                                                                     Feb 18 2016, 9:32 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas P. Keller                                          Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Demetrius Holloway,                                       February 18, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A04-1508-CR-1292
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Elizabeth C.
Appellee-Plaintiff                                        Hurley, Judge
                                                          Trial Court Cause No.
                                                          71D08-1408-F6-71



Crone, Judge.




Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016                Page 1 of 9
                                              Case Summary
[1]   A police officer arrested Demetrius Holloway for operating a motor vehicle

      while intoxicated (“OWI”) and took him to jail, where Holloway threatened to

      “f[*]ck [the officer] up.” Tr. at 23. Holloway pled guilty to class A

      misdemeanor OWI, and the trial court found him guilty of level 6 felony

      intimidation. On appeal, he challenges the sufficiency of the evidence

      supporting his intimidation conviction. We affirm.



                             Facts and Procedural History
[2]   On the afternoon of August 1, 2014, Holloway drank some beer and drove to a

      fast food restaurant, where he collided and had an altercation with another

      motorist. South Bend Police Officer Joseph Stitsworth was dispatched to the

      scene. Officer Stitsworth suspected that Holloway was intoxicated and

      administered field sobriety tests, all of which Holloway failed. The officer

      handcuffed Holloway and transported him to jail.


[3]   Holloway was uncooperative getting into and out of Officer Stitsworth’s vehicle

      and repeatedly claimed that he had done nothing wrong. During the jail

      booking procedure, the handcuffed Holloway became agitated and said to

      Officer Stitsworth, “I hope you die. I hope you die tonight.” Id. A few minutes

      later, Holloway stood up, started to approach Officer Stitsworth, and said, “I

      will f[*]ck you up.” Id. Officer Stitsworth interpreted this as a threat and told

      Holloway to sit down.



      Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 2 of 9
[4]   The State charged Holloway with level 6 felony intimidation, class A

      misdemeanor OWI, class C misdemeanor OWI, and class B misdemeanor

      battery. In April 2015, Holloway pled guilty to class A misdemeanor OWI, and

      the State dismissed the other misdemeanor charges. A bench trial was held on

      the intimidation charge. Both Officer Stitsworth and Holloway testified. The

      State offered into evidence a DVD containing video and audio of the field

      sobriety tests and Holloway’s trip to jail and audio of his interactions with

      Officer Stitsworth inside the jail, all of which was recorded by the officer’s in-

      car camera and body microphone. At the close of evidence, the trial court took

      the matter under advisement. In May 2015, the trial court issued a written

      order finding Holloway guilty of intimidation. This appeal ensued.



                                 Discussion and Decision
[5]   Holloway challenges the sufficiency of the evidence supporting his intimidation

      conviction. Our standard of review is well settled:

              This court will not reweigh the evidence or assess the credibility
              of witnesses. Only the evidence most favorable to the judgment,
              together with all reasonable inferences that can be drawn
              therefrom will be considered. If a reasonable trier of fact could
              have found the defendant guilty based on the probative evidence
              and reasonable inferences drawn therefrom, then a conviction
              will be affirmed.


      Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007) (citations omitted).

      “Reversal is appropriate only when reasonable persons would not be able to


      Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 3 of 9
      form inferences as to each material element of the offense.” Naas v. State, 993

      N.E.2d 1151, 1152 (Ind. Ct. App. 2014).


[6]   The State alleged that Holloway committed level 6 felony intimidation by

      communicating a threat to a law enforcement officer (i.e., that he would “f[*]ck

      [Officer Stitsworth] up”), with the intent that the officer be placed in fear of

      retaliation for a prior lawful act (i.e., placing Holloway under arrest). See

      Appellant’s App. at 22 (trial court’s order), 35 (original charging information);

      Tr. at 3-4 (information as amended before trial); Ind. Code § 35-45-2-1(b), -(c)

      (intimidation statute as of August 1, 2014, when crime was committed). The

      intimidation statute defines “threat” as “an expression, by words or action, of

      an intention to … unlawfully injure the person threatened or another person[.]”

      Ind. Code § 35-45-2-1(c)(1).


[7]   The gist of Hollway’s argument appears to be that his profane statement to

      Officer Stitsworth did not constitute a threat because it was brief and he was

      handcuffed and in jail when he uttered it. Holloway attempts to contrast his

      statement with that of the defendant 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). After Townsend was arrested, handcuffed, and placed in a patrol

      car, he told the arresting officer, “I'm going to get you and I’m going to get your

      family. You’re not safe from me anywhere. No matter how long it takes me, I

      will get you.” Id. at 90. He was convicted of intimidation and argued on

      appeal that “there was no proof” that his statements could be viewed as a



      Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 4 of 9
      threat. Id. at 91. We disagreed and held that “the jury could reasonably

      conclude that Townsend communicated a threat to” the officer. Id.


[8]   We find no basis for distinguishing Townsend’s threat from Holloway’s. Both

      men were handcuffed and incapable of carrying out their stated intent to injure 1

      when the statements were made. Holloway cites no authority for the

      proposition that a person must be capable of inflicting injury when the

      statement is made or that a statement must be lengthy or detailed in order to

      constitute a threat. Likewise, he cites no authority for his suggestion that a

      person must make multiple statements over a “long period” before he may be

      convicted of intimidation. Appellant’s Br. at 5. 2 In sum, we find Holloway’s

      argument unavailing and therefore affirm his intimidation conviction.


[9]   Affirmed.


      Vaidik, C.J., concurs.


      Bailey, J., dissents with opinion.




      1
       Holloway’s contention that his statement “is more akin to a ‘F*** you’ than to a threat to do physical
      harm” is a blatant request to reweigh evidence in his favor, which we may not do. Appellant’s Br. at 5.
      2
       In its written order, the trial court addressed the concept of a “true threat” as discussed in Brewington v.
      State, 7 N.E.3d 946 (Ind. 2014), and found that “it was objectively reasonable for Officer Stitsworth to be
      placed in fear for his safety based upon [Holloway’s] threat.” Appellant’s App. at 22-23. Holloway does not
      mention “true threat” or objective reasonableness in his appellant’s brief and merely attempts to distinguish
      Brewington based on the number of statements that Brewington made and the period of time over which he
      made them.

      Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016                      Page 5 of 9
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Demetrius Holloway,                                       February 18, 2016
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Bailey, Judge, dissenting.


[10]   Holloway challenges his conviction for Intimidation, arguing that there was

       insufficient evidence to sustain the conviction in the absence of a true threat.

       The majority affirms. Because I disagree with this conclusion, I respectfully

       dissent.


[11]   The statute that defines the offense of Intimidation provides, in relevant part,

       “A person who communicates a threat to another person, with the intent …

       that the other person be placed in fear of relation for a prior lawful act

       …commits intimidation.” Ind. Code § 35-45-2-1(a). What is otherwise a Class

       A misdemeanor is elevated to a Level 6 felony when the target of the threat is a

       law enforcement officer. I.C. § 35-45-2-1(b)(1)(B)(i).


[12]   Recognizing that speech has constitutional dimensions, courts have recognized

       limits on criminalization of speech offenses like Intimidation. Thus, the

       Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 6 of 9
       Indiana Supreme Court has held that for speech to amount to a “true threat”

       under Indiana law, there are “two necessary elements.” Brewington v. State, 7

       N.E.3d 946, 964 (Ind. 2014). The “speaker [must] intend his communications

       to put his targets in fear for their safety”—that is, the elements of the

       Intimidation statute must be met—and the communications must have been

       “likely to actually cause such fear in a reasonable person similarly situated to

       the target.” Id. With respect to the speaker’s intent, “a mens rea determination

       ‘is almost inevitably, absent a defendant’s confession or admission, a matter of

       circumstantial proof.’” Id. (quoting Hampton v. State, 961 N.E.2d 480, 487 (Ind.

       2012)).


[13]   As to the second element, the likelihood of the statement’s effect, we employ “a

       ‘reasonable victim’ test—whether it was objectively reasonable for the victim to

       fear for [his] safety.” Id. at 969 (emphasis in original). Context is crucial in

       cases such as this. Virginia v. Black, 538 U.S. 343, 357, 365-66 (2003)

       (recognizing that even for cross-burning, context is central to whether speech is

       a threat or protected expression); Watts v. United States, 394 U.S. 705, 707 (1969)

       (holding, with respect to a statute criminalizing threats against the President of

       the United States, that “a statute such as this one, which makes criminal a form

       of pure speech, must be interpreted with the commands of the First

       Amendment clearly in mind,” so that “a threat must be distinguished from

       what is constitutionally protected speech”). Thus, the nature of the alleged

       victim’s experience and work has played a role in the Indiana Supreme Court’s

       jurisprudence on the question of a true threat. In Brewington, our supreme court


       Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 7 of 9
       observed that part of what made Brewington’s communications threatening,

       beyond their repetitiveness and clear meaning, was how unusual they were

       relative to the experiences of Brewington’s victims, a psychologist and a judge.

       7 N.E.3d at 970-71. Each victim commented in testimony that in their

       extensive experiences, they had never encountered the persistent and repeated

       threats and erratic behavior Brewington displayed. Id. Indeed, the psychologist

       in Brewington was so concerned by Brewington’s threats to his family that

       additional home security and police protection were put in place. Id. at 971.

       These reactions, the Brewington Court held, “are precisely what we would

       expect of objectively reasonable people under similar circumstances”: not only

       were Brewington’s statements threatening, but the victims “did in fact feel

       threatened and fearful for their family’s [sic] safety.” Id. at 971.


[14]   Against this background, the issue here is whether there was sufficient evidence

       from which a fact-finder could infer that a person in the same circumstances as

       Officer Stitsworth would reasonably experience the kind of visceral reaction

       that would make a person fear for his safety.


[15]   Holloway said that he hoped Officer Stitsworth would die that night, said that

       he would “f**k…up” Officer Stitsworth. (Tr. at 23.) In response, Officer

       Stitsworth told Holloway that he had acquired another criminal charge. A few

       seconds later, Officer Stitsworth told Holloway to sit down after Holloway had

       gotten up from a seat and begun walking toward the officer—all while

       staggering drunk, handcuffed in the Saint Joseph County Jail, and wearing

       pants that were unbuttoned and falling down, thus impeding his movement.

       Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 8 of 9
       Officer Stitsworth testified that he understood Holloway’s statement as

       conveying a message that he “meant to do me harm.” (Tr. at 23.) But Officer

       Stitsworth did not testify that he was fearful or that he felt threatened by

       Holloway’s words. Moreover, another deputy was present in the room at the

       time, but there was no testimony that these words would or did elicit any

       reaction—let alone a visceral one—from him or others similarly situated.


[16]   Granted, Officer Stitsworth testified that he understood the meaning of

       Holloway’s statement, but that speaks only to Holloway’s intent. Importantly,

       Officer Stitsworth’s responses to Holloway, telling Holloway that an additional

       charge would be entered against him and telling Holloway to sit down, give no

       indication as to whether a person in Officer Stitsworth’s position could

       reasonably believe Holloway’s statement under the circumstances was a true

       threat. See Brewington, 7 N.E.3d at 969, 971. And because context matters,

       there is an absence of evidence on this element of the offense.


[17]   Being a police officer is often fraught with danger and unpleasantness. But to

       affirm under these circumstances seems to me perilously close to rendering

       illusory the right to appeal a conviction such as this. See Milam v. State, 14

       N.E.3d 879, 881 (Ind. Ct. App. 2014) (observing that “[a]n impossible standard

       of review under which appellate courts merely ‘rubber stamp’ the fact finder’s

       determinations, no matter how unreasonable, would raise serious constitutional

       concerns because it would make the right to an appeal illusory.”)


[18]   I therefore respectfully dissent.


       Court of Appeals of Indiana | Opinion 71A04-1508-CR-1292 | February 18, 2016   Page 9 of 9
