ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SEAN P. HILGENDORF KAREN M. FREEMAN-WILSON
Hilgendorf & Hilgendorf Attorney General of Indiana
South Bend, Indiana
ANDREW L. HEDGES
Deputy Attorney General
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JARON Q. JOHNSON, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 71S03-0009-CR-529
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, ) 71A03-9906-CR-225
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William T. Means, Judge
Cause No. 71D01-9811-CM-9697
ON PETITION TO TRANSFER
March 9, 2001
RUCKER, Justice
When a person utters what can only charitably be called fighting words,
then displays a handgun, and next says “don’t even think it,” we conclude
the person has communicated a threat within the meaning of the intimidation
statute. We therefore grant transfer and affirm the trial court.
Facts
On the afternoon of November 5, 1998, Sergeant Jerome Kreczmer of the
South Bend Police Department stopped directly behind a gray Ford Tempo at a
red traffic light in St. Joseph County, Indiana. Although Kreczmer was on
duty, he was out-of-uniform and driving an unmarked car. While the traffic
light was still red, Jaron Q. Johnson exited the Tempo and approached a man
holding a sign that read “Will Work for Food.” Johnson greeted the man and
gave him money. When the traffic light turned green, Johnson was still
outside the Tempo talking with the man holding the sign. Kreczmer rolled
down his window and told Johnson that the traffic light was green and that
he wanted to go. Johnson responded, “F*** you.” R. at 30. Again,
Kreczmer told Johnson that the traffic light was green, that the Tempo was
obstructing traffic, and that he wanted to go. This time Johnson replied,
“Suck my d***.” R. at 30. When Kreczmer started to exit his car, Johnson
lifted his jacket revealing the top of an automatic handgun and stated,
“Don’t even think it.” R. at 31. Apparently recognizing that discretion
was the better part of valor, Kreczmer wisely remained in his vehicle.
Johnson then got into the Tempo and drove away. Kreczmer immediately
called police dispatch. Shortly thereafter, officers of the Mishawaka
Police Department pulled the Tempo over and arrested Johnson. In his
possession, officers found a
loaded 9 mm automatic handgun along with two clips and a holster. He also
possessed a valid handgun permit.
Johnson was charged with intimidation as a Class A misdemeanor. After
a bench trial he was convicted as charged. The trial court sentenced
Johnson to 180 days imprisonment with 160 days suspended. Citing Gaddis v.
State, 680 N.E.2d 860 (Ind. Ct. App. 1997), as dispositive controlling
authority, the Court of Appeals reversed in a two to one decision finding
the evidence insufficient to sustain the conviction. Johnson v. State, 725
N.E.2d 984 (Ind. Ct. App. 2000) (Kirsch, J., dissenting).[1] We grant
transfer and affirm the judgment of the trial court.
Discussion
Gaddis involved an encounter between two motorists on I-465 in
Indianapolis during rush hour. Gaddis and the other motorist, each
apparently troubled by the other’s driving, pulled beside one another,
exchanged hand gestures, and spoke to each other through closed windows.
Gaddis then “removed his handgun from the glove box, displayed it by the
window at a 45-degree angle, and placed it near the console.” Gaddis, 680
N.E.2d at 861. Gaddis was subsequently convicted of intimidation. On
review, the Court of Appeals vacated the conviction, holding “the mere
display of a handgun does not express an intention to unlawfully injure a
person or his property.” Id. at 862. We agree with this general
proposition. However, the State did not seek transfer in Gaddis, and
accordingly, this Court had no opportunity to evaluate whether the facts in
that case demonstrated that the defendant went beyond the “mere display” of
a handgun. In any event, we observe that introducing a handgun into an
emotionally charged environment can easily lead to a physical confrontation
with tragic consequences. Indeed, as the Court of Appeals’ majority
observed in this case, “By revealing his weapon to Kreczmer and suggesting
his willingness to use it as needed, Johnson engaged in a brinkmanship
style of street diplomacy that can only escalate to actual violence. His
actions were both foolish and dangerous . . . .” Johnson, 725 N.E.2d at
987. We agree. See also P.J. Cook, The Role of Firearms in Violent Crime,
in Criminal Violence 236-91 (M.E. Wolfgang & N.A. Werner eds., 1982)
(commenting that a large number of murders may arise from unintentional
fits of rage that are quickly regretted). Thus, where as here 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.
When reviewing a claim of insufficient evidence, we consider only the
evidence that supports the verdict and draw all reasonable inferences
therefrom. Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000). We do not
reweigh the evidence or judge the credibility of witnesses. Id. We uphold
a conviction if there is substantial evidence of probative value from which
a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Id.
To support a conviction for intimidation in this case, the State was
required to show that the defendant: (1) communicated a threat; (2) to
another person; (3) with the intent that the other person be placed in fear
of retaliation for a prior lawful act. Ind.Code § 35-45-2-1; McIntire v.
State, 717 N.E.2d 96, 99 (Ind. 1999). A “threat” is defined as an
“expression, by words or action, of an intention to . . . unlawfully injure
the person threatened . . . .” I.C. § 35-42-2-1(c)(1).
In this case, evidence that Johnson displayed a firearm combined with
telling Kreczmer “don’t even think it,” which was preceded by two obscene
remarks, 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 Kreczmer. The evidence was also sufficient to show that
Johnson threatened Kreczmer with the intent to place him in fear of
retaliation for a prior lawful act, namely: asking Johnson to move the car.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
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[1] In his dissenting opinion Judge Kirsch observed:
The majority concludes that the defendant’s “vague remark” is
insufficient to constitute a threat under the intimidation statute.
In the Dirty Harry movies, Clint Eastwood’s famous “Go on . . . make
my day” line was equally vague, but neither the derelicts invited to
make Harry’s day in the movie, nor the millions of movie goers who
viewed it, had any doubt as to whether Harry was communicating a
threat. So too, here.
Johnson, 725 N.E.2d at 987-88. We agree with Judge Kirsch.