Peppers v. State

• Decision Date: 31 August 2020
• Docket Number: Court of Appeals Case No. 20A-CR-796
• Citation: 152 N.E.3d 678
• Parties: Robin Dale Kilgore PEPPERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

152 N.E.3d 678

Robin Dale Kilgore PEPPERS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-796

Court of Appeals of Indiana.

FILED August 31, 2020

Attorney for Appellant: Sean P. Hilgendorf, South Bend, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Kirsch, Judge.

[1] Robin Dale Kilgore Peppers ("Peppers") appeals his conviction for intimidation¹ as a Class A misdemeanor.² He raises two issues, which we restate as:

I. Whether the State presented sufficient evidence to sustain his conviction; and

II. Whether the trial court committed fundamental error in the way it conducted voir dire.

[2] We affirm.

Facts and Procedural History

[3] On June 6, 2018, St. Joseph County Police Corporals Eric Dietrich ("Officer Dietrich") and Neil Hoover ("Officer Hoover") executed an arrest warrant on Peppers at his residence. Tr. Vol. 2 at 68-69, 77-78. The officers knocked on the front door of the residence, but Peppers did not respond. Peppers "crawl[ed] across the floor army style" toward the front door to lock it and then crawled out of sight. Id. at 70, 79-80. Officer Hoover located an unlocked window, opened it, and yelled into the house to announce the officers' presence and to inform Peppers that they were there to arrest him. Id. at 80. After receiving no response from Peppers, Officer Hoover entered the residence through the window, checked the nearby rooms, and opened the front door to allow Officer Dietrich to enter. Id. at 70-71, 80-81. Officer Hoover had drawn his firearm for officer safety, but Officer Dietrich had not. Id. at 71, 80-81. Eventually, Peppers appeared around the corner from the basement door and was ordered to show his hands. Id. at 71, 81-82. When Peppers complied, Officer Hoover holstered his weapon and secured Peppers in handcuffs. Id. at 71-73, 81-82. Peppers's step-daughter, who was in the basement, was then allowed to come upstairs. Id. at 71, 82-83. Once Peppers was arrested, he was cooperative with Officers Dietrich and Hoover, and the officers had no issues with him. Id. at 73, 83, 85-86.

[4] Approximately one month after Peppers was arrested, he created a video titled "To The Judges," which was posted on a YouTube channel called "Death's Clown." Id. at 53-54, 61; State's Ex. 1. In the video, Peppers threatened to kill "Big Country," which is the nickname of Officer Dietrich, for pointing a gun in Peppers's face and at his step-daughter.³ Id. at 52-53, 59, 64-65, 67, 69, 78, 104-05; State's Ex. 1. The video post came to the attention of Assistant Chief Daniel Gebo of the Mishawaka Police Department, and an investigation began. Tr. Vol. 2 at 51, 53-54. Lieutenant Eric Beckham of the Mishawaka Police Department ("Lieutenant Beckham") interviewed Peppers about the video, and Peppers stated that he was "venting" and seemed "very frustrated" but that he did not want to hurt anyone. Id. at 107-08, 111; State's Ex. 2. Police obtained a search warrant for Peppers's cell phone. Tr. Vol. 2 at 54. Lieutenant Brandon Ruth of the Mishawaka Police Department ("Lieutenant Ruth") performed the search of Peppers's phone, which was also named "Death's Clown." Id. at 55-56, 59-61. Lieutenant Ruth had viewed the video on YouTube before he extracted it from Peppers's phone and observed that the video extracted from Peppers's phone was the same as the one posted on YouTube. Id. at 63-64; State's Ex. 1. Peppers admitted to Lieutenant Beckham that people he did not even know had responded to his post of the video on social media. Tr. Vol. 2 at 107. Officer Dietrich also viewed the video after St. Joseph County Police Detective Mario Cavurro ("Detective Cavurro") saw the video and told Officer Dietrich about it. Id. at 66-67, 73.

[5] On July 26, 2018, the State charged Peppers with one count of intimidation as a Level 6 felony. Appellant's App. Vol. 2 at 220-21. The State amended the charging information twice before trial. Id. at 100-02, 203-04. The parties also submitted written questions for voir dire, and Peppers filed a motion to examine the jury panel. Id. at 103-11. Peppers submitted eighty-six questions for the prospective jurors, and the State submitted eight questions. Id. at 104-09, 110-11. On January 16, 2020, the trial court held a jury trial. Id. at 14, 30-31.

[6] Pursuant to Indiana Trial Rule 47(D), which governs the examination of jurors, the trial court questioned the panel of prospective jurors, using some of the parties' questions and some of its own. Tr. Vol. 2 at 10-38. At the conclusion of the trial court's examination and the parties' brief opening statements to the jury, but before the parties selected who would serve on the jury, the following exchange occurred:

MS. BEACHKOFSKY: I do want to make a quick record of something else just for the record. Okay?

THE COURT: You want to make a quick record? Okay. About what?

MS. BEACHKOFSKY: That I filed a motion to voir dire the jury and there were several questions not asked.

THE COURT: I think I answered that the last time. Didn't you bring that up the last time?

MS. BEACHKOFSKY: I did, but I'm preserving it for the record here.

THE COURT: Okay. And my reading of Trial Rule 47 is this, is that you are -- have the right to question the jury, but it doesn't necessarily have to be oral. That's the way the Supreme Court has interpreted the rule. And you were given an opportunity to address the jury, and you were given an opportunity to submit questions. That's the record I would make.

MS. BEACHKOFSKY: I would say for the record that I did submit several questions --

THE COURT: Well, actually you submitted [86] questions, and I think a lot of the questions were conditioning in nature and not appropriate to ask the jury.

MS. BEACHKOFSKY: All [86]?

THE COURT: Uh-huh. And what questions that weren't asked were already covered by my questions.

MS. BEACHKOFSKY: I would note that the majority of the answers, if there were any that were given by the jury, were just head nods. Most of these people didn't speak or didn't say anything during the course of voir dire.

THE COURT: If they wished to speak, they can raise their hand. I've had juries where nobody has raised their hand. I've had other juries where we've had quite a bit of response. You made your record, ma'am. Anything else that you want to say on that issue?

MS. BEACHKOFSKY: Nothing. No, sir.

Id. at 31-33. Following this exchange, Peppers's counsel exercised three peremptory challenges. Id. at 33-36. She made no objection to the jury panel before it was sworn. Id. at 38. The jury ultimately found Peppers guilty of intimidation as a Level 6 felony. Appellant's App. Vol. 2 at 30-31; Tr. Vol. 2 at 141-42. On February 25, 2020, the trial court entered judgment of conviction as a Class A misdemeanor and sentenced Peppers to time served, 247 days. Appellant's App. Vol. 2 at 26; Tr. Vol. 2 at 151. Peppers now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[7] Peppers argues that the evidence was insufficient to sustain his intimidation conviction. When we review the sufficiency of the evidence to support a conviction, we do not reweigh the evidence or assess the credibility of the witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans. denied . We consider only the evidence most favorable to the trial court's ruling and the reasonable inferences that can be drawn from that evidence. Lock v. State , 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in the light most favorable to the trial court's ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied . A conviction will be affirmed if there is substantial evidence of probative value that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Wolf v. State , 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).

[8] Peppers was convicted of Class A misdemeanor intimidation. Appellant's App. Vol. 2 at 26. At the time Peppers committed the offense, Indiana's intimidation statute provided, in pertinent part, that "[a] person who communicates a threat to another person, with the intent ... that the other person be placed in fear of retaliation for a prior lawful act ... commits intimidation, a Class A misdemeanor." Ind. Code § 35-45-2-1(a)(2). The statute also provided that the offense was enhanced to a Level 6 felony if, "the person to whom the threat is communicated ... is a law enforcement officer ...." Ind. Code § 35-45-2-1(b)(1)(B)(i).⁴ The statute defined "communicates" as follows: " ‘Communicates’ includes posting a message electronically, including on a social networking web site (as defined in IC 35-31.5-2-307 )." Ind. Code § 35-45-2-1(c).⁵ Thus, the State was required to prove beyond a reasonable doubt that Peppers communicated a threat to Officer Dietrich with the intent that Officer Dietrich be placed in fear of retaliation for a prior lawful act. Appellant's App. Vol. 2. at 102.

[9] Peppers limits his argument to whether the State failed to satisfy the communication element of the intimidation statute. He argues that Officer Dietrich's viewing of the YouTube video five weeks after it was posted did not satisfy the communication element of the intimidation statute. The State maintains the evidence was sufficient to sustain Peppers's conviction and that he knew or had good reason to believe that the YouTube video would reach Officer Dietrich.

[10] It is well-established that a defendant need not speak directly with a victim to communicate a threat for purposes of Indiana Code section 35-45-2-1. E.B. v. State , 89 N.E.3d 1087, 1091 (Ind. Ct. App. 2017). Indeed, to communicate a threat for purposes of the offense of intimidation, the statement must be transmitted in such a way that the defendant knows or has good reason to believe the statement will reach the victim. Ajabu v. State , 677 N.E.2d 1035, 1043 (Ind. Ct. App. 199...