Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-805 | August 18, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Michael C. Borschel

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Howard Elam,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 18, 2017

Court of Appeals Case No.

49A02-1704-CR-805

Appeal from the Marion Superior 

Court

The Honorable Angela D. Davis, 

Judge

Trial Court Cause No.

49G16-1701-F6-625

Baker, Judge.
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[1] Howard Elam appeals his convictions for Level 6 Felony Criminal 

Confinement,1 Class A Misdemeanor Domestic Battery,2 and Class A 

Misdemeanor Intimidation,3 arguing that the evidence is insufficient to support 

the convictions. Finding the evidence sufficient, we affirm.

Facts

[2] Elam dated Sydnea Embry on and off for two years. On December 19, 2016, 

they were no longer dating, but he was living in her apartment. When she tried 

to leave her apartment with her three-month-old son,4 Elam grabbed the infant 

car seat and told her that she could leave but her son had to stay. He “knew 

that [Embry] wasn’t going to leave without [her] child.” Tr. Vol. II p. 9. 

Embry did not feel as though she could leave, so she went back into her 

bedroom and tried to figure out how to leave with her baby. At one point, 

Embry began to leave, but Elam intercepted her, grabbed her son’s arm, and 

“tried to play tug of war” with Embry while attempting to strike her with his 

other hand. Id. at 10. After thirty to forty-five minutes, a friend of Elam 

knocked on the apartment door and Embry and her son were able to escape.

 

1

Ind. Code § 35-42-3-3(a).

2

I.C. § 35-42-2-1.3(a)(1).

3

Ind. Code § 35-45-2-1.

4 Elam is not the father of Embry’s son.
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[3] That night and the next morning, Elam sent Embry many text messages 

demanding that she drive him to school the next morning:

• “I just kno I better be at dat school tomar [sic] to take my test”

• “U gone take me . . . if I don’t get there don’t come bac”

• “u better be here to take me to school tomar”

• “don’t ever let me c u bac here if I ain’t at school in da morning”

• “If I don’t get to school . . . don’t come back by yo self”

• “B*tch f*ck u and die b*tch I better make it to school”

Tr. Ex. 1-3 (grammar, spelling, and capitalization original). Embry felt as 

though she had to take Elam to school “[b]ecause [they] had a history of 

physical abus[e] and mental abuse and [she] just felt intimidated.” Tr. Vol. II p. 

26.

[4] When Embry arrived at her apartment to take Elam to school, he was still 

asleep. She took some of her belongings to her car. When she returned, Elam 

was awake and began accusing her of taking his house key. She said she would 

wait for him in her car. As she walked out of her apartment, he grabbed her by 

her hair and pulled her to the ground; he then grabbed her by her feet and 

pulled her back into the apartment. When he let go of her, she ran to her car 

and left. After she left, he texted her to say he was sorry: “I apologise for 

grabbing u da way I did[.]” Tr. Ex. 4 (spelling and grammar original).

[5] On January 5, 2017, the State charged Elam with Level 6 felony criminal 

confinement, Level 6 felony battery, Level 6 felony domestic battery, Level 6 

felony kidnapping, Class A misdemeanor domestic battery, and Class A 

misdemeanor intimidation. Elam’s bench trial took place on March 14, 2017. 
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The trial court dismissed the Level 6 felony domestic battery and kidnapping

charges, found Elam not guilty of Level 6 felony battery, and found Elam guilty 

of the remaining charges. Following a March 21, 2017, sentencing hearing, the 

trial court sentenced Elam to an aggregate term of two years imprisonment with 

one year suspended. Elam now appeals.

Discussion

[6] Elam argues that there is insufficient evidence supporting his convictions for 

Level 6 felony criminal confinement, Class A misdemeanor domestic battery, 

and Class A misdemeanor intimidation. When reviewing a claim of 

insufficient evidence, we will consider only the evidence and reasonable 

inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.

2011). We will affirm if, based on the evidence and inferences, a reasonable 

jury could have found the defendant guilty beyond a reasonable doubt. Bailey v. 

State, 907 N.E.2d 1003, 1005 (Ind. 2009).

[7] To convict Elam of Level 6 felony criminal confinement, the State was required 

to prove beyond a reasonable doubt that he knowingly confined Embry without 

her consent. I.C. § 35-42-3-3(a). To “confine” means “to substantially interfere 

with the liberty of a person.” I.C. § 35-42-3-1.

[8] Elam argues that because he told Embry she could leave—albeit without her 

infant son—she consented to the confinement. We cannot agree. Embry 

testified that she tried to leave twice. First, Elam grabbed the car seat and told 

her that her son had to stay. Second, Elam intercepted her, grabbed her son’s 
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arm, and played “tug of war” with Embry while trying to strike her with his 

other hand. Tr. Vol. II p. 10. The fact that Elam told Embry she could leave 

only if she left her baby with him is irrelevant. Offering a choice to a parent to 

stay with her infant or leave him in the care of a threatening and violent person 

is no choice at all. We cannot say that anything in the record leads to a 

reasonable conclusion that Embry consented to this confinement, and Elam’s 

arguments to the contrary amount to an impermissible request that we reweigh 

the evidence. See Dewald v. State, 898 N.E.2d 488, 491-92 (Ind. Ct. App. 2008) 

(where defendant blocked in victim’s van and argued that she could have left 

the scene without her van, meaning she was not confined without consent, 

defendant’s argument was merely a request to reweigh the evidence). Based on 

this evidence, a reasonable factfinder could have found Elam guilty beyond a 

reasonable doubt. The evidence is sufficient.

[9] To convict Elam of Class A misdemeanor domestic battery, the State was 

required to prove beyond a reasonable doubt that Elam knowingly touched 

Embry, a family or household member, in a rude, insolent, or angry manner. 

I.C. § 35-42-2-1.3(a)(1). Elam argues that the State did not prove beyond a 

reasonable doubt that Embry was his family or household member. There are 

multiple ways in which one individual can be a family or household member of 

another individual, including when the individual “is dating or has dated the 

other person[.]” Ind. Code § 35-31.5-2-128(2). It is undisputed that Elam and 

Embry dated on and off for two years. Tr. Vol. II p. 6-7, 51. Therefore, the 

evidence is sufficient to support this conviction.
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[10] Finally, to convict Elam of Class A misdemeanor intimidation, the State was 

required to prove beyond a reasonable doubt that he communicated a threat to 

Embry with the intent that she engage in conduct against her will. I.C. § 35-45-

2-1(a)(1). A “threat” is, among other things, “an expression, by words or 

action, of an intention to . . . unlawfully injure the person threatened or another 

person, or damage property.” I.C. § 35-45-2-1(d)(1). A threat is punishable if 

the speaker “intend[s] his communications to put his target[] in fear for [her] 

safety, and . . . the communications were likely to actually cause such fear in a 

reasonable person similarly situated to the target.” Brewington v. State, 7 N.E.3d 

946, 964 (Ind. 2014).

[11] Elam argues that the evidence does not support a conclusion that Embry acted 

against her will when she decided to give him a ride to school. He notes that 

Embry testified that she ultimately decided to give him a ride to school because 

she wanted to go to the apartment to pick up some of her things. Whatever 

Embry’s motivations may have been on the morning she went to pick up Elam 

are irrelevant. The crime of intimidation was complete as soon as Elam 

communicated a threat to Embry with the intent that she engage in conduct 

against her will. Therefore, as soon as he sent a litany of text messages to her 

the night before threatening her with vague harm as well as telling her to “die” 

if she did not pick him up the next morning, he had committed the crime of 

intimidation. See Tr. Ex. 1-4. Whatever Embry’s decision-making process was 

the next morning does not matter. We find the evidence sufficient to support 

this conviction.
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[12] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.