Kelcey E. Hall, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Kelcey E. Hall appeals his convictions of Level 5 felony intimidation ¹ and Level 6 felony criminal recklessness.² Hall argues the State failed to prove he used a deadly weapon and his convictions violate the prohibition against double jeopardy. We affirm.

Facts and Procedural History

[2] On July 16, 2023, Hall lived in a garage in Greens Fork, Indiana. Across the street and one house over from Hall's garage was a house occupied by Brittany Tudor and her family. Brittany's brother, Shaun Tudor, lived two blocks down the street. Tudor was a single father of two children, and his children slept at Brittany's house.

[3] Between 10:30 and 11:00 p.m. on July 16, Shaun was sitting on his front porch when he heard tires “squeal” near his sister's house, (Tr. Vol. 2 at 39), and he decided to walk down to see what was happening. On the way, Shaun could hear Hall, who was near the road in his own lawn, screaming toward the road at Brittany and the person in the car that had accelerated quickly. As Shaun approached, Hall turned his attention to Shaun, shining a flashlight in Shaun's eyes, threatening to beat up Shaun, and screaming at Shaun that Hall had “bullets with [Shaun's] name on” them. (Id. at 42.) After four more minutes of screaming, Hall went into his garage, brought out a .380 mm pistol, and fired three rounds toward Shaun. Hall then yelled, “the next bullets [sic] for you.” (Id. at 45.) Rather than fire the gun again, Hall ran into the alley, got into his truck, and drove away. Shaun called 911 to report what had happened. Brittany and two other neighbors reported hearing gunshots during the incident.

[4] The State charged Hall with Level 5 felony intimidation and Level 6 felony criminal recklessness. Hall waived his right to a jury trial, and the trial court found Hall guilty of both crimes after hearing testimony from seven witnesses. After a sentencing hearing, the trial court imposed concurrent sentences of three years for intimidation and one year for criminal recklessness, and the court suspended one year of the intimidation sentence to probation.

Discussion and Decision

1. Sufficiency of Evidence

[5] Hall first argues the State failed to present sufficient evidence that he used a deadly weapon during the commission of the offenses. Our Indiana Supreme Court reiterated our standard of review for such questions:

Sufficiency-of-the-evidence 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 jury.” Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). 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.” Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).

Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024).

[6] Both crimes charged against Hall involved the use of a deadly weapon, which in this case was alleged to be a firearm. (App. Vol. 2 at 19.) Hall argues the State's evidence was insufficient to prove he brandished a firearm because “the police found no handgun, no spent shell casings, no bullets, and no bullet holes.” (Appellant's Br. at 9.) Nor, Hall notes, did any witness testify that a bullet struck any of the houses in the area.

[7] Shaun testified that he was experienced with weapons and that the pistol sounded like a .380 – “a little bit bigger than a 22, not as big as a 9-millimeter.” (Tr. Vol. 2 at 43.) While Shaun could not see details of the weapon being fired at him to tell police exactly what it was, he knew it “was a smaller caliber pistol[.]” (Id. at 52.) He saw the muzzle flash three times when the gun was fired, and three other people living in the area testified that they heard gunshots during the incident. One of the investigating officers testified that no shell casings would have been found if the gun had been a revolver, rather than a semi-automatic. Despite the issues to which Hall points, Shaun's testimony – especially when supported by testimony of others who lived in the area – was sufficient for the trial court to find Hall used a deadly weapon. See Gorman v. State, 968 N.E.2d 845, 851 (Ind. Ct. App. 2012) (“a victim's testimony that he or she saw the defendant use what was believed ․ to be a gun is, by itself, sufficient proof of the use of a deadly weapon”), trans. denied. We reject Hall's suggestions that the State was required to do more to prove the firearm was a deadly weapon. See Ind. Code 35-31.5-2-86(a)(1) (defining “deadly weapon” to mean a “loaded or unloaded firearm”).

2. Double Jeopardy

[8] Hall next argues his simultaneous convictions of intimidation and criminal recklessness violate substantive double jeopardy prohibitions. Indiana's Double Jeopardy Clause applies only to successive prosecutions, not to multiple convictions in a single proceeding. Wadle v. State, 151 N.E.3d 227, 245 (Ind. 2020). Nevertheless, statutory and common law protections may bar multiple punishments for the same offense in a single proceeding. Id. at 246-47. Our Supreme Court established a three-step framework for analyzing such claims in Wadle, which was clarified in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024). We review double jeopardy claims de novo. Id. at 1064.

[9] Under the first step of our double jeopardy test, we determine whether the statutes defining either crime “clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Wadle, 151 N.E.3d at 248. The parties agree that neither criminal statute herein clearly permits multiple punishment, (Appellant's Br. at 12) & (Appellee's Br. at 11), so we move to step two.

[10] Under the second step, we initially determine whether the lower-level crime is included in the other crime under the included offense definitions in Indiana Code section 35-31.5-2-168. A.W., 229 N.E.3d at 1067. To complete this step, we first analyze the statutory language and then we analyze the language in the charging information. Id. If neither offense is included in the other, there is no double jeopardy violation and the analysis ends. Id.

[11] We deal first with inherent inclusion, which occurs if one offense is an attempt to commit the other offense, id., if one “ ‘may be established by proof of the same material elements or less than all the material elements defining the [other] crime charged’ or if “the only feature distinguishing the two offenses is that a lesser culpability is required to establish the commission of the lesser offense.’ ” Wadle, 151 N.E.3d at 251 n.30 (quoting Young v. State, 30 N.E.3d 719, 724 (Ind. 2015)). The version of Level 5 felony intimidation at issue herein requires proof that a defendant: (1) communicated a threat to another person (2) with the intent that the other person be placed in fear that the threat would be carried out, and (3) drew or used a deadly weapon while communicating the threat. Ind. Code § 35-45-2-1(a)(4) & (b)(2)(A). Level 6 felony criminal recklessness as charged herein requires proof that a defendant: (1) recklessly, knowingly, or intentionally (2) performed an act (3) that created a substantial risk of bodily injury to another person, and (4) was armed with a deadly weapon while committing the act. Ind. Code § 35-42-2-2(a) & (b)(1)(A). Intimidation requires communication of a threat and intention to place another in fear – which are elements absent from criminal recklessness. Criminal recklessness requires proof of an act creating a substantial risk of bodily injury – which is not required for intimidation. As each offense requires proof of an element that the other does not, neither crime is inherently included in the other.

[12] Next under the second step, we turn to whether the offenses are factually included in one another as charged – in other words, we consider whether “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” Wadle, 151 N.E.3d at 251 n.30 (quoting Young, 30 N.E.3d at 724). As we undertake this analysis, we consider only the facts presented in the charging information, A.W., 229 N.E.3d at 1067, and we construe any ambiguity in the facts in favor of the defendant. Id. at 1069. For intimidation, the charging information alleged:

Hall did communicate a threat to Shaun Michael Tudor II, another person, by drawing or using a deadly weapon, with the intent that Shaun Michael Tudor II be placed in fear that the threat will be carried out[.]

(App. Vol. 2 at 19.) For criminal recklessness, the charging information alleged:

Hall did recklessly, knowingly, or intentionally with a deadly weapon, to wit: a firearm, perform an act that created a substantial risk of bodily injury to Shaun Michael Tudor II, to-wit: [sic] discharge said firearm[.]

(Id.) Construing the charging information in the light most favorable to Hall leads us to note the reckless firing of a deadly weapon that created substantial risk of injury to Shaun (as required to prove criminal recklessness) could be fully subsumed within in the “using a deadly weapon” required for the intimidation charge. The State has not provided any citation to legal authority to demonstrate “use” of a firearm excludes “discharge” of a firearm. We accordingly find a presumptive double jeopardy violation and move to the third step of the analysis, wherein the State has the opportunity to rebut that presumption. See A.W., 229 N.E.3d at 1071 (explaining application of test).

[13] Under the third step, we consider the evidence and arguments at trial to determine whether the State distinguished the two crimes from one another. Id. In this case, following the bench trial, the court entered explicit findings to explain its verdicts. For Level 5 felony intimidation, the trial court found:

Here, the facts before the Court show beyond a reasonable doubt that the Defendant, Kelcey E. Hall, communicated a threat to Shaun Michael Tudor, II, with the intent that Shaun Michael Tudor, II be placed in fear that the threat of “beating his fucking ass,” or shooting him, would be carried out. While Shaun was directly in front of Defendant Hall, Hall threatened Shaun that he “would beat his fucking ass” and/or after shooting the gun three times, threatened Shaun “that the next bullet is for you.” Hall did so, while drawing a deadly weapon.

(App. Vol. 2 at 123.) Then, for Level 6 felony criminal recklessness, the trial court found:

Hall recklessly, knowingly, and intentionally performed an act that created a substantial risk of bodily injury to another person by firing three (3) shots outside in a neighborhood where there were occupants, including children, in the houses in the exact area where the shots were fired as well as Shaun Michael Tudor, II, who was directly in front of Hall when the shots were fired.

(Id. at 124.) The trial court's findings indicate it distinguished the drawing of the deadly weapon for intimidation from the firing of the weapon for criminal recklessness, and accordingly, Hall has not been subjected to double jeopardy.

Conclusion

[14] The State presented sufficient evidence that Hall brandished a deadly weapon during his offenses, and Hall's simultaneous convictions of intimidation and criminal recklessness do not offend Indiana's substantive double jeopardy principles. Accordingly, we affirm.

[15] Affirmed.

FOOTNOTES

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

2.   Ind. Code §§ 35-42-2-2(a) & (b)(1)(A).

May, Judge.

Altice, C.J., and Foley, J., concur.