dissents with separate opinion.
SULLIVAN, Judge, dissenting.
Deborah Dennis, a Humane Society employee, over objection as to relevance, testified as follows:
“Q. Has Jack Hyde told you that he has a weapon?
A. Yes.
Q. Have you seen that weapon?
A. Yes.
Q. What kind of a weapon does he have?
A. It’s a sawed-off shotgun.
Q. Do you know the purpose for which Jack Hyde obtained that weapon?
KAREN R. STRUEH: Objection. It calls for conjecture and speculation.
THE COURT: Sustained.
Q. Did Jack Hyde tell you why he acquired that weapon?
A. Yes, he did.
Q. And what was it ... what was the purpose that he told you?
A. He told me that he had bought it and he was going to wait until Officer Fish was on duty ... midnight duty or whatever it is and he was in by himself ... then he was going to walk in blow him away and walk out.” Record at 96.
Later Officer Fish himself testified, without objection, as follows:
“Q. Have you previously been informed of anything that would cause you to be in fear of your safety if you went into that house?
A. Yes, I had.
Q. Please explain that.
A. In the middle of February, Debbie Dennis had advised me that Jack Hyde had a sawed-off shotgun and that he had threatened to blow me away or kill me ... and that he was going to come while I was on 3rd shift and kill me while I was in the office. She also told me that the gun was kept at the house.
Q. Is that why you didn’t ... is that one of the reasons that you didn’t break the door down and go in and get him?
A. That was the primary reason.” Record at 106.
Even if we consider the earlier objection to Ms. Dennis’s testimony to be of a continuing nature so as to apply to the testimony of Officer Fish, it would seem that the latter testimony was certainly relevant to why Officer Fish did not consummate the arrest after Hyde fled into the house and locked the door.
*631In any event, I respectfully disagree with the position of the majority that the existence, presence or absence of a shotgun is wholly irrelevant to the charge of Intimidation.
The “threat,” here oral, must be communicated. The “threat” must also be made with an intent to cause conduct by the other person or place that other person in fear. Whether the statement is truly threatening or not depends not only upon the intent of the utterer but upon its perception by the hearer.
Even if it were otherwise and our focus were restricted solely to the defendant’s subjective state of mind, that state of mind must be viewed or determined in the context of the circumstances. It is not only the naked statement or the words used which reflect that intent but the circumstances under which those words were uttered and communicated.
For this reason I am unable to agree with the grounds for reversal and for the granting of a new trial.
Establishment of the required intent to cause an individual to engage in conduct depends upon the facts and circumstances surrounding the offense. People v. McKendrick (1985) 138 Ill.App.3d 1018, 93 Ill.Dec. 462, 486 N.E.2d 1297.
Those facts and circumstances are also relevant to whether the communication may be objectively viewed as a true threat. See State v. Abu-Isba (1984) 235 Kan. 851, 685 P.2d 856.
In Long v. State (1986) 3d Dist. Ind.App., 492 N.E.2d 700, 702, our Third District held that the intent requisite for an intimidation conviction “may be inferred from the surrounding circumstances.” Certainly, if this be so, Hyde’s ownership and access to a weapon gives dimension and context to the threat made and to the intent with which he made that threat.
Our case is strikingly similar to Bolen v. State (1982) 3d Dist. Ind.App., 430 N.E.2d 398. It is not therefore inappropriate to quote the entire pertinent holding from that case:
“The testimony objected to discloses that on June 27, 1980 Bolen called Yoder ‘a little Amish son-of-a-bitch’ and that Bolen ‘intended to get him.’ Record at 294. Hammer also testified that on June 28, 1980 Bolen talked in general terms about Yoder being the cause of all his problems. Bolen then took Hammer to the back of his van and showed him a clip from an automatic weapon and stated, ‘I’m going to kill him,’ referring to Yo-der. Record at 297. Although these statements may not have necessarily constituted a crime inasmuch as Yoder was not present at the time, they show that Bolen had talked of killing Yoder shortly before he actually threatened Yoder. A material issue in this case was whether Bolen actually told Yoder that he would kill him. The evidence is therefore relevant.” 430 N.E.2d at 401.
In our case there is no dispute whether the words which constituted the threat were uttered. Nevertheless, the circumstances surrounding that statement were material and relevant to the issue of whether the statement constituted a threat and to Hyde’s intent.
Whether Fish knew of the existence of the weapon may have been relevant to his perception of the threat. However, even if the majority is correct in stating that Fish’s knowledge of the weapon is irrelevant, the existence of the sawed-off shotgun and Hyde’s ownership and access to it was relevant to his intent. Hyde’s statement to Dennis concerning the shotgun and its prospective use tended to demonstrate that he was serious about “blowing Fish away.”
Although the Indiana statutory definition of “threat” does not contain express language concerning the perception of the person to whom the threat is communicated, Federal case law is of some assistance. The Federal statute, 18 U.S.C. § 875(c), forbids communication of a threat in interstate commerce. The communication must “have a reasonable tendency to create apprehension that its originator will act according to its tenor.” United States v. Bozeman (1974) 5th Cir., 495 F.2d 508, 510, *632cert. denied 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696.
The Indiana intimidation offense, unlike the Federal violation above cited, requires that the communication be made to the intended victim. Accordingly, it would appear that the prospective victim’s perception of the communication is germane. That perception might well be materially affected by knowledge or reasonable apprehension that the originator of the communication had the ability to carry out the threat.
To be sure inability to carry out a threat does not militate against a conviction for transmitting a communication containing a threat. See United States v. Cooper (1975) 6th Cir., 523 F.2d 8. This legal premise, however, does not mean that evidence of ability to carry out the threat is inadmissible. United States v. Goodoak (1988) 1st Cir., 836 F.2d 708, involved a conviction of attempted extortion. Unlike a consummated extortion, it is not necessary to prove that the threat generated fear in the victim. The defendant, therefore, argued that evidence of actual fear in the victim was irrelevant. The court disagreed stating:
“In deciding whether the defendant’s words and acts amounted to an attempt to induce fear, the jury is surely entitled to know whether those words and acts did in fact induce fear. Evidence that the defendant’s conduct frightened the victim makes it more likely that the defendant was in fact attempting to frighten the victim. Conversely, evidence that the victim was not frightened makes it less likely that the defendant made such an attempt.” 836 F.2d at 712.
In a different Federal context, the court in United States v. Mitchell (1987) 9th Cir., 812 F.2d 1250, considered the statute which prohibits knowingly and willfully making a threat against the President. Quite obviously, a conviction does not depend upon whether the threat has been communicated directly or indirectly to the President. It requires only that the statement be made in a context or under circumstances that a reasonable person would interpret it as a serious expression of intention. The Court appropriately held, as should we, that whether the statement constituted a punishable threat must be determined in light of the entire factual context of the statement and that surrounding events and the reaction of the listeners may be considered. This holding was enunciated in light of a corollary holding that it is of no moment that the defendant is incapable of carrying out the threat because the threat itself is the crime. The Mitchell case demonstrates that whether there is or is not a true threat depends upon all the circumstances and would include whether defendant has the present ability to carry out the threat even though inability to do so in and of itself does not preclude a conviction. Quite clearly under this analysis, evidence of an ability to carry out the threat is admissible. United States v. Hoffman (1986) 7th Cir., 806 F.2d 703, cert. denied, — U.S. -, 107 S.Ct. 1627, 95 L.Ed.2d 201.
Our statute, with reference to the intent required of the defendant, is not dissimilar from that considered in People v. Hopkins (1983) 149 Cal.App.3d 36, 196 Cal.Rptr. 609. The court there held that the apparent ability of the defendant to carry out the threat was an element of the crime, although it was not necessary for the State to prove that it reasonably appeared that defendant would, in fact, carry out the threat.
The Montana intimidation statute is virtually identical to ours. In State v. Lance (1986) Mont., 721 P.2d 1258, the unanimous Montana Supreme Court observed that the statute prohibits the communication of a threat without any requirement of an overt act. With reference to the impact of the threat upon the hearer, the Court said:
“We find that implicit in the word ‘threat’, as used in the intimidation statute, is a requirement that it be communicated under circumstances which reasonably tend to produce a fear that the threat will be carried out.” 721 P.2d at 1266.
“The language of § 45-5-203 does not use the word ‘victim’; rather, the word ‘another’ is used. We believe that it is within the language and intent of the statute that the person who receives the *633threat can be different from the person who is sought to be compelled by the threat. Otherwise, for example, an individual could contact the news media threatening to take the life of a hostage if the Governor does not meet his demands, and he could not be convicted under this statute. But it is this very situation which the statute is aimed at outlawing.” 721 P.2d at 1269.
Under such construction it therefore is apparent that the communication to Dennis concerning the weapon and the intent to harm Fish was not only admissible evidence as to Hyde’s intent but was itself a separate and prohibited threat. But see Bolen v. State, supra, 430 N.E.2d 398, as hereinbefore quoted.
Whether the statement or communication is a threat or is innocuous or a jest depends upon the total circumstances and upon the perception of the hearer. See State v. Frustino (1984) 142 Ariz. 288, 689 P.2d 547, 552:
“A statement which appears nonthreatening on its face, such as, ‘I’ll send someone over to collect the money’ may be threatening only in light of the creditor’s specific prior uses of extortionate means of collection or his reputation regarding his collection practices.”
To the same effect is State v. Begbie (1987) Minn.App., 415 N.W.2d 103 (that defendant planned murder of victim six months prior to communicated threat was relevant to show that the threat was not merely an expression of transitory anger).
Not only must a threat be uttered, it must be communicated. The perception of the victim, or other hearer is therefore important. As stated in United States v. Baish (1983) D.C.App., 460 A.2d 38, 42:
“We find implicit in our threats statutes the same notion: to be subject to criminal prosecution, an individual must do more than utter a threat; the evidence must show that the threatening message was conveyed to someone — either to the object of the threat or to a third party. An uncommunicated threat, by definition, cannot threaten. A fortiori, a person making threats does not commit a crime until the threat is heard by one other than the speaker.
******
To establish a prima facie case, the government must prove, first, that the defendant uttered words to another, as well as that these words were of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer, and that the defendant intended to utter these words as a threat.” (Original emphasis.)
In State v. Mapula (1986) 80 Or.App. 146, 720 P.2d 1336, the Court considered a factual situation very similar to that before us and succinctly summarized the holding which I think to be appropriate in this case:
“The determination of whether a threat is genuine and poses an objective risk must necessarily be made on the facts as of the time of the threat. A failure [or inability] by the defendant to act on the threat may suggest that it was not genuine, but the failure does not compel that conclusion. There is evidence that defendant had previously damaged the victim’s property, that defendant had a gun and that he said, ‘I’ve got a gun and I’m going to kill you.’ The trial court could infer from that evidence that the threat was genuine and that it imposed an objective risk of breach of the peace. That is sufficient to support the conviction.” 720 P.2d at 1336-1337.
Because the majority opinion requires a new trial as to all issues and charges, it would serve no useful purpose for me to express a view concerning the other issues presented by appellant. I therefore restrict my dissent to the issue upon which the majority decided the case.