WERTZ v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Tyler Wertz was convicted of Level 3 felony kidnapping, Level 3 felony criminal confinement, and Level 5 felony intimidation after he placed his sister in fear for her safety by instructing her to drive south on Interstate 65 from rural Boone County to Columbus, Indiana, and back, while displaying a pocketknife. The trial court merged the convictions for sentencing purposes and imposed a nine-year sentence. Wertz contends on appeal that the evidence is insufficient to sustain his convictions. We affirm.

Facts and Procedural History

[2] On December 17, 2023, Wertz, who had “just been released from jail[,]” called and requested permission to come to his family's home to “get clothes[.]” Appellant's Tr. Submission pp. 1, 2.¹ After Wertz's step-mother Tasha indicated that he could not come to the family home, A.W., Wertz's “juvenile sister[,]” met Wertz at a rural cemetery in Boone County to give him some clothes. Appellant's Tr. Submission p. 1. When A.W. arrived at the cemetery, Wertz “got in the car ․ and told [A.W.] to drive.” Appellant's Tr. Submission p. 1 (internal quotation marks omitted). Wertz told A.W. that “he was going to take her downtown and show [her] what the streets are like.” Appellant's Tr. Submission p. 1. Wertz “pulled a silver pocket knife out of his pocket and said ‘you see this, it doesn't feel good.’ ” Appellant's Tr. Submission p. 1. A.W. believed Wertz was drunk.

[3] At Wertz's instruction, A.W. drove south on Interstate 65. “At various points, [Wertz] laid the knife down on the console of the car, and would periodically pick it back up.” Appellant's Tr. Submission p. 1. He instructed A.W. “ ‘to keep driving’ several times.” Appellant's Tr. Submission p. 1. A.W. continued driving south on Interstate 65 until turning around “somewhere near Columbus, Indiana” and returning to “the family home in Thorntown[.]” Appellant's Tr. Submission p. 2.

[4] Meanwhile, Tasha had been tracking A.W.’s cellular telephone using the “Live 360” phone application. Appellant's Tr. Submission p. 2. After noticing that A.W. was traveling south on Interstate 65, she “called [A.W.’s] phone several times[.]” Appellant's Tr. Submission p. 2. “Most of the times[,] the calls went unanswered. However, on at least one occasion, Tasha spoke to both [Wertz] and [A.W.]” Appellant's Tr. Submission p. 2. Tasha “heard [A.W.] say ‘Pineapple,’ which is the family's code word” and told A.W. and Wertz “to come home[.]” Appellant's Tr. Submission p. 2. Tasha indicated that A.W.’s behavior “was unlike her” and that she had “found [A.W.] in the house crying” after A.W. and Wertz had returned. Appellant's Tr. Submission p. 2. After A.W. told her what had happened, Tasha told Wertz to leave. Wertz left the family's home without further incident.

[5] Sometime later, Boone County Sheriff's Deputy Tyler Moriarity located Wertz in Lebanon. At the time, Wertz was in possession of a “silver” pocketknife. Appellant's Tr. Submission p. 3. He tested negative for alcohol upon being “booked into the jail.” Appellant's Tr. Submission p. 3.

[6] On December 18, 2023, the State charged Wertz with Level 3 felony kidnapping, Level 3 felony criminal confinement, and Level 5 felony intimidation. After Wertz waived his right to a jury trial, the trial court conducted a bench trial on August 22, 2024. At trial, Wertz's mother and the mother of his child testified that A.W. had previously run away from home and driven to Marion County. Contrary to this testimony, A.W. testified that she had “never driven to Marion County before, nor that she had ever run away from home, nor that she had been disciplined for running away.” Appellant's Tr. Submission p. 1. The trial court found Wertz guilty as charged, merged the convictions “for the purpose of sentencing[,]” and imposed a nine-year sentence. Appellant's App. Vol. II p. 23.

Discussion and Decision

[7] Wertz contends that the evidence is insufficient to sustain his convictions for Level 3 felony kidnapping, Level 3 felony criminal confinement, and Level 5 felony intimidation.²

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 brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

I. Kidnapping

[8] “A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another commits kidnapping.” Ind. Code § 35-42-3-2(a). The offense is “a Level 3 felony if it ․ is committed while armed with a deadly weapon[.]” Ind. Code § 35-42-3-2(b)(3)(A).

[W]hen determining whether the elements of an offense are proven beyond a reasonable doubt, a fact-finder may consider both the evidence and the resulting reasonable inferences. In reviewing claims of insufficient evidence, appellate courts then consider whether a reasonable fact-finder could find guilt beyond a reasonable doubt based on the evidence and the reasonable inferences drawn therefrom.

Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).

[9] Wertz contends that the evidence is insufficient to prove that he removed A.W. by threat of force from one place to another. A.W.’s testimony establishes that Wertz, while displaying a pocketknife, instructed A.W. to drive south towards Indianapolis, ultimately going as far as Columbus before turning around and heading back to Thorntown. After showing A.W. the knife, Wertz told her that “it doesn't feel good[,]” which could lead one to reasonably infer that Wertz was willing to use the knife on A.W. if she did not follow his directions. Appellant's Tr. Submission p. 1. A.W. testified that she had never driven to Marion County before and used the “family's code word” when on the phone with Tasha. Appellant's Tr. Submission p. 2. A.W.’s use of the family's code word supports the reasonable inference that she was being made to act in a manner that made her afraid. The evidence, coupled with the reasonable inferences drawn therefrom, is sufficient to prove that Wertz removed A.W. from one place to another by force or threat of force.

[10] Furthermore, to the extent that Wertz argues that the evidence is insufficient to sustain his conviction because he merely possessed the knife, but did not use it, we note that the Indiana Supreme Court has recognized that the General Assembly has distinguished between being armed with a deadly weapon when committing a crime and using a deadly weapon during the commission of a perpetrator's crime, at times only requiring possession and at others requiring use. See Nicoson v. State, 938 N.E.2d 660, 665 (Ind. 2010) (noting that there is a difference between possessing a deadly weapon and using it and that when the statute requires only that the perpetrator be armed, the State is not required to also prove use). Indiana Code section 35-42-3-2(b)(3)(A) does not require the use of a deadly weapon during the commission of the crime, but rather explicitly indicates that the crime is a Level 3 felony if committed while the perpetrator is “armed with” the deadly weapon. The undisputed evidence demonstrates that Wertz possessed a deadly weapon, i.e., a pocketknife, during his encounter with A.W. The evidence is therefore sufficient to sustain Wertz's conviction for Level 3 felony kidnapping. Wertz's contention to the contrary amounts to nothing more than an invitation to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

II. Criminal Confinement

[11] “A person who knowingly or intentionally confines another person without the other person's consent commits criminal confinement.” Ind. Code § 35-42-3-3(a). The offense is “a Level 3 felony if it ․ is committed while armed with a deadly weapon[.]” Ind. Code § 35-42-3-3(b)(3)(A). In challenging this conviction, Wertz contends that there was no testimony that A.W. could not have chosen to drive the vehicle in another direction or have gotten away from Wertz. We disagree.

[12] The evidence most favorable to the trial court's judgment establishes that Wertz had instructed A.W. to drive south towards Marion County and, while displaying a pocketknife and telling her that it “doesn't feel good[,]” had instructed A.W. “to keep driving.” Appellant's Tr. Submission p. 1. As Wertz acknowledges, A.W. was afraid of Wertz and, again, said the “family's code word” while talking to Tasha on the telephone. Appellant's Tr. Submission p. 2. The evidence, together with the reasonable inferences that can be derived therefrom, is sufficient to support the trial court's determination that Wertz had confined A.W. without her consent. Furthermore, as was the case above, Indiana Code section 35-42-3-3(b)(3)(A) merely requires that Wertz had been armed with a deadly weapon and does not require use of said weapon. The evidence is sufficient to sustain Wertz's conviction for Level 3 felony criminal confinement. Wertz's contention to the contrary again amounts to nothing more than an invitation to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

III. Intimidation

[13] “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. Ind. Code § 35-45-2-1(a)(4). The term “threat” means, inter alia, “an expression, by words or action, of an intention to: (1) unlawfully injure the person threatened or another person, or damage property [or] (2) unlawfully subject a person to physical confinement or restraint[.]” Ind. Code § 35-45-2-1(c). The offense is a “Level 5 felony if ․ while committing it, the person draws or uses a deadly weapon[.]” Ind. Code § 35-45-2-1 (b)(2)(A).

[14] Wertz contends that the evidence is insufficient to establish that he communicated a threat to A.W. with the intent that she would be placed in fear that the threat would be carried out. We disagree. As is discussed above, Wertz instructed A.W. to drive south towards Marion County and, while displaying a pocketknife, which he had suggested a willingness to use, had instructed her “to keep driving.” Appellant's Tr. Submission p. 1. It is undisputed that A.W. was placed in fear by Wertz's actions. The evidence is sufficient to prove that Wertz communicated a threat to A.W. with the intent that A.W. would be placed in fear that the threat would be carried out. The evidence is therefore sufficient to sustain Wertz's conviction for Level 5 felony intimidation. Wertz's contention to the contrary amounts to nothing more than an invitation to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

[15] The judgment of the trial court is affirmed.

FOOTNOTES

1.   The parties agree that the transcript of Wertz's bench trial has been destroyed. For the purpose of creating a record of the witnesses’ testimony at trial, Wertz tendered a transcript submission to the trial court. The trial court certified the submission and ordered that the submission shall become part of the Clerk's Record pursuant to Appellate Rule 31(C). For the purposes of this appeal, we will refer to the submission as “Appellant's Tr. Submission.”

2.   We note that the trial court merged the convictions for sentencing purposes and Wertz does not challenge his convictions on double-jeopardy grounds. Wertz merely argues that the evidence is insufficient to sustain his convictions.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.