Opinion
Court of Appeals Case No. 21A-JV-330
08-04-2021
In the MATTER OF K.Y., a Child Alleged to be Delinquent K.Y., Appellant-Respondent, v. State of Indiana, Appellee-Petitioner.
Attorney for Appellant: Anna Onaitis Holden, Zionsville, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Tina L. Mann, Deputy Attorneys General, Indianapolis, Indiana
Attorney for Appellant: Anna Onaitis Holden, Zionsville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Tina L. Mann, Deputy Attorneys General, Indianapolis, Indiana
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, K.Y., appeals her adjudication for intimidation, a Level 6 felony, if committed by an adult, Ind. Code § 35-45-2-1(a)(1)(b)(2)(A) ; and intimidation, a Class A misdemeanor, if committed by an adult, I.C. § 35-45-2-1(a)(1).
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUES
[3] K.Y. presents two issues on appeal, which we restate as follows:
(1) Whether K.Y.’s true finding for Class A misdemeanor intimidation violates Indiana's prohibition on double jeopardy as it constitutes a lesser included offense of Level 6 felony intimidation; and
(2) Whether the State presented sufficient evidence to establish that K.Y. intended to commit intimidation.
FACTS AND PROCEDURAL HISTORY
[4] On August 29, 2020, Officer Doug Lowe from the Vincennes Police Department (Officer Lowe) investigated a report regarding a post on the social media platform Snapchat. Officer Lowe interviewed a juvenile, A.I., and her mother. A.I.’s mother informed the officer that she saw a threatening post on A.I.’s Snapchat profile. A.I. reported that she knew about the post but that her friend, K.Y., who was thirteen years old, had sent the post on A.I.’s phone and Snapchat profile.
[5] While interviewing K.Y., K.Y. admitted to having sent the post from A.I.’s phone without A.I.’s knowledge. The post depicted a cartoon character from an online gaming platform, brandishing a handgun in each hand. Beneath the image, K.Y. had added a caption, "consider this a fucking warning all of you don't come to school on Monday." (Exh. 1). K.Y. believed that the message would only be seen by close friends of A.I.; however, she did not know for sure. When A.I. saw the post, she deleted it but not before her mother saw the message and the image and notified the Vincennes Police Department. At the time of the offense, K.Y. was enrolled in e-learning at North Knox School, while A.I. attended Clark County Middle School.
[6] Officer Lowe testified that the Snapchat message was sent to "a group" and "distributed blindly." (Transcript Vol. II, p. 24). He stated that K.Y. had told him that she found the picture and meme "on a school shooting site or something like that" and that she intended it to be "a joke" and was not looking to harm anyone. (Tr. Vol. II, p. 26). The officer informed the juvenile court that he had no reason "to doubt what she said." (Tr. Vol. II, p. 26).
[7] On August 31, 2020, the State filed a probable cause affidavit, alleging that K.Y. had committed intimidation, a Level 6 felony, if committed by an adult. On September 1, 2020, the juvenile court conducted a detention hearing. The juvenile court concluded that there was probable cause to believe that K.Y. was a delinquent child, released K.Y. to her father's custody, and ordered her to house arrest. On September 8, 2020, the State filed a petition, alleging K.Y. to be a delinquent child, which was approved by the juvenile court on the same day. On September 8 and October 22, 2020, the State moved to amend its delinquency petition and alleged K.Y. had committed acts that would constitute intimidation as a Class A misdemeanor and as a Level 6 felony, if committed by an adult. On January 11, 2021, the juvenile court conducted a hearing and found both allegations against K.Y. to be true. The juvenile court ordered K.Y. to be placed in secure detention for ninety days and suspended her detention to one year of probation. K.Y. was also ordered to complete ten hours of community service and participate in in-home therapy services.
[8] K.Y. now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Double Jeopardy
[9] K.Y. contends, and the State agrees, that her adjudications for both felony and misdemeanor intimidation violate Indiana's prohibition against double jeopardy because misdemeanor intimidation is an inherently included lesser offense of felony intimidation.
[10] Indiana Code section 35-38-1-6 prohibits a court from entering a judgment against a defendant for an offense and an included offense in separate Counts, and provides that: "Whenever: (1) a defendant is charged with an offense and an included offense in separate [C]ounts; and (2) the defendant is found guilty of both [C]ounts, judgment and sentence may not be entered against the defendant for the included offense." An "included offense:"
(1) Is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) Differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
I.C. § 35-31.5-2-168. There are two categories of lesser included offenses in Indiana. Meriweather v. State , 659 N.E.2d 133, 138 (Ind. Ct. App. 1995), trans. denied. The first category consists of, "when by virtue of the legal definitions of the two offenses, it is impossible to commit the greater offense without first committing the lesser or when a lesser degree of culpability is required for the lesser offense." Id. The second category consists of those offenses which are "included as charged." Id. "Included as charged" offenses are those "committed by reason of the manner in which the greater offense was committed, if within the factual allegations contained in the charging instrument." Id.
[11] It is clear that misdemeanor intimidation is inherently included in Level 6 felony intimidation as an individual cannot commit the felony unless the elements of the misdemeanor are met. See Crose v. State , 650 N.E.2d 1187, 1191-92 (Ind. Ct. App. 1995) (noting the jury found Crose guilty of Class A misdemeanor intimidation "which is a lesser included offense of the [Class D felony] charge alleged in the information."). To be found true of the misdemeanor, as alleged in the delinquency petition, the State was required to establish that K.Y. communicated a threat with the intent that Clark County Middle School students would engage in conduct against their will. See I.C. § 35-45-2-1 ; Appellant's App. Vol. II, p. 50. To be found true on the felony intimidation, the State had to prove that K.Y. communicated a threat with the intent that Clark County Middle School students would engage in conduct against their will, and the threat was to commit a forcible felony. See I.C. § 35-45-2-1 ; Appellant's App. Vol. II, p. 50. Accordingly, it is impossible to commit Level 6 felony intimidation without first committing misdemeanor intimidation. Therefore, as the misdemeanor intimidation is inherently included in the Level 6 felony intimidation, K.Y. cannot be adjudicated delinquent for both Counts. See I.C. § 35-38-1-6. Accordingly, we remand to the juvenile court for the limited purpose of vacating the misdemeanor adjudication as a matter of statutory construction.
The earlier version of the intimidation statute under which Crose was charged and convicted enhanced Class A misdemeanor intimidation to a Class D felony if the threat at issue was to commit a forcible felony. See Crose. 650 N.E.2d at 1191.
II. Sufficiency of the Evidence
[12] Next, K.Y. contends that the State failed to present sufficient evidence beyond a reasonable doubt to support the true finding for Level 6 felony intimidation. When the State seeks to have a juvenile adjudicated delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt. A.E.B. v. State , 756 N.E.2d 536, 540 (Ind. Ct. App. 2001). Upon review, the reviewing court applies the same sufficiency standard used in criminal cases. Id. When reviewing sufficiency of the evidence claims with respect to juvenile adjudications, the reviewing court neither reweighs the evidence nor judges the credibility of the witnesses. B.K.C. v. State , 781 N.E.2d 1157, 1163 (Ind. Ct. App. 2003). Rather, the reviewing court considers only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id.
[13] To support a true finding for intimidation as a Level 6 felony, as alleged in the delinquency petition, the State was required to establish beyond a reasonable doubt that K.Y. communicated a threat to another person with the intent that that person engage in conduct against his or her will. I.C. § 35-45-2-1. Focusing on the intent prong of the charge, K.Y. asserts that she did not have the requisite intent because she considered her Snapchat post to be a joke and not a threat.
[14] Intent is a mental function. Hendrix v. State, 615 N.E.2d 483, 485 (Ind. Ct. App. 1993). Absent a defendant's admission, like here, intent is determined from consideration of the defendant's conduct and the natural and usual consequences of that conduct. Id. "To determine whether the defendant intended to commit the conduct, the trier of fact must usually resort to reasonable inferences based upon an examination of the surrounding circumstances." Id. Indiana courts have concluded that a wide variety of circumstances can support the inference that a defendant possessed the requisite mens rea to commit intimidation. See, e.g., Crose , 650 N.E.2d at 1192 (victim testified Crose's threats put her in fear for her life); Johnson v. State , 743 N.E.2d 756, 757 (Ind. 2001) (displaying a firearm while making obscene remarks and telling victim, "don't even think about it").
[15] K.Y. admitted to posting and sending a Snapchat post to a group of A.I.’s friends depicting a cartoon image brandishing a gun in each hand, pointing outward, alongside an inserted statement cautioning Clark County Middle School students not to come to school on Monday. While K.Y. was enrolled in e-learning, the message was received by students enrolled in Clark County Middle School. By posting her message in the Snapchat group, K.Y. published a clear threat with respect to school attendance on a platform she admitted would be received by Clark County Middle School students. "The intent that matters is not whether the speaker really means to carry out the threat, but only whether he intends it to place the victim in fear of bodily harm or death." Brewington v. State , 7 N.E.3d 946, 963 (Ind. 2014). Although K.Y. testified that she did not want to harm anyone she also testified that she understood that school shootings happen. A reasonable inference could be deduced from these circumstances that K.Y. intended to threaten Clark County Middle School students to engage in conduct against their will and to refrain from attending school on Monday, even if she did not intend to actually carry out the shooting.
[16] K.Y. claims that the evidence merely reveals the "sort of joke that [ ] adults view as immature, tone deaf, and perhaps threatening, but that a thirteen-year-old might think would make her friends laugh. Taking a friend's phone and creating an off-color post on the friend's social media account is the modern-day equivalent of making bawdy prank phone calls to a cute classmate's parents." (Appellant's Reply Br. p. 7). While we understand that Officer Lowe testified that he believed K.Y. when she told him that she sent the message as a joke, the juvenile court, by adjudicating K.Y., determined K.Y.’s statement, as relayed through the officer, not to be credible. We cannot change this determination of credibility. See B.K.C. , 781 N.E.2d at 1163. Neither do we agree with K.Y.’s assertion that her social media post, which she intended to be disseminated to a wider audience by posting it to a group, is the equivalent of a juvenile antic. Far too many times within the recent past, our nation has mourned as a result of horrific carnage wrought by gun wielding school students. K.Y. admitted being aware of and acknowledged these school shootings. As such, she must have known the effect the message would have on the students in the wake of these shootings, yet she chose to disseminate the post anyway. Not only did she elect to send a depiction of a violent cartoon, she consciously inserted a caption which left little to the imagination.
[17] In light of this stark reality in which our children attend school, a statement made by a thirteen-year-old student, aware of these realities, not to attend school on a specific day combined with an image of a character pointing handguns, can no longer be ignored or in hindsight be characterized as a joke that can be casually disregarded, but instead must be regarded as an intentional attempt to create fear and apprehension. Mindful of the legal backdrop discussed above, we conclude that K.Y., by publishing the image combined with the statement, intended to publish a clear threat with respect to Clark County Middle School students’ attendance on a particular day. As such, we find the juvenile court's adjudication of delinquency to be supported by the evidence.
CONCLUSION
[18] Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support K.Y.’s adjudication of delinquency for intimidation, as a Level 6 felony, if committed by an adult. We remand to the juvenile court with instructions to vacate K.Y.’s true finding for intimidation as a Class A misdemeanor, if committed by an adult.
[19] Affirmed in part, reversed in part, and remanded with instructions.
[20] Najam, J. and Brown, J. concur