                                                                             FILED
                                                                         Sep 29 2017, 7:03 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Mark K. Leeman                                             Curtis T. Hill, Jr.
      Leeman Law Office                                          Attorney General of Indiana
      Logansport, IN                                             Ian McLean
                                                                 Laura R. Anderson
                                                                 Deputy Attorneys General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert R. Fleming,                                         September 29, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 09A05-1703-CR-645
              v.                                                 Appeal from the Cass Superior
                                                                 Court
      State of Indiana,                                          The Honorable Richard A.
      Appellee-Plaintiff.                                        Maughmer, Judge
                                                                 Trial Court Cause No.
                                                                 09D02-1607-CM-537



      Mathias, Judge.


[1]   Robert Fleming (“Fleming”) appeals his conviction for Class A misdemeanor

      intimidation. Specifically, Fleming argues that the State failed to prove that he




      Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017               Page 1 of 12
      engaged in a true threat, and that the State failed to prove that he intended to

      place the victim Keith Kottkamp in fear of retaliation for a prior lawful act. 1


[2]   We affirm.


                                  Facts and Procedural History
[3]   Rena and Keith Kottkamp awakened around 10:45 p.m. on June 30, 2016, to a

      woman’s screams of “Help me! Help me!” coming from their front yard. Tr. p.

      24. Mrs. Kottkamp arose, turned on the porch light, and saw Keisha Mowery

      (“Mowery”) on their porch and at their front door. Mowery had come from

      Fleming’s home, which is located across the road from the Kottkamps. Mrs.

      Kottkamp called the police, but while they were waiting for officers to arrive,

      Mowery returned to Fleming’s home.


[4]   Cass County Sheriff Department Officers Gary Armstrong and Shane Johnson

      arrived soon after at Fleming’s home. Fleming refused to allow either officer

      into his home, answer any questions, and repeatedly told the officers to get off

      of his property using foul language. As the officers left Fleming’s property and

      headed to their vehicles, Fleming followed the officers telling them, “that’s

      right, that’s right. You do what I say. You get the f--- off my property.” Id. at

      53. Fleming then exclaimed, “oh, by the way if I could find your wives I would

      f--- your wives and show her, show your wives what a real man is.” Id. Officers




      1
       We held oral argument in this case at St. Francis University in Fort Wayne, Indiana on September 19,
      2017. We thank the faculty, staff, and students for their gracious hospitality.

      Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017                  Page 2 of 12
      Armstrong and Johnson drove across the street to the Kottkamps. The

      Kottkamps reiterated what they observed, and the officers left without taking

      any further action.


[5]   The Kottkamps returned to bed and attempted to fall back asleep.

      Approximately ten to fifteen minutes later, they were awakened again to

      Mowery’s cries of “Help me! Help me!” Id. at 28. Mrs. Kottkamp went to the

      porch, but this time she made sure Mowery stayed with her while Mr.

      Kottkamp called the police. While the Kottkamps were waiting for the police,

      Fleming left his home and began approaching their property.


[6]   Fleming stayed on his property as he yelled obscenities across the road at Mrs.

      Kottkamp, including calling her a “white-haired old bitch.” Id. at 42. Upon

      hearing Fleming curse at his wife, Mr. Kottkamp came out on to the porch

      where he joined his wife and Mowery. At this point, Fleming yelled, “and what

      the hell do you want you old bastard?” Id. at 43. Fleming continued shouting

      across the street at the Kottkamps, at one point telling Mr. Kottkamp “that he

      was going to come over and kick [Mr. Kottkamp’s] ass.” Id. Upon hearing this,

      Mr. Kottkamp laughed. Approximately five minutes later, the police arrived for

      the second time.


[7]   Officer Armstrong was now off duty, but Officer Johnson returned with Officer

      Brenton McDonald. Once the officers arrived, Fleming began retreating closer

      to his home, while using offensive language to tell the officers to mind their

      own business and to get off of his property. At this point, Officer Johnson put


      Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 3 of 12
       Fleming in restraints for “his safety and my safety.” Id. at 56. Officer

       Johnson then arrested Fleming and transported him to jail.


[8]    On July 1, 2016, Fleming was charged with Class A misdemeanor intimidation

       and Class B misdemeanor disorderly conduct. On February 8, 2017, a jury trial

       was held, and the jury found Fleming guilty of both offenses. The sentencing

       hearing was held on February 27, 2017, and Fleming was sentenced to 365 days

       in the Cass County Jail for the intimidation conviction and 180 days in the Cass

       County Jail for the disorderly conduct conviction. Fleming appeals only the

       intimidation conviction.


                                           Standard of Review
[9]    Fleming contends that there was insufficient evidence to sustain his conviction

       for Class A misdemeanor intimidation. When reviewing sufficiency of the

       evidence claims, this court does not reweigh the evidence or assess the

       credibility of witnesses. Ransley v. State, 850 N.E.2d 443, 445 (Ind. Ct. App.

       2006), trans denied. We consider only the evidence most favorable to the verdict,

       together with all reasonable and logical inferences to be drawn therefrom. Id.

       The conviction will be affirmed if there is substantial evidence of probative

       value to support the conclusion of the trier of fact. Id.


                                       Discussion and Decision
[10]   To convict Fleming of Class A misdemeanor intimidation, the State was

       required to prove beyond a reasonable doubt that Fleming communicated a

       threat to Mr. Kottkamp with the intent that Mr. Kottkamp be placed in fear of

       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 4 of 12
       retaliation for a prior lawful act. See Ind. Code § 35-45-2-1(a)(2). Specifically,

       the charging information states, “Robert Ryan Fleming did communicate a

       threat to Keith A. Kottkamp, with the intent that Keith A. Kottkamp be placed

       in fear of retaliation for a prior lawful act, contrary to the form of the statutes in

       such cases made and provided by I.C. 35-45-2-1(a)(2).” Appellant’s App. p. 10.

       Therefore, the two questions here are: (1) did Fleming communicate a threat to

       Mr. Kottkamp? and (2) did Fleming communicate the threat with the intent

       that Mr. Kottkamp be placed in fear of retaliation for a prior lawful act?


                                                I. A True Threat

[11]   For purposes of this case, a threat is defined as “an expression, by words or

       action, of an intention to . . . unlawfully injure the person threatened.” Ind.

       Code § 35-45-2-1(d)(1). Whether a statement is a threat is an objective question

       for the fact finder. Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans.

       denied. Our supreme court clarified in Brewington v. State that true threats depend

       on two necessary elements: (1) that the speaker intend his communications to

       put his targets in fear for their safety, and (2) that the communications were

       likely to actually cause such fear in a reasonable person similarly situated to the

       target. 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied.


[12]   Concerning the first element, Fleming argues that his words did not express the

       requisite intent to threaten Mr. Kottkamp, but rather his “words were an

       invitation to engage in a fight and that he was confident he would ‘whip [Mr.

       Kottkamp’s] ass’ during the fight.” Appellant’s Br. at 13. Citing Newell, the

       State counters and asserts, “Fleming’s communication was blunt, verbal, and
       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 5 of 12
       uttered in the presence of the victim.” Appellee’s Br. at 12. We agree with the

       State.


[13]   Fleming directly threatened to “beat [Mr. Kottkamp’s] ass,” Tr. pp. 44–46, 59,

       and the threat was made while Fleming was angry. Id. at 34, 44, 45. Therefore,

       a reasonable fact finder could conclude that Fleming’s statement intended to

       put Mr. Kottkamp in fear for his safety, satisfying Brewington’s first element.2 See

       Newell, 7 N.E.3d at 370 (holding that it was for the fact-finder to determine

       whether the defendant was venting to a friend, or whether the defendant made

       a true threat).


[14]   For the second element of a true threat under Brewington, Fleming argues, “An

       objectively reasonable person in Mr. Kottkamp’s situation . . . would recognize

       that there was no possibility of physical harm so long as Mr. Kottkamp

       remained on his own property and took no further action to engage Fleming in

       an altercation.” Appellant’s Br. at 13. To support his argument, Fleming

       analogizes his statement to Mr. Kottkamp with his statements to the police

       officers and notes, “The reasonable officers in this case interpreted Fleming’s

       actions as an attempt to provoke a confrontation and departed.” Id. at 14.




       2
         Fleming argues that Mr. Kottkamp’s laughter in response to his threat shows that Mr. Kottkamp did not
       take it seriously. Appellant’s Br. at. 12. In support, Fleming cites to the Supreme Court’s decision in Watts v.
       United States, 394 U.S. 705 (1969). However, in Watts the defendant was addressing a crowd in reference to
       his opposition to the draft when he stated, “If they ever make me carry a rifle the first man I want to get in
       my sights is L.B.J.” 394 U.S. at 706. The circumstances here are factually distinct and the record indicates
       that Mr. Kottkamp laughed because he knew the police were already on their way back to the residence. Tr.
       p. 44.

       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017                        Page 6 of 12
[15]   However, Brewington’s second inquiry concerns the reasonableness of a private

       citizen in Mr. Kottkamp’s position, and not a person in the position of the

       police officers at another time and place. Appellee’s Br. at 16; see Brewington, 7

       N.E.3d at 969 (explaining that the question under the second element is

       whether it was objectively reasonable for the victim to fear for their safety). The

       officers’ reaction to Fleming is irrelevant to how Mr. Kottkamp reacted.


[16]   When asked whether he was scared that Fleming would cause him physical

       harm, Mr. Kottkamp responded, “Yes, sir.” Tr. p. 43. Under these facts and

       circumstances, the evidence was sufficient for the jury to conclude that

       Fleming’s words to Mr. Kottkamp represented a true threat.


                                 II. In Retaliation for a Prior Lawful Act

[17]   As well as proving a threat was issued, the State was also required to prove that

       the threat itself was delivered with the intent to retaliate for a prior lawful act.

       See Ind. Code § 35-45-2-1(a)(2). In Casey v. State we explained, “it is apparent

       that the legislature intended to require the State to prove that the victim had

       engaged in a prior act, which was not contrary to the law, and that the

       defendant intended to repay the victim for the prior lawful act.” 676 N.E.2d

       1069, 1072 (Ind. Ct. App. 1997).


[18]   We initially note that prosecutors’ failure to specify the “prior lawful act” in the

       charging information is a recurring issue in appeals of criminal intimidation.

       There are times when the State alleges an incorrect prior lawful act. Blackmon v.

       State, 32 N.E.3d 1178, 1182 (Ind. Ct. App. 2015) (finding that the State failed to

       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 7 of 12
       present sufficient evidence that the defendant committed the prior lawful act

       that was specified in the charging information). In other circumstances, the

       State chooses to allege several prior lawful acts. Ransley v. State, 850 N.E.2d

       443, 445–46 (Ind. Ct. App. 2006) (the State amended the charging information

       five days prior to trial to add a second potential prior lawful act), trans. denied;

       Casey, 676 N.E.2d at 1073 (the original charging information did not specify a

       prior lawful act, but on a motion to correct errors the State alleged three

       potential lawful actions). Also, the State at times relies on the evidence at trial

       to argue the prior lawful act that would support the intimidation conviction.

       Chastain v. State, 58 N.E.3d 235, 241 (Ind. Ct. App. 2016) (the State identified

       the prior lawful act at trial even though the charging information was silent on

       its particulars), trans. denied.


[19]   Here, Fleming points out that the charging information did not specify the prior

       lawful act. Appellant’s Br. at 11. However, the deputy prosecutor explained on

       two occasions during trial that the prior lawful act was Mr. Kottkamp “stepping

       out on to his front porch which he said he did to protect his wife.” Tr. p. 69; see

       also id. at 62. Additionally, Fleming never filed a motion to dismiss for a lack of

       specificity with regard to the charging information,3 nor does he raise this as an

       issue on appeal, and it is therefore waived. Anderson v. State, 15 N.E.3d 147, 149

       (Ind. Ct. App. 2014).




       3
           See Ind. Code § 35-34-1-8(a); Ind. Code § 35-34-1-4(a)(4).


       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 8 of 12
[20]   Instead, Fleming argues that analogous to our decision in Casey, the State failed

       to prove that Fleming made a threat to Mr. Kottkamp in retaliation for a prior

       lawful act. Appellant’s Br. at 11. His primary contention here is that the

       evidence established that Fleming was attempting to entice Mr. Kottkamp into

       a fight, and he was not threatening Mr. Kottkamp for any prior lawful action. 4

       Id. The State contends that the prior lawful act was Mr. Kottkamp stepping out

       on the porch in support of his wife. Appellee’s Br. at 11.


[21]   In Casey, a fight broke out at a bar between Casey and one of the victim’s

       friends. 676 N.E.2d at 1071. Later that evening, Casey showed up at the

       victim’s home with several friends. Id. The victim exited her apartment with

       two other people and pleaded for Casey to leave. Casey refused stating, “Get

       inside bitch, you’re next.” Id. Casey then struck one of the victim’s friends in

       the head with a baseball bat and told the victim, “You’re next bitch.” Id.


[22]   On appeal, we vacated Casey’s intimidation conviction because the record did

       not support the contention that the victim was in fear of retaliation for any prior

       lawful action. Id. at 1073. We clarified:




       4
         Fleming is incorrect to the extent that he argues that his actions do not rise to the level of criminal
       intimidation because “this case involves a conditional statement.” Appellant’s Br. at 11, 13; Reply Br. at 3. In
       Roar v. State, this court wrote and our supreme court adopted the standard that “[m]ere use of conditional
       language in the course of communicating a threat does not vitiate the statute’s application when the factual
       predicate for the threat was a prior lawful act of the victim.” 52 N.E.3d 940, 943 (Ind. Ct. App. 2016)
       (adopted and incorporated by Roar v. State, 54 N.E.3d 1001 (Ind. 2016)). The record identifies Mr.
       Kottkamp’s prior lawful act occurred prior to Fleming’s threat. Tr. pp. 62, 69. Therefore, Fleming’s argument
       that he lacked the intent to threaten Mr. Kottkamp because the threat was conditioned on a future act fails in
       light of Roar.

       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017                       Page 9 of 12
               [M]ere proof that the victim is engaged in an act which is not
               illegal at the time the threat is made is not sufficient. Rather, the
               State must establish that the legal act occurred prior to the threat
               and that the defendant intended to place the victim in fear of
               retaliation for that act.


       Id. at 1072. The dispositive issue in Casey was that nothing in the record

       indicated that Casey was retaliating against the victim for any of the three prior

       lawful acts proffered by the State. Id.


[23]   Although not mentioned by either party, we find the case before us more

       analogous to our recent decision in Chastain v. State, 58 N.E.3d 235. In Chastain,

       the victim was waiting for a table in the parking lot of a restaurant when he

       heard and saw Chastain arguing with and then shove a woman. Id. at 236

       Chastain noticed the victim walking towards him and asked, “do you have a

       f***ing problem?” Id. After the two men had words, Chastain went to his truck

       where he retrieved a hand gun, cocked it, and pointed it at the victim saying,

       “I’ll f***ing kill you” several times. Id.


[24]   On appeal, we found the evidence sufficient to affirm the conviction due to the

       nexus between the lawful act and Chastain’s threat to the victim. Id. at 241. We

       explained that even though Chastain did not tell the victim why he pointed a

       gun at him, “it was reasonable to infer from the evidence that Chastain’s

       actions were prompted by the initial lawful act of [the victim] interrupting his

       argument with [the woman], and Chastain’s threat was communicated with the

       intent to place [the victim] in fear for that act.” Id. at 240.


       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 10 of 12
[25]   In the present case, there is a clear nexus between a prior lawful act and the

       issued threat. The record indicates that Mr. Kottkamp walked out onto his

       porch after he heard Fleming yelling obscenities at his wife. Just after stepping

       outside, he was asked by Fleming, “what the hell do you want you old

       bastard?” Tr. p. 43. After Mr. Kottkamp chose not to respond, Fleming told

       him that he was going to come over and “kick [Mr. Kottkamp’s] ass because

       [Mr. Kottkamp] came out” onto his porch. Id. at 45–46.


[26]   Mr. Kottkamp committed a distinct lawful act by stepping out onto his porch

       when he heard his wife being insulted. It is clear from the record that Fleming

       then reacted in response to Mr. Kottkamp’s actions. While we acknowledge

       that Fleming did not explicitly tell Mr. Kottkamp why he was “going to come

       over and kick [Mr. Kottkamp’s ass],” Id. at 43, we conclude that it was

       reasonable to infer from the evidence that Fleming’s actions were prompted by

       Mr. Kottkamp stepping out onto his porch. Chastain, 58 N.E.3d at 241. Any

       finding to the contrary would require us to reweigh the evidence, which we will

       not do on appeal. Id. at 237.


                                                  Conclusion
[27]   We as Indiana citizens need to better define the language that can be properly

       used during disagreements, in order to avoid a further coarsening of our civil

       society. Considering the evidence favorable to the jury’s verdict, we conclude

       that the State presented sufficient evidence in this case to support Fleming’s

       intimidation conviction.


       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 11 of 12
[28]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 09A05-1703-CR-645 | September 29, 2017   Page 12 of 12
