COA reverses intimidation conviction for lack of intent

Despite allowing a Level 6 felony conviction to stand, the Court of Appeals of Indiana has reversed a Level 5 felony intimidation conviction, finding that even though the defendant acknowledged he had threatened to kill his sisters, he did not actually intend to prevent them from calling the police.

Noah Peterson was charged with multiple felonies after a series of incidents involving his sisters, R.B. and N.P., in August 2020.

The Level 5 felony charge came from an incident in which Peterson accused N.P. of recording him with her cellphone. When she refused to turn over the phone, he pulled out two guns and threatened to kill both N.P. and R.B.

N.P. then ran out of the apartment, and Peterson followed. R.B. heard gunshots but did not call 911. When N.P. returned to R.B.’s apartment, R.B. sent her away, saying it was not a safe place because Peterson would be coming back.

N.P. then called 911.

Later that evening, Peterson called R.B. and asked if she had called police. She told him she had not. Peterson then asked if N.P. had called the police and R.B. suggested a neighbor may have called.

In the following days, R.B. called police two more times. The final incident came when Peterson could not get inside R.B.’s apartment because she had changed the locks. He threatened to “shoot through this effing door.”

Subsequently, Peterson was charged with 13 counts relating to his encounters with R.B. and N.P. The jury found Peterson guilty of Level 5 felony intimidation and Level 6 felony intimidation. On three of the other counts, the jury entered not guilty verdicts, and on eight of the other counts, the jury hung.

Peterson was sentenced to four years for the Level 5 felony conviction and two years suspended for the Level 6 felony conviction. The sentences were to be served consecutively.

On appeal, Peterson argued the state did not provide sufficient to support his Level 5 felony intimidation.

The state’s intimidation statute, Indiana Code § 35-45-2-1, holds that intimidation is committed when one person communicates a threat with the intent that another person “engaged in conduct against the other person’s will.” The offense becomes a Level 5 felony if “while committing [the offense], the person draws or uses a deadly weapon.”

While Peterson acknowledged the state presented evidence that he had a gun and had threatened to kill R.B. and N.P., he argued the state failed to prove beyond a reasonable doubt that he intended for his sisters to engage in conduct against their will by refraining from calling the police for assistance.

The Court of Appeals agreed and reversed his Level 5 felony intimidation conviction in Noah Peterson v. State of Indiana, 21A-CR-1329.

“Our review of the record reveals that the State did not present any evidence to show that Peterson’s communicated threat to kill R.B. or N.P. was made with the intent that they engage in conduct against their will of refraining to call the police for assistance,” Judge Rudy Pyle wrote for the court. “… R.B. did not testify that Peterson had threatened to kill her and N.P. with the intent that they not call the police or 911. Instead, during R.B.’s cross-examination testimony, she specified that she had not called 911 that evening because she was ‘worried about leaving’ and ‘was in shock.’”

In a footnote, the appellate panel rejected the state’s argument that the evidence was sufficient because it showed Peterson had intended to prevent N.P. from using her phone to record him. The panel pointed out the state had charged Peterson with Level 5 felony intimidation based on his intent to prevent N.P. from using her phone and to give him the phone, but the jury hung on that count.

But the COA affirmed the Level 6 felony intimidation conviction, ruling “there was probative evidence from which the jury could have found Peterson guilty” of that charge.