                                                                             May 22 2015, 9:48 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                             Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana
                                                          Brian Reitz
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Leonard Blackmon,                                         May 22, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1411-CR-413
        v.                                                Appeal from the St. Joseph Superior
                                                          Court.
                                                          The Honorable Jane Woodward
State of Indiana,                                         Miller, Special Judge
Appellee-Plaintiff                                        Cause No. 71D01-1407-F5-9




Baker, Judge.




Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015                    Page 1 of 19
[1]   Leonard Blackmon appeals his conviction for Intimidation, 1 a Level 5 felony.

      Finding that the evidence was insufficient to prove that Blackmon acted with

      the intent that Donald Courtway be placed in fear of retaliation for a prior

      lawful act, as required by the intimidation statute, we reverse.


                                                      Facts
[2]   On July 23, 2014, Donald Courtway was at his daughter Megan’s house

      watching her children. At some point in the afternoon, he noticed the sound of

      running water and went to see where it was coming from. Courtway eventually

      discovered that water was running from a spigot on the outside of the house.

      He went outside and found a bucket underneath the spigot. The spigot had

      been locked, but the locking device had been broken off.


[3]   Courtway knew that Megan’s neighbor, Winifred Hale, did not have running

      water and had been borrowing water from neighbors. He picked up the bucket,

      dumped out the water, and walked on to Hale’s driveway. Courtway noticed

      music coming from Hale’s garage and yelled “hey” to try to get someone’s

      attention. Hale and Blackmon exited the garage and walked up the driveway to

      meet Courtway. Hale and Blackmon eventually moved to a position about

      fifteen feet away from Courtway.


[4]   Courtway threw the bucket towards Hale’s house and asked, in an elevated

      voice, who had broken off the lock to the spigot. He then asked who had given



      1
          Ind. Code § 35-45-2-1.

      Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015   Page 2 of 19
      them permission to use the water. Hale told Courtway that she would pay for

      the water. Courtway declined this offer and told her that he was going to call

      the police.


[5]   Blackmon, who had been silent up to this point, pulled out an open pocket

      knife and held it above himself. Courtway then placed his hand on his pocket

      and said “I hope you enjoy your last day on earth” in an effort to make it

      appear as though he was armed. Tr. p. 33-34. Blackmon said “oh, you gonna

      shoot me?” Tr. p. 34. Blackmon then put the pocket knife down, offered a few

      parting expletives, and returned to the garage. Courtway went back to his

      daughter’s house and called the police.


[6]   The police arrested Blackmon later that evening. When questioned by an

      officer, Blackmon admitted to stealing water. He was charged with Level 5

      felony intimidation and class A misdemeanor possession of paraphernalia.2 On

      October 21, 2014, a jury found Blackmon guilty as charged. The trial court

      sentenced Blackmon to four years for intimidation and one year for possession

      of paraphernalia, to be served concurrently. Blackmon now appeals.




      2
          Blackmon does not appeal his conviction for possession of paraphernalia.

      Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015         Page 3 of 19
                                     Discussion and Decision
                                       I. Standard of Review
[7]   On appeal, Blackmon contends that the evidence is insufficient to support his

      conviction.3 When reviewing a claim for insufficient evidence, we do not

      reweigh the evidence or judge the credibility of the witnesses. Casey v. State, 676

      N.E.2d 1069, 1072 (Ind. Ct. App. 1997). We consider only the evidence most

      favorable to the verdict and the reasonable inferences drawn therefrom. Id. If

      substantial evidence of probative value supports the trier of fact’s conclusion,

      we will affirm. Id.


[8]   Indiana’s intimidation statute provides:

               (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; [or]
                        (2)      that the other person be placed in fear of retaliation for a
                                 prior lawful act; . . .
                                                          ***
               commits intimidation, a Class A misdemeanor.




      3
        Blackmon also argues that the trial court erred in denying his motion for a directed verdict. Because his
      argument in this regard is the same as his sufficiency argument, and our standard of review is the same in
      both cases, we treat his directed verdict and sufficiency arguments as one. Edwards v. State, 862 N.E.2d 1254,
      1262 (Ind. Ct. App. 2007) (“If the evidence is sufficient to sustain a conviction upon appeal, then a motion
      for a directed verdict is properly denied; thus, our standard of review is essentially the same as that upon a
      challenge to the sufficiency of the evidence.”)

      Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015                            Page 4 of 19
       Ind. Code § 35-45-2-1. The offense is raised to a Level 5 felony if “while

       committing it, the person draws or uses a deadly weapon.” Id. Here, the State

       chose to charge Blackmon under subdivision (a)(2) of the statute, seeking to

       prove at trial that Blackmon had threatened Courtway with the intent that

       Courtway be placed in fear of retaliation for a prior lawful act. The charging

       information provided:

               On or about July 23, 2014 in St. Joseph County, State of Indiana,
               Leonard Blackmon did communicate a threat to another person, with
               the intent that said other person be placed in fear of retaliation for a
               prior lawful act, to-wit: Leonard Blackmon threatened to cut Donald
               Courtway with a knife, after Donald Courtway caught Leonard
               Blackmon stealing water, and in committing said act the defendant
               drew or used a deadly weapon.

       Appellant’s App. p. 31.


[9]    On appeal, Blackmon alleges that the State presented insufficient evidence to

       prove that his actions constituted a threat or that he intended to place Courtway

       in fear of retaliation for having caught Blackmon stealing water. Because we

       find Blackmon’s second argument to be dispositive, we need not address his

       argument that his actions did not constitute a threat.


                         II. Retaliation for a Prior Lawful Act

             A. Sufficiency of Evidence that Courtway Caught
                         Blackmon Stealing Water
[10]   To convict a defendant of intimidation under Indiana Code section 35-45-2-

       1(a)(2), the State is required to prove beyond a reasonable doubt that the


       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015             Page 5 of 19
       defendant threatened the victim with the intent “that the other person be placed

       in fear of retaliation for a prior lawful act.” This Court interprets statutes using

       well-established rules of statutory construction. Casey, 676 N.E.2d at 1072.

               When construing a statute, our foremost duty is to determine and give
               effect to the true intent of the legislature. We endeavor to give the
               statute in question a practical application so as to prevent absurdity,
               hardship, or injustice, and to favor public convenience. Additionally,
               we presume that all of the words appearing in the statute were
               intended to have meaning. Absent a clearly manifested purpose to the
               contrary, we endeavor to give the statutory language its plain and
               ordinary definition.

       Id. (citations omitted).


[11]   In Casey, we examined the language of Indiana Code section 35-45-2-1(a)(2)

       and concluded:

               Construing these words together, 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.

       Id.


[12]   Here, the charging information specified Courtway’s prior lawful act as:

       “Donald Courtway caught Leonard Blackmon stealing water.” Appellant’s

       App. p. 31. In support of his claim that the evidence was insufficient to prove

       that he acted to put Courtway in fear of retaliation for this prior lawful act,

       Blackmon makes two arguments: (1) Courtway did not commit this prior lawful




       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015            Page 6 of 19
       act; and (2) even if he did, Blackmon did not act with the intent to place

       Courtway in fear of retaliation for this prior lawful act.


[13]   As to Blackmon’s first argument, the State maintains that it proved that

       Courtway caught Blackmon stealing water through circumstantial evidence.

       The State points out that Courtway saw the broken spigot with Hale’s bucket

       underneath. Appellee’s Br. p. 9. The State stresses the fact that Blackmon

       subsequently admitted to law enforcement that he had taken the water. Tr. p.

       73. But while this evidence tends to establish that Blackmon took the water, it

       does not tend to establish that Courtway caught Blackmon taking the water, as

       was specified in the charge.


[14]   Furthermore, it is apparent from Courtway’s testimony that he did not know

       who had taken the water at the time he went to confront Blackmon and Hale.

       Id. at 31. During the confrontation, Hale was the only person who made any

       remarks regarding the water and her statements did not implicate Blackmon.

       Id. at 32. As there is no evidence indicating that Courtway knew who took the

       water, there is no evidence that Courtway caught anyone taking the water.

       Consequently, we find that the State failed to present sufficient evidence that

       Courtway committed the prior lawful act as specified in the charging

       information.


[15]   Moreover, even had Courtway caught Blackmon stealing water, we believe that

       the evidence presented by the State was insufficient to allow the jury to




       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015      Page 7 of 19
       reasonably conclude that Blackmon acted with the intent to place Courtway in

       fear of retaliation for this act. In Casey, we held:

               [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.

       676 N.E.2d at 1072.


[16]   Our holding in Ransley v. State is illustrative of this point. 850 N.E.2d 443 (Ind.

       Ct. App. 1997). In that case, Ransley and Nolan were involved in an ongoing

       property dispute. Id. at 444. Nolan was out one day mowing grass near the

       disputed portion of the property when he noticed Ransley on his porch. Id.

       Nolan began to yell at Ransley, who in turn began to walk towards Nolan. Id.

       Nolan went back to his house, retrieved an axe handle, and came back out to

       confront Ransley. Id. At this point, Ransley pulled a handgun from his

       waistband and pointed it at Nolan. Id.


[17]   The State charged Ransley with intimidation, alleging in the charging

       information that Ransley had threatened Nolan “with the intent . . . that Nolan

       be placed in fear for the prior lawful acts including arguing with Ransley . . . .”

       Id. at 445. We found the evidence insufficient to establish this element of the

       charge, noting:

               Although Nolan was given the chance to testify that Ransley had
               threatened to kill or harm him for the prior lawful act of arguing, he
               made no such allegation. The 911 recordings supported the fact that
               Ransley's threats were intended to keep Nolan off his property. The


       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015           Page 8 of 19
               State contends that Ransley was angry from his encounter with Nolan
               and that this anger prompted his actions. We recognize that a person
               may be angry enough to commit intimidation. However, anger,
               without proof of intent to retaliate, is not enough to satisfy the
               requirements of the statute.

       Id. at 447.


[18]   The facts of this case are substantially similar. Here, the State presented no

       evidence that Courtway caught Blackmon stealing water nor did it present any

       evidence that Blackmon believed he had been caught stealing water. Courtway

       did not testify that he believed Blackmon would retaliate because he had been

       caught stealing water. Courtway testified that Blackmon said nothing prior to

       drawing the knife. Tr. p. 32. It was not until after Courtway threatened to call

       the police that Blackmon drew the knife. Id. at 32-33. While this may have

       been evidence that Blackmon intended to stop Courtway from calling the police

       and thereby intended to make Courtway engage in conduct against his will—a

       crime under Indiana Code section 35-45-2-1(a)(1), see Johnson v. State, 717

       N.E.2d 887, 890 (Ind. Ct. App. 1999) —this was not how the charge was

       brought. Consequently, we are compelled to conclude that the State failed to

       present sufficient evidence to prove that Blackmon intended to put Courtway in

       fear of retaliation for having caught him stealing water—an essential element of

       the crime as it was charged.


                     B. Variance Between Pleading and Proof
[19]   The State argues that even if the evidence does not support a conclusion that

       Courtway caught Blackmon stealing water, the conviction can still be affirmed.

       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015     Page 9 of 19
       According to the State, it was not required to show that Blackmon acted

       because Courtway caught him stealing water, but only that he acted because

       Courtway confronted him about stealing water. The State argues that these two

       concepts are essentially the same.4 However, we believe that adoption of the

       State’s position would violate Blackmon’s constitutional right to be adequately

       notified of the charges against him and to prepare a defense accordingly.


[20]   “The purpose of the charging instrument is to provide a defendant with notice

       of the crime of which he is charged so that he is able to prepare a defense.” Ben-

       Yisrayl v. State, 738 N.E.2d 253, 271 (Ind. 2000). Accordingly, Indiana Code

       section 35–34–1–2(a)(4) requires that an indictment or information “allege the

       commission of an offense by . . . setting forth the nature and elements of the

       offense charged in plain and concise language without unnecessary

       repetition.” The indictment or information also must contain “a plain, concise,

       and definite written statement of the essential facts constituting the offense

       charged.” I.C. § 35–34–1–2(d).


[21]   Our Supreme Court has observed:

                The accused must be sufficiently apprised of the nature of the charges
                against her so she may anticipate the proof and prepare a defense in
                advance of trial. Consistency between the allegations charged and the



       4
         Even if we were to accept the State’s reading, we find that the State failed to present sufficient evidence to
       prove that Blackmon acted with the intent to place Courtway in fear of retaliation for confronting him. Once
       again, Courtway did not testify that he believed Blackmon intended to retaliate because Courtway confronted
       him, Blackmon said nothing prior to drawing the knife, and it was not until Courtway said that he would call
       the police that Blackmon drew the knife. Tr. p. 32-33; See Ransley, 850 N.E.2d at 447 (evidence insufficient
       to prove intent to retaliate for “arguing”).

       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015                            Page 10 of 19
                proof adduced is required out of deference for the accused’s
                constitutional right to be informed of the nature and cause of the
                accusation in sufficient detail to enable her to prepare her defense, to
                protect her in the event of double jeopardy, and to define the issues so
                that the court will be able to determine what evidence is admissible
                and to pronounce judgment.

       Myers v. State, 510 N.E.2d 1360, 1366-67 (Ind. 1987) (citations omitted). Here,

       the State admits that it “alleged that Courtway’s prior lawful act was catching

       Blackmon stealing water” but that it “argued to the jury that his prior lawful act

       was confronting Blackmon about stealing water.” Appellee’s Br. p. 13.

       However, the State maintains that this is an insignificant variance between the

       charging information and the proof adduced at trial and that, as such, it is not

       fatal.


[22]   “A variance is an essential difference between the pleading and the proof.”

       Madison v. State, 234 Ind. 517, 531, 130 N.E.2d 35, 41 (1955) (quotations

       omitted). Not all variances between the charging information and the proof

       offered at trial will warrant reversal. See Harrison v. State, 507 N.E.2d 565, 566

       (Ind. 1987) (charging information which incorrectly identified the owner of a

       burglarized church not fatal variance when it “could have in no way misled

       appellant or caused any hardship in his defense of the allegation.”); Daniels v.

       State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011) (charging information

       alleging that defendant “drew” handgun when State presented evidence that he

       “used” handgun not fatal variance when there was “no indication that Daniels

       was prejudiced in the preparation or maintenance of his defense by the

       variance.”)

       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015          Page 11 of 19
[23]   However, in light of the above-mentioned constitutional concerns, our Supreme

       Court has observed that a variance warrants reversal when the “variance

       between the charging information and the proof offered at trial actually misled

       the defendant in the preparation of her defense.” Myers, 510 N.E.2d at 1367; see

       also Madison, 234 Ind. at 545, 130 N.E.2d at 48 (Arterburn, J., concurring). We

       believe that such is the case here.


[24]   Initially, we note the difference between the words “catch” and “confront.”

       “Catch,” in the sense most naturally fitting the facts of this case, means “to

       discover unexpectedly” or “to become suddenly aware of,” as in the phrase:

       “He was caught in the act.” Merriam-Webster’s Collegiate Dictionary, 195 (11th ed.

       2003). Whereas “confront,” in the sense put forward by the State, means “to

       meet face-to-face” or “to face especially in challenge.” Id. at 262. Therefore, in

       common usage, these two words clearly define mutually exclusive concepts.

       One can “catch” someone doing something without “confronting” them about

       it. Likewise, one can “confront” someone about something without having

       “caught” them doing anything.


[25]   Here, the record reveals that Blackmon’s defense strategy was based on

       showing that Courtway had not “caught” Blackmon doing anything. This is

       apparent from the defense’s opening statement. Tr. p. 24. It is also apparent

       from the defense’s cross-examination of Courtway, who was the only eye

       witness to testify:

               Defense:          Now you had mentioned you were inside the house
                                 when you heard the sound of water running, correct?

       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015          Page 12 of 19
               Courtway:         Correct.
               Defense:          All right. And then you went outside to investigate,
                                 correct?
               Courtway:         Correct.
               Defense:          Okay. Did you catch anybody there stealing water?
               Courtway:         There wasn’t anyone there.
               Defense:          All right. You mentioned that all you saw was a bucket
                                 with the water running and the water was overflowing,
                                 correct?
               Courtway:         Correct.
               Defense:          Did you see anybody who had, say, come over to that
                                 faucet, broken that faucet, and turned the water on?
               Courtway:         I seen no one do that.
                                                         ***


               Defense:          You don’t know who broke the spigot, do you?
               Courtway:         No I don’t.
               Defense:          And you don’t know who turned the spigot on and
                                 placed the bucket under there, do you?
               Courtway:         No.

       Tr. p. 38, 43.


[26]   Blackmon’s strategy relied on the notion that, if he could show that Courtway

       never caught him stealing water, it would follow that his actions could not have

       been intended to place Courtway in fear of retaliation for that act. At the close

       of evidence, believing that his strategy had been successful, Blackmon moved

       for a directed verdict. Id. at 102. It was not until this point that the State

       argued that the phrase in the charging information “Donald Courtway caught

       Leonard Blackmon stealing water” really meant “Donald Courtway confronted

       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015           Page 13 of 19
       Leonard Blackmon about stealing water.”5 The trial court eventually agreed,

       and denied Blackmon’s motion.


[27]   Following this, the State, in its closing argument, informed the jury that the true

       prior lawful act at issue in this case was the confrontation.6 Because of this, the

       State informed the jury that it did not have to prove that Blackmon intended to

       place Courtway in fear of retaliation for having caught him stealing water, but

       only for having confronted him about stealing water.7


[28]   We believe that proper observance of Blackmon’s constitutional right to be

       adequately informed of the charges against him and to prepare a defense

       compels reversal in this case. Criminal defendants have a constitutional

       guarantee that the State must prove every essential element of their offense



       5
         There is no indication at any point prior to its response to Blackmon’s motion for a directed verdict that the
       State believed the prior lawful act was the confrontation. It is apparent from the State’s opening statement
       that it believed Courtway had caught Blackmon stealing water. Tr. p. 19.
       During a colloquy regarding Blackmon’s motion for a directed verdict, the State argued to the trial court:
              State:     [The defense] is confused or misguided in what the prior lawful act is. The prior
                         lawful act is that Mr. Courtway went and talked to the defendant. That’s the prior
                         lawful act.”
                                                              ***
              Court:     Well that’s not the way it’s written, though, you admit. It says caught him stealing.
              State:     Yes.
       Tr. p. 104-05.
       6
         During its closing argument, the State told the jury that it had to prove that Blackmon threatened Courtway
       “[w]ith the intent that Donald Courtway would be placed in fear of a prior lawful act. And while he did that,
       the prior lawful act being confronting him about stealing water, he used a deadly weapon . . . .” Tr. p. 118-
       19.
       7
        The State informed the jury: “In fact, he [the defense] said the state wouldn’t be able to prove that Mr.
       Blackmon stole the water, but we did. We didn’t have to, but we did.” Tr. p. 117.



       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015                             Page 14 of 19
       beyond a reasonable doubt. In re Winshop, 397 U.S. 358, 361-64 (1970). That

       the defendant acted with the intent to place the victim in fear of retaliation for a

       prior lawful act is an essential element of the crime of intimidation as it was

       charged in this case. I.C. § 35-45-2-1(a)(2). It follows that the prior lawful act

       had to be identified in the charging information with sufficient specificity so as

       not to mislead Blackmon in the preparation of his defense. Myers, 510 N.E.2d

       at 1366-67; Casey, 676 N.E.2d at 1072-73.


[29]   Given the clear difference in meaning between the words “caught” and

       “confronted,” we cannot fault Blackmon for believing that one word did not

       imply the other and preparing his defense accordingly. The record shows that

       Blackmon was actually misled by this variance. He argued that the State would

       not be able to prove that Courtway caught him in his opening statement,

       devoted a substantial portion of his cross-examination of Courtway seeking to

       prove that Courtway had not caught him and, at the close of evidence, moved

       for a directed verdict on the issue. Tr. p. 24, 38, 43, 102-04. Blackmon was not

       informed that the State was reading the language of the charge in an unusually

       expansive manner until after he had presented his defense. Under these

       circumstances, we find that the variance between the charge brought by the

       State and the proof offered at trial is fatal.




       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015    Page 15 of 19
[30]   The judgment of the trial court is reversed and remanded with instructions to

       vacate Blackmon’s conviction and sentence for Level 5 felony intimidation.

       Blackmon’s conviction and sentence for class A misdemeanor possession of

       paraphernalia stands.


       May, J., concurs, and Bradford, J., dissents with an opinion.




       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015   Page 16 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Leonard Blackmon,                                         Court of Appeals Case No.
                                                                 71A03-1411-CR-413
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Bradford, Judge, dissenting.

[31]   I must respectfully dissent from the majority’s opinion as I would affirm

       Blackmon’s conviction for intimidation.


[32]   In its charging information, the State alleged that “Blackmon did communicate

       a threat to another person, with the intent that said other person be placed in

       fear of retaliation for a prior lawful act, to-wit; Leonard Blackmon threatened to

       cut Donald Courtway with a knife, after Donald Courtway caught Leonard

       Blackmon stealing water.” Appellant’s App. p. 31. The facts leading up to

       Blackmon’s threatening Courtway are as follows: (1) Courtway found that a


       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015                Page 17 of 19
       spigot lock had been broken off the spigot on the outside of his daughter’s house

       and a bucket placed underneath; (2) Courtway knew that the neighbor, Hale,

       did not have running water and had been borrowing water from neighbors; (3)

       Courtway went to Hale’s house and confronted Hale and Blackmon about the

       stolen water; (4) Hale offered to pay for the water; and (5) Courtway declined

       and told the two he was going to call the police, at which point Blackmon

       brandished a knife.


[33]   Courtway had ample reason to believe that Blackmon and/or Hale had stolen

       water and it was a lawful act to confront them and subsequently inform them

       that he was going to call the police. I cannot agree with the majority’s

       conclusion that there is a distinction between “catching” Blackmon stealing

       water and “confronting” Blackmon about the stolen water. For all intents and

       purposes, Courtway did catch Blackmon stealing water. Firstly, there was

       significant circumstantial evidence implicating Hale and Blackmon, including

       the broken spigot lock with Hale’s bucket underneath and the fact that Hale did

       not have running water and had been borrowing water from neighbors.

       Additionally, by offering to pay for the water, Hale tacitly admitted to at least

       some involvement in taking the water. Blackmon then drew a weapon, further

       indicating his guilt, and ultimately admitted to police that he did, in fact, steal

       the water. I find it inconsequential that Courtway did not know affirmatively

       that it was Blackmon, specifically, who had stolen the water considering the

       circumstantial evidence that indicated as much. In fact, the victim’s subjective

       knowledge is irrelevant under Indiana’s intimidation statute so long as the


       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015     Page 18 of 19
       victim’s prior act was lawful. Regardless of Courtway’s knowledge, Blackmon

       seems to have been of the mind that he had been caught and reacted

       aggressively. As such, I think it was reasonable for the jury to find that

       Blackmon threatened Courtway in retaliation for the prior lawful act of

       catching Blackmon stealing water.


[34]   Furthermore, I cannot agree with the narrow re-characterization of events to

       find that Blackmon only threatened Courtway in retaliation for his threatening

       to call the police, as opposed to his catching Blackmon stealing water. I see

       little logic in separating the act of catching someone performing illegal activity

       and subsequently calling the police regarding said activity; the two actions are

       part of the same series of events and, as such, the same prior lawful act.




       Court of Appeals of Indiana | Opinion 71A03-1411-CR-413 | May 22, 2015   Page 19 of 19
