Daniel Carl English, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Daniel Carl English was convicted following a jury trial of Class A misdemeanor intimidation. He appeals, raising three issues that we consolidate and restate as:

1. Did reversible error occur during the parties’ closing arguments?

2. Did the State present sufficient evidence to convict English?

[2] We affirm.

Facts & Procedural History

[3] In September 2023, Jeffrey Johnson (Jeffrey) lived in a neighborhood in Newburgh, Indiana, and English lived in the house directly behind him. On September 9, Jeffrey's adult son, Jacob, along with his wife and their young daughter, were visiting from out of town. A group of family members – including Jeffrey, Jacob, and Hunter Carr – went out to dinner and arrived back at Jeffrey's home around 6:00 p.m.

[4] As they were exiting their cars in the driveway, they heard “a repeating soundtrack” of “a male voice screaming curse words” playing loudly “for the whole neighborhood to hear,” and they determined it was coming from English's home. Transcript at 57, 60. Within a few minutes, Jacob, Jeffrey, and Carr collectively decided they would ask English to turn down the volume, with Jacob being especially concerned about his young daughter's exposure to the inappropriate lyrics. Jacob and Jeffrey walked from the rear of Jeffrey's yard and through a neighbor's side yard to reach the front of English's home. Jacob stood in the street at the end of English's driveway, casually with his hands in his shorts pockets. Jeffrey stood nearby, but some feet apart from Jacob and nearer to the neighbor's yard. Carr had followed behind Jacob and Jeffrey but stopped and remained in the neighbor's yard.

[5] Jacob, from where he stood in the street, introduced himself to English, who was in his garage, and asked to speak with him. English began walking “pretty fast” down the driveway to the street, and Jacob calmly and politely asked English if he would turn the music down or off. Id. at 59. English's response was “explosive” and “very confrontational,” “yelling, cussing, and screaming.” Id. at 59, 70. English told Jacob that he would “kick all [their] asses” if they stepped on his property. Id. at 59.

[6] Before English reached the end of the driveway, he noticed Jeffrey standing on the sidewalk, and he “peeled off” from walking toward Jacob and “came straight at” Jeffrey, who had said nothing, “yelling and cussing” at him. Id. at 71. Jeffrey began walking away on the sidewalk, and English, while remaining in his yard, followed along and said “he was going to kick ass,” which made Jeffrey feel threatened. Id. at 78. Carr observed from the neighbor's yard that “[English] told us that we should leave ․ or get our f*cking asses beat[.]” Id. at 87.

[7] Seeing that the situation was not going to be resolved, Jacob and Jeffrey walked to the neighbor's property and met up with Carr to walk home. As they walked along the property line back toward Jeffrey's, English followed along on his side of the property line, “yelling how he was going to kick all of [their] asses” and uttering “promises and invitations of f*cking ass beatings.” Id. at 71, 88. English also informed them that he “had done it to many others before and was not afraid of [them].” Id. at 87-88. Jacob and Jeffrey's response was minimal; at one point, Jacob told English to “calm down,” and Jeffrey told English “don't touch me.” Id. at 62, 71, 78. They intentionally did not enter onto English's property at any time. Once back at Jeffrey's house, Jeffrey called 911, and an officer responded.

[8] On September 20, 2023, the State charged English with intimidation as a Class A misdemeanor. The information alleged that English communicated a threat to Jacob and/or Jeffrey with the intent that either of them be placed in fear that the threat would be carried out.

[9] A two-day jury trial was held in March 2025, at which Jeffrey, Jacob, and Carr testified for the State. Video footage of the encounter from English's doorbell camera was admitted into evidence over English's objection.¹

[10] Relevant here, during the State's closing argument, the prosecutor reviewed the evidence presented and argued, in part:

It's a crime to scare and bully your neighbors․ It's a crime to get up in your neighbor's face, scream that you're going to kick their asses, and follow them all the way along the property line, yelling and screaming at them. That's what happened.

Transcript at 103. English posed no objection to the argument.

[11] Thereafter, English's counsel argued, in part:

You've got three men ․ come to my client's property line in various positions surrounding him․ Is it a crime to protect yourself, your family and your property?

Id. at 104. At that point, the State objected, and an unrecorded sidebar was held.² Ultimately, the trial court sustained the State's objection and instructed the jury that “self-defense has not been raised as a part of this crime and you are not to consider that, as it was not raised as a part of the ․ proceedings.” Id.

[12] Continuing with her closing, defense counsel described that the three men “circled [English's] property” and argued that their respective descriptions of the incident had varied somewhat from one another. Id. She urged that Jacob's testimony did not reflect a threat and, rather, was only a warning, similar to a homeowner's warning about a dangerous dog that will bite anyone who steps on the property. In rebuttal, the State outlined the elements of intimidation and the statutory definition of “threat” and discussed the evidence presented relevant to each. Id. at 107.

[13] The jury found English guilty. The trial court subsequently sentenced him to six months in the Warrick County Security Center, suspended to one year of probation. English now appeals.

Discussion & Decision

1. Alleged Errors During the Parties’ Closing Arguments

[14] English asserts that there were two errors made during closing arguments that either separately or cumulatively entitle him to reversal of his conviction. One pertained to the prosecutor's statements that it is a crime to bully or scare your neighbors or get up in their face and scream that you are going to kick their ass. The other was during English's closing argument when the trial court sustained the State's objection to counsel's statement referring to English's ability to lawfully protect his family and property. We will address each in turn.

a. The State's Closing Argument

[15] English contends the prosecutor's statements that bullying, scaring, and yelling at a neighbor is a crime were inaccurate or incomplete statements of the law because “the prosecutor neglected to tell the jury that to obtain a conviction for intimidation the State had to prove an unlawful act.” Appellant's Brief at 9.

Specifically, English argues that Indiana “allows a person to lawfully injure another person who unlawfully comes onto their property”³ but the prosecutor's closing remarks left the jury with the erroneous belief “that the simple act of yelling is a threat.” Id. at 13, 14. He asserts that this constituted prosecutorial misconduct and requires reversal of his conviction.

[16] As our Supreme Court has recently reaffirmed:

When reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. To preserve the misconduct claim for appeal, the defendant must object at the time the alleged misconduct occurs.

Konkle v. State, 253 N.E.3d 1068, 1077 (Ind. 2025) (cleaned up, emphasis added).

[17] As English did not object to the now-challenged statements, he must establish not only the grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (citations omitted), abrogated in part on other grounds by Konkle, 253 N.E.3d at 1082.

Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to “make a fair trial impossible.” In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) “constitute clearly blatant violations of basic and elementary principles of due process” and (b) “present an undeniable and substantial potential for harm.” The element of such harm is not established by the fact of ultimate conviction but rather “depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.”

Id. at 668 (citations omitted). In this case, our task is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury – including evidence admitted at trial, closing argument, and jury instructions – to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. See id.

[18] We initially observe that, other than citing to the standard for fundamental error, English provides no explicit fundamental error analysis. Therefore, his claim of fundamental error is waived. See Ind. Appellate Rule 46(A)(8).

[19] Regardless, our courts have long held that any misstatement of law during closing arguments is presumed to be cured by the trial court's final instructions. Konkle, 253 N.E.3d at 1082. That is, the jury is presumed to follow the trial court's instructions and not law recited by counsel during arguments. Pritcher v. State, 208 N.E.3d 656, 665 (Ind. Ct. App. 2023). Moreover, our Supreme Court has recognized that “ ‘closing arguments are rightly received by the jury as partisan advocacy, not impartial statements of the law, and thus are likely to have little effect on the jury's understanding of the law.’ ” Konkle, 253 N.E.3d at 1082-83 (quoting Castillo v. State, 974 N.E.2d 458, 469 n.11 (Ind. 2012)).

[20] Here, the trial court's final instructions properly and fully informed the jury of the elements of intimidation as well as the definition of threat under the Indiana Code. And the jury had also been instructed that counsels’ opening statements and closing arguments were not to be considered as evidence. Further, the State, in rebuttal argument, expressly referred to the two final instructions pertaining to intimidation and the statutory definition of threat, and reviewed the evidence that had been presented as to each.

[21] English has not established that the prosecutor's now-challenged comments made a fair trial impossible, and his claim of fundamental error stemming from the State's closing argument fails.

b. English's Closing Argument

[22] When counsel for English told the jury that three men had come to English's property line and “surround[ed] him” and then rhetorically asked, “Is it a crime to protect yourself, your family and your property?”, the State objected. Transcript at 104. Following a side bar, the trial court sustained the objection and admonished the jury that self-defense was not at issue in the case. English asserts that the trial court abused its discretion when it sustained the objection, preventing his “efforts to counter or complete” the State's purportedly incomplete and erroneous statements of the law during its closing argument. Appellant's Brief at 15.

[23] It is well settled that the proper scope of final argument is within the trial court's sound discretion. Walls v. State, 993 N.E.2d 262, 269 (Ind. Ct. App. 2013), trans. denied. We will not find that the trial court abused its discretion unless its decision is clearly against the logic and effect of the facts and circumstances before it. Id. In seeking reversal of a conviction, it is incumbent upon the appellant to establish not only the trial court's abuse of discretion but also any resulting prejudice to his or her rights. Id.

[24] English asserts that, contrary to the court's admonishment, he was not arguing that he was acting in self-defense or defense of his property, but rather, was merely “explaining the law to the jury” that one is legally allowed to protect his person or property. Appellant's Brief at 16. He argues that, by sustaining the State's objection, the court improperly prevented the jury from “fully considering” his theory of the case, which was that if the Johnsons had entered onto his property, he would have been within the law to protect it, and therefore, his words to the Johnsons did not evince a threat to unlawfully injure them as required for intimidation. Id. This argument overlooks the fact that the undisputed evidence at trial was that neither Jeffrey nor Jacob entered English's property or made any attempt to do so. Indeed, the evidence was that they purposefully avoided stepping on his property. English did “not have the right to ․ argue a theory unsupported by the evidence during closing arguments.” Dixey v. State, 956 N.E.2d 776, 783 (Ind. Ct. App. 2011), trans. denied.

[25] We agree with the State that if the trial court had not sustained the objection and admonished the jury that self-defense was not at issue in the case “the jury could have been misled into believing ․ that [English's] threats were justified because he was protecting himself or his property.” Appellee's Brief at 18. English has not established that the trial court abused its discretion when it sustained the State's objection during English's closing argument.

2. Sufficiency of the Evidence

[26] English asserts that the State failed to produce sufficient evidence to convict him. When reviewing sufficiency of the evidence claims

[w]e consider only the probative evidence and reasonable inferences supporting the verdict. We do not reweigh the evidence or judge witness credibility. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. The evidence is sufficient if an inference may be reasonably drawn from it to support the verdict.

Peterson v. State, 187 N.E.3d 305, 308-09 (Ind. Ct. App. 2022). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Laughlin v. State, 101 N.E.3d 827, 829 (Ind. Ct. App. 2018).

[27] To convict English of Class A misdemeanor intimidation, the State was required to prove that that he 1) communicated a threat, 2) with the intent that another person be placed in fear that the threat would be carried out. Ind. Code § 35-45-2-1(a)(4). A “threat” is statutorily defined, in part, as “an expression, by words or action, of an intention to ․ unlawfully injure the person threatened or another person, or damage property.” I.C. § 35-45-2-1(c)(1).

[28] 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), trans. denied. “A threat is punishable if the speaker ‘intend[s] his communications to put his targets in fear for their safety, and ․ the communications were likely to actually cause such fear in a reasonable person similarly situated to the target.’ ” Id. (quoting Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), cert. denied (2015)). Whether a defendant's communications, objectively viewed, were threats is a question of fact for the fact-finder to decide. Id. As our Supreme Court has observed, assessing whether a communication is a threat “is highly dependent on context.” Brewington, 7 N.E.3d at 963. And “we must leave room for a jury to use its reasonable judgment about all of the contextual factors.” Id. at 965 (internal quotation omitted).

[29] Here, English asserts that the evidence was insufficient because “[t]he State produced no evidence that English threatened unlawful behavior.” Appellant's Brief at 18. He reasons that the statements did not amount to threats because he was merely “explain[ing] he would defend his property – which is not a crime,” and Indiana “does not criminalize warning people of the potential consequences of their potential illegal actions.” Reply Brief at 6; Appellant's Brief at 18. Relying on the testimony of Jacob – that English said he would kick their asses if they stepped on his property – English claims “the undisputed testimony is that [he] simply warned the Johnsons” that he would exercise his lawful right to protect his property if they infringed upon it. Appellant's Brief at 18. This argument wholly ignores the testimony of Jeffrey and Carr, neither of whom indicated that English's statements were conditioned upon them entering upon his property.

[30] Rather, they recounted that English shouted at them to leave “or get [their] f*cking asses beat” and that English, while walking down the driveway, veered directly toward and up to Jeffrey in an aggressive posture, causing him to feel threatened. They also described that, as the three men were leaving and walking back to Jeffrey's home, English followed along next to them continuing to “yell[ ] how he was going to kick all of our asses” and make “promises ․ of f*cking ass beatings.” Id. at 71, 87, 88. English also advised the men that he had done such “to many others” on prior occasions. Id. at 88. To the extent English argues we should adopt his explanation that he was merely warning/informing Jeffrey and Jacob, this is a request to reweigh the evidence and credibility of the witnesses, which we will not do. See e.g., Fleming v. State, 85 N.E.3d 626, 629 (Ind. Ct. App. 2017) (affirming on sufficiency grounds where defendant claimed that he did not intend to threaten a neighbor when he shouted across the street “that he was going to come over and kick [his] ass” and that, rather, his words “were an invitation to engage in a fight”).

[31] The State presented sufficient evidence from which the jury could determine that English committed Class A misdemeanor intimidation.

[32] Judgment affirmed.

FOOTNOTES

1.   The video did not include audio.

2.   English moved to supplement the record pursuant to Ind. Appellate Rule 31, and his counsel submitted a verified Statement of Evidence reciting her recollection of the sidebar. Following a hearing, the trial court granted English's motion. The Statement of Evidence reflects that, during the sidebar, the State argued that English was untimely raising a claim of self-defense. English's counsel responded that her comments “were not related to self-defense. Instead, she had intended to argue that it was not a crime to protect oneself, family, and property.” Appendix at 99.

3.   English refers to Ind. Code § 35-41-3-2(d), which provides that a person is justified in using reasonable force, including deadly force, against any other person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.

Altice, Judge.

May, J. and Foley, J., concur.