FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

FREDERICK VAIANA                              GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              KATHERINE MODESITT COOPER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                                                                      Apr 10 2014, 9:19 am
                               IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL JOHNSON,                              )
                                              )
      Appellant-Defendant,                    )
                                              )
              vs.                             )      No. 49A02-1307-CR-562
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1301-FB-1370


                                    April 10, 2014

                             OPINION – FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF THE CASE

          Michael Johnson (“Johnson”) appeals his convictions for: (1) Class B felony

criminal confinement;1 (2) Class B felony criminal confinement; (3) Class B felony rape;2

(4) Class C felony battery;3 (5) Class D felony intimidation;4 (6) Class D felony

strangulation;5 and (7) Class A misdemeanor interfering with the reporting of a crime.6

          We affirm.

                                               ISSUES

      1. Whether Johnson knowingly, voluntarily, and intelligently waived his right
         to a jury trial on all of his charges.

      2. Whether the trial court abused its discretion in denying Johnson the right to
         cross-examine the victim about past sexual conduct.

      3. Whether the State presented sufficient evidence to prove beyond a
         reasonable doubt that Johnson committed Class B felony rape and Class D
         felony intimidation.

                                               FACTS

          As of January 2013, Johnson had been in a relationship with his girlfriend, I.B.,

for seven years and had lived with her in Marion County, Indiana since the previous

September. On January 4, 2013, Johnson and I.B. spent the day together but then

separated. I.B. told Johnson she was going to go back to their home, but instead she went



1
    Ind. Code §§ 35-42-3-3(a)(1); (b)(2)(B).
2
    I.C. § 35-42-4-1(a).
3
    I.C. § 35-42-2-1(a)(3).
4
    I.C. §§ 35-45-2-1(a)(2); (b)(1)(A).
5
    I.C. § 35-42-2-9.
6
    I.C. § 35-45-2-5.
                                                 2
out and did not return home until 3:00 or 4:00 a.m. the next morning. When she returned,

Johnson was asleep and I.B. got into bed.

       At that point, Johnson got up and “started going crazy,” accusing I.B. of cheating

on him with their neighbor. (Tr. 17). He called her “a nasty bitch” and began “talking

shit.” (Tr. 18). I.B. denied his accusations and told him that he could call the neighbor if

he wanted to verify that she had not cheated on him. In response, Johnson continued to

yell at I.B., including the statement: “Bitch, you’re a fuckin’ liar. Crack head.” (Tr. 18).

Then he poured a beer on her and told her to leave the house.

       When I.B. refused to leave, Johnson grabbed her by the hair and began punching

her. Johnson punched her head more times than she could count. I.B. told him to stop

and that she had not cheated on him, but Johnson did not stop. Although I.B. “felt like

[she] was about to die” and told Johnson that she was about to pass out, Johnson

responded “I don’t give a fuck bitch.” (Tr. 21). As a result of the blows, I.B. felt “pain”

and “dizziness.” (Tr. 22). Johnson then threw her from one side of the bed to the other

and grabbed her throat. I.B. gestured that she could not breathe, but Johnson continued to

hold her by the throat with one hand and punch her with his other hand.

       Johnson finally released I.B. and told her to call the people with whom she had

spent the evening. He also told her that he had received a text message picture of her

naked with somebody else. When I.B. asked to see the picture, though, Johnson would

not show it to her. I.B. called the people as Johnson had requested, but she was not able

to reach anyone. After I.B.’s attempted calls, Johnson took her phone away and did not

give it back to her for the rest of the night.

                                                 3
       Subsequently, Johnson began punching I.B. again and told her “how much he

hated [her]” and how she had “destroyed his life.” (Tr. 25). I.B. tried to block Johnson’s

punches by taking a fetal position on the floor, yet Johnson continued to punch her,

causing bruises on her arms. He also punched her head and kicked her in the eye. I.B.

repeatedly asked Johnson to stop, but he did not.

       Next, Johnson pulled I.B. up by her hair and ripped off her clothing. He dragged

her across the room and threw her down the steps, telling her: “Bitch, get the fuck out of

my house.” (Tr. 31). At that point, I.B. was in extreme pain, which she rated as a “ten”

on a scale of one to ten. (Tr. 31). She attempted to come back up the steps, but Johnson

threw her back down again and then dragged her through their kitchen, dining room, and

living room. Throughout this time, Johnson continued to hit I.B. She attempted to hold

onto the couch but lost her grip, and Johnson threw her outside. I.B. was not wearing any

clothes and was “freezing cold” because there was snow on the ground. (Tr. 34).

       I.B. saw one of her neighbors coming down the street in a van and ran to the van

to get help. She told the neighbor “Help me. Help me. He’s about to kill me,” and asked

the neighbor to call the police. (Tr. 34). Johnson, however, came around the van and

told the driver, “Man, she’s just drunk.” (Tr. 35). In response, the driver rolled up his

window and told I.B. that he could not help her. I.B. then continued to run down the

street and came across another car. She asked the people in the car for help, but Johnson

said that they should “[m]ind [their] business,” and they left. (Tr. 36).

       Johnson grabbed I.B. and led her back inside. He told her to “[g]et [her] ass in the

shower,” but he had to help her into the shower because she was too injured to get in by

                                              4
herself. (Tr. 37). During the shower, I.B. kept blacking out and had trouble standing.

Afterwards, Johnson helped her out and told her to go to bed. Once she was in bed, he

told her to “turn around” because he wanted to have sex with her. (Tr. 39). I.B. said that

she did not want to have sex, but Johnson told her again to turn around. I.B. did what

Johnson had asked because she was “afraid” and “didn’t want to get beat[en] [any]

more.” (Tr. 40, 41). Johnson and I.B. had intercourse, and, afterwards, I.B. attempted to

sleep but had trouble because she was in too much pain. Instead of sleeping, she kept

falling in and out of consciousness like she had in the shower.

       The next morning, Johnson started crying and apologized to I.B. for his actions the

night before, and I.B. believed that Johnson was sorry. She and Johnson again had sex,

and this time it was consensual. Later that day, they both went to pick up furniture for

their house. Throughout that time, I.B. was “[i]n so much pain” and had marks and

bruises on her arms, face, head, and legs.       (Tr. 44).   Johnson had to help her do

everything.

       When they returned home, I.B. told Johnson that she needed to go to the hospital.

He told her to call her sister for a ride and said she should tell her sister that she had

gotten robbed at a bank cashing a check. Later, I.B.’s sister picked I.B. up to take her to

the hospital and noticed that I.B. was limping and had bruises around her eye and on her

face. I.B.’s sister asked Johnson who had injured I.B., and he said, “Well, I wasn’t here.”

(Tr. 78). On the way to the hospital, I.B. told her sister what had really happened. They

also stopped at McDonald’s, but I.B. had trouble eating because her jaw was locked.



                                             5
       At the hospital, I.B. met with a police officer and told him what had happened.

Officers then took pictures of I.B.’s injuries, including bruises and cuts on her left eye,

arms, back, hip, ankle, hands, legs, and behind her ears. They also went to I.B.’s home

and arrested Johnson.

       On January 9, 2013, the State charged Johnson with: (1) Class B felony criminal

confinement; (2) Class B felony criminal confinement; (3) Class B felony rape; (4) Class

C felony battery; (5) Class D felony intimidation; (6) Class D felony strangulation; and

(7) Class A misdemeanor interfering with reporting of a crime. After his arrest, Johnson

called I.B. from jail and told her “not to show up and be honest in court.” (Tr. 69).

Johnson also sent I.B. a letter from jail in which he told her to tell the court that she had

lied and had just been mad when she made her accusations.

       On March 13, 2013, Johnson filed a verified waiver of trial by jury that he and his

attorney both signed. Although the waiver contained a provision stating “I understand

that I have an absolute right to a jury trial in this case,” another provision stated, “I

understand that I am charged with the offense(s) of,” and only listed Johnson’s lead

charge—Class B felony criminal confinement. (App. 47) (emphasis added). The waiver

did not list the rest of Johnson’s charges.

       That same day, the trial court held a hearing on the waiver and questioned Johnson

regarding his understanding of the rights he was waving. Johnson affirmed that he had

read over the waiver with his lawyer, understood what he was charged with, understood

what a jury trial was, and understood that by waiving his right to a trial by jury, he

couldn’t get it back in his “case.” (Tr. 4). Based on these questions and others, the trial

                                              6
court determined that Johnson had knowingly and voluntarily waived his right to a jury

trial.

         On May 17, 2013, the trial court held a bench trial. Johnson never objected on the

ground that he had not waived his right to a trial by jury on all of his charges. During the

trial, I.B. testified. On direct examination, the State asked her whether Johnson had ever

threatened to kill her, and I.B. responded that while Johnson was hitting her he said

“Bitch, I’ll kill you.” (Tr. 42). On cross-examination, Johnson’s counsel asked I.B. how

often she and Johnson had sex when they lived together. The State objected on relevance

grounds, and the trial court sustained the objection. Next, Johnson’s counsel asked

whether Johnson had ever asked her to turn over and have sex before that day, and the

State again objected on relevance grounds. Johnson’s counsel responded, “it’s cross-

exam. It’s very relevant,” but the trial court sustained the objection. (Tr. 71). Johnson’s

counsel did not make an offer to prove.

         At the conclusion of the presentation of evidence, the trial court found Johnson

guilty of both counts of Class B felony criminal confinement; Class B felony rape; Class

D felony intimidation; and Class A misdemeanor interference with reporting a crime.

The trial court also found Johnson guilty of Class C felony battery and Class D felony

strangulation, but took those two charges under advisement to determine whether they

were lesser included offenses. Subsequently, on May 28, 2013, the trial court entered a

judgment of conviction on all of the charges, including the two it had previously taken

under advisement.



                                             7
      On June 4, 2013, the trial court held a sentencing hearing. At the conclusion of

the hearing, it sentenced Johnson to twenty (20) years each for his criminal confinement

convictions and his rape conviction; eight (8) years for his battery conviction; three (3)

years each for his intimidation and strangulation convictions; and one (1) year for his

interference with reporting a crime conviction. The trial court also ordered all of the

sentences to run concurrently, except for the rape conviction, which it ordered to run

consecutively to the other counts. In aggregate, the court sentenced Johnson to forty (40)

years executed in the Department of Correction. Johnson now appeals.

                                       DECISION

1. Waiver of Right to Jury Trial

      Johnson’s first argument on appeal is that he did not knowingly waive his

constitutional right to a jury trial on all of his charges. Although Johnson signed and

filed a written waiver of jury trial, provision number 3 of the written waiver provided “I

understand that I am charged with the offense(s) of: Criminal Confinement FB.” (App.

47). Neither this provision nor the rest of the waiver mentioned any of Johnson’s six

additional charges. Accordingly, he now argues that he only knew he was waiving his

right to a jury trial on the criminal confinement charge and expected to have a jury trial

on the remaining counts.

      Both the United States Constitution and the Indiana Constitution guarantee the

right to a trial by jury. See U.S. CONST. amend. VI (guaranteeing “the right to a speedy

and public trial, by an impartial jury” in all criminal prosecutions); IND. CONST. art I, §

13 (guaranteeing the right to “a public trial, by an impartial jury,” in all criminal

                                            8
prosecutions). It is fundamental error to deny a defendant a jury trial unless there is

evidence of the defendant’s knowing, voluntary, and intelligent waiver of the right.

Gonzalez v. State, 757 N.E.2d 202, 205 (Ind. Ct. App. 2001), trans. denied.                         “‘A

voluntary waiver occurs if the conduct constituting the waiver is the product of a free

will; a knowing waiver is the product of an informed will; [and] an intelligent waiver is

the product of a will that has the capacity to understand . . . .’” Duncan v. State, 975

N.E.2d 838, 842-43 (Ind. Ct. App. 2012) (quoting Eldridge v. State, 627 N.E.2d 844, 846

(Ind. Ct. App. 1994), trans. denied). In addition, the defendant must express his personal

desire to waive a jury trial, and such personal desire must be apparent from the record.

Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997). We will presume that a defendant has

not waived the right to a jury trial unless he affirmatively acts to do so. Id. at 207.

        Essentially, Johnson is arguing here both that he did not knowingly waive his right

to a jury trial of the charges not listed on his written waiver and that he did not

affirmatively act to waive them. We do not find either of these arguments persuasive.

There are multiple factors that are relevant in determining whether a waiver is knowing

and whether there has been an affirmative act. Among others, a defendant’s filing of a

signed jury trial waiver adequately reflects a personal desire to waive this right and

constitutes the affirmative act necessary to do so for a felony charge.7 Coleman v. State,

694, 278 N.E.2d 269 (Ind. 1998). A defendant may also express the desire to waive a

jury trial through a colloquy in open court. See O’Connor v. State, 769 N.E.2d 1230,

7
 The Indiana Supreme Court has not specifically enunciated a more stringent standard for reviewing the
waiver of rights derived from Indiana’s state constitution than the U.S. Supreme Court has for the United
States Constitution. See Gonzalez, 757 N.E.2d at 206.
                                                   9
1234 (Ind. Ct. App. 2003). Further, we have held that a lawyer’s signature on a waiver

implies that the defendant acted upon the advice and information of legal counsel. Poore,

681 N.E.2d at 207.

       Although Johnson’s written waiver only listed one of his charges, other aspects of

the written waiver indicate that Johnson intended to waive his right to a jury trial with

respect to his entire case. First, the charge that the waiver listed—Class B felony

criminal confinement—was the lead, most serious, charge.           It seems unlikely that

Johnson would waive his right to a jury trial on his most serious charge and not on the

rest. Second, all of Johnson’s charges were a part of the same cause, and provision

number 4 of the waiver states, “I hereby give up my constitutional rights to a trial by jury

and ask that the case be tried by the Court without a jury.” (App. 47) (emphasis added).

Under the plain language of this provision, Johnson agreed to waive his right to a jury

trial of the entire case, not merely Class B felony criminal confinement. Third, Johnson’s

attorney signed the waiver, which indicates that Johnson acted on the advice and

information of his legal counsel when filing his waiver.

       In addition to the written waiver, the case’s legal proceedings indicate that

Johnson intended the court to try all of his charges. On March 13, 2013, the trial court

held a hearing on the waiver and engaged Johnson in an in-court colloquy. It asked him,

among other questions, whether he had gone over the written waiver with his attorney;

whether he understood what he was charged with; and whether he understood that by

waiving his right to a trial by jury he could not get it back.         Johnson responded



                                            10
affirmatively to each of these three questions, including that he knew he could not get

back a jury trial in his “case.” (Tr. 4).

       Johnson also failed to object to being tried on all of his charges during his bench

trial on May 17, 2013. In defense of this oversight, he cites to Perkins v. State, 541

N.E.2d 927 (Ind. 1989), for the proposition that “the fact that a defendant submits to a

bench trial with defense counsel at their [sic] side is insufficient to constitute a valid

waiver of that defendant’s right to a trial by jury.” (Johnson’s Br. 13). However, in

Perkins, unlike here, there was no additional evidence that the defendant had ever been

advised of his right to a jury trial or that he had ever waived that right either orally or in

writing. See id. at 928. Perkins stands for the proposition that we may not infer waiver

based on a defendant’s submission to a bench trial alone. Perkins does not prevent us

from interpreting submission to a bench trial as one piece of evidence, among others,

supporting a waiver. Here, Johnson had the opportunity to object to the bench trial yet

did not give any indication that there was an error, in spite of the State’s admission of

evidence relating to all of his charges and the trial court’s entry of a verdict on all

charges.

       In light of all of these factors, we conclude that Johnson knowingly waived his

right to a jury trial on all of his charges, rather than just Class B felony criminal

confinement. Even if, arguendo, one of the above factors alone might not be conclusive,

together they constitute persuasive evidence that Johnson made an informed choice and

intended his written waiver to apply to the whole case.

2. Denial of Cross-Examination Questions

                                             11
      Next, Johnson argues that the trial court abused its discretion when it denied him

the right to cross-examine I.B. about her past sexual conduct. On cross-examination,

Johnson’s counsel asked her “how often did you and [Johnson] have sex during the time

you were living together?” (Tr. 70). The State objected to the question’s relevance, and

the trial court sustained the objection.   Shortly thereafter, the following exchange

occurred:

      [DEFENSE COUNSEL:] You mentioned the part when you were laying
      [sic] in bed and he told you to turn over, correct?

      [I.B.:] Mm-hmm, yes.
                               *****
      DEFENSE COUNSEL:] Okay. Ha[d] he ever asked to do that before that
      day?

      [STATE:] Objection, relevance.

      [DEFENSE COUNSEL:] Your Honor, it’s cross-exam. It’s very relevant.
      And when—

      [STATE:] Whether or not he asked her to turn over before that day for sex
      is not relevant as to whether or not he was guilty of rape on that day.

      [TRIAL COURT:] Sustained. Next question, please.

(Tr. 71). Johnson now contends that the trial court should have allowed these questions

because they were relevant for establishing Johnson’s relationship with I.B. and for

determining whether I.B. consented to sex. In response, the State argues that Johnson

waived these arguments by failing to follow the proper procedure for admitting evidence

of prior sexual conduct.

      The admission and exclusion of evidence falls within the sound discretion of the

trial court, and we review the trial court’s decision only for an abuse of discretion.

                                           12
Rhodes v. State, 996 N.E.2d 450, 454 (Ind. Ct. App. 2013). An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of the facts

and circumstances before it. Id.

        The State’s argument focuses on Evidence Rule 412, which generally prohibits the

introduction of evidence of prior sexual conduct of an alleged victim of a sex crime.

There are certain exceptions to Rule 412, including where the evidence relates to the

victim’s prior sexual conduct with the defendant. See Conrad v. State, 938 N.E.2d 852,

855 (Ind. Ct. App. 2010). However, even if an exception to Rule 412 applies, the

defendant must submit a written motion that includes a description of the evidence at

least ten days before trial in order to offer evidence of past sexual conduct during the

trial. See id. This is because Rule 412 “‘is intended to prevent the victim’ of a sexual

assault ‘from being put on trial . . . and, importantly, to remove obstacles to reporting sex

crimes.’” Id. (quoting Williams v. State, 681 N.E.2d 195, 200 (Ind. 1997)). It reflects the

insight of Indiana’s Rape Shield Statute—codified at Indiana Code § 35-37-4-4—that

“‘inquiry into a victim’s prior sexual activity is sufficiently problematic that it should not

be permitted to become a focus of the defense.’” Id. (quoting Williams, 681 N.E.2d at

200). The State contends that, even though I.B.’s prior sexual conduct falls within an

exception to Rule 412 because the conduct relates to the defendant, Johnson could not

submit the evidence because he failed to submit a written motion concerning the evidence

prior to trial.

        Johnson does not deny that he failed to submit a written motion as required by

Rule 412. He claims, though, that we should ignore this omission because the State

                                             13
objected on the grounds of relevancy, rather than his failure to abide by the procedural

requirements. We disagree. As the State notes, we may affirm a trial court’s decision

regarding the admission of evidence if it is sustainable on any basis in the record. Barker

v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied. Because it is clear that Johnson

did not follow Rule 412’s procedural requirements, we conclude that he was precluded

from introducing evidence of I.B.’s prior sexual conduct at trial and has waived the issue

on appeal.8

       Notwithstanding waiver, we need not address the merits of Johnson’s arguments

because we find that even if the trial court did abuse its discretion by excluding the

testimony on relevance grounds, the error was harmless. See Turner v. State, 953 N.E.2d

1039, 1058-59 (Ind. 2011) (stating that Indiana courts will not reverse a conviction based

on a harmless error). Generally, we are to disregard errors in the admission of evidence

unless they affect the substantial rights of a party. Id. at 1059. In viewing the effect of

the evidentiary ruling on a defendant’s substantial rights, we look to the probable impact

on the fact finder. Id. Any error caused by the admission of evidence is harmless if the

evidence was cumulative of other, appropriately admitted, evidence. Allen v. State, 994

N.E.2d 316, 319 (Ind. Ct. App. 2013).

       Johnson argues that his questions for I.B. were relevant to establish their

relationship and to demonstrate that their sexual conduct was consensual on other

occasions. However, other, properly admitted, evidence served these same purposes.


8
 The State also argues that Johnson waived his argument for failing to make an offer to prove. However,
we will not address this argument in detail since we find waiver on other grounds.
                                                  14
I.B. testified that she and Johnson had dated each other for seven years and lived

together, which demonstrated the intimate nature of their relationship. I.B. also testified

that they engaged in consensual sex within twenty-four hours of the incidents in question.

In light of this testimony, Johnson’s attempted cross-examination would not have elicited

probative evidence. Accordingly, without addressing Johnson’s argument in full, we

conclude that even if the trial court did err, it was a harmless error for which we will not

reverse.

3. Sufficiency of the Evidence

       Finally, with respect to the sufficiency of the evidence, Johnson makes two

arguments: (1) that there was insufficient evidence to convict him of rape because his

intercourse with I.B. was not compelled by force or the imminent threat of force; and (2)

that there was insufficient evidence to convict him of intimidation because the State did

not prove that he threatened to kill I.B. as a result of a prior lawful act. The standard of

review for sufficiency of the evidence claims is that this Court should only reverse a

conviction when reasonable persons would not be able to form inferences as to each

material element of the offense. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App.

2007), trans. denied. We do not reweigh evidence or judge the credibility of witnesses.

Id. at 213. In addition, we only consider the evidence most favorable to the verdict and

the reasonable inferences stemming from that evidence. Id.

       A. Rape

       In order to convict Johnson of rape, the State was required to prove beyond a

reasonable doubt that he “knowingly or intentionally [had] sexual intercourse with a

                                            15
member of the opposite sex when: . . . the other person [was] compelled by force or

imminent threat of force[.]” I.C. § 35-42-4-1(a). Johnson argues that the State did not

provide sufficient evidence to prove that he compelled I.B. to have intercourse with him

“by force or imminent threat of force” because there is no evidence that he communicated

any type of threat to I.B. in order to influence her actions. See id. He notes that, instead,

prior to going to bed with I.B., his actions were non-threatening—he helped her take a

shower and get into bed. In response, the State argues that Johnson’s violent actions

towards I.B. prior to the intercourse were sufficient to place her in fear that there would

be an “imminent threat of force” if she did not comply with Johnson’s wishes.

       In Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996), the Indiana Supreme Court

elucidated the standard for analyzing whether a defendant has compelled action through

an imminent threat of force. It clarified that

       it is the victim’s perspective, not the assailant’s, from which the presence or
       absence of forceful compulsion is to be determined. This is a subjective
       test that looks to the victim’s perception of the circumstances surrounding
       the incident in question. The issue is thus whether the victim perceived the
       aggressor’s force or imminent threat of force as compelling her compliance.

Id. The Supreme Court has also previously held that “[f]orce or threat of force may be

shown even without evidence of the attacker’s oral statement of intent or willingness to

use a weapon and cause injury, if from the circumstances it is reasonable to infer the

attacker was willing to do so.” Lewis v. State, 440 N.E.2d 1125 (1982), cert. denied.

       Here, over the course of the night, Johnson grabbed I.B. by the hair, kicked her in

the eye, and punched her more times than she could count, to the point where she “felt

like [she] was about to die” and felt “pain” and “dizziness.” (Tr. 21-22). While he

                                             16
kicked her, he told her: “Bitch, I’ll kill you.” (Tr. 42). He also took her clothes off and

made her leave the house in the freezing cold. As a result of Johnson’s actions, I.B. was

having trouble standing and was blacking out shortly before he told her to turn over for

sex. When I.B. testified, she stated that she had sex with Johnson because she was afraid

and “didn’t want to get beat [any] more.” (Tr. 40). In light of these circumstances, we

conclude that the State produced sufficient evidence to prove that Johnson compelled I.B.

to have intercourse with him by imminent threat of force and, thus, committed rape.

       B. Intimidation

       Johnson’s final argument is that the State did not produce sufficient evidence to

support his conviction for Class D felony intimidation because it did not prove that he

threatened to kill I.B. in retaliation for her performance of a lawful act. Pursuant to

Indiana Code § 35-45-2-1(a)(2), a person commits intimidation if he or she

“communicates a threat to another person, with the intent: . . . (2) that the other person be

placed in fear of retaliation for a prior lawful act . . . .” It is a Class D felony if “the

threat is to commit a forcible felony.” I.C. § 35-45-2-1(b)(1)(A).

       Johnson compares the circumstances in the instant case to those in Casey v. State,

676 N.E.2d 1069 (Ind. Ct. App. 1997). In Casey, the victim, Kimberly Williamson

(“Williamson”), went to a bar with several friends, where she ran into the defendant,

Casey. Id. at 1071. At the bar, Casey and another man started a fight with one of

Williamson’s friends, which escalated to the point that they had to leave the bar. Id.

Later, Williamson had returned to her home and started to watch television with her

boyfriend and a friend when Casey appeared on her ledge outside her window. Id. Casey

                                             17
told Williamson he was going to kill her, her boyfriend, and her friend, and then struck

her boyfriend with a baseball bat. Id. The State subsequently convicted Casey of Class C

felony intimidation for his actions, but this Court vacated the conviction. Id. at 1074.

We held that the State did not clarify which of Williamson’s lawful acts had instigated

Casey’s threats, even though it had advanced several plausible prior acts, such as

Williamson being a patron at a bar, being at her house, and being a witness to Casey’s

attack on her boyfriend. Id. at 1073. We found it persuasive that Casey’s threats “[did]

not demonstrate his reasons for threatening [Williamson] or indicate that he was doing so

because of any specific prior act.” Id.

       Johnson now claims that, as in Casey, the State did not clarify which of I.B.’s

prior lawful actions instigated his retaliation. We disagree. In its information, the State

charged that Johnson:

       on or about January 4, 2013, did communicate to [I.B.], another person, a
       threat to commit a forcible felony, that is: threatened to kill [I.B.], with the
       intent that [I.B.] be placed in fear of retaliation for a prior lawful act, said
       prior lawful act being her decision to be somewhere other than her
       residence prior to being confronted by [Johnson].

(App. 31). In support of this charge, I.B. testified that when she returned home from

being somewhere other than her residence, Johnson got up and “started going crazy,”

accusing I.B. of cheating on him with their neighbor. (Tr. 17). In response to Johnson’s

physical violence, I.B. told him that she had not cheated on him, which indicates that she

attributed Johnson’s actions to her absence all day.        Johnson also, in the midst of

punching and kicking I.B., told her to call the people with whom she had spent the day in

order to prove that she had not been cheating on him. In light of these facts, we conclude

                                             18
that the State produced sufficient evidence of I.B.’s prior lawful act of spending the day

outside of her residence to support Johnson’s conviction for intimidation.

      Affirmed.

MATHIAS, J., concurs.

BRADFORD, J., concurs in result with opinion.




                                            19
                            IN THE
                  COURT OF APPEALS OF INDIANA

MICHAEL JOHNSON,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
       vs.                                       )    No. 49A02-1307-CR-562
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



BRADFORD, Judge, concurring in result

       I agree with the majority that Johnson has waived any argument he might have had

concerning I.B.’s testimony about her sexual history with Johnson. I would reach that

conclusion, however, on the more fundamental basis that Johnson made no offer of proof

as to what I.B.’s testimony would have been. See Nunn v. State, 450 N.E.2d 495, 497

(Ind. 1983) (“Furthermore, Appellant made no offer to prove when the trial court

sustained the State’s objection to said question. Appellant accordingly waived this issue

and we will not consider it.”). Ruling on the theoretical admissibility of I.B.’s testimony

involves assuming, at the very least, that it would have been relevant, an assumption for

which the record provides no basis. That said, I concur with the majority’s disposition of

Johnson’s appeal in all other respects.




                                            20
