concluded that Dullen’s statement
was an implied threat to commit a forcible felony against Manning if she did
not give back his paper. We will not reweigh the evidence or the trial court’s
determination. See Drane, 867 N.E.2d at 146. Accordingly, we affirm Dullen’s
Level 6 felony intimidation conviction. See, e.g., Owens, 659 N.E.2d at 474-75
(rejecting the defendant’s argument that the evidence of a threat was insufficient
because his words were “neither serious nor taken seriously” and finding no
basis to disturb the jury’s verdict).
[14] Affirmed.
Kirsch, J., and Riley, J., concur.
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