Have You Just Committed a Crime?

[GuyRelford]

You guys are good. Here is my answer (which of course is just my opinion):

The purpose of my scenario was to demonstrate the very fine line between the Gaddis case (which holds that the mere display of a handgun is not a"threat" under the intimidation statute) and the Johnson case (which holds that the display of a handgun, together with "what can only be construed as 'fighting words'") does constitute a threat and supports a conviction for intimidation.

My scenario was intended to be a very close call, and I think your responses reflect that very well. And Fargo (Joe) raised a very important issue that I didn't even intend to be a factor - whether the "boyfriend" was threatening to commit an illegal act by keeping your daughter out past curfew, such that the intimidation statute wouldn't even apply - since one of the provisions of the intimidation statute references "retaliation for a prior lawful act." I think that's a brilliant point. However, I don’t think it applies here, for reasons stated below:

The crime of intimidation occurs when the threat is made – not prospectively. Here, “you” are attempting to influence the boyfriend’s behavior – so the first provision of the statute applies:

“Intimidation is defined by Indiana Code section 35-45-2-1,​

which states in relevant part:​

(a) A person who communicates a threat toanother person, with​

the intent that:​

(1) the other person engage in conduct against his will; or​

(2) the other person be placed in fear of retaliation for a prior lawful act; ​

commits intimidation, a Class A misdemeanor."​

So, if no such “prior lawful [or unlawful] act” has yet occurred, we’re not talking about retaliation at all – we’re talking about causing the boyfriend to “engage in conduct against his will.” Clearly, “you” are trying to influence the boyfriend’s behavior. So the issue comes down to whether you have made a "threat."​

Under this scenario – a jury would have to make that decision, if the cops decided to arrest you and the prosecutor decided to proceed to trial – and I think that’s a very close call.​

At trial, the boyfriend would take the stand, and be asked by the prosecutor what he believed you meant when you raised your shirt and said, “midnight.” He would likely say something to the effect of “I believed with all my heart that he was saying that if I didn’t bring his daughter home by midnight he would kill me.” That alone would distinguish this case from the Gaddis case, because the court in Gaddis focused specifically on the fact that the defendant and the “victim” never actually communicated. They were on the highway in a “road rage” situation, but they both testified that they couldn’t hear each other – or even see other’s hand gestures clearly. So in that case – there was only the display of a handgun, with no verbal communication.​

So is our case closer to Johnson, in which the defendant raises his shirt to display a handgun and said “don’t even think it,” after an earlier “f--- you”? (Those were the “fighting words” that the court relied upon to support the conviction for intimidation.) Or is it closer to Gaddis – in which there was only the display of a handgun, with no verbal communication?​

In other words, is simply saying “midnight”(while you’re displaying your Kimber) more like saying nothing at all, like in Gaddis – or more like saying “don’t even think it” (after an earlier “f---- you”) – like in Johnson?​

That is what a jury would have to decide – in all likelihood – because a jury decides issues of fact (i.e., did you communicate a “threat” to the boyfriend?). That is going to depend a lot on the quality of your lawyer and who is sitting on the jury. If the jury specifically decided that your display of a gun, while saying “midnight,” was a threat, intended to cause the boyfriend to “engage in conduct against his will,” I think that conviction would likely hold up on appeal. Of course, the jury could just as easily decide that you weren’t threatening anyone, in which case everyone goes home to their own bed at night.​

But the point of my scenario was to demonstrate that influencing someone else’s behavior is best accomplished without the threat of violence with a firearm – explicit or implicit – based on Indiana’s intimidation statute and the cases construing it.​

Just my thoughts.​

Guy​

 

[boileralum]

Here's Johnson without the concealed footnote which addresses neck tats:

Jaron Q. Johnson v. State :: March, 2001 :: Indiana Supreme Court Decisions :: Indiana Case Law :: US Case Law :: US Law :: Justia

In his possession, officers found a
loaded 9 mm automatic handgun along with two clips and a holster.

What firearm were the clips for? Or were they hair clips?

 

[KG1]

So in other words it's a push that could depend on which way it leaned toward and how it would be presented to a jury in rendering their verdict. Johnson or Gaddis. Either way I agree with your sumation to not take that chance in a court of law by trying to influence another person's behavior with a threat of violence with a firearm, implicit or otherwise.

 

[aikidoka]

Seems a foolish thing to do. Considering the scenario I wouldn't be surprised if the daughter backed up the boys claim. Besides, I OC and in that scenario would be doing so before the boy arrived

 

[2tonic]

This is all too thin.
For starters, none of the boys answers began or ended with "sir".
Secondly, what real father would involve the firearm at all? Upon his arrival the boy would know I own a pick-up (it's parked in the driveway) and a shovel ( it's handle is lying over the edge of the truck bed). If he doesn't have the imagination to realize that harming my child in any fashion will create in me the most intense desire, and determination, to dismantle him joint-by-joint with my bare hands, then he doesn't deserve any pain-alleviating perforations between the time he goes in the truck bed and the moment he goes in the hole. (Good idea to keep several dug between corn fields)

Just sayin'.

 

[Roadie]

This is all too thin.
For starters, none of the boys answers began or ended with "sir".
Secondly, what real father would involve the firearm at all? Upon his arrival the boy would know I own a pick-up (it's parked in the driveway) and a shovel ( it's handle is lying over the edge of the truck bed). If he doesn't have the imagination to realize that harming my child in any fashion will create in me the most intense desire, and determination, to dismantle him joint-by-joint with my bare hands, then he doesn't deserve any pain-alleviating perforations between the time he goes in the truck bed and the moment he goes in the hole. (Good idea to keep several dug between corn fields)

Just sayin'.

Way to insult half the people posting in this thread, welcome to

 

[marshallartist]

That's just a plain stupid thing to do.

 

[.45 Dave]

She stays home then--no problem!

 

[Fargo]

You guys are good. Here is my answer (which of course is just my opinion):

The purpose of my scenario was to demonstrate the very fine line between the Gaddis case (which holds that the mere display of a handgun is not a"threat" under the intimidation statute) and the Johnson case (which holds that the display of a handgun, together with "what can only be construed as 'fighting words'") does constitute a threat and supports a conviction for intimidation.

My scenario was intended to be a very close call, and I think your responses reflect that very well. And Fargo (Joe) raised a very important issue that I didn't even intend to be a factor - whether the "boyfriend" was threatening to commit an illegal act by keeping your daughter out past curfew, such that the intimidation statute wouldn't even apply - since one of the provisions of the intimidation statute references "retaliation for a prior lawful act." I think that's a brilliant point. However, I don’t think it applies here, for reasons stated below:

The crime of intimidation occurs when the threat is made – not prospectively. Here, “you” are attempting to influence the boyfriend’s behavior – so the first provision of the statute applies:

“Intimidation is defined by Indiana Code section 35-45-2-1,​

which states in relevant part:​

(a) A person who communicates a threat toanother person, with​

the intent that:​

(1) the other person engage in conduct against his will; or​

(2) the other person be placed in fear of retaliation for a prior lawful act; ​

commits intimidation, a Class A misdemeanor."​

So, if no such “prior lawful [or unlawful] act” has yet occurred, we’re not talking about retaliation at all – we’re talking about causing the boyfriend to “engage in conduct against his will.” Clearly, “you” are trying to influence the boyfriend’s behavior. So the issue comes down to whether you have made a "threat."​

Under this scenario – a jury would have to make that decision, if the cops decided to arrest you and the prosecutor decided to proceed to trial – and I think that’s a very close call.​

At trial, the boyfriend would take the stand, and be asked by the prosecutor what he believed you meant when you raised your shirt and said, “midnight.” He would likely say something to the effect of “I believed with all my heart that he was saying that if I didn’t bring his daughter home by midnight he would kill me.” That alone would distinguish this case from the Gaddis case, because the court in Gaddis focused specifically on the fact that the defendant and the “victim” never actually communicated. They were on the highway in a “road rage” situation, but they both testified that they couldn’t hear each other – or even see other’s hand gestures clearly. So in that case – there was only the display of a handgun, with no verbal communication.​

So is our case closer to Johnson, in which the defendant raises his shirt to display a handgun and said “don’t even think it,” after an earlier “f--- you”? (Those were the “fighting words” that the court relied upon to support the conviction for intimidation.) Or is it closer to Gaddis – in which there was only the display of a handgun, with no verbal communication?​

In other words, is simply saying “midnight”(while you’re displaying your Kimber) more like saying nothing at all, like in Gaddis – or more like saying “don’t even think it” (after an earlier “f---- you”) – like in Johnson?​

That is what a jury would have to decide – in all likelihood – because a jury decides issues of fact (i.e., did you communicate a “threat” to the boyfriend?). That is going to depend a lot on the quality of your lawyer and who is sitting on the jury. If the jury specifically decided that your display of a gun, while saying “midnight,” was a threat, intended to cause the boyfriend to “engage in conduct against his will,” I think that conviction would likely hold up on appeal. Of course, the jury could just as easily decide that you weren’t threatening anyone, in which case everyone goes home to their own bed at night.​

But the point of my scenario was to demonstrate that influencing someone else’s behavior is best accomplished without the threat of violence with a firearm – explicit or implicit – based on Indiana’s intimidation statute and the cases construing it.​

Just my thoughts.​

Guy​

Also, keep in mind Ransley v. State which involved both a drawn gun and discouraging of future conduct where Intimidation was found not to lie. Now, it is not absolutely on point because of how the state charged it but I think it is instructive to the situation as its facts are very similar to the hypo:

http://www.in.gov/judiciary/opinions/pdf/07120602jsk.pdf

The 911 recordings supported the fact that Ransley’s threats were intended to keep Nolan off hisproperty. The State contends that Ransley was angry from his encounter with Nolan and that this anger prompted his actions. We recognize that a person may be angry enough to commit intimidation. However, anger, without proof of intent to retaliate, is not enough to satisfy the requirements of the statute.

The State did prove that the two men were yelling, that Ransley had a gun, and that Ransley was trying to prevent Nolan from coming onto his property. However, the State provided insufficient evidence to prove intimidation,

Best,

Joe

 

[GuyRelford]

Also, keep in mind Ransley v. State which involved both a drawn gun and discouraging of future conduct where Intimidation was found not to lie. Now, it is not absolutely on point because of how the state charged it but I think it is instructive to the situation as its facts are very similar to the hypo:

http://www.in.gov/judiciary/opinions/pdf/07120602jsk.pdf





Best,

Joe

Thanks, Joe!!! Great points!!

Guy