Brent M. Haycraft v. State of Indiana

IN THE

Court of Appeals of Indiana FILED Brent M. Haycraft, May 13 2025, 8:50 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.

State of Indiana, Appellee-Plaintiff

May 13, 2025 Court of Appeals Case No. 23A-CR-2088 Appeal from the Martin Superior Court The Honorable Isha E. Wright-Ryan, Judge Trial Court Cause No. 51C01-2006-CM-98

Opinion by Judge Pyle Judges May and Brown concur.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 1 of 22

Pyle, Judge.

Statement of the Case [1] After being terminated from his employment, Brent Haycraft (“Haycraft”)

made three Facebook posts, two of which included comments, on March 23,

2020 (“the March 23 Facebook post”), April 30, 2020 (“the April 30 Facebook

post and comments”), and June 12, 2020 (“the June 12 Facebook post and

comments”). Based on these Facebook posts and comments, the State charged

Haycraft with Class A misdemeanor intimidation 1 and Level 6 felony

intimidation2 of Shawn O’Connor (“O’Connor”), the supervisor who had

terminated Haycraft’s employment. Both charging instruments alleged that

Haycraft had committed the charged offenses on March 23, April 30, and/or

June 12. A jury convicted Haycraft of both offenses. [2] Haycraft appeals his convictions, arguing that they violate the First

Amendment because the State did not present sufficient evidence that he had

some understanding of his statements’ threatening character and had

consciously disregarded a substantial risk that his conduct would be viewed as

threatening. We conclude that the State failed to present sufficient evidence

that Haycraft had some understanding of the threatening character of the

March 23 Facebook post and the April 30 Facebook post and comments and

1 IND.CODE § 35-45-2-1(a). 2 I.C. § 35-45-2-1(b).

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 2 of 22

that he had consciously disregarded a substantial risk that his conduct of

making these posts and comments would be viewed as threatening.

Accordingly, those two Facebook posts and comments do not constitute true

threats and are protected by the First Amendment. [3] We further conclude that the State presented sufficient evidence that Haycraft

had some understanding of the threatening character of the June 12 Facebook

post and comments and that he had consciously disregarded a substantial risk

that his conduct of making this post and comments would be viewed as

threatening. Accordingly, the June 12 Facebook post and comments constitute

a true threat and are not protected by the First Amendment. [4] However, because the trial court read the jury disjunctive instructions that

included the and/or language set forth in the charging informations and did not

provide the jury with a unanimity instruction, we are unable to determine

whether the jury convicted Haycraft of Class A misdemeanor intimidation and

Level 6 felony intimidation based on the March 23 Facebook post or the April

30 Facebook post and comments, which were not true threats, or based on the

June 12 Facebook post and comments, which was a true threat. Therefore, we

reverse Haycraft’s convictions for both Class A misdemeanor intimidation and

Level 6 felony intimidation and remand this case to the trial court with

instructions to vacate Haycraft’s convictions. [5] We reverse and remand with instructions.

Facts Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 3 of 22

[6] In 2018, Haycraft began working as a forklift operator at Meyer Distributing

(“Meyer”). One year later, in 2019, he accepted a “high-performance” sales

position at Meyer. (Tr. Vol. 4 at 129). The position involved selling race car

parts and engine supplies to car shops. Austin Zehr (“Zehr”) was Haycraft’s

supervisor. [7] In late 2019, O’Connor became Haycraft’s supervisor, and “everything at

[Haycraft’s] job changed.” (Tr. Vol. 4 at 130). Specifically, Haycraft’s job

became more about metrics than customer service. In addition, O’Connor’s

management style, which was “direct . . . [and] in your face[,]” was quite

different from Zehr’s management style. (Tr. Vol. 3 at 102). Over time,

Haycraft and O’Connor developed a “[v]ery hostile[]” relationship. (Tr. Vol. 4

at 132). [8] On March 23, 2020, O’Connor terminated Haycraft’s employment and spoke to

Haycraft in a “provoking” and “profanity[-]laced” manner as he escorted

Haycraft to his car. (Tr. Vol. 4 at 133). Immediately following his termination,

Haycraft deleted all but three of his Meyer co-workers from his list of Facebook

friends. He considered those three co-workers, including Zehr, to be friends

because they had socialized together outside of work. Further, Haycraft

believed that those three co-workers knew him well enough to know when he

was venting. [9] That same day, March 23, 2020, Haycraft posted the following as private to

friends only on Facebook:

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 4 of 22

You know these are the times that should be considered when you buy a weapon… can you maintain yourself when you are upset and your life is destroyed. . I would advise anyone from buying a gun no matter what if you have a bad temper you cant control… I got fired from my job today, was supposed to close on my home in 2 weeks… I Have a new 45 and over 100 rounds of fmj and hollowpoints. A year or so ago i would lose my head and probably do something so stupid id be the next person on tv … I have grown enough as a person that I have faith life will work its way out and extreme measures are not how you handle business. Gun control isn’t the solution. You cant tell if someone is going to hit this low and not have self control. Right now i feel my life is destroyed and im going to lose everything. No amount of background checks will ever know how someone would act in this situation.

(Ex. Vol. 1 at 19) (errors in the original). [10] Zehr and other employees showed the post to O’Connor, who did not have a

Facebook account. O’Connor reported the post to Meyer’s human resources

department. It appears that someone in the human resources department may

have reported the post to the Jasper Police Department. However, the record

does not reveal whether the police department followed up on the report. [11] Five weeks later, on April 30, 2020, Haycraft posted the following as private to

friends only on Facebook:

Day 2 of 5 hours on the phone for unemployment… woohoo Glad bullys want to fight my unemployment. Cant wait till my eeoc hearing date i guess if i lose i just take my ride to prison fuck it…

(Ex. Vol. 1 at 20) (errors in original).

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 5 of 22 [12] Throughout that day, Haycraft posted the following comments in response to

comments on the post:

I worked there 2 years

Im tired of being treated like a pos when I tried so damn hard… its been my whole life… im done being bullied this is the last time…

And i got fucking bullied for 2 months… more shit than I’ve taken from anyone as an adult.. i got told to shut my mouth by a grown man while he was writing me up for doing what he told me to do.

Well ive decided im gonna handle it one way or another… dude fired me 2 weeks before i closed on my house.. so since he wants to fuck me ill get revenge… might go to prison forever but fuck it

ive been bullied my whole life.. im sick of it.. i literally ask for a raise… after 2 years no raise.. they changed my manager, expected me to do over 2x the work as everyone else. The dude punked me out everyday for 2 months… and i took it because i had to have my job to close on my house

He set me up to fail all the time. I had to spend 34hrs a week on the phone to meet his numbers…(from around 15hrs of phone time a week) he told me to cut my hours on a 6 day work week to keep them under 40. I took 2 hours off beginning of my shift to make it happen he wrote me up for it. Then when i tried to state i was doing what he told me to do he told me to shut my mouth…

I made those pricks 5 million dollars in a year… from a bunch of accounts that hated the company…

I just wanted to close on my house so i could build a garage. I would have happily resigned after i closed on my house… the fact that he fucked me on getting a garage is making me insane. I

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 6 of 22

need a garage i need my space for my sanity. I need to work on my shit and i needed it to start the business i want to start

I dont want to sit here and drink all the time. I dont want to not have motivation but i have no space to accomplish the shit i need to accomplish.

I literally post this on facebook because i need people to remind me how stupid it is.. at my darkest moments sometimes i lose sight of everything. I just want to get back at people sometimes.. people have always taken everything from me.. and im so sick of it.

(Ex. Vol.1 at 20-25) (errors in the original). [13] Zehr and other employees showed the post to O’Connor, who reported the post

to Meyer’s human resources department. It is unclear from the record which

comments Haycraft had posted when O’Connor saw the post. Someone in the

human resources department contacted the Indiana State Police. [14] Indiana State Police Sergeant Detective Brock Werne (“Sergeant Werne”)

received the report and instructed Indiana State Police Detective Jarrod Lents

(“Detective Lents”) to go to Haycraft’s house and “tell him to knock off the

Facebook posts and the comments he was making.” (Tr. Vol. 4 at 36).

Detective Lents went to Haycraft’s home and told him to stop making the

Facebook posts and comments because his former employer had considered

them to be threatening in nature. Detective Lents did not record his

conversation with Haycraft or write a report about it because no charges were

going to be filed against Haycraft. Following his conversation with Detective

Lents, Haycraft set all of his Facebook settings to private and unfriended the

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 7 of 22

three people at Meyer who he had previously left as Facebook friends. At that

point, Haycraft believed that he had taken all steps necessary to keep his

Facebook posts private and that he had secured his account. Further, Haycraft

did not believe that he had any remaining Facebook friends who would show

his posts to O’Connor. [15] In June 2020, Haycraft had an interview scheduled at the Equal Employment

Opportunity Commission (“the EEOC”) and was “really excited that

something was going to come of it[.]” (Tr. Vol. 4 at 110). However, when the

interview did not go as Haycraft had hoped, on June 12, 2020, he posted the

following as private to friends only on Facebook:

This is why we have so much violence and mass shootings… this is how that shit happens. If i didnt have children id just go shoot that punk ass bitch right between the eyes… i hope i see him at the store im gonna provoke him to get him to hit me then im gonna chew his fucking face off like a zombie. I dont wanna kill him i just wanna leave him remembering last time he treated someone like shit… maybe missing an eyeball and looking like Voldemort

(Ex. Vol. 1 at 26) (errors in original). [16] Just minutes later, Haycraft posted the following comments in response to a

comment on this post:

Piece of shit ex employer

So the eeoc pretty much just told me mike braun is the equivalent to a modern day slave driver… works you right at poverty line… if you get assistance they will fire you… indiana has zero Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 8 of 22

protections for its employees against hostile work environments unless is race or sex related… so woo hoo. . stay tuned for the next chapter of my life… some will be shocked others know whats coming. LOL good chatting

(Ex. Vol. 1 at 26-27) (errors in the original). [17] Shortly thereafter, Haycraft’s longtime girlfriend, Heidi Weaver (“Weaver”),

who did not like Haycraft posting about their private lives on Facebook, asked

him to delete the post. Haycraft complied with Weaver’s request. However,

before Haycraft had deleted the post and the comments, someone saw them and

forwarded screen shots of them to O’Connor. Someone in Meyer’s human

resources department reported the post and comments to the Indiana State

Police. [18] Sergeant Werne instructed Detective Lents to return to Haycraft’s house and

determine whether the Facebook post and comments had been directed at

O’Connor or Mike Braun (“Braun”).3 On June 13, 2023, Detective Lents went

back to Haycraft’s house and recorded his conversation with Haycraft.

Detective Lents asked Haycraft if he remembered him and reminded Haycraft

that he had previously told Haycraft to “knock off the facebook threats[.]” (Ex.

Vol. 1 at 29). Haycraft responded that he had not made any threats and that he

had been “venting.” (Ex. Vol. 1 at 29). Detective Lents asked Haycraft if he

had been “talking about Mike Braun or . . . about [O’Connor.]” (Ex. Vol. 1 at

3 Mike Braun owns Meyer and was a United States senator at the time the events in this case took place.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 9 of 22

30). Haycraft responded that he had been “mad towards [O’Connor.]” (Ex.

Vol. 1 at 30). Haycraft further told Detective Lents that he had deleted the

Facebook post within ten minutes after posting it because his girlfriend had

gotten angry with him as soon as he had posted it. [19] While speaking with Haycraft, Detective Lents telephoned someone and told

the person that “it wasn’t intended a threat but was made to his boss, not Mike

Braun. . . . [Haycraft] said he was just blowing off steam.” (Ex. Vol. 1 at 31).

Detective Lents ended his telephone call and asked Haycraft if the June 12

Facebook post was “over the same issue as before[.]” (Ex. Vol. 1 at 32).

Haycraft responded that he had “made [Meyer] two million dollars in two

months. . . . And . . . they changed [his] manager to [O’Connor]. . . . And

[O’Connor had] doubled [Haycraft’s] work duties . . . [had] told [Haycraft] to

shut [his] mouth, . . . [had] told [Haycraft] to do things and then [had written

Haycraft] up for doing what he [had] told [Haycraft] to do.” (Ex. Vol. 1 at 32-

33). Haycraft further told Detective Lents that he had been angry because his

interview with the EEOC had not gone as he had hoped it would. Detective

Lents responded that he could understand that Haycraft had been angry but

told Haycraft that he did not want to see him again. [20] Four days later, on June 17, 2020, the State charged Haycraft with Class A

misdemeanor intimidation. The charging information alleged that with his

June 12 Facebook post, Haycraft had “communicate[d] a threat to Shawn

O’Connor, with the intent that Shawn O’Connor be placed in fear of retaliation

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 10 of 22

for terminating Brent Haycraft’s employment, a prior lawful act.” (App. Vol. 2

at 31). [21] Fifteen months later, in September 2021, the State filed a motion to amend the

charging information by adding a second count alleging that Haycraft had

committed Level 6 felony intimidation. The trial court granted the State’s

motion, and the State amended the charging information. Specifically, Count 2

alleged that with his June 12 Facebook post, Haycraft had “communicate[d] a

threat to commit Battery Resulting in Moderate Bodily Injury, a forcible felony,

to Shawn O’Connor, with the intent that Shawn O’Connor be placed in fear of

retaliation for terminating Brent Haycraft[’s] employment, a prior lawful act.”

(App. Vol. 2 at 79). [22] Nearly eighteen months later, in June 2023, the State filed a motion to amend

the charging information “only with regard to corrected dates[.]” (App. Vol. 2

at 198). The trial court granted the State’s motion over Haycraft’s objection,

and the State charged Haycraft as follows:

INTIMIDATION A CLASS A MISDEMEANOR COUNT 1

• • * * * *

That on or about March 23, 2020, April 30, 2020 and/or June 12, 2020, in Martin County, State of Indiana, Brent M. Haycraft did communicate a threat to Shawn O’Connor, with the intent that Shawn O’Connor be placed in fear o[f] retaliation for terminating Brent Haycraft’s employment, a prior lawful act.

• • * * * *

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 11 of 22

INTIMIDATION A LEVEL 6 FELONY COUNT II

• • * * * *

That on or about March 23, 2020, April 30, 2020 and/or June 12, 2020, in Martin County, State of Indiana, Brent M. Haycraft did communicate a threat to commit Battery Resulting in Moderate Bodily Injury, a forcible felony, to Shawn O’Connor, with the intent that Shawn O’Connor be placed in fear o[f] retaliation for terminating Brent Haycraft’s employment, a prior lawful act.

(App. Vol. 2 at 213). [23] At the beginning of Haycraft’s three-day trial in July and August 2023, the trial

court read the jury the preliminary instructions, which included the charging

informations alleging that Haycraft had committed the charged offenses on or

about March 23, 2020, April 30, 2020, and/or June 12, 2020. In addition, the

jury heard the facts as set forth above. The trial court also admitted into

evidence copies of Haycraft’s Facebook posts and comments as well as an

audio recording of Detective Lents’ June 2020 conversation with Haycraft at

Haycraft’s home. [24] O’Connor testified that the March 23 Facebook post had placed him in fear

“due to the content in the post[] mentioning of weapons, ammunition, just the

society we will live in today.” (Tr. Vol. 3 at 135). O’Connor further testified

that after he had been shown the March 23 Facebook post, he had asked

someone in the human resources department if he was permitted to have his

firearm in his possession in his office. O’Connor also testified that the April 30

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 12 of 22

Facebook post and comments had also placed him in fear. Lastly, O’Connor

testified that the June 12 Facebook post and comments had placed him “on the

highest of alert.” (Tr. Vol. 3 at 140). According to O’Connor, if it had been

dark in the evening when he returned home from work, his wife, who he had

told about the Facebook posts, would ask him to make sure that someone was

not hiding outside in the bushes. O’Connor testified that he “[s]houldn’t have

[had] to do that.” (Tr. Vol. 3 at 140). [25] After the State had rested, Haycraft moved for a directed verdict. He

specifically argued that pursuant to the recently decided Counterman v. Colorado,

600 U.S. 66 (2023), “you can’t limit somebody’s first amendment freedom of

speech unless there’s some subjective understanding that the communications

you’re making are threatening in nature.” (Tr. Vol. 4 at 84-85). Haycraft

further argued that Counterman required evidence that he had “consciously

disregarded a substantial risk that his communication would be viewed as

threatening violence.” (Tr. Vol. 4 at 85). According to Haycraft, there was “no

evidence that . . . [he had] consciously disregarded a risk that his

communication would be viewed as threatening violence.” (Tr. Vol. 4 at 85). [26] The trial court took the matter under advisement and recessed for lunch.

Eighty minutes later, the trial court judge returned to the courtroom and told

the parties that she had “reviewed a number of the cases provided – and maybe

[she] didn’t have enough time, but [she] just had appropriate time to consider”

the directed verdict motion. (Tr. Vol. 4 at 94). The trial court denied

Haycraft’s motion, and the trial continued.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 13 of 22 [27] Haycraft testified that he had never intended to threaten O’Connor with any of

his Facebook posts. He also testified that he did not believe that O’Connor

would see his Facebook posts because he had posted them to friends only, and

O’Connor was not one of his Facebook friends. In addition, he agreed that he

had never told anyone to convey the Facebook posts to O’Connor and that he

had had no understanding or belief that his Facebook posts would be conveyed

to O’Connor. Haycraft further agreed that even if O’Connor had seen the

posts, Haycraft had had no understanding or belief that the posts would invoke

fear in O’Connor. In addition, Haycraft testified that although he had

O’Connor’s cell phone number, he had never directly contacted O’Connor

following his termination. [28] Weaver testified that she did not believe that Haycraft’s Facebook posts were

meant to be threatening. Specifically, Weaver explained that she and Haycraft

had been in a relationship for several years and that over those years, Haycraft

had “vent[ed] a lot.” (Tr. Vol. 4 at 109). According to Weaver, Haycraft often

said things that he should not have said but later came back to apologize. [29] At no time during the trial did the State set forth which Facebook post

supported the misdemeanor charge and which Facebook post supported the

felony charge. Rather, during its closing argument, the State told the jurors to

look through the Facebook posts and simply argued that it had shown the jury

“every element of the offenses.” (Tr. Vol. 5 at 40).

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 14 of 22 [30] At the end of the trial, the trial court read the jury the final instructions, which

included the charging informations alleging that Haycraft had committed the

offenses on or about March 23, 2020, April 30, 2020, and/or June 12, 2020.

Although the jury was instructed “not [to] sign any verdict form for which there

is not unanimous agreement[,]” the jurors were not specifically instructed that

they had to reach a unanimous decision as to which Facebook post and

comments, if any, constituted Class A misdemeanor intimidation and which

Facebook post and comments, if any, constituted Level 6 felony intimidation.

(App. Vol. 3 at 117, Tr. Vol. 5 at 48). [31] The jury convicted Haycraft of both counts. Following a sentencing hearing,

the trial court sentenced Haycraft to a two (2) year sentence in the Department

of Correction but suspended the sentence to probation.4 [32] Haycraft now appeals.

Decision [33] Haycraft argues that his Facebook posts and comments were protected by the

First Amendment. He specifically contends that his “First Amendment rights

were infringed due to the State not proving Haycraft had a subjective

understanding of the threatening nature of the Facebook posts.” (Haycraft’s Br.

4 As the State points out, the trial court ordered the sentences for the two convictions to run concurrently with each other for an aggregate sentence of two years. However, the trial court did not set forth the individual sentences for each count.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 15 of 22

4). The gravamen of his argument is that there is insufficient evidence to

support his convictions because the State did not present sufficient evidence that

he had some understanding of his statements’ threatening character and had

consciously disregarded a substantial risk that his conduct would be viewed as

threatening. [34] When faced with a challenge to the sufficiency of the evidence, we apply a well-

settled standard of review that leaves the determination of the weight of the

evidence and the credibility of the witnesses to the finder of fact. Moone v. State,

250 N.E.3d 1101, 1106 (Ind. Ct. App. 2025), trans. pending. We consider only

the evidence most favorable to the judgment and will affirm a defendant’s

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id. [35] However, despite this deferential standard of review, when the constitutional

protection for a defendant’s speech hinges on state-of-mind issues, such

deferential review “creates an unacceptable risk of under-protecting speech.”

Id. at 1107 (cleaned up). “It is our constitutional duty, then, to make an

independent examination of the whole record, so as to assure ourselves that the

conviction does not constitute a forbidden intrusion on the field of free

expression.” Id. (cleaned up). We cannot delegate this duty to the fact-finder

and must independently review the record de novo. Id. [36] “The First Amendment to the United States Constitution does not absolutely

protect all categories of speech and means of expression.” Id. For example, the

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 16 of 22

First Amendment does not protect speech that constitutes a true threat. Id. In

Counterman v. Colorado, 600 U.S. at 66, the United States Supreme Court

explained that true threats are “serious expressions conveying that a speaker

means to commit an act of unlawful violence.” Counterman, 600 U.S. at 74

(cleaned up). [37] Before Counterman, an Indiana court had to determine whether a true threat had

occurred by analyzing whether “the speaker [had] intended his communications

to put his targets in fear for their safety.” Moone, 250 N.E.3d at 1107-08

(cleaned up). However, in the Counterman case, the United States Supreme

Court held that “the State must prove in true-threats cases that the defendant

had some understanding of his statements’ threatening character.” Counterman,

600 U.S. at 73. Further, in Counterman, the Supreme Court lowered to a

reckless standard the mens rea for determining whether a statement is a true

threat that is unprotected by the First Amendment. Id. at 79. Specifically, the

Supreme Court explained that “[i]n the threats context, it means that a speaker

is aware that others could regard his statements as threatening violence and

delivers them anyway.”5 Id. (cleaned up). [38] Applying the Counterman standard to Haycraft’s March 23 Facebook post, we

first note that although Haycraft had O’Connor’s cell phone number, Haycraft

5 When adopting the reckless mens rea for determining whether a statement is a true threat, the United States Supreme Court explained as follows: “And of particular importance, we prevent the States from convicting morally culpable defendants. For reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.” Counterman, 600 U.S. at 80.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 17 of 22

did not directly contact O’Connor. Rather, Haycraft made the March 23

Facebook post private to friends only. Further, before making the March 23

Facebook post, Haycraft had deleted all but three of his Meyer co-workers from

his list of Facebook friends. He considered those three co-workers to be friends

because they had socialized together outside of work. In addition, Haycraft

believed that those three co-workers knew him well enough to know when he

was venting. He did not believe that O’Connor would see the post because

O’Connor was not one of his Facebook friends. He never told anyone to show

the Facebook post to O’Connor, and he did not believe that any of his

Facebook friends would do so. Based on these facts and circumstances, we

agree with Haycraft that the State failed to prove that Haycraft had some

understanding of his statements’ threatening character and that Haycraft

consciously disregarded a substantial risk that his conduct would be viewed as

threatening. Accordingly, we conclude that the March 23 Facebook post was

not a true threat, and it was protected by the First Amendment. [39] Regarding the April 30 Facebook post and comments, we note that it was

unclear from the record which comments Haycraft had posted when Zehr and

other employees had shown the post to O’Connor. In any case, Haycraft did

not contact O’Connor directly, and Haycraft made the April 30 Facebook post

and comments private to friends only. As with the March 23 Facebook post,

Haycraft did not believe that O’Connor would see the post because O’Connor

was not one of his Facebook friends. He never told anyone to show the

Facebook post to O’Connor, and he did not believe that any of his Facebook

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 18 of 22

friends would do so. Based on these facts and circumstances, we again agree

with Haycraft that the State failed to prove that Haycraft had some

understanding of his statements’ threatening character and that Haycraft

consciously disregarded a substantial risk that his conduct would be viewed as

threatening. Accordingly, we conclude that the April 30 Facebook post and

comments did not constitute a true threat, and these communications were

protected by the First Amendment. [40] After Haycraft had made the March 23 and April 30 Facebook posts and

comments, Detective Lents went to Haycraft’s house to tell Haycraft to stop

making the Facebook posts and comments because his former employer had

considered them to be threatening in nature. Thus, when Haycraft made the

June 12 Facebook post and comments, he had some understanding of the

threatening nature of this Facebook post and comments, and he consciously

disregarded a substantial risk that his conduct would be viewed as threatening.

Accordingly, we conclude that the June 12 Facebook post and comments

constituted a true threat, and these communications were not protected by the

First Amendment. [41] Although we have determined that the June 12 Facebook post and comments

constituted a true threat, our analysis does not end with that conclusion because

the trial court failed to provide a unanimity instruction to the jury. Our review

of the record reveals that the trial court read the jury preliminary and final

instructions on intimidation. Both sets of instructions incorporated the

charging informations. Specifically, the instructions, and the charging

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 19 of 22

informations for both Class A misdemeanor and Level 6 felony intimidation,

provided that the State had to prove that Haycraft had committed the charged

offenses on or about March 23, 2020, April 30, 2020, and/or June 12, 2020. [42] Indiana courts have long required that a verdict of guilty in a criminal case must

be unanimous. Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011), reh’g denied.

Disjunctive jury instructions make it difficult to ascertain whether the jury’s

verdict was reached unanimously. See id. at 1175. Our Indiana Supreme Court

has described the ambiguity in such instructions:

[A] disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two or more underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.

Id. See also Dunn v. State, 230 N.E.3d 910, 916 (Ind. 2024) (warning against

using and/or, especially in jury instructions because it is ambiguous and

potentially imprecise). If the State chooses not to designate a specific act to rely

upon in proving a particular charge, “then the jurors should be instructed that

in order to convict the defendant they must either unanimously agree that the

defendant committed the same act or acts or that the defendant committed all

of the acts described by the victim and included within the time period

charged.” Baker, 948 N.E.2d at 1177. [43] Here, the trial court instructed the jury that the State had to prove, among other

things, that on or about March 23, 2020, April 30, 2020 and/or June 12, 2020, Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 20 of 22

Haycraft communicated threats to O’Connor. As written, the instructions

provided that the State could prove that Haycraft committed intimidation on

either March 23, 2020, April 30, 2020, or June 12, 2020. The trial court’s

preliminary and final instructions did not include any further instructions on the

offenses or a unanimity instruction. Further, at no time during the trial did the

State set forth which Facebook post supported the misdemeanor charge and

which Facebook post supported the felony charge. In addition, during its

closing argument, the State told the jurors to look through the Facebook posts

and simply argued that it had shown the jury every element of the offenses. In

sum, the charging informations, the preliminary and final jury instructions, and

the State’s argument all referenced three alleged intimidation incidents within

two single charges. Under these circumstances, the trial court should have

provided the jury with a unanimity instruction. [44] Because the trial court did not provide the required unanimity instruction, we

are unable to determine whether the jury convicted Haycraft of Class A

misdemeanor intimidation and Level 6 felony intimidation based on the March

23 Facebook post or the April 30 Facebook post and comments, which were

not true threats, or based on the June 12 Facebook post and comments, which

was a true threat. Therefore, we reverse Haycraft’s convictions for both Class A

misdemeanor intimidation and Level 6 felony intimidation and remand this

case to the trial court with instructions to vacate Haycraft’s convictions. [45] Reversed and remanded with instructions.

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 21 of 22 May, J., and Brown, J., concur.

ATTORNEY FOR APPELLANT Paul M. Blanton Kyle C. Beach Blanton & Pierce, LLC Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2088 | May 13, 2025 Page 22 of 22