MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
court except for the purpose of establishing                             Aug 30 2017, 6:28 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General
Keffer Barnhart LLP
Indianapolis, Indiana                                    Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Jason Montooth,                                  August 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1702-CR-319
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1610-F6-5814



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017             Page 1 of 12
                                             Case Summary
[1]   A jury convicted Charles Jason Montooth of class A misdemeanor

      intimidation, class A misdemeanor resisting law enforcement, and class B

      misdemeanor disorderly conduct. He appeals, claiming that the trial court

      abused its discretion in denying his motion to dismiss two felony intimidation

      charges. He also challenges the sufficiency of the evidence to support his

      conviction for class A misdemeanor intimidation. We affirm.


                                 Facts and Procedural History
[2]   Acting on a report of a disturbance at a local home-based services agency,

      Vanderburgh County Sheriff’s Department Sergeant Mark Rasure and Deputy

      Erik Nilssen interviewed witnesses and learned that Montooth had allegedly

      threatened to kill his ex-girlfriend’s family members. Sergeant Rasure located

      Montooth at his apartment complex, and Deputy Nilssen transported him to

      the command post for an interview. Montooth initially was cooperative.

      When Deputy Nilssen informed him that he was being arrested and taken to

      jail, he said that he was on probation and begged repeatedly to be released. His

      pleas turned to anger, and he became physically combative to the point that it

      took four officers to subdue him.


[3]   As the officers escorted him to a patrol vehicle for transport to jail, he became

      verbally aggressive. Deputy Nilssen’s body camera recorded Montooth

      repeatedly calling the officers liars and “motherf**kers,” accusing them of

      setting him up, and exclaiming, “F**k you.” State’s Ex. 2. Deputy Nilssen


      Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 2 of 12
      interviewed Montooth again in a port at the jail, and Montooth had to be

      placed in a restraint chair. Montooth said, “I’d like to see you come in a cell

      without f**king cuffs on me, I’d tear your f**king head off dude. I’ll f**king

      tear your head off.” State’s Ex. 3. Deputy Nilssen asked Montooth why he

      would tear his head off, and Montooth responded, “Because you’re a lying a**

      motherf**king pig, dude.” Id. The deputy testified that Montooth also said,

      “I’ll f**king beat the sh*t out of you you stupid mother**kers …. I wish you’d

      just give me one f**king opportunity to get out of this f**king chair and cuffs

      man, one f**king opportunity to show you.” Id. Montooth then said, “I’m

      sure you had a hundred thousand threats before bud, but you never met Charles

      Montooth.” Id. Later, when Deputy Nilssen informed Montooth that he was

      going to be barred from entering the home-based service agency’s offices, he

      clenched his fists and said, “Nilssen, do you want some of this bro, for real

      man, do you f**king want some bro?” Tr. Vol. 2 at 124; State’s Ex. 3. Shortly

      thereafter, while Deputy Nilssen was typing up his report, Montooth made a

      handgun-like gesture aimed at the deputy.


[4]   The State charged Montooth with two counts of level 6 felony intimidation,

      class A misdemeanor resisting law enforcement, and class B misdemeanor

      disorderly conduct. The State subsequently added a habitual offender count.

      Montooth filed a motion to dismiss the two intimidation counts, claiming that

      they were not charged with sufficient certainty and might subject him to double

      jeopardy. The trial court denied his motion to dismiss, as well as his motion to

      suppress certain evidence. He filed a motion to reconsider, which the trial court


      Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 3 of 12
      denied, and the case proceeded to a jury trial. At the outset of the trial, one of

      the felony intimidation counts was dismissed on the State’s motion. The jury

      convicted Montooth of intimidation as a class A misdemeanor, as well as class

      A misdemeanor resisting law enforcement and class B misdemeanor disorderly

      conduct. The habitual offender count was dismissed. The trial court sentenced

      Montooth to concurrent 300-day terms on the class A misdemeanor convictions

      and 182 days for disorderly conduct. Montooth appeals his intimidation

      conviction.


                                     Discussion and Decision

         Section 1 – The trial court acted within its discretion in
      denying Montooth’s motion to dismiss his felony intimidation
                                  counts.
[5]   Montooth challenges the trial court’s denial of his motion to dismiss the level 6

      felony intimidation counts, claiming that the charging information lacked

      sufficient specificity and might subject him to multiple prosecutions for the

      same offense. At the outset, we note that the second count was dismissed on

      the State’s motion at the beginning of Montooth’s jury trial. Thus, we review

      this issue only as it relates to the first count, of which he was convicted as a

      class A misdemeanor. We review the denial of a motion to dismiss for an

      abuse of discretion. Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015). An

      abuse of discretion occurs when the trial court’s decision is against the logic and

      effect of the circumstances before it. Lebo v. State, 977 N.E.2d 1031, 1035 (Ind.

      Ct. App. 2012). Montooth asserts that the charging information lacked

      Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 4 of 12
      sufficient certainty as to the threats that formed the basis for his first

      intimidation count. Indiana Code Section 35-34-1-2(a)(4) requires that the

      charging information be in writing and “set[] forth the nature and elements of

      the offense charged in plain and concise language without unnecessary

      repetition.” A charging information will be sufficient if it contains “a statement

      of the essential facts constituting the offense charged, as well as the statutory

      citation, the time and place of the commission of the offense, the identity of the

      victim (if any), and the weapon used (if any).” Pavlovich v. State, 6 N.E.3d 969,

      975 (Ind. Ct. App. 2014) (citing Laney v. State, 868 N.E.2d 561, 566-67 (Ind. Ct.

      App. 2007), trans. denied), trans. denied. “The State is not required to include

      detailed factual allegations in a charging information.” Laney, 868 N.E.2d at

      567. “[T]he probable cause affidavit supporting the charging instrument may

      be taken into account in assessing whether a defendant has been apprised of the

      charges against him.” Lebo, 977 N.E.2d at 1035. In other words,


              [s]ince the charging information and probable-cause affidavit are
              filed together, they should be viewed in tandem to determine if
              they satisfy the goal of putting the defendant on notice of the
              crimes with which [he] is charged during the applicable statute of
              limitations period so that [he] can prepare an appropriate
              defense.


      Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App. 2012).


[6]   Here, the charging information reads, in pertinent part,


              [I]n Vanderburgh County, State of Indiana, on or about
              September 28, 2016, Charles Jason Montooth did communicate a

      Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 5 of 12
              threat to E. Nilssen, a law enforcement officer, with the intent
              that E. Nilssen be placed in fear of retaliation for a prior lawful
              act, to-wit: exercising police powers and the threat was
              communicated to E. Nilssen because of the occupation,
              profession, employment status, or ownership status of E. Nilssen,
              contrary to the form of the statutes in such cases made and
              provided by I.C. 35-45-2-1(a)(2) and I.C. 35-45-2-1(b)(1)(B) and
              against the peace and dignity of the State of Indiana.


      Appellant’s App. Vol. 2 at 117. In his motion to dismiss, Montooth identified

      four alleged threats as detailed by Deputy Nilssen in the probable cause

      affidavit:

              (1) Stating that there “will be bloodshed”; (2) Stating that the
              Defendant “wanted three minutes alone” with the Deputy; (3)
              Stating that when the Defendant is released the Deputy will “see
              him in the streets”; or (4) the Defendant stating that he will “pray
              for you (Nilssen)” while pointing his hand in a “handgun-like”
              manner.


      Id. at 44.


[7]   We find it difficult to discern Montooth’s exact argument regarding the State’s

      treatment of the threat element. He appears to argue that the State should have

      been required to identify one distinct threat upon which it would rely.

      However, the State is permitted to present to the jury alternative ways to find

      that the defendant committed a particular element of the offense. Baker v. State,

      948 N.E.2d 1169, 1175 (Ind. 2011). Montooth decries the State’s heavy

      reliance at trial on his alleged threat to tear the deputy’s head off. As best we

      can discern, he believes that he was not advised that the State might use this

      Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 6 of 12
statement against him at trial.1 In this vein, we note first that during discovery,

Montooth was provided with video footage from Deputy Nilssen’s body camera

showing his many threats to Nilssen, including the “tear your head off” threat.

State’s Ex. 3. Thus, he cannot make a credible claim that he was unaware of

this alleged threat. As for his opportunity to prepare a defense against this

statement, it is clear from the transcript that the defense was prepared for the

State’s use of this statement. See, e.g., Tr. at 14-15 (defense counsel’s opening

argument). Additionally, we observe that the trial court gave an instruction on

unanimity of verdict, thus safeguarding against jurors relying on different

statements or acts by Montooth to establish the threat element of the offense.

See Appellant’s App. Vol. 2 at 81 (Instruction 7).2 See also Baker, 948 N.E.2d at

1177 (where State introduces evidence of multiple acts to meet certain element

of offense, trial court should instruct jury that “they must either unanimously

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




1
   Montooth did not allege a material variance in his appellate brief. Nor did he object when the “tear your
head off” allegation was raised at trial. As such, he has waived the issue for consideration on appeal. Bayes
v. State, 779 N.E.2d 77, 80 (Ind. Ct. App. 2002), trans. denied (2003).
2
    Instruction 7 reads:

        The Defendant is accused in Count I of having committed Intimidation against E. Nilssen on or
        about September 28, 2016. The State has presented evidence that the Defendant may have
        committed more than one act of Intimidation against E. Nilssen on or about September 28,
        2016. Before you may find the Defendant guilty, you must all unanimously find and agree that
        the State proved beyond a reasonable doubt that the Defendant committed the same specific,
        single act of Intimidation against E. Nilssen on or about September 28, 2016. If you find the
        Defendant guilty, your verdict does not have to specify the particular act of intimidation that the
        Defendant committed.
Appellant’s App. Vol. 2 at 81.

Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017                Page 7 of 12
       committed all of the acts described by the victim and included within the time

       period charged.”).


[8]    As explained more thoroughly below, Montooth made verbal and nonverbal

       threats to Deputy Nilssen. He was apprised of the State’s evidence concerning

       these threats through multiple means, i.e., the charging information, probable

       cause affidavit, and discovery. Based on the foregoing, we conclude that the

       trial court acted within its discretion in denying his motion to dismiss.


         Section 2 – The evidence is sufficient to support Montooth’s
                           intimidation conviction.
[9]    Montooth also maintains that the evidence is insufficient to support his

       conviction for class A misdemeanor intimidation. When reviewing a challenge

       to the sufficiency of evidence, we neither reweigh evidence nor judge witness

       credibility. Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider

       only the evidence and reasonable inferences most favorable to the verdict and

       will affirm the conviction unless no reasonable factfinder could find the

       elements of the crime proven beyond a reasonable doubt. Id.


[10]   The jury convicted Montooth of class A misdemeanor intimidation. To

       establish this offense, the State was required to prove that Montooth

       communicated a threat to another person (Deputy Nilssen), with the intent of




       Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 8 of 12
       placing the other person in fear of retaliation for a prior lawful act.3 Ind. Code §

       35-45-2-1(a)(2). Subsection (d) defines “threat” as “an expression, by words or

       action, of an intention to … (1) unlawfully injure the person threatened.”


[11]   With respect to the intentional communication of threats, Montooth

       characterized his words and actions as merely unruly and unpleasant, rather

       than intentional or threatening, made only because he “became upset” when he

       was arrested. Tr. Vol. 2 at 15; Appellant’s Br. at 13. However, he said that he

       would tear Deputy Nilssen’s “f**king head off” and “f**king beat the sh*t out

       of” the officers. State’s Ex. 3; Tr. Vol. 2 at 122. He even characterized his own

       conduct as a threat when he said, “I’m sure you had a hundred thousand

       threats before bud, but you never met Charles Montooth.” State’s Ex. 3. He

       also said that there would be bloodshed when he got released and that he would

       see Deputy Nilssen on the streets. Appellant’s App. Vol. 2 at 121. As for his

       nonverbal conduct, we note that after Montooth realized that his pleas for

       release from custody had proved unsuccessful, he became physically combative

       to the point that it took four officers to subdue him. At the jailhouse, he

       clenched his handcuffed fists at Deputy Nilssen and goaded, “do you f**king

       want some bro?” Tr. Vol. 2 at 124; State’s Ex. 3. A few minutes later, he

       pointed his hand at him in a “handgun-like manner.” Appellant’s App. Vol. 2




       3
         In his reply brief, Montooth argues for the first time that Deputy Nilssen could not have been in fear of
       retaliation for a prior lawful act because the officers acted unlawfully in arresting him in the first place.
       Because he did not raise this in his initial appellate brief, he has failed to preserve the issue for review. See
       Sisson v. State, 985 N.E.2d 1, 13 n.7 (Ind. Ct. App. 2012) (issues raised for the first time in reply brief are
       waived), trans. denied (2013).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017                   Page 9 of 12
       at 121. Montooth’s nonverbal conduct sent the additional message to Deputy

       Nilssen and the other officers that he had the intent and capability to place them

       in fear of retaliation for arresting and holding him rather than releasing him.

       His attempts to minimize his words and actions are merely invitations to

       reweigh evidence, which we may not and will not do. See Moore, 27 N.E.3d at

       754.


[12]   Montooth also asserts that his statements were merely conditional threats

       aimed at future conduct and therefore were not criminalized under the

       intimidation statute. He relies on Causey v. State, 45 N.E.3d 1239, 1242 (Ind.

       Ct. App. 2015), in which another panel of this Court held the evidence

       insufficient to support the defendant’s intimidation conviction where police

       responded to a disturbance at his residence, and he yelled, “If you come any

       closer I’ll shoot.” Id. The Causey court held that the State’s evidence amounted

       to vague descriptions of defendant’s statements pertaining to a future act rather

       than a prior act. Id.


[13]   More recently, in Roar v. State, 52 N.E.3d 940, 942 (Ind. Ct. App. 2016), adopted

       and incorporated in part by Roar v. State, 54 N.E.3d 1001 (Ind. 2016), the

       defendant challenged the sufficiency of the evidence to support his intimidation

       conviction, where his sister’s property manager placed an eviction notice on her

       door, and the defendant told the property manager that if she came back on the

       property, he would kill her. On appeal, he relied on Causey, arguing that his

       threat was conditional and pertained to future conduct. Id. at 943. Another

       panel of this Court held that the State presented sufficient evidence that the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017   Page 10 of 12
defendant’s threat was made with intent of placing the manager in fear of

retaliation for a prior lawful act. Id. at 944.


        Under the reasoning of C.L. [v. State, 2 N.E.3d 798, 801 (Ind. Ct.
        App. 2014)] [4] and Causey, no defendant can be convicted of
        intimidation if he has the presence of mind to explicitly use
        conditional language in the course of communicating his threat
        to another. But that is an unreasonable interpretation of our
        intimidation statute. Threats are, by definition, expressions of an
        intention to do a future thing, and, thus, to some degree, all
        threats are conditional. See I.C. § 35-45-2-l(d). And once the
        facts demonstrate that the defendant communicated a threat, the
        only question left is whether the defendant did so “with the
        intent” to place the victim “in fear of retaliation for a prior lawful
        act.” I.C. § 35-45-2-1(a)(2). Mere 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. Stated another way, the language
        a defendant uses in communicating a threat may be relevant to
        the fact-finder’s assessment of the defendant’s intent, but the
        language used is not the only relevant consideration.


Id. Our supreme court granted transfer, specifically adopted and incorporated

this rationale, and affirmed Roar’s intimidation conviction. Roar, 54 N.E.3d at

1002.




4
  When Roar was decided, Causey was the only published case to rely on C.L., 2 N.E.3d at 801, in which
another panel of this Court held that a defendant’s statements that he would beat up the victim if he did not
get his money or if he got caught were conditional and aimed at future conduct and therefore did not support
a finding that the defendant intended to place the victim in fear of retaliation for prior acts.

Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017           Page 11 of 12
[14]   As stated in Roar, threats are by nature expressions of intent to do future acts,

       which means they will always be conditional to one degree or another. This is

       where the “fear of retaliation” element comes into play, with the victim being

       placed in a situation where, if he does or does not do a certain act, he fears that

       he will receive a negative consequence at the hands of the perpetrator. This is

       precisely the kind of conduct that the intimidation statute seeks to prevent. In

       sum, Montooth’s threats indicated his intent to place the deputy in fear of

       retaliation for his prior lawful act of arresting and holding him. As such, the

       evidence is sufficient to support Montooth’s intimidation conviction.

       Accordingly, we affirm.


[15]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




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