Dustin S. Peglow, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Dustin S. Peglow appeals his conviction for Level 6 felony intimidation. On appeal, he argues that the trial court abused its discretion when it refused to tender his proposed instruction defining “true threats” to the jury and that the State did not present sufficient evidence to establish that his statements were “true threats.”

[2] We affirm.

Facts and Procedural History

[3] On July 28, 2024, Indianapolis Metropolitan Police Department Officer David Shimp responded to a report of a disturbance at the downtown Kroger grocery store. When he arrived, the officer observed that Peglow had been placed in handcuffs. Peglow was agitated and would not stop yelling. Officer Shimp removed Peglow from the store and sat him outside on the curb between two parked police vehicles.

[4] Peglow screamed racial slurs and vulgarities at the officers and bystanders. Peglow's behavior seemed manic but also serious and angry. As Officer Shimp was completing his report, Peglow looked directly at him and stated, “if I had a rifle I'd shoot you in the goddamn forehead.” Tr. Vol. 2, p. 120; Ex. 2 at 16:05-16:30. The officer laughed at Peglow's statement in an attempt to deescalate the situation. Id. at 120, 123. Approximately twenty minutes later, Peglow threatened Officer Shimp by name. Specifically, Peglow said that, if the officer put him in jail, there would be “a pistol in your “f**king head someday with a bullet in it going through your f**king disgusting whore f**king [J]ewish mind ․” Tr. Vol. 2, p. 111; Ex. 2 at 34:37-35:06. The officer took Peglow's threats seriously and did not believe that Peglow was joking. Shortly thereafter, officers transported Peglow to the Marion County Jail.

[5] The State charged Peglow with Level 6 felony intimidation for his threats to Officer Shimp. At the beginning of his jury trial, Peglow asked the trial court to tender the following instruction to the jury:

“True threats” under Indiana law depend on two necessary elements: that the speaker intend[s] his communications to put his targets in fear for their safety, and that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target. Source: Brewington v. State, 7 N.E.3d 968, 964 (Ind. 2014).

Appellant's App. Vol. 2, p. 62; see also Tr. Vol. 2, pp. 28-29. The State objected to the instruction, and the court refused to tender the proposed instruction to the jury.

[6] The jury found Peglow guilty as charged, and the court sentenced him to 545 days in the Marion County Jail. Peglow now appeals his Level 6 felony intimidation conviction.

The Proposed Jury Instruction

[7] Peglow argues that the trial court abused its discretion when it refused to tender his proposed instruction to the jury. We review a trial court's decision to refuse a tendered jury instruction for an abuse of discretion. New v. State, 135 N.E.3d 619, 622 (Ind. Ct. App. 2019). In our consideration of this issue, we consider whether: (1) the tendered instruction correctly states the law; (2) there was evidence presented at trial to support giving the instruction; and (3) the substance of the instruction was covered by other instructions that were given. Id. “A trial court acts within its discretion if it denies a request that would likely confuse the jury.” Owen v. State, 210 N.E.3d 256, 268 (Ind. 2023).

[8] Peglow argued to the trial court that his proposed instruction should have been given because it was a correct statement of the law under Brewington v. State, 7 N.E.3d 946 (Ind. 2014). He also argued that, “in order to pass constitutional muster, a true threat analysis needs to be implemented.” Tr. Vol. 2, p. 29. Peglow's argument is rooted in our court's “constitutional duty ․ to ‘make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression.’ ” Brewington, 7 N.E.3d at 955 (quoting Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 455 (Ind. 1999)).

[9] “The First Amendment does not absolutely protect all categories of speech and means of expression.” Moone v. State, 250 N.E.3d 1101, 1107 (Ind. Ct. App. 2025), trans. denied. In Brewington, our Supreme Court explained that, consistent with the speech protections in the state and federal constitutions, the State may ban “true threats,” which are threats where (1) the speaker intends the communication to put the target in fear of their safety, and (2) the communication is “likely to actually cause such fear in a reasonable person similarly situated to the target.” Id. at 963. However, the Court never stated that a defendant is entitled to a jury instruction describing the two elements of “true threats” in addition to the statutory elements for the crime of intimidation. The Court observed that, only where the alleged intimidation is intertwined with constitutionally-protected speech, additional jury instructions concerning speech protections might be needed. Id. at 971-75.

[10] Recently, our court acknowledged that the Brewington Court's definition of “true threat” is no longer an accurate statement of the law. See Moone, 250 N.E.3d at 1107-08. Two years ago, the United States Supreme Court reexamined the required mens rea of a defendant making a “true threat.” See Counterman v. Colorado, 600 U.S. 66, 74 (2023). In Moone, our court recognized that the Counterman Court “lowered the mens rea for determining whether a statement was a true threat that is unprotected by the First Amendment ․” 250 N.E.3d at 1108. The Counterman Court observed that:

A person acts recklessly, in the most common formulation, when he “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.” Voisine v. United States, 579 U.S. 686, 691, 136 S. Ct. 2272, 195 L. Ed. 2d 736 (2016) (internal quotation marks omitted). That standard involves insufficient concern with risk, rather than awareness of impending harm. See Borden v. United States, 593 U.S. [420], 425- 28, 141 S. Ct. 1817, 1823-1824, 210 L. Ed. 2d 63 (2021) (plurality opinion). But still, recklessness is morally culpable conduct, involving a “deliberate decision to endanger another.” Voisine, 579 U.S. at 694, 136 S. Ct. 2272. In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.” Elonis, 575 U.S. at 746, 135 S. Ct. 2001 (ALITO, J., concurring in part and dissenting in part).

600 U.S. at 79. Our court contrasted the pre- and post-Counterman mens reas as follows: under the Brewington analysis, “a statement was a true threat when the speaker intended to put the target in fear. Now, under Counterman, a statement is a true threat if the speaker consciously disregards that the communication could put the target in fear.” Moone, 250 N.E.3d at 1108.

[11] Therefore, Peglow's proposed jury instruction, which was consistent with the test established in Brewington, failed to correctly state the new standard for determining whether his statements constituted true threats promulgated in Counterman and recognized by our court in Moone.¹ Moreover, the trial court instructed the jury on the statutory elements of intimidation, which is all that was required under Indiana law. See Campbell v. State, 19 N.E.3d 271, 277 (Ind. 2014) (“It is of course the case that an instruction which tracks verbatim the language of a statute is presumptively correct.”). And the trial court provided definitions of the terms “threat,” “fear,” and “forcible felony” in the preliminary jury instructions. Tr. Vol. 2, pp. 84-85.

[12] For these reasons, Peglow has not convinced us that the trial court abused its discretion when it refused to tender his proposed instruction to the jury.²

Sufficient Evidence Supports Peglow's Conviction

[13] Peglow also claims that the State failed to prove that his statements were “true threats,” and, therefore, the evidence is insufficient to support his Level 6 felony intimidation conviction. When we consider a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016). Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. “We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[14] To prove that Peglow committed Level 6 felony intimidation as charged, the State was required to prove that Peglow communicated a threat to Officer Shimp “with the intent that [Shimp] be placed in fear that the threat will be carried out, and the threat was to commit a forcible felony ․” Appellant's App. Vol. 2, p. 15; see also Ind. Code § 35-45-2-1(a)(4), (b)(1)(A). Indiana Code section 35-45-2-1 defines “threat” in relevant part as “an expression, by words or action, of an intention to ․ unlawfully injure the person threatened ․ [or] commit a crime ․” “Whether a statement is a threat is an objective question for the trier of fact.” Whitaker-Blakey v. State, 248 N.E.3d 617, 621 (Ind. Ct. App. 2024) (quotation and citation omitted). “In determining whether a statement was intended as a true threat, we consider the content of the statement, its context, and the reaction of the listeners.” Id. (quotation and citation omitted). “True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’ ” Counterman, 600 U.S. at 74 (citing Virginia v. Black, 538 U.S. 343, 359 (2003)).

[15] In Moone, the defendant made statements to the victim “suggesting she might physically harm R.M. or force him to do something with disregard for whether he would feel scared or threatened by the statements.” 250 N.E.3 at 1108. Our court concluded that Moone's statements were “true threats not protected by the First Amendment” as “these statements would cause a reasonable person to feel afraid because they suggest Moone might commit an act by force or resort to physical violence to ensure she was able to engage in a romantic relationship with R.M.” Id.

[16] Peglow acknowledges that his statements to Officer Shimp were “crude and offensive” but claims they were not “true threats.” Appellant's Br. at 10. In support of his argument, Peglow directs our attention to the following evidence presented at trial: that the officer laughed when Peglow made the threats,³ that the officer believed that Peglow was suffering from some sort of manic episode, that his threats were conditional, i.e., if he had a gun he would shoot the officer, and that Officer Shimp never indicated that he feared for his safety. Id.

[17] Officer Shimp testified that Peglow looked directly at him when Peglow stated that, if he had a gun, he would shoot the officer in the head. Tr. Vol. 2, p. 110. And although Peglow “was still in a manic kind of state,” the officer believed that Peglow was serious when making the threats. Id. at 110-12. Peglow was angry and irate during his encounter with the officers, and he had to be transported to jail in a wagon because he was “too aggressive and hostile” to transport in a police vehicle. Id. at 128. The State presented evidence via a body camera recording and officer testimony that Peglow made two statements to Officer Shimp threatening to shoot Shimp in the head. In his second statement, Peglow specifically directed his threat to Officer Shimp by name. And Peglow threatened to put a pistol to the officer's head someday if Officer Shimp had him placed in the Marion County Jail. Finally, concerning Peglow's argument that his statements were not “true threats” because they were conditional statements, we observe that “[t]hreats are, by definition, expressions of an intention to do a future thing, and, thus to some degree, all threats are conditional.” See V.R. v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), expressly adopted and aff'd, 54 N.E.3d 1001 (Ind. 2016).

[18] The State presented sufficient evidence to prove that Peglow intended to put Officer Shimp in fear that he would carry out his threat to shoot him, and, therefore, the State proved that the statements were “true threats.” Peglow's argument to the contrary is simply a request to reweigh the evidence and the credibility of the witnesses, which our court will not do.

Conclusion

[19] The trial court did not abuse its discretion when it refused to tender Peglow's instruction to the jury because it was not an accurate statement of the law. And the State presented sufficient evidence to prove that Peglow committed intimidation. Therefore, we affirm his Level 6 felony intimidation conviction.

[20] Affirmed.

FOOTNOTES

1.   Moone was decided approximately five weeks after Peglow's December 16, 2024[,] jury trial. But the United State Supreme Court decided Counterman nearly a year and a half before Peglow's trial. See Counterman, 600 U.S. at 66.

2.   It is also worth noting that Peglow's threats to put a gun to Officer Shimp's head and shoot him were unquestionably not constitutionally protected speech. For this reason, even if Peglow's proposed instruction was a correct statement of the law, the evidence would not support giving it.

3.   The State presented evidence that police officers are trained not to respond to threats to their lives so that the suspect is not given the satisfaction of a response. Tr. Vol. 2, p. 135. However, the officers take the threats seriously. Id.

Mathias, Judge.

Judges May and Bradford concur. May, J., and Bradford, J., concur.