Court of Appeals of Indiana | Opinion 47A04-1706-JV-1263 |December 19, 2017 Page 1 of 12

ATTORNEY FOR APPELLANT

Debra S. Andry

Lawrence County Public Defender 

Agency

Bedford, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

E.B.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

December 19, 2017

Court of Appeals Case No.

47A04-1706-JV-1263

Appeal from the Lawrence Circuit 

Court.

The Honorable Andrea K. McCord, 

Judge.

The Honorable John M. Plummer, 

III, Referee.

Trial Court Cause Nos.

47C01-1702-JD-99

47C01-1702-JD-86

Barteau, Senior Judge

Statement of the Case

[1] A juvenile court determined E.B. is a delinquent child for committing acts that, 

if committed by an adult, would have constituted two counts of intimidation, 
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both Level 6 felonies.1 E.B. appeals the court’s determination. We affirm in 

part and reverse in part.

Issue

[2] E.B. raises one issue, which we restate as: whether there is sufficient evidence 

to sustain the juvenile court’s adjudication of delinquency.

Facts and Procedural History

[3] E.B. attended high school in Lawrence County. In January 2017, Assistant 

Principal Todd Tanksley disciplined E.B. for misconduct in the school cafeteria. 

Tanksley called E.B.’s father to make him aware of the situation.

[4] In mid-February 2017, E.B. sent a text message to a fellow student, J.G. E.B. 

advised J.G. to wear red on the following Tuesday, explaining that he intended 

to shoot “anybody who wasn’t wearing red.” Tr. Vol. 2, p. 16. E.B. later sent a 

text message to J.B., another fellow student. E.B. told J.B. that next Tuesday, 

he should “wear red and get under the desk” when he heard music. Id. at 24. 

E.B. further told J.B. to tell “the ones that [he] care[s] about.” Id. at 25. J.B. 

shared E.B.’s instructions with several of his fellow students via text messages.

[5] Later that same evening, E.B.’s sister, Em.B., was walking by E.B.’s room 

when she heard him talking on the phone with an unknown person. E.B. said 

 

1

Ind. Code § 35-45-2-1 (2014).
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he was going to bring a gun to school and shoot Tanksley because “he didn’t 

like him.” Id. at 53.

[6] The next morning, on February 15, 2017, J.B. approached three students in the 

school cafeteria. He told them to wear red next Tuesday and get under their 

desks when they heard heavy metal music over the public-address system. He 

further told them the instructions came from E.B. and directed them to spread 

the word to other students.

[7] One of the students J.B. spoke with went to Tanksley’s office later that 

morning, at 8:30 a.m., and told him what J.B. had said. The student did not 

know J.B.’s name, so Tanksley consulted security video recordings of the 

cafeteria and identified J.B. He spoke with J.B. and confirmed that J.B. had 

told other students to wear red next Tuesday and get under their desks when 

they heard certain music over the public-address system. Next, Tanksley spoke 

with Em.B., who was also a student at the school. She informed Tanksley of 

E.B.’s statement that E.B. intended to bring a gun to school and shoot him. 

E.B. was not at school that day. 

[8] Tanksley called the police, and two detectives were dispatched to the school. 

Tanksley contacted E.B.’s father and asked him to come to the school. Upon 

arriving, E.B.’s father spoke with Tanksley and the detectives. The detectives 

asked E.B.’s father for permission to search E.B.’s bedroom, and he signed a 

written form granting consent to search.
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[9] The detectives followed E.B.’s father to his house and searched E.B.’s bedroom 

pursuant to the signed consent form. E.B. was in the house. The detectives

found a handwritten document entitled “Checklist for Project . . . School 

Shooting.” Tr. Vol. 3, State’s Ex. 8. The document listed items he intended to 

take with him to school, including a rifle, a handgun, and a knife, as well as 

ammunition, a holster, and a radio. E.B. further listed “areas of completion or 

major targets,” including “Tanksly [sic],” the cafeteria, and “anyone I can.” Id. 

Finally, the document listed people not to be shot, including “anyone the [sic] 

wears red” and J.G. Id. The officers also found the following items in E.B.’s 

bedroom: several shotgun shells and bullets, a holster, and a tactical vest.

[10] After the search, the detectives arrested E.B. and took him to the Sheriff’s 

Department. E.B.’s father followed them there. Both E.B. and his father 

signed a document permitting the officers to question E.B. E.B. conceded 

during the interview that he wrote the document that the detectives found in his 

room. He further conceded that he told several people to wear red on Tuesday. 

E.B. further stated he put Tanksley’s name on the list of targets because 

Tanksley did not like him.

[11] Later that day, school officials notified parents about the situation via a phone 

message. On an average day, 150 students are absent from school. The day 

after the school notified parents, 588 students were absent.

[12] On February 21, 2017, the State filed a Verified Petition Alleging Delinquency

in Cause Number 47C01-1702-JD-99, in which the State contended as 
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“Specification One” that E.B. committed an act that would have been 

intimidation, a Level 6 felony if committed by an adult, for his actions 

involving Tanksley. Appellant’s App. Vol. II, p. 9. The State later amended its 

petition to add “Specification Two,” alleging E.B. committed an act that 

constituted a second act of intimidation, also a Level 6 felony, for interfering 

with the occupancy of the school. Id. at 38. The juvenile court held a factfinding hearing and determined E.B. had committed both acts of delinquency as 

alleged by the State and was a delinquent child. The court issued a 

dispositional order, and this appeal followed.2

Discussion and Decision

[13] When the State petitions to have a juvenile adjudicated as a delinquent for 

committing an act that would be an offense if committed by an adult, the State 

must prove every element of that offense beyond a reasonable doubt. H.J. v. 

State, 746 N.E.2d 400, 402-03 (Ind. Ct. App. 2001). On review of a juvenile 

delinquency adjudication, we neither reweigh the evidence nor judge the 

credibility of witnesses. C.S. v. State, 735 N.E.2d 273, 276 (Ind. Ct. App. 2000), 

trans. denied. Instead, we consider only the evidence most favorable to the 

judgment and the reasonable inferences therefrom. Id.

 

2

In Cause Number 47C01-1702-JD-86 (JD-86), the State alleged E.B. was a delinquent based on an incident 

not related to the events at issue here. The juvenile court determined E.B. was a delinquent in that case. 

E.B. initially sought to appeal the judgment in JD-86 along with the judgment in Cause Number 47C01-

1702-JD-99, but he now “finds no disputable issue” arising from JD-86 and does not present any claims for 

review as to that case. Appellant’s Br. p. 4.
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[14] The statute that defines the offense of intimidation provides, in relevant part:

(a) A person who communicates a threat to another person, with 

the intent:

(1) that the other person engage in conduct against the other 

person’s will;

(2) that the other person be placed in fear of retaliation for a prior 

lawful act; or

(3) of:

(A) causing:

(i) a dwelling, a building, or other structure; or

(ii) a vehicle;

to be evacuated; or

(B) interfering with the occupancy of:

(i) a dwelling, building, or other structure; or

(ii) a vehicle;

commits intimidation, a Class A misdemeanor.

(b) However, the offense is a:

(1) Level 6 felony if:

(A) the threat is to commit a forcible felony . . . .

Ind. Code § 35-45-2-1. The statute further defines a “threat” as:

An expression, by words or action, of an intention to:

(1) unlawfully injure the person threatened or another person, or 

damage property;

(2) unlawfully subject a person to physical confinement or 

restraint;

(3) commit a crime;

(4) unlawfully withhold official action, or cause such 

withholding;
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(5) unlawfully withhold testimony or information with respect to 

another person’s legal claim or defense, except for a reasonable 

claim for witness fees or expenses;

(6) expose the person threatened to hatred, contempt, disgrace, or 

ridicule;

(7) falsely harm the credit or business reputation of the person 

threatened; or

(8) cause the evacuation of a dwelling, a building, another 

structure, or a vehicle.

Id.

[15] Whether a statement is a threat is an objective question for the trier of fact. 

Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans. denied. A 

defendant’s intent may be proven by circumstantial evidence alone, and 

knowledge and intent may be inferred from the facts and circumstances of each 

case. Chastain v. State, 58 N.E.3d 235, 240 (Ind. Ct. App. 2016), trans. denied. 

Criminal statutes must be strictly construed against the State, may not be 

enlarged beyond the fair meaning of the language used, and may not be held to 

include offenses other than those clearly defined. J.T. v. State, 718 N.E.2d 1119, 

1124 (Ind. Ct. App. 1999).

[16] The State alleged that E.B. committed two acts of intimidation. The State first 

alleged under Specification One that E.B.: (1) communicated a threat (2) to 

commit a forcible felony (3) to another person (4) with the intent (4) that 

Tanksley be placed in fear of retaliation for a prior lawful act. Ind. Code § 35-

45-2-1(a) & (b); Appellant’s App. Vol. 2, p. 9. E.B. argues the State failed to 

prove that he communicated a threat with the intent of placing Tanksley in fear. 
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In response, the State argues the evidence is sufficient because E.B.’s sister told 

Tanksley that she had overheard E.B. talking on the telephone.

[17] 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. For 

example, in Ajabu v. State, 677 N.E.2d 1035, 1043 (Ind. Ct. App. 1997), trans. 

denied, the defendant told reporters that a person who had supported the 

imposition of the death penalty against the defendant’s son might be subjected 

to the death penalty herself and further indicated that the person was eligible for 

such a punishment. This Court deemed the defendant’s statement to the media 

was sufficient evidence of communication of a threat to the victim, even though 

she was not present when the defendant made the statement.

[18] Similarly, in S.D. v. State, 847 N.E.2d 255, 258-59 (Ind. Ct. App. 2006), trans. 

denied, a juvenile told a teacher and several students that she would kill another 

teacher (who was not in the room) and use grenades to blow up the school, and 

she did not care if the listeners told the absent teacher. This Court determined 

S.D. communicated the threat because she knew or had good reason to know 

that the victim would hear her statements. See also Newell, 7 N.E.3d at 370 

(there was sufficient evidence defendant intended to communicate a threat to 

the victim, the manager of an apartment complex, because defendant made the 

threat in the presence of a security guard that the defendant knew would report 

the threat to the manager).
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[19] Nevertheless, it remains true that 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 know the statement will reach the 

victim. Ajabu, 677 N.E.2d at 1043. In J.T. v. State, J.T. and a friend printed a 

document in their school library. 718 N.E.2d at 1121. The document 

contained a reference to sacrificing a fellow student in an occult ritual. The 

librarian saw the document and reported it to her supervisors, who later told the 

student who was named in the document.

[20] A juvenile court determined J.T. was a delinquent child because, among other 

grounds, she committed an act that would have constituted intimidation if 

committed by an adult. This Court reversed that portion of the adjudication, 

reasoning that there was no evidence that J.T. knew or had reason to believe 

that the document would reach the student named therein. Instead, J.T. merely 

printed the document with the expectation that it would be returned to her.

[21] In the current case, Em.B. was passing by E.B.’s room when she overheard him 

talking with someone on the telephone. She heard him say that he was going to 

bring a gun to school and shoot Tanksley because he did not like him. We do 

not know who E.B. was talking with or what else was said during the 

conversation. E.B. did not tell anyone else about shooting Tanksley. Em.B. 

told Tanksley about E.B.’s statement, but E.B. did not direct her to do that. 

There is no evidence that E.B. made his statement with knowledge or reason to 

believe that his statement would reach Tanksley. The circumstances here more 

closely resemble those of J.T. than those of Ajabu, S.D., or Newell. In J.T., the 
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librarian’s interception of J.T.’s document led to the discovery of its contents. 

In this case, Em.B.’s eavesdropping on E.B. led to the discovery of his private 

phone conversation. In both cases, there is no evidence of communication of a 

threat by the juvenile in question.

[22] There is no dispute that E.B.’s statement was disturbing, and Tanksley had 

every right to be concerned. Regardless, E.B.’s conduct does not meet the 

statutory definition of intimidation due to lack of evidence regarding whether 

he communicated a threat, and we must reverse that portion of the juvenile 

court’s adjudication.

[23] We reach a different conclusion with respect to the second allegation of 

intimidation, Specification Two. The State alleged that E.B. committed the 

offense of intimidation by: (1) communicating a threat (2) to J.B. (3) to commit 

a forcible felony (4) with the intent (5) of interfering with the occupancy of the 

high school. Ind. Code § 35-45-2-1(a) & (b); Appellant’s App. Vol. 2, p. 38.

[24] E.B. argues he never intended to interfere with the occupancy of the school and 

lacked the means to carry out the shooting. The State responds that there is 

ample evidence that he intended to disrupt the occupancy of the high school. 

We agree with the State. E.B. told J.B. that on the following Tuesday, J.B. 

should “wear red and get under the desk” when he heard music. Id. at 24. E.B. 

encouraged J.B. to share these instructions, advising him to tell “the ones that 

[he] care[s] about.” Id. at 25. J.B. followed E.B.’s directives, telling fellow 

students via text messages and in personal conversations that they needed to 
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wear red next Tuesday and hide under their desks when they heard music over 

the public-address system. J.B. told his fellow students that the instructions 

came from E.B. and that they should share the instructions with others.

[25] A reasonable person could extrapolate from J.B.’s communications that E.B. 

was threatening to engage in an act of violence, and the wearing of a red shirt 

would be a signal that the person should be spared. Furthermore, having told 

J.B. to share the instructions with anyone he cared about, without limitation, it 

should have been foreseeable to E.B. that news of E.B.’s plan would spread 

throughout the school. Word did spread, and after the school informed parents 

about the incident, absenteeism more than doubled the following day.

[26] In addition, the officers found a plan of attack and some of the items listed on 

the plan in E.B.’s bedroom, which is further evidence of his intent to disrupt the 

occupancy of the school, regardless of whether he actually possessed guns on 

the day his room was searched. This is sufficient evidence from which the 

finder of fact could have determined beyond a reasonable doubt that E.B. 

intended to commit intimidation through interfering with the occupancy of his 

high school.

Conclusion

[27] We reverse the juvenile court’s determination that E.B. was a delinquent child 

for committing an act that, if committed by an adult, would have constituted 

intimidation of Tanksley (Specification One). We affirm the juvenile court’s 
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delinquency adjudication as to the second act of intimidation, interfering with 

the occupancy of a school (Specification Two).

[28] Affirmed in part and reversed in part.

Riley, J., and Altice, J., concur.