Opinion
23A-CR-2271
06-10-2024
Anthony V. Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ellen M. O'Connor Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Thomas Alexander Tuck Certified Legal Intern Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Mark D. Stoner, Judge Trial Court Cause No. 49D32-2205-F4-13200
ATTORNEY FOR APPELLANT
Ellen M. O'Connor Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Steven J. Hosler Deputy Attorney General
Thomas Alexander Tuck Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE
[¶1] Following a jury trial, the Marion Superior Court entered judgments of conviction against Anthony V. Johnson for Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 felony intimidation, and Class A misdemeanor resisting law enforcement. Johnson appeals his unlawful possession of a firearm and intimidation convictions, arguing that the State did not present sufficient evidence to support those convictions.
[¶2] We affirm.
Facts and Procedural History
[¶3] On May 24, 2022, Johnson and his girlfriend, Ashley Bills, placed an order from a Dairy Queen restaurant in Indianapolis using the Door Dash app. The order was incorrect when it arrived at Johnson's home. Bills and Johnson were angry that the order was incorrect and drove to Dairy Queen to speak to the store manager.
[¶4] At approximately 3:30 p.m., Bills and Johnson entered the Dairy Queen restaurant. Johnson was visibly carrying a handgun in the waistband of his pants. The couple began to speak to Elijah Abel, the manager, and demanded that he correct the order or give them their money back. Abel explained to the couple that Door Dash was responsible for correcting the error with their order. Bills and Johnson continued arguing with Abel and demanded that he correct the mistake. Johnson began screaming at Abel during the confrontation because Johnson believed that Abel was being disrespectful to Bills. Johnson also had his hand on the handle of a handgun tucked into the waistband of his pants.
[¶5] Johnson told Abel to give him the money back or he was going to "air the building out" and threatened to shoot Abel. Tr. Vol. 2, p. 164. Abel was concerned about the safety of his employees and customers and told everyone to leave the restaurant. Johnson agreed that Abel should get everyone out of the building and continued to threaten to "shoot up the whole building." Id. Johnson then walked around the counter, with the handgun in his hand pointed at the floor. Id. at 165. He continued to threaten to shoot Abel. Johnson pushed Abel and "jabbed" two fingers into Abel's forehead. Id. at 166; Ex. Vol., Exs. 4(a) & (b).
[¶6] Another employee approached Johnson and Abel and attempted to deescalate the situation. At that point, Abel was able to place a 911 call. Abel told the 911 operator that Johnson had a weapon. Ex. Vol., State's Ex. 1. After Abel ended the call, Johnson walked outside the restaurant and returned to his vehicle. Shortly thereafter, he reentered the restaurant. Abel noted that Johnson no longer had the handgun. Tr. p. 168. Two other witnesses had also called 911 to report the incident. Both witnesses told the 911 operator that a man with a gun was threatening to shoot people in the Dairy Queen. State's Ex. 1. One caller told the 911 operator that Johnson "had his pistol out with his hand on it." Id.
[¶7] Indianapolis Metropolitan Police Department Sergeant Charles Page responded to the 911 calls. When he arrived, Bills and Johnson were standing at the counter in the Dairy Queen arguing with Abel. The officer told Johnson he was being detained and ordered him to place his hands behind his back. Johnson resisted arrest, and the officer had to force Johnson to the ground to place him in handcuffs.
[¶8] IMPD officers impounded Johnson's vehicle and performed an inventory search. The officers found a handgun in a purse that was lying on the passengerside floorboard.
[¶9] On May 17, the State charged Johnson, who has a prior conviction for Class C felony battery, with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 felony intimidation, and Class A misdemeanor resisting law enforcement. See Appellant's App. pp. 28-29. Johnson's jury trial commenced on July 26, 2023.
The State also charged Johnson with Level 6 felony battery against a public safety officer and Class B misdemeanor battery, but these charges were dismissed.
[¶10] At trial, Johnson argued that he did not have a handgun inside the Dairy Queen. But Abel testified unequivocally that Johnson had a handgun during their confrontation over the incorrect food order. Tr. pp. 161-63, 166-67, 177. Abel described the handgun and that Johnson was carrying it in the waistband of his pants. Abel explained that when he told the police officers that "nobody" saw a handgun, he meant that no one else in the restaurant saw the handgun and he did not want "anybody else [to be] a part of the situation." Id. at 176. Abel testified that he told the 911 operator that Johnson had a handgun when he placed the 911 call. Id. Abel also testified that he was scared for himself and his employees. Id. at 167.
[¶11] In a bifurcated proceeding, the jury found Johnson guilty of intimidation and resisting law enforcement. The trial court then informed the jury that Johnson had also been charged with Level 4 felony unlawful possession of a firearm by a serious violent felon. The jury found him guilty as charged. The trial court held Johnson's sentencing hearing on September 6, and the court imposed an aggregate six-year sentence.
[¶12] Johnson now appeals his convictions for unlawful possession of a firearm and intimidation.
Discussion and Decision
[¶13] Johnson contends that the State presented insufficient evidence to support his convictions for Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony intimidation. Our standard of review is well settled.
When an appeal raises "a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ...." We consider only the probative evidence and the reasonable inferences that support the [judgment]. "We will affirm 'if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.'"Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).
[¶14] We first consider Johnson's challenge to his unlawful possession of a firearm conviction. See Appellant's App. p. 28; Ind. Code § 35-47-4-5. Johnson argues that the State failed to prove that he possessed a firearm. Johnson's argument is simply a request to reweigh the evidence and the credibility of the witnesses. Abel testified unequivocally that Johnson had a handgun in the waistband of his pants when he came into the Dairy Queen restaurant. He described the handgun and stated that Johnson had his hand on the handle of the gun when he was screaming at Abel. Johnson also threatened to shoot Abel. During their confrontation, Johnson removed the handgun from his pants, held it in his hand, and pointed it toward the floor. After Abel called 911, Johnson returned to his vehicle before re-entering the Dairy Queen. The officers found a handgun in Bills' purse, which was lying on the passenger-side floor, when they conducted an inventory search of the car. In addition, a customer who called 911 told the operator that Johnson "had his pistol out with his hand on it." State's Ex. 1. This evidence is sufficient to prove that Johnson possessed a handgun.
The State admitted Abel's 911 call and a responding police officer's body camera video into evidence. In the 911 call, Abel said that Johnson had a "weapon." State's Ex. 1. In the body camera video, Abel stated that Johnson had something on his hip and that Johnson was threatening to shoot him. State's Ex. 4. In his testimony at trial, Abel unequivocally stated that Johnson had a gun. As the fact-finder, it was within the province of the jury to weigh this evidence to determine whether Johnson possessed the handgun.
[¶15] Turning to Johnson's intimidation conviction, the State charged Johnson with communicating "a threat to commit a forcible felony to Elijah Abel . . . with the intent that Elijah Abel be placed in fear that the threat will be carried out." Appellant's App. p. 29; see also Ind. Code § 35-45-2-1. Johnson does not challenge the evidence establishing that he threatened to shoot Able. However, he argues that the State failed to present evidence to establish that Johnson intended to place Abel in fear that the threat would be carried out.
[¶16] Whether a statement constitutes a threat is an objective question for the trier of fact to determine. B.B. v. State, 141 N.E.3d 856, 860 (Ind.Ct.App. 2020).
"Intent is a mental function and, absent a confession, usually must be proved by circumstantial evidence." Merriweather v. State, 128 N.E.3d 503, 515 (Ind.Ct.App. 2019), trans. denied. A defendant's intent may be proven by circumstantial evidence alone, with the fact-finder inferring intent from the facts and circumstances of the case. B.B., 141 N.E.3d at 860. In Brewington v. State, our supreme court held that "'true threats' under Indiana law depend on two necessary elements: that the speaker intend 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." 7 N.E.3d 946, 964 (Ind. 2014).
[¶17] Here, Johnson, who was upset that his food order was not delivered correctly, threatened to shoot Abel and Abel's young employees. He repeatedly threatened to shoot Abel and threatened to kill Abel at least once. Johnson was angry and screamed at Abel. He got into Abel's face, pushed him, and jabbed two fingers into Abel's head. Johnson told Abel that he had a gun, and Johnson had a gun tucked into the waistband of his pants. Johnson also removed the gun from his pants during the confrontation and pointed it at the floor. Abel told his store employees and customers to leave the restaurant because of Johnson's demeanor and threats. From this evidence, the jury reasonably concluded that Johnson intended to place Abel in fear that his threat would be carried out. Johnson's challenge to the sufficiency of the evidence is merely a request to reweigh the evidence, which we will not do.
Conclusion
[¶18] The State presented sufficient evidence to prove that Johnson committed Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony intimidation.
[¶19] Affirmed.
Altice, C.J., and Bailey, J., concur.