      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                Nov 05 2015, 8:01 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jennifer M. Lukemeyer                                    Gregory F. Zoeller
      Tyler D. Helmond                                         Attorney General of Indiana
      Voyles Zahn & Paul
                                                               Jesse R. Drum
      Indianapolis, Indiana
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Roy Morgan,                                              November 5, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1409-CR-654
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Shatrese Flowers,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49F09-1205-FD-33565




      Darden, Senior Judge


                                       Statement of the Case
[1]   Roy Morgan appeals his conviction of intimidation, a Class D felony. Ind.

      Code § 35-45-2-1 (2006). We affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 1 of 13
                                                    Issue
[2]   Morgan presents one issue for our review, which we restate as: whether

      Morgan’s second trial on the charge of intimidation was barred by Indiana’s

      Double Jeopardy Clause.


                               Facts and Procedural History
[3]   The facts most favorable to the verdict are as follows. On May 7, 2012,

      Morgan’s wife, Angela, placed a $1,000.00 deposit on a car at Auto Pass car

      dealership in Indianapolis. The deposit was non-refundable and was to hold

      the car for forty-eight to seventy-two hours. Auto Pass gave Angela a receipt

      stating that deposits are non-refundable. When Auto Pass receives a deposit on

      a car, the car is locked, a sold tag is placed on the car, and the car is not

      available for sale or opened for anyone until the person who placed the deposit

      comes back to pick up the car. In this case, Auto Pass held the car for Morgan

      and his wife for almost two weeks.


[4]   On May 19, 2012, Morgan and Angela went to Auto Pass’ office where they

      asked Randy Pulliam, owner and president of Auto Pass, for the key to the car

      upon which they had paid the deposit. The Morgans went out to the lot, started

      up the car, and then returned to the office and told Pulliam they no longer

      wanted the car. In addition, Morgan requested the return of his full deposit.

      Initially, Pulliam refused to return the deposit money. As the discussion

      between the two men ensued, Pulliam offered to return half the deposit money

      to Morgan. However, Morgan was not satisfied with Pulliam’s offer, and the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 2 of 13
      discussion between the two men became heated. Pulliam told Morgan to leave,

      but he refused and became louder and angrier. Morgan made several threats to

      Pulliam, causing Barry Teague, Auto Pass Finance Manager, to call 911. The

      police arrived, and, after speaking with everyone involved, they arrested

      Morgan. Based upon this incident, Morgan was charged with intimidation, as
                                                                                         1
      a Class D felony, and criminal confinement, as a Class D felony.


[5]   On November 20, 2013, a jury trial was held on both charges. The jury found

      Morgan not guilty as to the charge of criminal confinement and was unable to

      reach a verdict on the charge of intimidation. A second jury trial was held on

      the charge of intimidation on May 28, 2014. At that trial, the jury found

      Morgan guilty. The trial court imposed a sentence of 730 days with 550 days to

      be served on home detention with GPS monitoring, and 180 days suspended to

      probation. Morgan now appeals his conviction of intimidation.


                                          Discussion and Decision
[6]   Morgan challenges his conviction of intimidation on Indiana’s double jeopardy

      principles. Particularly, he argues that the jury relied upon the same evidence

      in finding him guilty of intimidation in his second trial as it did in acquitting

      him of criminal confinement in his first trial.




      1
          Ind. Code § 35-42-3-3 (2006).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 3 of 13
[7]   The Double Jeopardy Clause of the Indiana Constitution provides that “[n]o

      person shall be put in jeopardy twice for the same offense.” IND. CONST. art.

      I, § 14. Two or more offenses are the same offense in violation of article I,

      section 14 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. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). In the present case,

      Morgan claims a violation of the Indiana Double Jeopardy Clause under the

      actual evidence test only.


[8]   With regard to the actual evidence test, upon review, we examine the actual

      evidence presented at trial in order to determine whether each challenged

      offense was established by separate and distinct facts. Id. at 53. To show that

      two challenged offenses constitute the same offense under the actual evidence

      test, a defendant must demonstrate 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 offense.

      Id. A “reasonable possibility” requires “substantially more than a logical

      possibility” and involves a practical assessment of whether the fact-finder “may

      have latched on to exactly the same facts for both convictions.” Lee v. State, 892

      N.E.2d 1231, 1236 (Ind. 2008). Further, the Indiana Double Jeopardy Clause

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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 4 of 13
       In applying the actual evidence test, we evaluate the evidence from the fact-

       finder’s perspective, and we may consider the charging information, jury

       instructions, and arguments of counsel. Newgent v. State, 897 N.E.2d 520, 525

       (Ind. Ct. App. 2008).


[9]    Moreover, particularly relevant to the instant case, our Supreme Court, in

       Garrett v. State, 992 N.E.2d 710 (Ind. 2013), held that the actual evidence test

       may be applicable to cases in which there has been an acquittal on one charge

       and retrial on another charge after a hung jury. Id. at 714. Thus, a double

       jeopardy violation may occur under the actual evidence test when there is a

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

       establish the essential elements of the offense for which the defendant was

       acquitted may also have been used to establish the essential elements of the

       offense for which the defendant was convicted. Id. at 723.


                                                   First Trial

[10]   In addition to the foregoing facts, the following are further evidentiary facts of

       what occurred at the first trial. At Morgan’s first trial on November 20, 2013,

       he was tried on both the charge of criminal confinement and the charge of

       intimidation. As to these charges, the jury was instructed as follows:

               The [crime of] criminal confinement is defined by law as follows:
               A person who knowingly confines another person without the
               other person’s consent commits criminal confinement, a Class D
               felony.
               Before you may convict the defendant, the State must have
               proved each of the following beyond a reasonable doubt:
       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 5 of 13
                          1. The Defendant, Roy Morgan;
                          2. Knowingly;
                          3. Confined Randy Pulliam without his consent.
       Appellant’s App. p. 137.


                   The crime of intimidation is defined by statute as follows:
                   A person who communicates a threat to another person, with the
                   intent the other person be placed in fear of retaliation for a prior
                   lawful act commits intimidation, a Class A misdemeanor. The
                   offense is a Class D felony if the threat is to commit a forcible
                   felony.
                   Before you may convict the defendant of intimidation, a Class D
                   felony as charged in Count II of the information, the State must
                   have proved each of the following elements beyond a reasonable
                   doubt:
                          1. The Defendant, Roy Morgan;
                          2. Communicated a threat to Randy Pulliam;
                          3. With the intent that Randy Pulliam be placed in fear of
                          retaliation for a prior lawful act;
                          4. And the threat was to commit a forcible felony.
       Id. at 138.


[11]   The State presented evidence at the first trial that once Pulliam refused to return

       Morgan’s full deposit, Morgan yelled at Pulliam, “You will never sell cars

       again. I’[ll] make sure of it. You don’t know who you’re messin’ with.” Tr. 1
               2
       p. 52. Morgan then stated, “The next [time] you see me, I’ll be in your livin’




       2
         Because this case involves two trials, on appeal we have been given two separate trial transcripts. For
       clarity, we will cite to the transcripts as “Tr. 1” for Morgan’s first trial and “Tr. 2” for Morgan’s second trial.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015                 Page 6 of 13
       room with a gun over your head.” Id. Pulliam also testified that Morgan’s

       threats were laced with profanity. When Morgan made these threats, he stood

       near the doorway of the office while Pulliam was behind his desk several feet

       away. Pulliam testified that he felt trapped and unsure of whether Morgan

       would let him leave. Pulliam was asked if Morgan had his consent to trap him

       in his office, and Pulliam replied, “No, not at all.” Id. at 54. Several people

       asked Morgan to leave the premises, but he refused. The jury also viewed Auto

       Pass’ security videotape showing Morgan half leaning/half sitting on the small

       table near the door during his heated exchange with Pulliam. There was no

       audio to the video. Pulliam additionally testified to certain changes that had

       been made to the office after this incident, including switching the office around

       so that the employees can see the door and selling his rural, secluded personal

       residence and moving into the city.


[12]   Auto Pass Finance Manager, Barry Teague, testified that Morgan was standing

       at the edge of the table right in front of the door having a heated conversation

       with Pulliam. Teague stated that he was concerned for Pulliam’s safety because

       there was nowhere for him to go. He called 911. He then placed a second 911

       call after Morgan told Pulliam, “You don’t know who you’re f***ing with.

       Call the f***ing police.” Id. at 108-09. Morgan further stated to Pulliam, “The

       next time you see me, I’m gonna be standing in your room – in your house –

       standing over the top of you in your living room with a gun in my hand.” Id. at

       109. The 911 calls were played at trial, and Teague identified Morgan in the

       background of the second 911 call saying, “You don’t know who you’re f***ing


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 7 of 13
       with.” Id. at 114. Auto Pass Sales Manager Zach Walton testified to hearing

       Morgan’s statements to Pulliam as well.


[13]   Further, to prove that Morgan committed the offense of confinement in the first

       trial, the State relied on and summarized in its closing argument the evidence of

       the security video showing Morgan leaning on a table and lingering by the door

       of the office. The State reiterated Pulliam’s testimony that he was too scared of

       what Morgan would do if he tried to leave the office and that Pulliam did not

       consent to being confined. The evidence is undisputed that there were several

       of Pulliam’s co-workers in the office at the time of this incident. There was no

       evidence that Pulliam expressed a desire to leave the office or that Morgan

       threatened Pulliam if he attempted to leave. Following the presentation of

       evidence, the jury found Morgan not guilty as to the charge of criminal

       confinement and was unable to reach a verdict on the charge of intimidation.


                                                 Second Trial

[14]   On May 28, 2014, Morgan was tried a second time on the charge of

       intimidation. Besides the facts as stated above in the Facts and Procedural

       History section of this opinion, the following are additional facts of what

       transpired at the second trial. The jury was instructed as follows:

               In this case, the State of Indiana has charged the Defendant with
               intimidation, a Class D felony. The charge reads as follows:


               On or about May 19, 2012, in Marion County, State of Indiana,
               the following named Defendant, Roy Morgan, did communicate
               a threat to Randy Pulliam, another person, said threat being
       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 8 of 13
               “You don’t know who you are f[ ]ing with, next time you see
               me, I’ll be standing in your living room over your head with a
               gun,” with the intent that the other person be placed in fear of
               retaliation for a prior lawful act, to wit: not refunding a down
               payment on a vehicle that was non-refundable; and further that
               said threat was to commit a forcible felony, to wit: murder.
       Appellant’s App. p. 69.


               The crime of intimidation is defined by statute as follows:
               A person who communicates a threat to another person, with the
               intent the other person be placed in fear of retaliation for a prior
               lawful act commits intimidation, a Class A misdemeanor. The
               offense is a Class D felony if the threat is to commit a forcible
               felony.
               Before you may convict the Defendant of intimidation, a Class D
               felony as charged in the information, the State must have proved
               each of the following elements beyond a reasonable doubt:
                       1. The Defendant, Roy Morgan;
                       2. Communicated a threat to Randy Pulliam;
                       3. With the intent that Randy Pulliam be placed in fear of
                       retaliation for a prior lawful act;
                       4. And the threat was to commit a forcible felony.
       Id. at 70.


[15]   Retrial on the lone charge of intimidation proceeded, and the State presented

       evidence that after placing a deposit of $1,000.00 on a car and having the car

       held for almost two weeks, Morgan and his wife went to Auto Pass and

       requested the full return of their deposit money. Pulliam testified that when he

       refused to return Morgan’s full deposit, Morgan became upset and boisterous

       out on the car lot. Pulliam returned to the office. Morgan followed Pulliam


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 9 of 13
inside and began yelling at Pulliam, “You don’t know who you’re f***ing

with.” Tr. 2 p. 47. Pulliam described Morgan as “irate” and appearing as if

“he was gettin’ ready to hit me.” Id. Morgan was asked to leave several times,

but he refused and instead sat near the door to the office. Morgan continued to

yell and make statements like, “You’re never gonna sell cars in this city. I’ll

make sure of it.” Id. at 49. Pulliam testified that Morgan yelled, “The next

time you see me, I’ll be standin’ in your livin’ room with a [                 ] gun over your

head.” Id. at 50. When asked if this statement was in regard to him not

returning Morgan’s $1,000.00 deposit, Pulliam replied affirmatively. The jury

also viewed Auto Pass’ security video showing Morgan and Pulliam’s positions

in the office of Auto Pass. Although there was no audio, the State questioned

Pulliam as follows:

        State:           But during the video, was the defendant threatening
                         you?
        Pulliam:         A hundred percent, yes.
        State:           And was he yelling with a loud voice?
        Pulliam:         Yes.
        State:           I also notice that you’re pacing around quite a bit in
                         that video. Why is that?
        Pulliam:         Um, well, I was scared probably and nervous and
                         didn’t know what was gonna happen.
Id. at 53-54. Pulliam also testified that as a result of this incident they have

added more security cameras at Auto Pass as well as full-time armed security.

In addition, they have rearranged the desks in the office to face the front door;



Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 10 of 13
       have instituted a buddy system so that no employee is at the office alone; and

       Pulliam has moved from his secluded, rural home to the city.


[16]   Teague also testified at Morgan’s second trial. He became aware of Morgan’s

       presence in the office when he heard loud voices and yelling. He testified that

       Morgan was demanding his money back and said to Pulliam, “You don’t know

       who you’re f***ing with. [           ] you’re gonna give me my money. You don’t

       know who I am.” Id. at 95. At that point, Teague called 911. When Teague

       ended the 911 call, Morgan was becoming more irate, using more profanity,

       and refusing to leave. Teague testified that he placed a second 911 call because

       Morgan pointed to Pulliam and said, “The next time you see me, I’m gonna be

       in your living room with a gun. I’m gonna kill you.” Id. at 99. Audio tapes of

       the two 911 calls were played at trial, and Teague identified Morgan as the

       voice in the background of the second of the two calls saying, “Do not f***

       around with me.” Id. at 109.


[17]   Walton testified at the second trial as well. He described a heated argument

       between Pulliam and Morgan in the office, where Morgan refused to leave

       despite having been asked several times. He affirmed that Morgan made threats

       to Pulliam by stating, “You don’t know me. You don’t know who you’re f’ing

       with,” and “The next time you see me, I’ll be in your living room standing over

       you with a gun.” Id. at 133, 135.


[18]   Finally, in its closing argument the State specified which evidence should be

       used to find Morgan guilty of intimidation. It emphasized that Morgan


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 11 of 13
       communicated a threat to commit a forcible felony to Pulliam by stating that

       Pulliam didn’t know who he was f***ing with and that the next time Pulliam

       saw him, Morgan would be standing in Pulliam’s living room with a gun to

       Pulliam’s head. This threat was made by Morgan with the intent that Pulliam

       be placed in fear of retaliation for refusing to return Morgan’s $1,000.00

       deposit. The jury found Morgan guilty of intimidation.


[19]   Morgan seeks support for his argument from our Supreme Court’s decision in

       Garrett; however, Garrett presents a very different factual context than the one

       before us today. The State charged Garrett with two separate but identically

       worded counts of rape. At Garrett’s first trial, evidence was presented of two

       separate incidents of rape, but neither the charging information nor the parties’

       evidence and argument at trial specifically linked either charged count with a

       particular rape event. The jury acquitted Garrett on Count I but was unable to

       reach a verdict on Count II. Garrett was retried on Count II, and the State

       presented the same evidence of Count I upon which it relied in the first trial and

       upon which the jury found Garrett not guilty. With regard to Count II, the

       State presented such a paucity of evidence that our Supreme Court concluded

       there was a reasonable possibility that the evidentiary facts used by the jury in

       the first trial to establish the essential elements of rape in Count I, of which

       Garrett was found not guilty, may also have been used on retrial to establish all

       of the essential elements of rape in Count II, of which Garrett was found guilty,

       thereby constituting a double jeopardy violation.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 12 of 13
[20]   In deciding Garrett, our Supreme Court acknowledged the unique character of

       the case by stating that “in a different factual context this modified test may

       prove challenging in its application.” 992 N.E.2d at 723. Contrary to the facts

       in Garrett, here we have the charging information and evidentiary presentation

       of two distinct and separate offenses. This fact, in and of itself, distinguishes

       the present case from Garrett. Additionally, Morgan points to cases involving a

       double jeopardy question where there are charges of both robbery and

       confinement in a single trial. These cases are likewise inapplicable to the

       analysis of the present case which involves charges of confinement and

       intimidation, not robbery, and two separate trials.


[21]   Therefore, taking into consideration the charging information, the jury

       instructions, the evidence, and the closing arguments, we find the possibility to

       be speculative that the jury in Morgan’s first trial used the same evidence to

       acquit him of criminal confinement as did the jury in his second trial to convict

       him of intimidation. Thus, Morgan’s conviction of intimidation does not

       violate the Indiana Double Jeopardy Clause.


                                                Conclusion
[22]   For the reasons stated, we conclude that Morgan’s second trial on the charge of

       intimidation, following his acquittal of the charge of criminal confinement in

       his first trial, was not barred by Indiana’s Double Jeopardy Clause.


[23]   Affirmed.


[24]   Kirsch, J., and Pyle, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-654 | November 5, 2015   Page 13 of 13
