Marco A. Anguiano, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] While officers were investigating an alleged knifepoint robbery at a mobile home in Peru, Indiana, Marco Anguiano exited the home and began walking toward a nearby truck with his hands buried inside his coat. Ordered to stop and to show his hands, Anguiano instead continued walking away. In the seconds that followed, he pulled a loaded handgun from his waistband and pointed it at the approaching officers. He was charged and convicted after a jury trial of Level 5 felony intimidation and Level 6 felony resisting law enforcement, among other offenses.

[2] Anguiano appeals, arguing that the evidence was insufficient to support his intimidation conviction and that his simultaneous convictions for intimidation and resisting law enforcement placed him in double jeopardy. Both arguments fail. The State proved beyond a reasonable doubt Anguiano's commission of intimidation. Also, no double jeopardy violation occurred because the convictions for intimidation and resisting law enforcement arose from distinct base offenses: drawing a weapon to threaten the officers and fleeing when ordered to stop. We therefore affirm.

Facts

[3] In January 2025, the Miami County Regional Dispatch Center received a 911 call relating to a disturbance at a mobile home in Peru. Christopher Hosley met the responding officers and told them that Anguiano and another man within the mobile home had robbed him at knifepoint.

[4] Four officers ultimately congregated near the mobile home: an Indiana State Police lieutenant, an Indiana State trooper equipped with a body camera, and two detectives in plain clothes intending to serve outstanding warrants on two occupants of the home. The officers were discussing the situation when they observed a man, later identified as Anguiano, exit the home and walk toward a blue truck parked outside it. Anguiano's hands were in his coat pockets.

[5] The officers moved toward Anguiano. The lieutenant, who was at the front of the group, called out loudly for Anguiano to show his hands. Anguiano responded, “I didn't do anything.” Tr. Vol. III, p. 189. And then he immediately turned and walked back toward the mobile home, increasing his pace.

[6] As Anguiano moved away from the officers and toward the mobile home, he drew a black handgun from his waistband and pointed it at the officers. Two of the officers testified that they were a “hundred percent sure” that Anguiano pointed a firearm at them. Id. at 54, 117. In response, the officers shouted that Anguiano had a gun, and the officer closest to Anguiano fired twice at him. Anguiano ran around the corner of the mobile home, followed by the officer who had fired. When Anguiano's upper body began to move back toward the officer who had fired, that officer fired three more rounds, striking Anguiano in the arm. The entire encounter—from the initial command to Anguiano to show his hands through the shooting—lasted somewhere between 7 and 17 seconds.

[7] After being shot, Anguiano retreated to the front porch of the mobile home, where he dropped his weapon and consumed what appeared to be methamphetamine from a plastic bag he was carrying. Anguiano continued to defy the officers’ commands. But the officers arrested him and rendered first aid until an ambulance arrived to take him to the hospital.

[8] Meanwhile, the officers obtained a warrant to search the mobile home. A .45 caliber Glock 36 handgun was found on the front porch near where Anguiano was apprehended.

[9] The State charged Anguiano with six felonies: intimidation, pointing a firearm, resisting law enforcement, obstruction of justice, possession of methamphetamine, and unlawful possession of a firearm by a serious violent felon. Anguiano elected to represent himself beginning on the second day of trial. After two more days of trial, the jury acquitted Anguiano of obstruction of justice and possession of methamphetamine but found him guilty of the remainder of the offenses. After vacating the pointing a firearm conviction due to double jeopardy concerns, the trial court sentenced Anguiano to:

• 19 years imprisonment for Level 5 felony intimidation (5 years, enhanced by 14 years under Indiana Code § 35-50-2-11 based on the use of a firearm in the offense);

• 2 years imprisonment for Level 6 felony resisting law enforcement; and

• 10 years imprisonment for Level 4 felony unlawful possession of a firearm by a serious violent felon.

[10] The court ordered the intimidation and resisting law enforcement sentences to be served concurrently with each other but consecutively to the sentence for unlawful possession of a firearm by a serious violent felon, resulting in an aggregate sentence of 29 years imprisonment. Anguiano appeals only his convictions for intimidation and resisting law enforcement.

Discussion and Decision

[11] On appeal, Anguiano argues that the State presented insufficient evidence to prove he committed Level 5 felony intimidation. Alternatively, he claims his dual convictions for intimidation and resisting law enforcement placed him in double jeopardy. We find neither claim persuasive.

I. Sufficiency of the Evidence

[12] When reviewing a claim of insufficient evidence to support a conviction, this Court neither reweighs the evidence nor assesses witness credibility and considers only the probative evidence and the reasonable inferences supporting the verdict. Hendry v. State, 272 N.E.3d 239, 248 (Ind. Ct. App. 2026); Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “We affirm unless no reasonable factfinder could conclude the elements of the crime were proven beyond a reasonable doubt.” Id. at 248-49. “The evidence need not ‘overcome every reasonable hypothesis of innocence.’ ” Id. at 249 (quoting Drane, 867 N.E.2d at 146).

[13] For Anguiano's conviction for Level 5 felony intimidation to stand, the record must contain proof beyond a reasonable doubt that he communicated a threat to another person with the intent that the other person be placed in fear that the threat would be carried out and that Anguiano, while committing that crime, drew or used a deadly weapon. See Ind. Code §§ 35-45-2-1(a)(4), (b)(2). In this context, a “threat” means “an expression, by words or action, of an intention to[ ] unlawfully injure either the person threatened or another person ․” Ind. Code § 35-41-2-1(c)(1). Anguiano argues that the State did not prove that a “threat” was made or that he had the requisite intent to commit intimidation. We conclude the evidence was sufficient to prove both elements.

A. Threat

[14] Anguiano contends the mere pointing of a firearm cannot constitute a “threat” within the meaning of the intimidation statute. He suggests this is particularly true here where the encounter was brief and the officers were unfamiliar with him.

[15] Anguiano is correct that simply displaying a firearm does not automatically equate to intimidation. See, e.g., Gaddis v. State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997). Whether such a display rises to the level of a threat depends on the surrounding circumstances. Compare id. (finding one driver's mere display of a weapon to another driver while the cars were side-by-side on a highway did not constitute a “threat,” given that there was no evidence of an intent to injure), with Matter of K.Y., 175 N.E.3d 820, 825-26 (Ind. Ct. App. 2021) (Snapchat post to a group of students depicting a cartoon image brandishing a gun in each hand, alongside text cautioning students from a specific middle school not to come to school on Monday, constituted a threat for purposes of the intimidation statute).

[16] Here, the record shows much more than the mere pointing of a firearm. Two officers testified with certainty that Anguiano drew a handgun and pointed it directly at them after they had ordered him to stop and while one officer was pointing his gun at Anguiano. At that time, Anguiano was in the act of fleeing from officers investigating a violent crime he had allegedly just committed. Testimony also showed that Anguiano attempted to reach down after he dropped the gun.

[17] The brevity of the encounter does not strip it of legal significance. A threat communicated in mere seconds is still potentially a threat for purposes of the intimidation statute, which has no express temporal requirement. Neither does the intimidation statute mandate verbal elaboration or a prior relationship between the participants. See Maxwell v. State, 273 N.E.3d 140, 146 (Ind. Ct. App. 2025) (affirming intimidation conviction based on Maxwell's display of a handgun twice to a stranger on Maxwell's property during a brief interaction). As to the threat element, the statute merely requires communication of an expression—by words or action—of an intent to unlawfully injure the threatened person. See Ind. Code § 35-45-2-1(a)(4), (c)(1). A jury could rationally conclude from the surrounding circumstances that Anguiano communicated a threat when he drew a deadly weapon and pointed it at armed officers who had directed him to take his hands out of his pockets and to stop.

[18] Anguiano notes that the officer closest to Anguiano fired at him without knowing for certain that Anguiano was pointing the gun at him. But the jury was tasked with sorting this testimony from that of the two officers who testified the gun was pointed directly at them individually or at the group of officers. On appeal, we do not disturb the factfinder's credibility determinations. See R.M. v. State, 20 N.E.3d 873, 877 (Ind. Ct. App. 2014). The evidence was sufficient to support the jury's finding that Anguiano's display of his gun qualified as a threat under the intimidation statute.

B. Intent

[19] Anguiano also asserts that the State did not prove he intended that another person be placed in fear that the threat to injure would be carried out, as required by subsections (a)(4) and (c)(1) of Indiana Code § 35-45-2-1. He suggests the evidence established only his intent to flee, not his intent to threaten the officers.

[20] Intent is a “mental function” that is “determined from consideration of the defendant's conduct and the natural and usual consequences of that conduct.” K.Y., 175 N.E.3d at 825. The trier of fact, in determining intent, typically must resort to reasonable inferences based upon an examination of the surrounding circumstances. Id. “Indiana courts have concluded that a wide variety of circumstances can support the inference that a defendant possessed the requisite mens rea to commit intimidation.” Id. (citing Crose v. State, 650 N.E.2d 1187, 1192 (Ind. Ct. App. 1995)), which affirmed an intimidation conviction based on the victim's testimony that the defendant's threats put her in fear for her life, and Johnson v. State, 743 N.E.2d 755, 757 (Ind. 2001), which affirmed an intimidation conviction where the defendant displayed a firearm while making obscene remarks and telling the victim, “Don't even think about it”).

[21] Here, the jury could reasonably infer from Anguiano's actions and the surrounding circumstances that Anguiano intended for the officers to be placed in fear that his threat to injure them—that is, his display of his handgun— would be carried out. At the time he drew his gun, Anguiano was actively refusing the officers’ directives to stop and to display his hands. If his only intent was to flee, he would have had no reason to draw the gun. The jury could reasonably infer that Anguiano threatened the officers to ease his escape by placing them in fear that his threat would be carried out. See Johnson, 743 N.E.2d at 757. The evidence was therefore sufficient to prove Anguiano's commission of Level 5 felony intimidation.

II. Double Jeopardy

[22] Anguiano next contends that his simultaneous convictions for Level 5 felony intimidation and Level 6 felony resisting law enforcement violate the substantive prohibition against double jeopardy under the test developed in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and refined in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024). This analysis proceeds in three progressive steps.

[23] At step one, we determine whether the charging statutes for either intimidation or resisting law enforcement expressly permit—or by unmistakable implication authorize—multiple punishment for the same criminal act. Wadle, 151 N.E.3d at 248. Neither the intimidation statute, Indiana Code § 35-45-2-1, nor the resisting law enforcement statute, Indiana Code § 35-44.1-3-1, contains this authorization.

[24] Our analysis therefore proceeds to step two, at which we must determine whether either offense is an “included offense” of the other, either inherently or factually. Wadle, 151 N.E.3d at 248-52; A.W., 229 N.E.3d at 1066-67. An offense is inherently included in another if it is established by the same elements or fewer than those required for the other offense, consists of an attempt to commit the other offense or an included offense, or differs only in that it involves a less serious risk of harm or lesser culpability. Ind. Code § 35-31.5-2-168.

[25] The resisting law enforcement statute in effect at the time of Anguiano's crime specified, in relevant part:

(a) A person who knowingly or intentionally . .

(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop;

commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (c)․

(c) The offense under subsection (a) or (b) is a:

(1) Level 6 felony if: ․

(B) while committing the offense, the person:

(i) draws or uses a deadly weapon ․

Ind. Code § 35-44.1-3-1 (2024).

[26] Thus, Level 6 felony resisting law enforcement, as charged, required proof that Anguiano, among other things, fled from an officer after the officer identified himself and ordered Anguiano to stop. See Ind. Code § 35-44.1-3-1(a) (2024). As previously noted, Level 5 felony intimidation, as charged, required proof that Anguiano communicated a threat to the police officers with the intent that they be placed in fear that the threat would be carried out. See Ind. Code § 35-45-2-1(a)(4). Each offense demands an element the other does not. Neither consists of an attempt to commit the other nor does one simply require a less serious risk of harm or lesser culpability. Accordingly, neither offense is inherently included in the other. See Ind. Code § 35-31.5-2-168.

[27] An offense is factually included in another when the charging instrument alleges that “the ‘means used to commit the crime charged’ ” includes “all of the elements of the alleged lesser included offense.” A.W., 229 N.E.3d at 1067 (citing Wadle, 151 N.E.3d at 251 n. 30). Under A.W., this inquiry is confined to the face of the charging instrument. Id. Anguiano argues that because his charging instrument alleges both intimidation and resisting law enforcement by referencing drawing or using a deadly weapon, the two offenses arose from the same act and therefore constitute double jeopardy. But such an argument is overly broad.

[28] The charging instruments here are not ambiguous and show different base offenses for the intimidation and resisting law enforcement counts. The intimidation count charges Anguiano with communicating a threat while drawing or using a deadly weapon. Thus, the weapon deployed to communicate the threat—the gun—is the means by which the Level 5 felony intimidation offense was committed. See Ind. Code § 35-45-2-1(a)(4).

[29] The resisting law enforcement count charges Anguiano with knowingly fleeing after officers identified themselves and ordered him to stop and while Anguiano was drawing or using a deadly weapon. The means by which the base offense of resisting law enforcement was committed is the act of fleeing—not the drawing of the gun. The allegation that Anguiano drew the gun simply authorized the offense to be charged as a felony, rather than as a misdemeanor. Ind. Code § 35-44.1-3-1(a), (c)(2).

[30] The allegation of a weapon pointed by Anguiano appears in both counts, but as an enhancement to distinct underlying conduct in the resisting law enforcement statute, not as the common means by which the two base offenses were committed. In other words, intimidation was charged because Anguiano pointed a gun at officers. Resisting was charged because Anguiano ignored the officers’ instructions to stop and fled instead. The face of the charging instrument does not allege that flight was the means of communicating the threat or that the gun was the means of the flight. “[S]eparate base offenses constitute distinct statutory offenses” under a Wadle analysis, which turns “on whether the convictions are for offenses stemming from one base offense or two.” Moyers v. State, 277 N.E.3d 33, 42 (Ind. 2026). Contrary to Anguiano's claim, the intimidation and resisting law enforcement counts are not factually included because they stem from two distinct base offenses.

[31] Because neither offense is inherently or factually included in the other, the substantive double jeopardy analysis ends at step two. See Wadle, 151 N.E.3d at 248. Accordingly, no double jeopardy violation occurred.

Conclusion

[32] The evidence is sufficient to support Anguiano's conviction for Level 5 felony intimidation. In addition, his convictions for intimidation and resisting law enforcement do not violate the prohibition against double jeopardy. We therefore affirm the trial court's judgment.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.