                                                                                    FILED
                                                                             Jan 17 2018, 9:03 am

                                                                                    CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jennifer A. Joas                                          Curtis T. Hill, Jr.
      Madison, Indiana                                          Attorney General of Indiana

                                                                George P. Sherman
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Casey L. Hill,                                            January 17, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                40A04-1707-CR-1697
              v.                                                Appeal from the Jennings Circuit
                                                                Court
      State of Indiana,                                         The Honorable Jonathan W.
      Appellee-Plaintiff                                        Webster, Judge
                                                                Trial Court Cause No.
                                                                40C01-1701-F6-1



      Altice, Judge.


                                                Case Summary


[1]   Casey L. Hill appeals his conviction for Level 6 felony intimidation. On

      appeal, he contends that the trial court admitted evidence of his subsequent bad

      acts in violation of Indiana Evidence Rule 404(b).

      Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018                     Page 1 of 9
[2]   We affirm.


                                        Facts & Procedural History


[3]   Hill began a relationship with Jennifer Malott in 1999. They lived together for

      a number of years and have two children together. Malott moved out with the

      children in the fall of 2015 after Hill battered her. Thereafter, Malott and Hill

      continued to see each other occasionally and even lived together again for a few

      months in 2016. Hill’s physical abuse of Malott escalated during this time from

      hitting to “choking, knives, being held at gunpoint.” Transcript Vol. 2 at 159.

      Malott’s tactic became trying to calm Hill down and do what he wanted when

      he became upset with her.


[4]   In December 2016, Hill was living with friends – the Miller family – in

      Danville, and Malott and the children were living with her cousin in Hayden.

      At Hill’s urging, Malott made arrangements so that Hill could spend time with

      the children at Christmas. They stayed together with the children at a hotel in

      Greenwood from December 24 through December 26. When Malott received a

      message on her phone on Christmas morning, Hill became jealous and

      demanded to see the phone. Malott refused, resulting in Hill holding a knife to

      her and throwing her against a wall. Despite this, Malott drove Hill and the

      children to Danville that evening to visit with the Millers. An argument broke

      out between Hill and Malott on the Millers’ front porch at some point that

      evening. A neighbor called the police believing that Hill struck Malott. After




      Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 2 of 9
      the police came and went, the Millers informed Hill that he could no longer live

      with them. Malott, Hill, and the children returned to the hotel.


[5]   After checking out on the morning of December 26, Malott drove Hill back to

      Danville. They waited for several hours because Hill was locked out of the

      Millers’ residence. Malott eventually drove Hill to his half-brother Richard

      Sealy’s home in Commiskey. Richard and his wife Suzanne observed that Hill

      was in an agitated state when he arrived that evening. Malott briefly informed

      Richard of the recent abuse while Hill was outside retrieving his belongings

      from the vehicle. Richard asked Hill later about the abuse, and Hill indicated

      that nothing had happened.


[6]   As Malott drove back to Hayden that night with the children, Hill began calling

      and arguing with her on the phone. Eventually, Malott stopped answering her

      phone. Hill then sent Malott the follow text messages:


              [9:31 p.m.]       I see you don’t have anything to talk to me about…


              [9:37 p.m.] Nothing at all?? Thanks


              [9:39 p.m.] Every time I need you, your [sic] never there for me


              [9:50 p.m.] Im [sic] on my way there now walking down the
                          road see you in a Lil bit


      Exhibit Vol., State’s Exhibit 1. Malott responded that she was done fighting and

      that they would talk tomorrow, and Hill replied:


      Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018    Page 3 of 9
              [9:56 p.m.] You will own up to it right before I cut your
                          throat,..answer your phone


              [9:57 p.m.] No talking bitch..im [sic] walking there now


              [10:06 p.m.] Know. I will take your. [sic] Life if you don’t own
                           up to what you have done you have till the morning
                           to do so you fucking bitch..you have fucked me for
                           the last time


              [10:11 PM] Your [sic] dead bitch


      Exhibit Vol., State’s Exhibits 1 and 2. Hill was angry because Malott would not

      admit that she was responsible for him being kicked out of the Millers’ home.


[7]   Malott became concerned as a result of these threatening messages and Hill’s

      relatively close proximity, so she went to the Jennings County Sheriff’s

      Department that night. Sergeant Allen Ritchie took photographs of the

      messages and urged Malott to file charges, but she refused. Malott indicated

      that “she just wanted this incident and everything documented in case

      something did happen to her.” Transcript Vol. 2 at 98.


[8]   Hill continued to send threatening messages to Malott after December 26 and

      have angry conversations with her over the phone. After some of these

      conversations, the Sealys overheard Hill make reference to cutting Malott’s

      throat. On one occasion, Hill said, “I will die a happy man knowing she will

      not be the mother to my children”. Id. at 174.



      Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 4 of 9
[9]    Late at night on December 29, 2016, Hill posted on his Facebook page:

       “Anybody have a firearm they want to trade for some ink? Pm me”. Exhibit

       Vol., State’s Exhibit 3. Malott went to the sheriff’s department the next day to

       report this post and request the filing of charges.


[10]   In the early evening of January 3, 2017, Hill sent Facebook messages to Malott

       stating, “im [sic] coming after you today…get ready…You going to die bitch.”

       Exhibit Vol., State’s Exhibit 4. Hill also warned that he was currently walking to

       her house. Malott contacted the police regarding these messages.


[11]   After walking approximately seventeen miles from Commiskey to Hayden,

       Hill showed up at Jeffrey Stidham’s house around 10:00 p.m. Stidham was a

       father figure to Malott. Hill was distraught and indicated that Malott was

       driving him crazy. Stidham tried to console Hill, but Hill walked off stating, “I

       have to kill her.” Transcript Vol. 2 at 167. Stidham immediately contacted the

       sheriff’s department and Malott’s mother. Shortly thereafter, Hill was arrested

       near Malott’s residence.


[12]   The State charged Hill with Level 6 felony intimidation based on the threats he

       made to Malott on December 26, 2016. At his jury trial in May 2017, Hill

       unsuccessfully sought to exclude any evidence of his bad acts/threats that

       occurred between December 27, 2016 and January 3, 2017. The jury found Hill

       guilty as charged, and the trial court sentenced him to eighteen months in the

       Jennings County Jail. Additional facts will be provided below as needed.


                                            Discussion & Decision

       Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 5 of 9
[13]   Hill contends that the trial court abused its discretion by admitting evidence of

       subsequent bad acts in violation of Evid. R 404(b). Specifically, he challenges

       the admission of any statements/threats made by him after December 26, 2016,

       the date of the charged crime.


[14]   We review evidentiary rulings for an abuse of discretion, which will be found

       where the ruling is clearly against the logic and effect of the facts and

       circumstances. Zanders v. State, 73 N.E.3d 178, 181 (Ind. 2017), cert. pending.

       On issues of relevance and unfair prejudice, a trial court’s discretion is

       wide. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).


[15]   Evid. R. 404(b)(1) prohibits admission of evidence of a crime, wrong, or other

       act, whether prior or subsequent to the charged crime, when the evidence is

       used to prove a person’s character in order to show that on a particular occasion

       the person acted in accordance with that character. See id.; see also Southern v.

       State, 878 N.E.2d 315, 321-22 (Ind. Ct. App. 2007), trans. denied. Such

       evidence, however, “may be admissible for another purpose, such as proving

       motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.” Evid. R. 404(b)(2).


[16]   In assessing the admissibility of evidence under Evid. R. 404(b), the trial court

       must: (1) determine whether the evidence is relevant to a matter at issue other

       than the defendant’s propensity to commit the charged act; and (2) balance the

       probative value of the evidence against its prejudicial effect pursuant to Indiana

       Evidence Rule 403. Ceaser v. State, 964 N.E.2d 911, 915 (Ind. Ct. App. 2012),


       Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 6 of 9
       trans. denied. Under Evid. R. 403, relevant evidence may be excluded if its

       probative value is substantially outweighed by the danger of unfair prejudice.


[17]   In this case, the State was required to prove that on or about December 26,

       2016, Hill communicated a threat to Malott to commit a forcible felony with

       the intent that Malott be placed in fear of retaliation for a prior lawful act. See

       Ind. Code § 35-45-2-1; Appellant’s Appendix Vol 2 at 24. Hill conceded at trial

       that he threatened Malott that he would cut her throat and kill her. There also

       appears to be no dispute that he was angry with her because, among other

       things, she would not answer her phone and “own up to” causing him to be

       unwelcome at the Millers’ residence. Exhibit Vol., State’s Exhibit 1. Hill’s

       express defense was that Malott was good at pushing his buttons and “what he

       said on the 26th was all talk.” Transcript Vol. 3 at 76. In other words, his defense

       amounted to a claim that although he threatened Malott, he did not really

       intend for her to be placed in fear of retaliation.


[18]   Hill first placed his intent at issue during opening statements when counsel,

       after noting that Malott had a history of pushing Hill’s buttons, argued:


               They’re going to have to prove that he had the intent that she be
               placed in fear of retaliation for a prior lawful act. And we don’t
               believe that the State can prove this thing. The State is going to
               be able to prove that he said those things, those came from his
               phone and when he testifies he’s going to say I said those things
               and he’s going to explain why. But as to the other elements, the
               intent, placing her in fear for retaliation for a prior act we don’t
               believe the State can prove those beyond a reasonable doubt[.]



       Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018    Page 7 of 9
       Transcript Vol. 2 at 91-92 (emphasis supplied). During his later testimony, Hill

       explained, “She knows I wasn’t going to do anything like that. She knows that,

       all talk, that’s how I am when I get shitty.” Transcript Vol. 3 at 61.


[19]   The record establishes that Hill placed his intent at issue, which made evidence

       of his subsequent actions/statements admissible to establish his intent on the

       night in question. See Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993) (intent

       exception available only when defendant goes beyond merely denying the

       charged culpability and affirmatively presents a claim of particular contrary

       intent); Christian-Hornaday v. State, 649 N.E.2d 669, 671-72 (Ind. Ct. App. 1995)

       (defendant placed intent at issue when during opening statement defense

       counsel acknowledged that identity was not at issue but stated that whether

       defendant made the call with the intent to annoy or harass the victim was at

       issue), abrogated on other grounds by Hicks v. State, 690 N.E.2d 215 (Ind. 1997).


[20]   Hill argues that even if the evidence of his subsequent bad acts was admissible

       to show intent, “its prejudicial nature substantially outweighed the probative

       value of the evidence by the sheer volume of evidence presented after the

       crime”. Appellant’s Brief at 13. He claims that the volume of evidence regarding

       his subsequent acts “would have mislead and confused the jury by diverting

       their attention away from the actual charges being presented.” Id. at 15.


[21]   As set forth above, Hill’s defense was that he did not intend to place Malott in

       fear of retaliation and that he was just blowing off steam. His actions in the

       eight days following his threats to kill Malott, however, imply otherwise.


       Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 8 of 9
       Indeed, Hill continued his threats to kill Malott and openly expressed them to

       others, inquired on Facebook about trading his tattoo skills for a gun, and later

       walked seventeen miles to confront Malott with the stated intention of killing

       her. Hill was fortunately arrested before reaching Malott on January 3, 2017.

       These facts were relevant to determining the intent behind the threats he made

       on December 26, 2016, and we cannot agree that such evidence was unduly

       prejudicial or likely to mislead or confuse the jury. Accordingly, the trial court

       did not abuse its discretion by allowing this evidence over Hill’s objection.


[22]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018   Page 9 of 9
