D.M., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] B.T. was outside on his friend's porch when D.M. drove by, made eye contact with B.T., and pointed a handgun at him. About fifteen minutes later, D.M. drove by again and he and his passenger both pointed handguns at B.T. D.M. was adjudicated delinquent for committing intimidation, a Level 5 felony if committed by an adult.¹ He appeals raising one issue, which we restate as whether his conduct was sufficient to constitute a threat under the intimidation statute. We affirm.

Facts and Procedural History

[2] On July 22, 2024, at approximately 6:00 p.m., seventeen-year-old male D.M. drove by B.T.’s friend's house in a black BMW while B.T. was outside on the porch. The two boys had a prior “beef” over a girl. Transcript at 68. D.M. drove by with the driver's side window down, “made eye contact” with B.T., and “pointed” or “waived [sic]” a handgun at B.T. Id. at 40, 36, 33. B.T., who lived two houses away, ran home and told his parents what happened. They called the police. About fifteen minutes later, B.T., back at his friend's house, saw the same BMW drive by again. This time, both the driver and passenger's side windows were down and B.T. saw D.M. and another male, C.L., both point handguns at him as they drove by.

[3] D.M. was arrested and the State filed a delinquency petition alleging that D.M. committed two counts of intimidation,² pointing a firearm,³ and dangerous possession of a firearm. Following a fact-finding hearing, the trial court adjudicated D.M. delinquent for committing intimidation, a Level 5 felony if committed by an adult.⁴ The trial court found that D.M. “knowingly or intentionally communicated a threat to [B.T.] with the intent that [B.T.] be placed in fear that the threat [would] be carried out and the threat was to commit a forcible felony.” Appellant's App. Vol. 2 at 11. The trial court found that the intimidation was committed “while drawing or using a firearm.” Id. Following a disposition hearing, the trial court granted wardship of D.M. to the Department of Correction.

Discussion and Decision

[4] D.M.’s only argument on appeal is that the evidence was insufficient to support his adjudication for intimidation because D.M.’s “mere act of pointing a gun, without more, [did] not constitute a threat” under the intimidation statute. Appellant's Br. at 8; see also Ind. Code § 35-45-2-1.

[5] “When the State seeks to have a juvenile adjudicated delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt.” Matter of K.Y., 175 N.E.3d 820, 824 (Ind. Ct. App. 2021), trans. denied. On appeal, the appellate court applies the same sufficiency standard used in criminal cases. Id. at 824-25. Sufficiency claims “trigger a deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the [fact-finder].’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), reh'g denied, cert. denied, 586 U.S. 1090 (Jan. 7, 2019)). When conducting this review, “we consider only the evidence that supports the [fact-finder's] determination, not evidence that might undermine it.” Id. “A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)).

[6] To secure a conviction for intimidation under Indiana Code section 35-45-2-1(a)(4), the State had to prove beyond a reasonable doubt that D.M. communicated a threat with the intent that B.T. be placed in fear that the threat would be carried out. If D.M. drew or used a deadly weapon while committing intimidation, the offense is a Level 5 felony. See I.C. § 35-45-2-1(b)(2)(A). The intimidation statute explicitly defines ‘threat’ as “an expression, by words or action, of an intention to ․ unlawfully injure the person threatened[.]” I.C. § 35-45-2-1(c)(1) (emphasis added). We take an objective view of whether an expression is a threat. 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 may be inferred from the facts and circumstances of the case. B.B. v. State, 141 N.E.3d 856, 860 (Ind. Ct. App. 2020).

[7] Citing to principles of statutory construction, D.M. argues that merely pointing a firearm at another person, alone, cannot constitute a threat for purposes of the intimidation statute because such a result would have the effect that a violation of the pointing a firearm statute ⁵ “automatically violates [the intimidation statute], rendering the former statute meaningless.”⁶ Appellant's Br. at 14-15. However, we need not answer this question because this is not a case that involves only the mere pointing of a firearm.⁷ There are additional facts and circumstances that support the trial court's determination that D.M. committed an act that would be Level 5 felony intimidation if committed by an adult, and the plain terms of Indiana Code section 35-45-2-1(c) show that a threat can be made by action alone.

[8] Here, the evidence shows that D.M. and B.T. had a prior “beef” and that D.M. drove by B.T. and the two boys “made eye contact” as D.M. pointed a handgun at B.T. Tr. at 68, 40. About fifteen minutes later, D.M. drove by a second time and again pointed a handgun at B.T., this time accompanied by C.L., who also pointed a handgun at B.T. Sufficient evidence supports the trial court's decision to adjudicate D.M. delinquent not only because he displayed or pointed a handgun at B.T., but because he did so twice within a short period of time, he enlisted C.L. to join in on the menacing conduct the second time around, and the boys had a history of conflict that gave B.T. extra reason to fear that D.M. might actually cause him physical harm. We conclude that the trial court could have reasonably found that D.M.’s conduct—although not accompanied by words—constituted a threat, or an expression of intention to unlawfully injure B.T. See I.C. § 35-45-2-1(c)(1).

Conclusion

[9] The State presented sufficient evidence to adjudicate D.M. a delinquent child for committing an act that would be considered Level 5 felony intimidation if committed by an adult.

[10] We affirm.

FOOTNOTES

1.   Ind. Code §§ 35-45-2-1(a)(4), (b)(2)(A).

2.   Ind. Code §§ 35-45-2-1(a)(4), (b)(2)(A), (b)(1)(A).

3.   I.C. § 35-47-4-3(b).

4.   Although the trial court found beyond a reasonable doubt that D.M. committed all four counts alleged in the delinquency petition, it did not enter adjudications on the other counts due to double jeopardy concerns.

5.   Indiana's pointing a firearm statute makes it a Level 6 felony for a person to knowingly or intentionally point a firearm at another person, and a Class A misdemeanor if the firearm was not loaded. Ind. Code § 35-47-4-3(b).

6.   In support of his argument, D.M. cites Gaddis v. State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997), a case in which our Court held that “under the intimidation statute the mere display of a handgun does not express an intention to unlawfully injure a person or his property.” There, in afternoon rush hour traffic, two vehicles pulled next to each other and the two male drivers exchanged incomprehensible hand gestures and words through raised windows. Id. at 860-61. Gaddis removed a handgun from his glove box and displayed it by the window without pointing it at the other driver before placing it on the console. Id. at 861. Our Court found that the mere display of the handgun was “foolish” but did not express an “intent to injure” and was not “in itself unlawful under the statute.” Id. at 862. While this case did not involve the mere display or mere pointing of a handgun, we also note that the Indiana Supreme Court has questioned the result in Gaddis. See Johnson v. State, 743 N.E.2d 755, 756-57 (Ind. 2001) (“[W]here as here the record shows the existence of words or conduct that are reasonably likely to incite confrontation, coupled with the display of a firearm, we are hard pressed to say that such facts are insufficient to prove that a threat has been communicated within the meaning of the intimidation statute.”).

7.   Although this case is not one where pointing a firearm, alone, occurred, we also note a key difference between the pointing a firearm and intimidation statutes: intimidation requires the threat to be communicated, or transmitted to the victim in a way that the defendant knew or had good reason to know would reach the victim, whereas pointing a firearm does not necessarily require the victim to have even been aware of the offense. See B.B., 141 N.E.3d at 861; I.C. § 35-47-4-3(b).

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.