MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Dec 07 2016, 9:37 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Patrick J. Smith                                        Gregory F. Zoeller
Bedford, Indiana                                        Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Omega R. McCullagh,                                     December 7, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        59A01-1604-CR-735
        v.                                              Appeal from the Orange Circuit
                                                        Court
State of Indiana,                                       The Honorable Larry R. Blanton,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        59C01-1512-F5-813



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 1 of 19
                               Case Summary and Issues
[1]   Following a jury trial, Omega McCullagh was convicted of battery against a

      public safety official, a Level 5 felony; intimidation, a Level 6 felony; and three

      counts of resisting law enforcement, one as a Level 6 felony and two as Class A

      misdemeanors. McCullagh now appeals, raising several issues for our review,

      which we restate as: (1) whether the trial court abused its discretion in denying

      his motion to discharge appointed counsel and counsel’s subsequent motion to

      withdraw; (2) whether his battery and resisting law enforcement convictions

      violate the prohibition against double jeopardy; (3) whether his three

      convictions of resisting law enforcement violate the continuing crime doctrine;

      and (4) whether there was sufficient evidence to support his conviction of

      intimidation. Concluding the trial court did not abuse its discretion in denying

      McCullagh’s or his appointed counsel’s motions, that his convictions of both

      battery and resisting law enforcement do not violate the prohibition against

      double jeopardy, and that there is sufficient evidence to support his conviction

      of intimidation, we affirm in part. However, because we conclude his multiple

      convictions of resisting law enforcement violate the continuing crime doctrine,

      we reverse in part and remand with instructions for the trial court to vacate

      McCullagh’s Class A misdemeanor convictions of resisting law enforcement.



                            Facts and Procedural History
[2]   Around 9:00 a.m. on December 14, 2014, Crawford County Sheriff’s Deputy

      Debra Young responded to a report of a car accident. When she arrived at the

      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 2 of 19
      scene, she observed a vehicle that had been driven over the embankment and

      crashed into a tree. The driver, later identified as McCullagh, was still in the

      driver’s seat with the car running. Deputy Young saw McCullagh exit the

      vehicle and walk up the embankment. She observed McCullagh walk

      unsteadily and smelled the odor of alcohol. The only injury sustained by

      McCullagh was a cut on his face, which was bleeding. After McCullagh

      refused field sobriety testing, Deputy Young placed him under arrest for

      operating a vehicle while intoxicated and transported him to the Crawford

      County Jail. On the way to the jail, McCullagh became verbally abusive and

      began making threats to Deputy Young. He told her “he was going to get to

      know [her] family real well,” and that he was a “very good investigator.”

      Transcript at 148. He also tried to remove his restraints. By the time Deputy

      Young arrived at the jail, McCullagh “had the seat belt off and had the cuffs

      locked underneath the backs of this [sic] thighs and couldn’t straighten up.” Id.


[3]   At the jail, the Sheriff instructed Deputy Young to have McCullagh medically

      cleared before he was processed and held by the jail. Deputy Young then

      transported McCullagh to Indiana University Health Hospital in Paoli, Indiana.

      McCullagh continued to be verbally abusive for the duration of the transport,

      forcing Deputy Young to take the precautionary measure of requesting that the

      Paoli Police Department provide two officers to assist her at the hospital.

      When Deputy Young arrived at the hospital, she was assisted by Paoli police

      officers Cody Hill and Brandon Mesarosh.




      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 3 of 19
[4]   At the hospital, McCullagh continued to yell and verbally abuse the officers.

      For almost thirty minutes, McCullagh continuously and disruptively asserted

      his constitutional rights were being violated, the deputies had no right to be in

      his hospital room under federal law, and demanded a federal marshal be

      present in his room. He also became argumentative and refused to allow the

      nurses to provide medical treatment, forcing the doctor to give him an

      ultimatum: let the nurses treat the injury, or be sedated. Ultimately, the doctor

      decided the only way they could treat McCullagh’s injury was if he was

      sedated. In order to sedate him, the nurse needed to administer a shot,

      requiring the officers to restrain McCullagh. Officer Mesarosh and Deputy

      Young each grabbed one of McCullagh’s arms, while Officer Hill restrained his

      legs. McCullagh screamed, yelled, and twisted his body in an attempt to fight

      off the officers. He continuously struggled to “[sit] up when [Officer Mesarosh]

      was trying to hold him down,” id. at 184, and at one point he was able to sit up

      and “punched [Officer Hill] with a closed fist in [his] arm,” id. at 194.

      McCullagh also used his legs to struggle with Officer Hill and “kicked [Officer

      Hill] in the groin several times.” Id. at 191. While McCullagh was struggling,

      his leg shackles became wrapped around Officer Hill’s arm and caused several

      scratches and “peeled the skin off a little bit.” Id. at 192. After the nurse

      administered the shot, McCullagh once again began to verbally abuse the

      officers, telling Officer Mesarosh he would “get[] to know his family and his

      kids,” id. at 156, 181, and “your house will be foreclosed, you are going to be

      without a job, you will be working at McDonalds,” id. at 122-23. Eventually,

      the medication sedated McCullagh and the nurses were able to treat his injury.
      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 4 of 19
[5]   The State charged McCullagh with Count I, battery against a public safety

      officer, a Level 5 felony; Count II, resisting law enforcement, a Level 6 felony;

      Count III and Count IV, resisting law enforcement, Class A misdemeanors; and

      Counts V, VI, and VII, intimidation, Level 6 felonies. The trial court found

      McCullagh to be indigent and appointed a public defender to represent him,

      with his jury trial initially scheduled for May 19, 2015. McCullagh’s initial

      public defender declined the appointment on January 7, 2015, and on January

      16, 2015, the trial court appointed McCullagh two alternative public defenders.

      McCullagh’s new counsel moved for a continuance on April 30, 2015, which

      the trial court granted. The new trial date was scheduled for September 22,

      2015. On September 22, 2015, for reasons not entirely clear from the record,

      the parties’ briefs, or the Chronological Case Summary, the trial was not held.

      McCullagh’s counsel moved for another continuance on October 6, 2015,

      extending the trial date to January 26, 2016.


[6]   On the morning of trial, McCullagh asked the trial court to dismiss his public

      defenders on the grounds of improper representation. The trial court denied his

      motion to dismiss his public defenders and the case proceeded to trial. A jury

      found McCullagh guilty of Counts I, II, III, IV, and VI and the trial court

      entered judgment of conviction on those counts. Prior to sentencing,

      McCullagh’s counsel filed a motion to withdraw, which the trial court did not

      grant until the sentencing hearing was complete. The trial court sentenced

      McCullagh to five years executed on Count I, battery against a public safety

      official; one year executed on Count II, resisting law enforcement; one year


      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 5 of 19
      executed on Count III, resisting law enforcement; one year executed on Count

      IV, resisting law enforcement; and one year executed on Count VI,

      intimidation. The trial court ordered Counts I, II, III, and VI to be served

      concurrently; and ordered Count IV to be served consecutively to Counts I, II,

      III, and VI. The aggregate sentence imposed was six years executed.

      McCullagh now appeals.



                                Discussion and Decision
                                       I. Right to Counsel
                    A. Motion to Discharge Appointed Counsel
[7]   The Sixth Amendment guarantees a criminal defendant’s right to have the

      assistance of counsel for his defense. Lewis v. State, 730 N.E.2d 686, 688 (Ind.

      2000). However, the right to counsel in a criminal proceeding does not mean

      the defendant has an absolute right to be represented by counsel of his own

      choosing. Smith v. State, 474 N.E.2d 973, 97-9 (Ind. 1985). “A trial court may,

      in the exercise of its sound discretion, deny a defendant’s request for a new

      court appointed attorney.” McBride v. State, 992 N.E.2d 912, 917 (Ind. Ct. App.

      2013), trans. denied. Such a ruling is reviewable only for an abuse of discretion.

      Id. A defendant may not arbitrarily compel a trial court to discharge competent

      appointed counsel. Luck v. State, 466 N.E.2d 450, 451 (Ind. 1984).


[8]   McCullagh first argues the trial court abused its discretion in denying his

      motion to discharge counsel. Specifically, he contends his request for new


      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 6 of 19
      counsel was not arbitrary, but based on valid complaints regarding his counsel’s

      deficiencies. We disagree.


[9]   On the morning of trial, the trial court gave McCullagh the opportunity to voice

      his grievances about his appointed counsel. McCullagh raised several

      complaints, asserting his counsel did not notify him of the vacated trial date or

      obtain his consent to a continuance.1 Further, he asserted, “I have asked her to

      go for dismissals and to look into constitutional rights violations which she has

      failed to do.” Tr. at 33. We note other than making bald assertions of

      constitutional rights violations, McCullagh does not specify what constitutional

      violations were present that his counsel failed to investigate. After hearing

      McCullagh’s complaints, the trial court informed McCullagh, “you have an

      attorney, you have two attorneys who are present. They are competent

      attorneys. Just because you don’t agree with strategy is of no import. . . .

      [Y]ou have had over a year to petition the Court or to employ an attorney. You

      did neither.” Id. at 38-39. Under the circumstances and based on the record,

      we cannot say the trial court’s refusal to appoint new attorneys was an abuse of

      discretion. The trial court considered McCullagh’s complaints about his

      appointed counsel and found them to be without merit. Moreover, it is well




      1
        As noted above, the record is unclear why the trial date was extended. McCullagh’s October 6, 2015
      motion for a continuance asserts “[d]iscovery for this case is still ongoing,” Appellant’s Appendix at 176;
      however, the trial court indicated the trial date may have been vacated due to the trial judge’s unavailability,
      tr. at 32-33. Regardless, the grant or denial of a continuance is reviewed for an abuse of discretion, Davis v.
      State, 487 N.E.2d 817, 820 (Ind. 1986), and McCullagh does not argue the trial court abused its discretion in
      granting the October 6, 2015 continuance.

      Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016              Page 7 of 19
       within a trial court’s discretion to deny a last-minute request for new counsel or

       to proceed pro se. See Lewis, 730 N.E.2d at 689-90; Smith, 474 N.E.2d at 979.


                                      B. Motion to Withdraw
[10]   McCullagh also contends the trial court abused its discretion in effectively

       denying his appointed counsel’s motion to withdraw before sentencing. The

       decision whether to allow counsel to withdraw is within the trial court’s

       discretion, and we will reverse only “when denial constitutes a clear abuse of

       discretion and prejudices the defendant’s right to a fair trial.” Strong v. State,

       633 N.E.2d 296, 300 (Ind. Ct. App. 1994). A trial court may refuse a motion to

       withdraw if it determines withdrawal will result in a delay in the administration

       of justice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Further, a defendant

       must demonstrate that he was prejudiced before we may reverse on this issue.

       Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App. 2011), trans. denied.


[11]   Indiana Code section 35-36-8-2(b) provides that a trial court shall allow counsel

       for the defendant to withdraw from the case if there is a showing that:


               (1) counsel for the defendant has a conflict of interest in
               continued representation of the defendant;


               (2) other counsel has been retained or assigned to defend the
               case, substitution of new counsel would not cause any delay in
               the proceedings, and the defendant consents to or requests
               substitution of the new counsel;




       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 8 of 19
               (3) the attorney-client relationship has deteriorated to a point
               such that counsel cannot render effective assistance to the
               defendant;


               (4) the defendant insists upon self representation and the
               defendant understands that the withdrawal of counsel will not be
               permitted to delay the proceedings; or


               (5) there is a manifest necessity requiring that counsel withdraw
               from the case.


[12]   McCullagh’s counsel filed their motion to withdraw on February 24, 2016,

       around one month after his trial and two weeks before his sentencing hearing.

       The motion alleged a “complete breakdown in the attorney client relationship”

       and a significant inability to communicate with McCullagh. Appellant’s App.

       at 22. The trial court refused to hear or grant the motion until after sentencing

       was complete. Nonetheless, McCullagh has failed to demonstrate how he was

       prejudiced at sentencing by counsel’s continued representation. McCullagh

       does not argue the relationship deteriorated to a point at which his counsel

       could not render effective assistance. See Ind. Code § 35-36-8-2(b)(3). In fact,

       his counsel continued with the hearing and argued in his favor, requesting the

       trial court sentence him to the minimum statutory sentences and suspend them

       to probation. Moreover, McCullagh points to no errors committed by counsel

       at the sentencing hearing, and he does not allege how granting the motion

       would have affected the sentencing outcome in his favor.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 9 of 19
[13]   We further note when McCullagh’s appointed counsel filed their motion to

       withdraw, the case had been pending on the trial court’s docket for almost

       fourteen months, and only the sentencing hearing remained. Permitting

       counsel to withdraw their appearance at such a late stage would further delay

       the administration of justice, and the trial court was within its discretion to

       refuse to rule on it. See Schmid v. State, 804 N.E.2d 174, 178 (Ind. Ct. App.

       2004) (finding that the defendant failed to exercise her right to counsel of choice

       at the appropriate stage of the proceeding and noting that it is generally neither

       appropriate nor advisable to hire new counsel for a case that has been pending

       for seventeen months), trans. denied.


[14]   Accordingly, we cannot say that the trial court abused its discretion in

       effectively denying the motion to withdraw filed by McCullagh’s appointed

       counsel. See Bronaugh, 942 N.E.2d at 829-30 (holding the trial court did not

       abuse its discretion in denying the motion to withdraw filed by defendant’s

       counsel).


                                       II. Double Jeopardy
[15]   McCullagh next argues his convictions on Count I, battery against a public

       safety officer, and Count II, resisting law enforcement, violate the state

       constitutional prohibition against double jeopardy. Specifically, he argues

       because both charges stem from “one continuous incident” in the hospital

       room, there is a “reasonable possibility that the jury used the same facts to




       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 10 of 19
       establish the essential elements of both battery and resisting.” Brief of

       Appellant at 31.


[16]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.”


               [T]wo or more offenses are the “same offense” in violation of
               Article I, Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.


       Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in

       original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We

       review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766

       (Ind. Ct. App. 2015).


[17]   McCullagh contends his convictions of battery against a public safety official

       and resisting law enforcement as a Level 6 felony violate double jeopardy and

       he confines his argument to the actual evidence test. Under the actual evidence

       test, we examine the actual evidence presented at trial to determine whether

       each challenged offense was established by separate and distinct facts. Curry v.

       State, 740 N.E.2d 162, 166 (Ind. Ct. App. 2000), trans. denied. To prove a

       violation of the actual evidence test, a defendant must show “a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish the

       essential elements of a second challenged offense.” Smith v. State, 872 N.E.2d
       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 11 of 19
       169, 176 (Ind. Ct. App. 2007) (quoting Richardson, 717 N.E.2d at 53), trans.

       denied. In determining whether there is a reasonable possibility the jury used

       the same evidentiary facts in convicting a defendant of two separate crimes, we

       require substantially more than a logical possibility. Lee v. State, 892 N.E.2d

       1231, 1236 (Ind. 2008). Double jeopardy is not violated when the evidentiary

       facts establishing the essential elements of one offense also establish only one or

       even several, but not all, of the essential elements of a second offense. Smith,

       872 N.E.2d at 176 (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).


[18]   Here, the offense of battery requires proof that McCullagh knowingly or

       intentionally touched another person in a “rude, insolent, or angry manner.”

       Ind. Code § 35-42-2-1(b)(1) (2014). The touching is a Level 5 felony if it results

       in bodily injury to a public safety official. Ind. Code § 35-42-2-1(f)(5)(A) (2014).

       The evidence at trial showed that McCullagh kicked Officer Hill in the groin

       multiple times, causing him pain. This evidence, as argued by the prosecutor in

       closing arguments, supported his battery conviction.


[19]   The offense of resisting law enforcement requires proof that McCullagh

       knowingly or intentionally “forcibly resist[ed], obstruct[ed], or interfere[d] with

       a law enforcement officer or a person assisting the officer while the officer [was]

       lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-44.1-

       3-1(a)(1). The offense is a Level 6 felony if it causes bodily injury to another

       person. Ind. Code § 35-44.1-3-1(b)(1)(B). In addition to being kicked in the

       groin, the State produced uncontroverted evidence McCullagh punched Officer

       Hill’s arm and used his leg shackles to scratch Officer Hill while he was lawfully

       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 12 of 19
       engaged in the execution of his duties, causing bodily injury to Officer Hill.

       This evidence is sufficient to support his conviction of resisting law

       enforcement. While it is theoretically possible the jury used the same fact

       (kicking Officer Hill in the groin) to support the bodily injury element of each

       charge, we do not think McCullagh has met his burden of demonstrating

       “substantially more than a logical possibility.” Lee, 892 N.E.2d at 1236.

       Further, the fact the crimes occurred simultaneously is not dispositive in the

       Richardson actual evidence analysis. Hardley v. State, 893 N.E.2d 1140, 1145

       (Ind. Ct. App. 2008), summarily aff’d on this ground, 905 N.E.2d 399, 404 (Ind.

       2009). The only question is whether there is a reasonable possibility the fact-

       finder relied on the same evidentiary facts to support the two convictions, and

       we conclude here there is not. Therefore, McCullagh’s convictions of battery

       and resisting law enforcement do not violate double jeopardy.


                             III. Continuing Crime Doctrine
[20]   McCullagh next challenges his three convictions of resisting law enforcement.

       Specifically, he contends his convictions violate the continuing crime doctrine,

       which prohibits multiple charges for the same crime where the “defendant’s

       conduct amounts only to a single chargeable crime.” Hines v. State, 30 N.E.3d

       1216, 1219 (Ind. 2015) (citation omitted).


[21]   McCullagh points to Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990), in

       which this court observed a defendant cannot be held liable for more than one

       count of resisting law enforcement, regardless of the number of officers


       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 13 of 19
       involved, if the charges stem from a single event. As the Armstead court

       observed, resisting law enforcement is a crime against the State of Indiana and

       law enforcement authority, rather than any particular person. 549 N.E.2d at

       401. “It is the act of resisting duly constituted authority which the statute

       prohibits, not resisting individual representatives of that authority.” Id.


[22]   In Armstead, the defendant, who had approached officers who were questioning

       his brother, retreated from an officer, shouted obscenities at him, and assumed

       a threatening stance. When the officer indicated he needed to speak to the

       defendant, the defendant appeared confrontational and prepared to flee. A

       second officer informed the defendant he would be placed under arrest if he did

       not calm down, causing the defendant to back into a chain link fence and

       continue to yell. This second officer told the defendant he was under arrest and

       ordered him to turn around, which the defendant refused to do, so the second

       officer tried to turn him around. At this point the defendant punched a third

       officer in the face, causing a struggle with all three officers. The defendant was

       convicted of Class D felony resisting law enforcement with respect to the third

       officer and Class A misdemeanor resisting law enforcement with respect to the

       first and second officers. This court reversed the defendant’s misdemeanor

       convictions, concluding the defendant had received three convictions based

       upon a “single affray with the police.” Id. at 402.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 14 of 19
[23]   In response, the State directs us to Williams v. State, 755 N.E.2d 1183, 1186

       (Ind. Ct. App. 2001).2 In Williams, we held that “[a] defendant may be

       convicted of multiple counts of resisting law enforcement when he has

       committed more than one of the acts enumerated under [the resisting law

       enforcement statute].” Id. Therefore, we upheld the defendant’s two

       convictions of resisting law enforcement—one of which involved the

       defendant’s act of fleeing from officers and the other of which involved the

       defendant’s infliction of bodily injury upon the officers when they caught him.

       Id.; cf. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015) (recognizing the

       act of fleeing by vehicle and then by foot constitute one continuous act of

       resisting law enforcement).


[24]   McCullagh argues that, like in Armstead, he had a “single affray” with the

       police. The State responds by asserting McCullagh’s struggle with the police in

       the hospital and his act of attempting to remove his restraints in the police

       vehicle constitute separate incidents of resisting arrest. We disagree that

       McCullagh’s attempts to remove his restraints constitute “forcible resistance.” 3

       See Macy v. State, 9 N.E.3d 249, 254 (Ind. Ct. App. 2014) (holding defendant’s




       2
         The State also points to Whaley v. State, 843 N.E.2d 1, 14 (Ind. Ct. App. 2006), trans. denied. However, this
       court decided Whaley on double jeopardy grounds, and therefore it is not relevant to the continuing crime
       issue raised by McCullagh. See Hines v. State, 30 N.E.3d at 1219.
       3
         As noted above, the State alleged three separate counts of resisting law enforcement, one felony count and
       two misdemeanor counts. To prove McCullagh violated the statute, the State had to prove he knowingly or
       intentionally “forcibly resist[ed], obstruct[ed], or interfere[d] with a law enforcement officer . . .” Ind. Code §
       35-44.1-3-1(a)(1) (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016                Page 15 of 19
       actions of opening the door of the police car and refusing to place her feet inside

       the vehicle did not constitute acts of forcible resistance, as required to support

       conviction of resisting law enforcement). Further, there is no allegation by the

       State that McCullagh committed separate enumerated acts under the statute,

       and neither Deputy Young nor Officer Mesarosh testified they were injured by

       McCullagh’s conduct.


[25]   The instant case is substantially similar to Armstead. In the hospital room, three

       officers lawfully attempted to restrain McCullagh so the nurse could administer

       medication. In response, McCullagh yelled, twisted his body, pulled away,

       kicked his feet, and attempted to sit up. This was a single incident and, as such,

       McCullagh’s three convictions of resisting law enforcement cannot stand.

       Based on Armstead, McCullagh should be “answerable for the greatest harm

       stemming from that single incident.” 549 N.E.2d at 402. With respect to the

       three resisting law enforcement convictions, the felony represents the greatest

       harm McCullagh committed. Accordingly, we reverse McCullagh’s two

       misdemeanor convictions for resisting law enforcement.


                              IV. Sufficiency of the Evidence
[26]   Finally, McCullagh asserts the evidence is insufficient to support his conviction

       of intimidation. In reviewing sufficiency of the evidence claims, this court does

       not reweigh evidence or judge witness credibility. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). “We consider only the evidence supporting the

       judgment and any reasonable inferences that can be drawn from such


       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 16 of 19
       evidence.” Id. (citation omitted). This court will affirm if there is substantial

       evidence of probative value such that a reasonable jury could have concluded

       the defendant was guilty beyond a reasonable doubt. Id.


[27]   To convict McCullagh of intimidation, the State had to prove beyond a

       reasonable doubt he communicated a threat to another person, with the intent

       that the other person be placed in fear of retaliation for a prior lawful act. Ind.

       Code § 35-45-2-1(a)(2). Intimidation is a Level 6 felony if the person to whom

       the threat is communicated is a law enforcement officer. Ind. Code § 35-45-2-

       1(b)(1)(B)(i). McCullagh argues the words he communicated to Officer

       Mesarosh that he would “get[] to know his family and his kids” do not

       constitute a threat, tr. at 156; rather, he contends the statement asserted he

       would “vigorously pursue lawful remedies against Mesarosh for unlawful

       detention or violation of rights,” Br. of Appellant at 36. “Threat” is defined, in

       pertinent part, as “an expression, by words or action, of an intention to . . .

       unlawfully injure the person threatened or another person, or damage

       property.” Ind. Code § 35-45-2-1(d)(1).


[28]   In Townsend v. State, 753 N.E.2d 88 (Ind. Ct. App. 2001), abrogated on other

       grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), the defendant, after

       being arrested by a police officer, told the officer he would “get” the officer and

       his family “[n]o matter how long it takes me, I will get you.” Id. at 90. This

       court held that the jury could have reasonably concluded that by those words,

       the defendant communicated a threat to the officer. Id. at 91.



       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 17 of 19
[29]   In Earlywine v. State, 847 N.E.2d 1011 (Ind. Ct. App. 2006), the defendant

       communicated to people inside a home that they would “get it” if they stood

       between him and his wife. Id. at 1012. This court affirmed the intimidation

       conviction, holding there was sufficient evidence the defendant communicated

       a threat. This court stated that “threats of potential, nonspecific violence” can

       support the threat element of intimidation. Id. at 1014-15.


[30]   We find McCullagh’s communications with Officer Mesarosh in this case to be

       similar to the communications found to constitute threats in Townsend and

       Earlywine. Given the surrounding circumstances and the context of

       McCullagh’s communication, the jury could reasonably infer by his statement

       he would “get[] to know [Officer Mesarosh’s] family and his kids,” that

       McCullagh was threatening physical harm to the officer’s family. Tr. at 156.

       Therefore, there was sufficient evidence to support McCullagh’s conviction of

       intimidation.



                                               Conclusion
[31]   The trial court did not abuse its discretion in denying McCullagh’s or his

       appointed counsel’s motions regarding counsel’s continued representation.

       Further, McCullagh’s convictions of battery and resisting law enforcement do

       not violate double jeopardy, and there is sufficient evidence to support his

       conviction of intimidation. However, McCullagh’s multiple convictions of

       resisting law enforcement violate the continuing crime doctrine. We therefore

       affirm in part, reverse in part, and remand with instructions for the trial court to

       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 18 of 19
       vacate McCullagh’s Class A misdemeanor convictions of resisting law

       enforcement.


[32]   Affirmed in part, reversed in part, and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016   Page 19 of 19
