II v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Howard L. Wheeler, II (“Wheeler”) was convicted after a bench trial of intimidation ¹ as a Level 5 felony and criminal recklessness ² as a Level 6 felony and was sentenced to an aggregate term of two years on community corrections. On appeal, Wheeler raises one issue for our review: whether the State presented sufficient evidence to support his convictions. We affirm.

Facts and Procedural History

[2] On August 4, 2025, Jeffrey Embree (“Embree”) drove to the trailhead near White River Parkway and Raymond Street in Marion County to walk the trails. When he got out of his car, he heard screaming and yelling coming from the trails, although he could not see anyone. Embree heard a man yelling, “you better not be down here on the trails—or going to be down here, ․ sucking dick”; “I better not see you on your knees or you won't be getting up”; and “[i]f I see you with a dick in your mouth it'll be the last thing you put in your mouth.” Tr. Vol. II p. 8. The man also shouted, “These aren't trails anymore they're shooting lanes.” Id.

[3] Christopher Mendel (“Mendel”), an acquaintance of Embree's who also frequently walked the trails, was also present at the trailhead that day. Mendel was confronted by a man, identified as Wheeler, yelling at Mendel and a group of walkers. Wheeler was armed with a machete and was waving the machete around and saying he would kill people who went back in the woods. Mendel heard Wheeler announce that, “this is his house now and nobody's to go back there at all, at the risk of their life.” Id. at 28. Wheeler approached Mendel while swinging the machete “to enunciate[,]” and at one point his face was only inches from Mendel's. Id.

[4] Embree encountered Mendel as Mendel came up from the trails and called 911 to report Wheeler screaming and threatening people. During the 911 call, Embree relayed that Wheeler had said words to the effect that “anybody who comes down here better be looking for wild animals and, if not, I am going to kill you.” State's Ex. 3(2) at 0:50–1:00. While Embree was on the call, Wheeler came up to the parking area carrying the machete. Wheeler walked toward him with a three-foot long machete in his hand, came within about five feet of Embree, and raised the machete to “shoulder height[,] just above his head” with the blade up. Tr. Vol. II p. 11. Wheeler was close enough that, if he had swung the machete, it would have hit Embree.

[5] As Wheeler advanced toward Embree, he yelled at him, called him a “homo” and a “pedo,” and accused him of being there to “suck dick.” Id. at 13. Wheeler can be heard yelling angrily in the background of the 911 recording, including references to “being on your knees for the last time” and to the trails as “hunting grounds” and “shooting lanes.” State's Ex. 3 at 2:58–3:09. Embree feared Wheeler would harm him because of the raised machete and retreated behind his car to put distance between himself and Wheeler.

[6] On November 5, 2025, the State charged Wheeler with Level 5 felony intimidation and Level 6 felony criminal recklessness. The intimidation charge alleged that Wheeler communicated a threat to Embree, while drawing or using a deadly weapon, a machete, with the intent that Embree engage in conduct against his will. Appellant's App. Vol. II p. 11. The criminal recklessness charge alleged that Wheeler, while armed with a deadly weapon, a machete, recklessly created a substantial risk of bodily injury to Embree by holding the machete over his head or swinging it at him. Id.

[7] Wheeler waived his right to a jury trial, and on February 12, 2026, the trial court held a bench trial. At the conclusion of the trial, the trial court found Wheeler guilty on both counts. On March 11, 2026, the trial court sentenced Wheeler to an aggregate two-year sentence executed in Marion County Community Corrections. Wheeler now appeals.

Discussion and Decision

[8] Wheeler argues that the State failed to present sufficient evidence to support his convictions for intimidation and criminal recklessness. When there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence. Id. Further, “[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

A. Intimidation

[9] To convict Wheeler of intimidation, the State was required to prove that he communicated a threat to Embree with the intent that Embree engage in conduct against his will. See Ind. Code § 35-45-2-1(a)(1); Appellant's App. Vol. II p. 11. The offense was elevated to a Level 5 felony because Wheeler communicated the threat while drawing or using a deadly weapon, which was the machete. See I.C. § 35-45-2-1(b)(2)(A); Appellant's App. Vol. II p. 11. A threat means “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)(A).

[10] Wheeler contends that insufficient evidence was presented to support his conviction for Level 5 felony intimidation because there was no evidence that he directed a threatening communication to Embree or that Wheeler made a threatening communication under circumstances that he “knew or had good reason to know” it would reach Embree. Appellant's Br. p. 11. He asserts that, although the evidence demonstrated that Wheeler made threats to Mendel or the group he was near, it did not establish that he communicated a threat to Embree. Wheeler further claims that although Embree reported to the 911 operator that Wheeler said, “anybody who comes down here better be looking for wild animals or, if not, I'm going to kill you, or something along those lines.” State's Ex. 3(2), at 00:50-1:00, Embree did not testify that Wheeler made the statement to Embree.

[11] A defendant need not speak directly with a victim to communicate a threat for purposes of Indiana Code section 35-45-2-1. E.B. v. State, 89 N.E.3d 1087, 1091 (Ind. Ct. App. 2017). However, it has been held that to communicate a threat for purposes of the offense of intimidation, the statement must be transmitted in such a way that the defendant knows or has good reason to believe the statement will reach the victim. See Ajabu v. State, 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997) (affirming conviction for intimidation where defendant used a means of communication, media outlets, that he knew or had good reason to believe would reach the victims), trans. denied.

[12] Here, the evidence revealed that Wheeler, while armed with a machete, approached Embree with the machete raised at shoulder height with the blade up. Wheeler got within five feet of Embree, which was close enough that if he swung the machete, it would have connected with Embree. Further, Embree testified that Wheeler called him “a homo” and “a pedo” and stated that Embree was at the trails “to suck dick.” Tr. Vol. II p. 13. On the 911 call, Wheeler can be heard yelling about “being on your knees for the last time” and saying that the trails are “hunting grounds” and “shooting lanes.” State's Ex. 3(2) at 2:59–3:09. These statements were made close enough to Embree that they could be heard on the 911 call and communicated a threat of unlawful injury to people that Wheeler believed were engaged in sexual conduct on the trails. Therefore, it was reasonable for the trial court to infer that, when Wheeler made these statements, he knew of or had reason to know that they would reach Embree, especially in light of the fact that Wheeler had just accused Embree of being on the trails to engage in sexual conduct. Embree also testified that, as a result of Wheeler's actions and statements, Embree felt fearful and moved behind his vehicle to put space between himself and Wheeler. Looking at the evidence presented at trial, we conclude that it was sufficient to support Wheeler's conviction for Level 5 felony intimidation.

B. Criminal Recklessness

[13] To convict Wheeler of criminal recklessness, the State was required to prove that he recklessly held the machete over his head and/or swung it at Embree, which created a substantial risk of bodily injury to Embree. See I.C. § 35-42-2-2(a); Appellant's App. Vol. II p. 11. The offense was enhanced to a Level 6 felony because Wheeler committed the offense while armed with a deadly weapon, a machete. See I.C. § 35-42-2-2(b)(1)(A); Appellant's App. Vol. II p. 11.

[14] Wheeler argues that the State presented insufficient evidence to support his conviction for Level 6 felony criminal recklessness because there was no evidence that he created a substantial risk of bodily injury to Embree. Wheeler specifically asserts that the evidence only established that he briefly held the machete above shoulder height while approaching Embree, which, without more, did not create a substantial risk of bodily injury.

[15] Here, the evidence most favorable to the judgment established that Wheeler approached to within a few feet of Embree and raised his machete up to “shoulder height just above his head” with the “blade up.” Tr. Vol. II pp. 11, 19. Wheeler was close enough to Embree that he would have struck Embree if he had swung his arm. While testifying, Embree demonstrated for the trial court exactly how Wheeler had been holding the machete. Id. at 11, 17–18. Further, the testimony and 911 call clearly established that Wheeler was aware of Embree's presence as he was yelling at him, calling him names, and making threatening statements to him while holding the machete and confronting Embree as to why he was at the trails.

[16] To support his argument, Wheeler cites Elliott v. State, 560 N.E.2d 1266 (Ind. Ct. App. 1990) and Boushehry v. State, 648 N.E.2d 1174 (Ind. Ct. App. 1995). However, both of these cases are readily distinguishable from the present case. Both Elliott and Boushehry involved defendants who shot guns in areas where there were no people present, and the guns were not shot toward any person, merely near where people were present. See Elliott, 560 N.E.2d at 1266–67 (shot a pistol towards adjacent uninhabited fields and woodlands); Boushehry, 648 N.E.2d at 1176 (shot a rifle to kill geese in vacant lot near his home with the shots being fired in the direction of a nearby road). The defendants’ criminal recklessness convictions were reversed because the evidence did not prove the actual existence of a substantial risk of bodily injury. See Elliott, 648 N.E.2d at 1267–68; Boushehry, 648 N.E.2d at 1177. Here, the evidence clearly established that Wheeler's action of raising the machete was clearly directed at, and occurred in close proximity of, Embree such that a substantial risk of bodily injury actually existed. The risk of injury here was not speculative because Embree was close enough that he would have been hit by the machete if Wheeler swung his arm. Sufficient evidence was presented to support Wheeler's conviction for Level 6 felony criminal recklessness.³

[17] Looking to the evidence most favorable to the trial court's judgment, we conclude that sufficient evidence was presented to support Wheeler's convictions for Level 5 felony intimidation and Level 6 felony criminal recklessness.

[18] Affirmed.

FOOTNOTES

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

2.   I.C. § 35-42-2-2(a), (b)(1)(A).

3.   Because we conclude that sufficient evidence was presented to prove that Wheeler recklessly held the machete over his head, which created a substantial risk of bodily injury to Embree, we do not reach his assertion that insufficient evidence was presented that he swung the machete at Embree. As the offense was charged in the alternative, the State only had to prove one of the actions in the charging information. See Appellant's App. Vol. II p. 11.

Foley, Judge.

Felix, J., and DeBoer, J., concur.