dissenting.
I would respectfully dissent, finding that sufficient probative evidence exists to support the jury's verdict that Ransley committed the offense of intimidation, a class C felony.
At the outset, I note that Gaddis v. State, 680 N.E.2d 860 (Ind.Ct.App.1997), and Johnson v. State, 748 N.E.2d 755 (Ind. 2001), differ in one respect from the case before us: the intimidation offenses charged therein were class A misdemeanors. Indiana law defines intimidation as, inter alia, the communication of "a threat to another person, with the intent that the other person be placed in fear of retaliation for a prior lawful act," which offense is a class A misdemeanor. Ind.Code § 35-45-2-1(a). However, the offense is a class C felony "if, while committing it, the person draws or uses a deadly weapon." Id. at (b)(2). Further, the forbidden "threat" is defined as "an expression, by words or action, of an intent to unlawfully injure the person threatened." Id. at (c)(1).
In Gaddis, after having exchanged incomprehensible hand gestures with another driver, the defendant displayed "the profile" of a handgun in the window of his car but did not point the gun at the other driver or his car. 680 N.E.2d at 862. The Gaddis court held, as a matter of law, that the defendant's acts did not constitute a threat "within the meaning of the intimidation statute as there was no evidence of an intent to injure" and reversed his intimidation conviction. Id.
*449In Johnson, our Supreme Court discussed the holding of Gaddis and agreed with the "general proposition" that "'the mere display of a handgun does not express an intention to unlawfully injure a person or his property'" 743 N.E.2d at 756 (quoting Gaddis, 680 N.E.2d at 862), Our Supreme Court then expressly observed that because "the State did not seek transfer in Gaddis," it had not had the "opportunity to evaluate whether the facts in that case demonstrated that the defendant went beyond the 'mere display' of a handgun." Id. In Johnson, the backseat passenger of a car stopped for a traffic light exited that car to talk with a man on the side of the street. When the light changed, Johnson remained outside the vehicle. Jerome Kreezamer-the driver of the car behind that from which Johnson had emerged-rolled down his window and told Johnson that the light was green and that he wanted to go through the intersection. Johnson responded, "F* * * you." Id. Kreezmer again told Johnson that the light was green, the car was obstructing traffic, and he wanted to go. This time, Johnson replied, "Suck my d* * *." Id. As Kreezmer started to exit his car, John "lifted his jacket revealing the top of an automatic handgun and stated, 'Don't even think it."" Id. A panel of this court reversed Johnson's conviction of intimidation, as a class A misdemeanor, following the reasoning of (Gaddis On transfer, our Supreme Court held that where "the record shows the existence of words or conduct that are reasonably likely to incite confrontation, coupled with the display of a firearm," such would generally be sufficient "to prove that a threat has been communicated within the meaning of the intimidation statute." Id. at 756-57. Our Supreme Court held that "evidence that Johnson displayed a firearm combined with telling Kreezmer 'don't even think it," after having made "two obscene remarks" to Kreezmer, was
sufficient for a trier of fact to conclude that Johnson communicated a threat within the meaning of the intimidation statute, namely: Johnson expressed by his words and actions an intention to unlawfully injure Kreezmer. The evidence was also sufficient to show that Johnson threatened Kreezsmer with the intent to place him in fear or retaliation for a prior lawful act, namely: asking Johnson to move his car.
Id. at 247.
In the case before us, the jury heard testimony establishing that long-standing hard feelings existed between Ransley and Nolan, and that they engaged in a heated verbal exchange on October 3, 2004. The jury also heard testimony to the following. After Mrs. Nolan heard Ransley "ranting and raving," and "shouting and seream-ing," Nolan ran in the house and told her that Ransley "had pulled a gun" and to call 911. (Tr. 70, 82)7 Nolan testified that when Ransley was about 30 feet away, he observed what appeared to be a gun in Ransley's waistband; and, that Ransley then pulled the gun and pointed the gun at him while the two men stood yelling at each other. Testimony of the two police officers who responded within minutes to the 911 calls established that when they first observed Ransley approaching them, he had a gun in his waistband, and he initially resisted complying with their commands to stop. Officer Eckert testified that upon his arrival, Nolan appeared to be visibly shaken, nervous, and flustered; he also testified without objection that Nolan *450reported that Ransley had pointed a gun in his direction. After being taken into custody, Ransley told Officer Harris, who had posed no questions to him, that he " 'was gonna shoot somebody.'" (Tr. 241, 257, Ex. 10).
The majority notes that the jury did not convict Ransley of the charge that he had pointed the gun at Nolan. However, I do not find that verdict to be fatally inconsistent with its verdiet that Ransley committed the offense of intimidation as charged. See Owsley v. State, 769 N.E.2d 181, 188 (Ind.Ct.App.2002), trams. denied (verdicts not fatally inconsistent if they can be explained by the fact-finder's exercise of its power to assign the proper weight to and either accept or reject certain pieces of evidence).
Ransley's counsel established through cross-examination of Mrs. Nolan that Nolan had not told her that Ransley pointed a gun at him. Further, Mrs. Nolan's report to 911 did not mention the pointing of a gun. In closing argument, Ransley's counsel referred to Nolan's testimony and the 911 recording as establishing that Ransley had the phone with him as he approached Nolan before allegedly pulling the gun, and argued that it was "almost a physically logistical impossibility" for Ransley to have pointed the gun while also talking on the phone-asserting "the gun was not pointed." (Tr. 284). Further, Nolan was asked to demonstrate how Ransley had motioned with the gun after he pulled it from his waistband. This evidence makes it possible for the jury to have concluded that the State had not proven beyond a reasonable doubt that Ransley had actually pointed a loaded gun at Nolan. To me, the jury's finding that Ransley was not guilty of the crime of pointing a firearm at Nolan does not nullify its finding that Ransley drew the deadly weapon during their verbal al-tereation.
Pursuant to Johnson, when a defendant is charged with the offense of intimidation that does not include the statutory element involving a weapon, we consider whether the display of a weapon combined with words and conduct were reasonably likely to incite a confrontation. 743 N.E.2d at 756. The evidence is undisputed that Nolan was yelling at Ransley, and Ransley was yelling back at him. On the 911 tape, played for the jury, Ransley can be heard repeatedly calling to Nolan, "I've got a gun . I'm waiting for you .... I'm waiting .... I'm waiting .... Come on ...." (Ex. 6). According to the testimony, this was before Ransley started walking toward Nolan, reducing their separation from perhaps 70 feet to where they were 30 feet apart. It was at this distance, Nolan testified, that Ransley pulled the gun from his waistband and pointed it at him. I find the evidence to clearly establish that Rans-ley "went beyond the mere display of a handgun," Johnson, 743 N.E.2d at 756, even if the jury found that he did not point the gun at Nolan. I further find that the "action and conduct" of Ransley was "reasonably likely to incite a confrontation," id.; I find also that the evidence supports the conclusion that Ransley's acts and conduct were accompanied by his drawing a deadly weapon. Therefore, I would find that Ransley communicated a threat within the meaning of the intimidation statute, namely: Ransley "expressed by his words and actions an intention to unlawfully injure" Nolan. Id. And, I would find the evidence sufficient to prove beyond a reasonable doubt that Ransley "threatened [Nolan] with the intent to place him in fear of retaliation for a prior lawful act," namely: having engaged in the verbal altercation with Ransley. Id. Accordingly, I would find that sufficient evidence of probative value exists which supports the jury's verdict that Ransley committed the *451offense of intimidation, as a class C felony. Thus, I vote to affirm the trial court.
. In fact, this testimony was elicited three times during cross-examination by Ransley's counsel.