Darion L. Byrd, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Darion L. Byrd appeals his conviction for Class A misdemeanor intimidation,¹ arguing the State presented insufficient evidence to support the conviction, and the trial court abused its discretion in instructing the jury. We affirm.

Facts and Procedural History

[2] On July 27, 2020, Byrd was waiting in his car outside a Meijer store in Elkhart while two family members shopped for groceries. He was parked in a loading zone by the front entrance near the bags of water softener salt, which were stored outside on pallets for easy loading.

[3] Meanwhile, Thomas Brown and his wife, Constance, were shopping at Meijer and paid for some water softener salt. After putting their other purchases in the car, Brown drove to the loading area to pick up the salt and parked behind Byrd's car. Constance was in the front passenger seat. The couple discussed whether Byrd would move so they could get closer to the salt bags. Brown then got out of his car and walked up to Byrd's driver's side window to ask Byrd to move. Byrd was listening to music and did not roll down his window; Brown thought Byrd “was kind of trying to ignore me at the same time.” Tr. Vol. 2 at 221. When Byrd did not move, Brown got the salt bags anyway and loaded them in his trunk.

[4] After Brown opened his driver's side door and was getting back into his car, Byrd got out of his vehicle and quickly approached the drivers’ side of the Browns’ car. Brown saw Byrd had a gun magazine and ammunition in his hand; Brown retrieved his own handgun from between the driver's seat and door and displayed the gun to Byrd. Now seated inside the car with the door shut, Brown started backing up, and Byrd kicked the Browns’ driver's side door. According to Constance, it was with enough force “to move both Tom and I in our seats,” and it left a dent. Id. at 115. Byrd got back in his car.

[5] Brown called 9-1-1. The Browns then stayed parked behind Byrd for several minutes while on the phone with dispatch. Meanwhile, Byrd's family members came out, and Byrd got out to help load the groceries into the car. When the shopping cart was empty, he shoved it toward the Browns’ car, acting as though he was going to hit the car but stopping short. As Byrd was getting back in his car, he shouted toward Brown, “next time I'm gonna knock your a** out, you ․ motherf***er” and “follow me where I'm going ․ I'll blow your a** down.” Ex. Vol. 1, page 4 at 3:35:58–3:36:17 (enhanced video footage). Byrd then drove away through the parking lot. Brown followed.

[6] Out on the road, Byrd turned a corner and hit his brakes. Brown did not stop in time and rear-ended Byrd's car. Police responded and questioned both drivers. Byrd accurately described Brown's gun to the police and denied having a weapon himself. The officers secured Brown's gun at the scene but returned it to him at the end of the investigation. No one was arrested.

[7] The next day, Brown provided the Goshen Police Department with video footage taken by the Browns’ in-car “dashcam” camera. The video was recorded in one-minute increments, and Brown turned over most of the footage beginning with when he pulled behind Byrd through the accident.² The dashcam also recorded audio of the incident, although only the Browns’ conversation and music were discernable. The investigating detective sent the footage to the Indiana State Police to have select portions of the video and recorded audio enhanced. From the video, an analyst isolated and enhanced still images showing Byrd was holding a loaded gun magazine in his hand after Byrd kicked the Browns’ car. The audio was manipulated to isolate and enhance certain statements Byrd made.

[8] The State charged Byrd with Class B misdemeanor criminal mischief ³ and Class A misdemeanor intimidation. After Byrd's first trial ended in a hung jury, the trial court held a second jury trial August 5, 2024. Byrd asked the trial court to give the following preliminary and final instruction on the requirements to prove a true threat ⁴ as opposed to constitutionally protected speech:

To satisfy their burden as to Count II – Intimidation, the State must prove that any threat the Defendant made was a true threat.

True threats depend on two necessary elements: (1) that the speaker intend his communications to put his targets in fear for their safety, and (2) that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target.

Appellant's App. Vol. 2 at 133. Byrd argued “it would be error here not to instruct the jury about what kind of threat is punishable under the First Amendment, versus what is not punishable.” Tr. Vol. 2 at 80. Byrd anticipated the evidence would support giving the instruction and it was not covered by another instruction. The State agreed it was a correct statement of law but objected on the grounds this case did not involve “veiled threats,” the elements of the intimidation statute were sufficient to instruct the jury in this case, and additional instructions would only confuse the jury. Id. at 81–82. The trial court denied Byrd's request “at this point in time” because of “what everybody anticipates the facts and circumstances to be,” the court generally only allowed pattern jury instructions, and the proffered instruction might confuse the jury. Id. at 82.

[9] As to intimidation, the trial court gave the jury the following preliminary and final instruction:

The crime of Intimidation as charged ․ is defined by law as follows:

A person who communicates a threat, with the intent: that another person be placed in fear that the threat will be carried out, commits intimidation, a Class A misdemeanor.

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The Defendant.

2. communicated a threat to Thomas Brown

3. with the intent that Thomas Brown, be placed in fear that the threat to unlawfully injure Thomas Brown would be carried out.

Appellant's App. Vol. 2 at 138, 159; see also Tr. Vol. 2 at 88, Vol. 3 at 54–55. At the close of evidence, Byrd again offered his proposed final instruction on true threats, which the trial court did not give. See Tr. Vol. 2 at 159.

[10] The jury convicted Byrd of both charges. The trial court sentenced Byrd to concurrent terms of one year for intimidation and 180 days for criminal mischief, all suspended to probation.

Sufficient evidence supports Byrd's intimidation conviction.

[11] Byrd first argues there was insufficient evidence to support his intimidation conviction. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[12] To convict Byrd of intimidation as charged, the State was required to prove Byrd communicated a threat with the intent that Brown be placed in fear the threat will be carried out. I.C. § 35-45-2-1(a)(4) (2019); see also Appellant's App. Vol. 2 at 34. “Threat” has several statutory definitions, but the State charged Byrd under subsection (d)(1), which defines “threat” as “an expression, by words or action, of an intention to ․ unlawfully injure the person threatened[.]” I.C. § 35-45-2-1(d)(1).

[13] Although Byrd admits the language he used was “vulgar, profane, and inappropriate,” he argues his statements “were not threats that were intended to injure” Brown or “that caused ․ Brown to be fearful.” Appellant's Br. at 19. He notes the Browns “stayed in their vehicle until [he] and his family left the parking lot” and Brown followed him after the altercation, therefore suggesting Brown was not afraid of him. Id. at 20.

[14] Indiana courts have adopted an objective view of whether a communication is a threat. McBride v. State, 128 N.E.3d 531, 537 (Ind. Ct. App. 2019) (citing Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995)), trans. denied. Whether a defendant's communications, objectively viewed, were threats is a question of fact for the fact-finder to decide. Id. The fact-finder must consider all the contextual factors because assessing true threats is highly dependent on context. Brewington v. State, 7 N.E.3d 946, 963 (Ind. 2014).

[15] Here, Byrd and Brown argued about a parking area, which led to both men using profanity and each showing the other a gun or ammunition. But when Brown started to leave, Byrd approached and violently kicked Brown's car, leaving a dent. Byrd then angrily pushed an empty shopping cart toward the Browns’ car and suggested he had a weapon by holding a loaded magazine. Byrd told Brown, “next time I'm gonna knock your a** out, you ․ motherf***er” and “follow me where I'm going ․ I'll blow your a** down.” Ex. Vol. 1, page 4 at 3:35:58–3:36:17 (enhanced video footage). These were direct threats to physically harm Brown. See Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014) (noting that “as a matter of English,” the defendant's statement that the victim was “ ‘about to get her f*****g head knocked off’ took the form of a direct threat”), trans. denied. Brown called the police to report Byrd's behavior.

[16] From this evidence, a jury could have concluded Byrd's words and actions expressed an intention to unlawfully harm Brown, and Byrd intended that Brown be placed in fear the threat would be carried out. See id. at 369–70 (holding the defendant's violent statements, made in context of an eviction dispute, which led the victim to post security outside her office, were sufficient to support the defendant's intimidation conviction). Sufficient evidence supports Byrd's conviction for intimidation.

The trial court did not abuse its discretion in refusing to give Byrd's proffered jury instruction.

[17] Next Byrd contends the trial court abused its discretion in declining to give his proffered instruction. We review a trial court's decision to give or refuse a jury instruction for abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). We consider whether the instruction correctly states the law, is supported by the evidence, and is covered in substance by the other jury instructions. McCowan v. State, 27 N.E.3d 760, 763–64 (Ind. 2015). We reverse only if the appellant shows the instructional error prejudiced his substantial rights. Hernandez, 45 N.E.3d at 376. “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).

[18] Byrd proffered the following instruction on true threats:

True threats depend on two necessary elements: (1) that the speaker intend his communications to put his targets in fear for their safety, and (2) that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target.

Appellant's App. Vol. 2 at 133. The instruction Byrd offered is a near-verbatim quotation of our Supreme Court's guidance in Brewington, distinguishing a true threat from constitutionally protected speech. 7 N.E.3d at 964. Byrd argues his proposed instruction “would have clarified what was a true threat as opposed to what expressions were not.” Appellant's Br. at 23.

[19] “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) (citing State v. Katz, 179 N.E.3d 431, 452–53 (Ind. 2022)), trans. denied. It does not protect speech constituting a true threat. Id. Although Brewington has for nearly a decade guided our understanding of the mens rea required to distinguish a true threat from constitutionally protected speech, the “United States Supreme Court recently reexamined the test to determine whether something is a true threat.” Id. (citing Counterman v. Colorado, 600 U.S. 66, 74 (2023)). In Counterman, the Supreme Court effectively “lowered the mens rea for determining whether a statement was a true threat that is unprotected by the First Amendment” by adopting a “reckless” standard. Id. at 1108. The U.S. Supreme Court explained:

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.” That standard involves insufficient concern with risk, rather than awareness of impending harm. But still, recklessness is morally culpable conduct, involving a “deliberate decision to endanger another.” In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.”

600 U.S. at 79 (internal citations omitted). As the Moone Court has summarized, “prior to Counterman, 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.” 250 N.E.3d at 1108.

[20] In this case, Byrd's proposed instruction was consistent with the test established in Brewington but failed to correctly state the new standard for determining whether statements constitute true threats under Counterman and recognized by this Court in Moone.⁵ Therefore, we cannot say the proffered instruction was an accurate statement of law because it stated a mens rea requirement other than reckless.

[21] Moreover, the case before us simply does not present evidence to support giving the jury additional instruction to distinguish between true threats and protected speech. Byrd's statements were not facially ambiguous threats that walked the line between constitutionally protected political hyperbole and an expression of intent to commit violence. The evidence showed Byrd made direct threats of violence during a heated argument with Brown. Indeed, Byrd raised no First Amendment argument during closing argument, instead focusing on the evidence quality, Brown's actions, whether Brown could hear Byrd, and alleged bias in the police investigation.

[22] The final instruction the trial court gave on intimidation followed the pattern jury instructions and accurately informed the jury of elements of intimidation, as charged. Because Byrd's proffered instruction did not accurately state the lower mens rea required under Counterman, and the facts and circumstances did not raise the issue of true threats, any additional instruction would have been inaccurate and potentially confusing to the jury. The trial court did not abuse its discretion in declining to give Byrd's proffered instruction.

Conclusion

[23] The evidence was sufficient to support Byrd's conviction, and the trial court did not abuse its discretion in instructing the jury.

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1(a)(4) (2019).

2.   A one-minute increment was missing, and there was an approximately twenty-second gap in the footage just after Byrd kicked the Browns’ car.

3.   I.C. § 35-43-1-2(a) (2018). The State originally charged this as Class A misdemeanor based on the value of damaged property being more than $750 but later amended the charging information to a Class B misdemeanor.

4.   “True threats” are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virigina v. Black, 538 U.S. 343, 359 (2003).

5.   Byrd's jury trial was held in August 2024. Moone was decided at the beginning of 2025, but the U.S. Supreme Court decided Counterman in 2023, over a year before Byrd's trial.

Kenworthy, Judge.

Judges Bradford and Pyle concur. Bradford, J., and Pyle, J., concur.