FILED
Jun 28 2019, 9:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana Ian McLean
Supervising Deputy
Attorney General
Indianapolis Indiana
IN THE
COURT OF APPEALS OF INDIANA
Josh McBride, June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-580
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Mark McConnell,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
19C01-1603-F5-192
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-580 | June 28, 2019 Page 1 of 19
Case Summary and Issues
[1] Following a bench trial, Josh McBride was convicted of intimidation, a Level 5
felony, and sentenced to four years in the Indiana Department of Correction,
with one year to be served on adult day reporting and three years suspended to
supervised probation. McBride now appeals his conviction, raising the
following dispositive issue for our review: whether his conviction of
intimidation is supported by sufficient evidence. The State cross-appeals,
raising the issue of whether McBride should be unequivocally prohibited from
possessing a firearm during his term of probation. Concluding there was
sufficient evidence supporting McBride’s conviction of intimidation and that
the State’s point is well-taken, we affirm the conviction and remand for further
proceedings.
Facts and Procedural History
[2] McBride lived with his longtime girlfriend, Karena Vonderheide, and their
three children on property Vonderheide owned in Dubois County. Their
property was situated immediately north of property owned by Anderson
Valley Christian Church (“Church”). A large stone cross was situated on the
south side of Vonderheide’s property facing the Church. Church members
thought the cross was “beautiful,” Transcript, Volume 3 at 126, and
“appreciated it[,]” id. at 199. McBride, Karena, and their children attended the
Church. One Sunday in December 2015, Church member Danny Madden left
the service to meet and escort a visitor into the Church. While he was outside,
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one of McBride’s dogs bit Madden. When discussing the matter with McBride
afterwards, Madden asked that the dogs be restrained or kept inside during
church services from then on so no other churchgoers were hurt. Although
McBride did restrain the dogs, he did not seem to take kindly to the request,
because “it seemed like from that Sunday on [McBride and his family] were just
very upset all the time.” Id. at 121. Church members were also “very uneasy”
after the dog bite incident because they “didn’t know what to expect when
[they] came to church.” Id. at 127-28. “[I]t was something every Sunday.
[We] didn’t know what was going to happen. Something new came up every
Sunday.” Id. at 203.
[3] Sometime early in 2016, at least one of McBride’s dogs died, and McBride
believed someone associated with the Church poisoned the dog. Following the
dog’s death, McBride’s son, Damian, entered the Church during Sunday
services in early February, walked to the altar and took the microphone without
being invited to do so, called Madden a liar, and “just [told congregants] what
he thought about us[.]” Id. at 198. He alleged there were drug dealers on the
Church property and that congregants had “dishonored his mother” because
she had been receiving threatening letters. Id. Around this same time, the
words “Lying hypocrites” were spray painted in red on the horizontal bar of the
cross that faced the Church. Id. at 127.
[4] Shortly after the incident of Damian “coming in the church house and getting
the microphone and talking[,]” id. at 220, Madden was on the Church property
checking on the progress of a drain line the Church was installing when
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McBride and his son approached and McBride told his son to “go get a 45,”
Tr., Vol. 4 at 11, and threatened to bring guns to the Church next Sunday.
Church members then discussed the matter with the Dubois County Sheriff’s
Office. On February 21, 2016, Church elders signed a letter asking the
McBrides not to return to the Church:
We the officers of the [Church], come forward on behalf of the
[Church] to let you know that you are not welcome to attend any
services, or to be on the property owned by the [Church].
Please allow this letter to serve as a no trespass warning. Failure
to do so will be considered trespassing and law enforcement will
be contacted.
State’s Exhibit 2, Exhibit Index at 23. The sheriff’s office served the letter on
the McBrides on February 22.
[5] On Sunday, February 28, when Church members began arriving for services,
they found “a decapitated dog [was] hanging from the cross.” Tr., Vol. 3 at 16.
Shortly before services began at 9:00 a.m., congregants began hearing gunfire.
Brenda Madden, Madden’s wife, stated that when they arrived at church,
“immediately it was pow, pow, pow, pow, pow. I mean, it was really loud. . . .
[T]here was just a lot of noise like gunfire and explosions. It was just
something that I wasn’t expecting. It was kind of scary.” Id. at 108. Brenda
told her husband, “Honey, I’ll take the next bullet if there’s a bullet coming for
these people if we can get peace back in this church[.]” Id. The gunfire had
already started when Lola Gilmore and her husband arrived at the Church;
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Gilmore told her husband that “if he didn’t get killed, then [she’d] get out [of
the car].” Id. at 195. “I was scared, but I thought God would protect me, and
I’m 83 years old, so if I get shot going to church, what better way?” Id. at 202.
She said the gunfire was rapid and “didn’t stop.” Id. at 191. Victor
Rickenbaugh saw McBride walking along the property line, firing “just one
after another” at the ground in front of him as he moved his arms “back and
forth, left and right.” Id. at 148-49.
[6] Inside the Church, Tamara Weyer was asked to call 911, which she did from a
Sunday School room overlooking the McBride property. She described seeing
McBride shooting his gun “towards the ground between the church and their
house, towards the woods.” Id. at 19-20. While she was on the phone, she
experienced what she described to 911 as a “[v]ery loud explosion. You kind of
shook, the church shook, smoke.” Id. at 21. Several members described the
sound as being “like bombs going off[.]” Id. at 163. In the meantime, Tamara’s
husband, Jason, also saw McBride shooting a firearm outside the Church and
took their two sons and other kids to the basement. Inside the Church, “[i]t
was kind of panic, pretty intense.” Id. at 96. Jason felt the gunfire was
communicating “[a]nger” about the dog bite incident. Id. at 101. Scott Weyer,
who usually leads the Sunday service, stated the February 28 service was
different because there “was a lot of anxiety and fear.” Id. at 181. He believed
the discharge of firearms next door was “trying to scare us and disturb us and
disrupt us. That’s the way I felt, and that’s what I can see on my congregation’s
face.” Id. at 182. Tamara felt the gunfire was communicating the threat of
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death to her and the congregation because she “didn’t know at any moment if
they was [sic] going to turn and shoot towards the church.” Id. at 61. There is
no dispute that McBride ultimately did not shoot at the Church, “[i]t’s just that
they were right there beside the church[,]” id. at 236, “about on the line”
separating the two properties, id. at 224.
[7] Sergeant Chris Faulkenburg of Dubois County Sheriff’s Department was one of
the officers who responded to the 911 call. When he arrived, he advised
McBride of the disorderly conduct statute and asked him several times to cease
making unreasonable noise. McBride yelled at officers to stay off his property,
emphasized his Second Amendment right to have and shoot firearms on his
own property, and accused Church members of poisoning his dog. McBride
and Damian continued shooting their guns randomly into the dirt at no
particular target. Sergeant Faulkenburg also observed McBride riding his ATV
up and down the property line and instructing Damian to rev up the engine on
a truck. Sergeant Faulkenburg described the ATV as “obnoxiously loud” and
stated McBride rode up and down the property line multiple times “looking
over at the church, looking [in officers’] direction. It seemed to be that there
was no purpose to it, from my perspective, other than to just be loud.” Tr., Vol.
4 at 55. Gilmore also noted that “when they got done shooting, they got a four-
wheeler out and rip and tore and made noise. Then they got – had an old truck
or something [and] revved it up[.]” Tr., Vol. 3 at 203. She believed they were
being loud, “hopefully, I guess, so we couldn’t hear in church. But we could.”
Id.
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[8] Since the incident, regular attendance at the Church has declined by half which
Church members attribute to this incident. Tamara Weyer “loved it when [her
sons] had friends [stay over] on Saturday night because it meant they would go
to church with us[,]” but for “quite a while” after this incident, she would not
let her kids have friends over on Saturdays because she did not want “to bring
another kid into church and have their life in danger.” Id. at 38. Brenda
Madden stated she is now more aware of her surroundings and does not spend
a lot of time at the Church when there is not a service. She is “a little cautious”
if a visitor walks in, “[a]nd you shouldn’t feel that way. You should want to
welcome someone to church and be glad they’re there.” Id. at 113-14.
[9] The State charged McBride with Count I: intimidation as a Level 5 felony for
communicating a threat by brandishing and/or discharging a firearm to several
named members of the Church with the intent that they be placed in fear of
retaliation for the prior lawful act of sending a no trespass letter to him and in
committing said act, he drew or used a deadly weapon; Count II: intimidation
as a Level 5 felony for communicating a threat by brandishing and/or
discharging a firearm to certain named members of the Church with the intent
that they alter their Sunday morning activity at the Church against their will
and in doing so, drew or used a deadly weapon; Count III: criminal
recklessness as a Level 6 felony for recklessly, knowingly, or intentionally
discharging a deadly weapon in a way that bullets and/or shrapnel could have
been sent toward the Church, creating a substantial risk of bodily injury to
certain named members of the Church; Count V: disorderly conduct as a Class
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B misdemeanor for recklessly, knowingly, or intentionally disrupting a lawful
assembly of persons at the Church; Count VI: disorderly conduct as a Class B
misdemeanor for recklessly, knowingly, or intentionally making an
unreasonable noise by discharging his firearm next door to the Church during
the Sunday service and continuing to do so after being asked to stop; and Count
VII: disorderly conduct as a Class B misdemeanor for recklessly, knowingly, or
intentionally making an unreasonable noise by riding an ATV next door to the
Church during the Sunday service and continuing to do so after being asked to
stop.1 McBride was tried to the bench, and at the conclusion of the trial, the
trial court found him guilty of Counts I, II, V, and VI. At McBride’s sentencing
hearing, the trial court stated:
I do want to address that although I’ve entered convictions with
regard to Counts I, II, V and VI, that the Court, based upon the
continuous crime doctrine, finds that the Defendant’s actions
share the same time, place, singleness of purpose and continuity
of action, that they constitute a single transaction for which only
one conviction can be entered. In other words, all of those
counts are merged.
The Court, therefore, is going to enter . . . judgment of conviction
only with regard to Count II, intimidation, a Level 5 felony.
Tr., Vol. 4 at 205-06.
1
Count IV was dismissed on the State’s motion prior to trial.
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[10] The trial court sentenced McBride to four years in the Department of
Correction, with one year to be served on Level One Adult Day Reporting and
three years suspended to supervised probation. One of the terms of his
probation provided,
You shall not purchase, possess, or use any firearm, destructive
device or other dangerous or deadly weapon unless granted written
permission by the Court or your Probation Officer.
Appellant’s Appendix, Volume 3 at 222 (emphasis added). However, a No
Contact Order While On Probation was also issued at the time of McBride’s
sentencing stating that he was to have no contact with the Church and its
members and that he was “to have no firearms, deadly weapons, or
ammunition in [his] possession.” Id. at 226.
Discussion and Decision
I. McBride’s Appeal
A. Standard of Review
[11] When reviewing the sufficiency of the evidence required to support a criminal
conviction, we do not reweigh the evidence or judge the credibility of the
witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only
the evidence supporting the verdict and any reasonable inferences that can be
drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018),
trans. denied. Thus, we consider conflicting evidence most favorably to the
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verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will
affirm if there is substantial evidence of probative value such that a reasonable
trier of fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Bailey, 907 N.E.2d at 1005. It is not necessary for the evidence to
overcome every reasonable hypothesis of innocence; it is sufficient if an
inference may reasonably be drawn from the evidence to support the verdict.
Silvers, 114 N.E.3d at 936.
B. Intimidation
1. Threat to Engage in Conduct Against One’s Will
[12] McBride contends the evidence was insufficient to support his conviction for
intimidation. The trial court entered judgment of conviction only on Count II,
which charged McBride with intimidation for communicating a threat to
certain named members of the Church by brandishing and/or discharging a
firearm with the intent that they alter their Sunday morning activity at the
Church pursuant to Indiana Code section 35-45-2-1(a)(1). To secure a
conviction for intimidation under this subsection, the State is required to prove
beyond a reasonable doubt that a person communicated a threat to another
person with the intent that the other person engage in conduct against the other
person’s will. 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). McBride
specifically challenges the evidence that his display and discharge of firearms
communicated a threat to the congregation or that “his lawful use of firearms at
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his personal residence was intended to force church members to alter their
activities at church.” Brief of Appellant at 10.
[13] The State did not articulate in the information the threat it alleged McBride
made with his actions. However, as possibly pertinent to this case, “threat” is
defined by the intimidation statute as:
an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or
damage property;
***
(3) commit a crime;
***
(8) cause the evacuation of a dwelling, a building, another
structure, or a vehicle.
Ind. Code § 35-45-2-1(d). Our courts have adopted an objective view of
whether a communication is a threat. Owens v. State, 659 N.E.2d 466, 474 (Ind.
1995). Further, whether a defendant intended that someone engage in conduct
against his or her will depends on the facts and circumstances of each case. Id.
Therefore, both whether the defendant intended that the victim engage in
conduct against his or her will and whether his communications, objectively
viewed, were threats are questions of fact for the fact finder to decide. Id. A
threat is punishable if the speaker “intend[s] his communications to put his
targets in fear for their safety, and that the communications were likely to
actually cause such fear in a reasonable person similarly situated to the target.”
Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), cert. denied, 135 S.Ct. 970
(2015).
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[14] McBride notes that in Gaddis v. State, 680 N.E.2d 860, 862 (Ind. Ct. App. 1997),
trans. not sought, this court held that “the mere display of a weapon” which the
person charged has a constitutional right to carry is insufficient to constitute a
threat under the intimidation statute.2 In Gaddis, a driver on the interstate felt
the car behind him was following two closely but was unable to change lanes
due to heavy traffic. When traffic cleared, the defendant, driving the rear car,
changed lanes and the two cars traveled side by side in adjoining lanes for a
time long enough for the drivers to exchange hand gestures and words,
although the windows of both cars where raised and neither could hear the
other. The defendant also took his handgun from his glove box, displayed it at
the window without pointing it at the other driver or his car and then placed it
on the console. The other driver then slowed down and backed off as the
defendant exited the interstate. The State charged the defendant with
intimidation, alleging in part that he communicated a threat of an intent to
harm the other driver by displaying his handgun. Gaddis was convicted
following a bench trial. On appeal, we held these facts failed to demonstrate an
intent to injure the other driver and therefore did not constitute a threat:
although the “display of a firearm to another motorist while traveling in close
proximity at a high rate of speed is foolish, . . . under the intimidation statute
2
The defendant in Gaddis was charged with Class A misdemeanor intimidation alleging he communicated a
threat of intent to harm the other driver with the intent that the other driver be placed in fear of retaliation for
the prior lawful act of occupying a high speed lane of traffic on the interstate. Id. at 861.
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the mere display of a handgun does not express an intention to unlawfully
injure a person or his property.” Id. at 862.
[15] In Johnson v. State, 743 N.E.2d 755 (Ind. 2001), however, our supreme court
seemed to question the result in Gaddis3 and held that when “the record shows
the existence of words or conduct that are reasonably likely to incite
confrontation, coupled with the display of a firearm, we are hard pressed to say
that such facts are insufficient to prove that a threat has been communicated
within the meaning of the intimidation statute.” Id. at 756-57. There, the
defendant made multiple derogatory remarks to an out-of-uniform officer, and
when the officer began to exit his vehicle to confront the defendant, the
defendant lifted his jacket to display the top of a handgun as he stated, “Don’t
even think it.” Id. at 756. The court affirmed the defendant’s conviction of
intimidation because the defendant introduced the gun into an emotionally
charged environment and suggested a willingness to use it. Id.
[16] McBride cites Gaddis for the proposition that “[i]f one has a constitutional right
to possess a firearm, the intimidation statute cannot criminalize lawful use of
the firearm, without something more.” Br. of Appellant at 15-16 (noting in
Johnson, the defendant displayed a firearm and made two obscene remarks and
a threatening statement). However, McBride did not simply display a firearm
3
The court noted that the State had not sought transfer in Gaddis and therefore, although it agreed with the
general proposition that the mere display of a handgun does not express intention to unlawfully injure a
person or his property, it had not had the opportunity “to evaluate whether the facts in [Gaddis] demonstrated
that the defendant went beyond the ‘mere display’ of a handgun.” Id. at 756.
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as in Gaddis, nor did he simply legally discharge a firearm on a given day. In
the weeks leading up to this incident, McBride had spray painted an insult on
the cross in such a manner that it was directly facing the church, threatened to
bring guns to Church, and accused Church members of killing his dogs and
lying. In the context of these escalating tensions between McBride and
members of the Church, on February 28, McBride displayed a decapitated dog
in clear and full view of the Church parking lot and discharged multiple rounds
of ammunition into the ground along the property line with no discernible
target from the time members of the Church began arriving for their Sunday
service until police arrived some considerable time later. Several Church
members expressed their belief they might be shot going into the Church, and
many stated that the constant barrage of gunfire frightened them. McBride
detonated explosions near enough to the Church building to cause it to shake.
It is difficult to perceive McBride’s actions as anything other than a threat to
cause the Church members or their building harm. Moreover, McBride’s
actions altered the course of services that day, likely caused the regular
attendance at the Church to go down, and changed the congregants’
relationship to the Church building itself and to visitors.
[17] As stated above, whether the defendant communicated a threat and intended
that the victim engage in conduct against his or her will are questions for the
fact finder to decide. Owens, 659 N.E.2d at 474. Multiple members of the
Church testified that McBride’s actions that day caused them to fear they would
be injured simply by attending their regular church services. Such fear was
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likely to be instilled in a reasonable person in that situation, see Brewington, 7
N.E.3d at 964, and therefore the evidence was sufficient to support the trial
court’s finding that McBride was guilty of intimidation.
2. Threat in Retaliation for Prior Lawful Act
[18] The trial court also found McBride guilty on Count I, which alleged McBride
committed the offense of intimidation by communicating a threat by
brandishing or discharging a firearm to those members of the Church who
signed the no trespass letter with the intent that they be placed in fear of
retaliation for their prior lawful act of sending the letter. See Ind. Code § 35-45-
2-1(a)(2). Although the trial court did not enter judgment of conviction on this
count, we briefly address McBride’s argument about the sufficiency of the
evidence supporting it, noting that we have already decided above that the
evidence supports the trial court’s determination that McBride’s actions
communicated a threat.
[19] McBride contends his case is similar to Ransley v. State, 850 N.E.2d 443, 448
(Ind. Ct. App. 2006), trans. denied, in which this court reversed a conviction for
intimidation where the defendant was in a longstanding property line dispute
with a neighbor and displayed a firearm during an argument with the neighbor.
He seeks a similar result here. In Ransley, the State charged the defendant with
intimidation for communicating a threat to shoot his neighbor “with the intent
that [the neighbor] would not come onto [the defendant’s] property and/or that
[the neighbor] would be placed in fear for the prior lawful acts including
arguing with [the defendant].” Id. at 446-47. The defendant stayed on his own
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property while the two yelled at each other and although he possessed a
handgun, he did not point it at the neighbor. In reversing, the court noted that
the evidence was insufficient to support the defendant’s conviction based on
keeping the neighbor off the defendant’s property because the alleged threat was
intended to prevent future action rather than repay the neighbor for a prior act
and because the neighbor entering the defendant’s property without permission
would constitute an unlawful rather than lawful act. Id. at 447. The State was
therefore left with proving that the defendant communicated a threat intending
the neighbor be placed in fear for the prior lawful act of arguing. But even
though the neighbor “was given the chance to testify that [the defendant] had
threatened to kill or harm him for the prior lawful act of arguing, he made no
such allegation.” Id. Thus, there was no evidence linking the defendant’s
threat to the act of arguing. Id.
[20] Here, the alleged prior lawful act was the sending of the no trespass letter. On
February 21, the Church sent McBride a letter telling him he and his family
were no longer welcome on Church property, and one week later, on the first
Sunday after receiving the letter, McBride walked along the property line
between his property and the Church’s, discharging his firearm repeatedly. It
was within the Church’s rights to send the no trespass letter and the evidence
was sufficient to show that McBride communicated a threat intending for
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Church members to be placed in fear of retaliation for their prior lawful act of
issuing the no trespass letter.4
II. State’s Cross-Appeal
[21] The State’s cross-appeal alleges this case should be remanded to the trial court
to impose as a condition of probation that McBride is prohibited from
possessing a firearm pursuant to 18 U.S.C. section 922(g). Specifically, the
State takes issue with the language in McBride’s conditions of probation that he
could be granted permission to have a firearm. The State argues neither the
trial court nor the probation department would have authority to grant such
permission, as a federal statute prohibits a convicted felon from possessing or
receiving a firearm “in or affecting commerce.” 18 U.S.C. § 922(g)(1).
McBride responds that the State’s argument is not ripe because there is no claim
that McBride has even requested, let alone been granted, permission to possess
a firearm.5
4
McBride was also found guilty of two counts of disorderly conduct. He claims on appeal that, as applied to
him, the disorderly conduct statute violates the Second Amendment to the United States Constitution and
Article 1, section 32 of the Indiana Constitution by impermissibly regulating his right to bear arms. His
argument, however, is contingent on the outcome of the first issue, as he argues that if his intimidation
conviction is reversed, the case should not be remanded for entry of judgment on the disorderly conduct
counts because it would be unconstitutional to convict him of disorderly conduct under these circumstances.
Because we have held above that his intimidation conviction was supported by sufficient evidence, we need
not address this issue as there are no constitutional implications. We do note, however, that although a
person has the right to own guns, he has no right to misuse them or to threaten other people with them.
5
Subsequent to this case being fully briefed, McBride submitted a notice to the court that his probation had
been revoked and his probationary period unsuccessfully terminated. He therefore argues the State’s cross-
appeal is moot and moves that it be dismissed. He also notes, however, that he is appealing the revocation of
his probation, and therefore, the cross-appeal is not yet moot, as if he is successful on appeal, he may be
restored to probation.
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[22] In sentencing McBride to a term of probation, the trial court imposed certain
conditions of probation, including that McBride could not purchase, possess, or
use any firearm “unless granted written permission by the Court or [his]
Probation Officer.” Appellant’s App., Vol. 3 at 222. Contemporaneously, the
trial court issued a No Contact Order While On Probation imposing, “in
addition to all other conditions previously specified[,]” a condition prohibiting
McBride from having contact with the Church or its member and stating that he
“is ordered to have no firearms, deadly weapons, or ammunition in [his]
possession.” Id. at 226. The no contact order also references 18 U.S.C. section
922(g). It appears, therefore, that the trial court is aware of the restrictions on
convicted felons contained in federal law. Nonetheless, there is an obvious
conflict in the trial court’s orders. Further, with respect to McBride’s ripeness
argument, the terms of probation may be modified at any time regardless of
whether a probation violation has occurred. Ind. Code § 35-38-2-1.8; see also
Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. We
therefore remand this case for the trial court to modify the terms of McBride’s
probation to remove the conditional language and unequivocally state that he is
not permitted to have a firearm during his probation.
Conclusion
[23] The State presented sufficient evidence from which the trial court, as the trier of
fact in McBride’s bench trial, could conclude that McBride was guilty beyond a
reasonable doubt of intimidation. We therefore affirm McBride’s conviction.
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However, because the trial court imposed a term of probation that both conflicts
with another term and with federal law, we remand to the trial court to modify
the terms of probation consistent with this opinion.
[24] Affirmed in part and remanded in part.
Baker, J., and Najam, J., concur.
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