                                                                                   FILED
                                                                             Apr 21 2016, 8:30 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Victor Roar,                                              April 21, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1506-CR-506
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Barbara Cook
      Appellee-Plaintiff.                                       Crawford, Judge
                                                                Trial Court Cause No.
                                                                49F09-1404-FD-18644



      Najam, Judge.


                                        Statement of the Case
[1]   Victor Roar appeals his conviction for intimidation, as a Class A misdemeanor,

      following a bench trial. Roar presents two issues for our review:



      Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016                      Page 1 of 11
              1.       Whether the State presented sufficient evidence to show
                       that he communicated a threat with the intent to place his
                       victim in fear of retaliation for a prior lawful act; and


              2.       Whether the trial court abused its discretion in the
                       admission of certain evidence.


[2]   We hold that the State presented sufficient evidence from which a reasonable

      fact-finder could conclude that Roar had committed intimidation, and we are

      not persuaded by Roar’s argument that the conditional language he used in the

      communication of his threat obviates the State’s evidence of his intent to place

      his victim in fear of retaliation for a prior lawful act. We also hold that any

      error in the court’s admission of the evidence challenged on appeal was

      harmless.


[3]   Affirmed.


                                  Facts and Procedural History
[4]   In 2014, Roar’s sister, Ametrua, rented an apartment that was managed by

      Tracey Olive. On April 2, Roar was near Ametrua’s apartment when he saw

      Olive serve an eviction notice on Ametrua. Roar knew that Ametrua had had

      problems paying her rent, and Roar had previously interacted with Olive. He

      considered Olive a “slumlord” and thought she had an “attitude.” Tr. at 149-

      50. Roar saw Olive knock on Ametrua’s back door, and, when there was no

      answer, he saw Olive roll up the eviction notice and place it in the door. Roar

      immediately removed the eviction notice from Ametrua’s door. Id. at 149.


      Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016    Page 2 of 11
[5]   When Olive turned around to leave, she heard Roar yelling at her. As Olive

      later testified, Roar


              told me I was bein[g] unprofessional, and . . . that . . . I
              should . . . go about my job a different way . . . . [A]nd then he
              basically told me I was a bitch. And . . . I said I’m just dropping
              the notice of claim [sic]. I’m not . . . here to do anything else.
              And then he threatened me. . . .


                                                       ***


              He called me a bitch and then told me that if I came back on the
              property[] he’d kill me.


      Id. at 24-25.


[6]   The State charged Roar with intimidation, as a Class D felony. After a bench

      trial, the court found Roar guilty as charged but reduced his conviction to a

      Class A misdemeanor. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[7]   We first consider Roar’s argument that the State failed to present sufficient

      evidence to show that he had committed intimidation of Olive. Our standard of

      review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740

      N.E.2d 109, 111 (Ind. 2000).


              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the

      Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016    Page 3 of 11
              [judgment]. We do not assess witness credibility, nor do we
              reweigh the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal

      quotation marks omitted). To show that Roar committed intimidation, as a

      Class A misdemeanor, the State was required to show, first, that Roar

      “communicate[d] a threat” to Olive and, second, that he did so with the intent

      that Olive “be placed in fear of retaliation for a prior lawful act.” Ind. Code §

      35-45-2-1 (2013).


[8]   A reasonable fact-finder could conclude that the State presented sufficient

      evidence to support its charge of intimidation. Again, the first question under

      the intimidation statute is whether Roar “communicate[d] a threat.” I.C. § 35-

      45-2-1(a). Roar undoubtedly did this. He told Olive that, “if [she] came back

      on the property, he’d kill” her. Tr. at 25. Thus, the State demonstrated that

      Roar threatened Olive.


[9]   The second, and independent, question under the statute is whether Roar’s

      threat was made “with the intent . . . that [Olive] be placed in fear of retaliation

      for a prior lawful act.” I.C. § 35-45-2-1(a)(2). The State demonstrated this as

      well. Roar knew who Olive was and knew of his sister’s relationship to Olive,

      including his sister’s failure to pay rent. Roar knew that Olive was serving an


      Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 4 of 11
       eviction notice on his sister on April 2. And Roar’s threat occurred

       immediately after he had observed Olive lawfully serve that eviction notice.

       The fact-finder was free to conclude, considering the substantial evidence, that

       Roar’s threat was in direct response to Olive’s lawful attempt to evict Roar’s

       sister.


[10]   Roar argues that, because he conditioned his threat to Olive on “if [she] came

       back on the property,” any other evidence concerning whether he intended his

       threat to place Olive in fear of retaliation for a prior lawful act is irrelevant. In

       support of that analysis, Roar most notably cites C.L. v. State, 2 N.E.3d 798, 801

       (Ind. Ct. App. 2014), trans. not sought, in which a majority panel of this court

       categorically declared that “conditional” threats cannot demonstrate an intent

       to place a victim in fear of retaliation for a prior lawful act. But we agree with

       the dissenting opinion in C.L. and conclude that the majority in that case did

       not correctly decide that question. See id. at 801-02 (Najam, J., dissenting). As

       such, we are also not persuaded by Causey v. State, 45 N.E.2d 1239 (Ind. Ct.

       App. 2015), trans. not sought, the only published opinion in Indiana to rely on

       the majority’s reasoning in C.L.


[11]   Under the reasoning of C.L. 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. § 35-45-2-1(d). And once the facts

       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 5 of 11
       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.


[12]   Roar also is mistaken in his reliance on Casey v. State, 676 N.E.2d 1069, 1072-73

       (Ind. Ct. App. 1997), which is plainly inapposite. In Casey, the defendant

       threatened his victim when he told her “you’re next,” but the language of the

       threat was not the basis for our reversal of his conviction for intimidation. Id. at

       1071. Rather, we reversed the defendant’s conviction because “the State failed

       to allege or prove” the victim’s “prior lawful acts which le[d] to the threats.” Id.

       at 1072-73. And the defendant’s threat itself did “not demonstrate his reasons

       for threatening [the victim] or indicate that he was doing so because of any

       specific prior act.” Id. at 1073. Thus, in Casey we reversed the defendant’s

       conviction not because of the language used in the threat but because there was

       no evidence whatsoever to demonstrate a connection between the threat and

       any prior lawful acts of the victim. Unlike Casey, here the State plainly alleged

       and demonstrated Olive’s prior lawful acts that immediately preceded and

       culminated in Roar’s threats.




       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 6 of 11
[13]   In its operation and effect, Roar’s exclusive reliance on the conditional

       language he used in communicating his threat renders irrelevant all other

       evidence that demonstrated his clear intent to place Olive in fear of retaliation

       for her prior lawful act. In other words, Roar asks this court to reweigh the

       evidence on appeal by giving exclusive weight to the first seven words of his

       threat to Olive while simultaneously discrediting all other evidence. We will

       not reweigh the evidence on appeal. The trial court was capable of discerning

       whether intimidation occurred where, as here, there is a clear nexus between

       the prior lawful act and the threat. The evidence plainly demonstrated, first,

       that Roar communicated a threat to Olive and, second, that he did so with the

       intent to place her in fear of retaliation for a prior lawful act. Accordingly, we

       affirm Roar’s conviction for intimidation, as a Class A misdemeanor.


                                    Issue Two: Admission of Evidence

[14]   Roar also asserts that the trial court abused its discretion in the admission of

       certain evidence, namely, a phone call Ametrua made to Olive well after Roar

       had intimidated Olive. We review a trial court’s decision to admit or exclude

       evidence for an abuse of discretion. Hall v. State, 36 N.E.3d 459, 466 (Ind.

       2015). However, “[t]he improper admission is harmless error if the conviction

       is supported by substantial independent evidence of guilt satisfying the

       reviewing court there is no substantial likelihood the challenged evidence

       contributed to the conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012). As explained in Issue One, Roar’s conviction is supported by substantial

       independent evidence of his guilt, and we are satisfied that there is no

       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 7 of 11
       substantial likelihood that the challenged evidence contributed to Roar’s

       conviction. Accordingly, any error in the admission of the challenged evidence

       was harmless.


[15]   In sum, we affirm Roar’s conviction for intimidation, as a Class A

       misdemeanor.


[16]   Affirmed.


       Riley, J., concurs.

       May, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 8 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Victor Roar,                                              Court of Appeals Case No.
                                                                 49A02-1506-CR-506
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       May, Judge, dissenting.


[17]   I would reverse Roar’s conviction, as the State did not prove Roar’s intent to

       place Olive in fear of retaliation for a prior lawful act. Therefore, I must

       dissent.


[18]   To convict Roar of Class A misdemeanor intimidation, the State was required

       to prove Roar communicated a threat to Olive with the intent she “be placed in

       fear of retaliation for a prior lawful act.” Ind. Code § 35-45-2-1 (emphasis

       added). Roar told Olive, “if [she] came back on the property, he’d kill [her].”

       (Tr. at 25.) That threat was aimed at the future conditional act of Olive

       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016            Page 9 of 11
       returning to the property, and was not in retaliation for Olive’s prior act of

       delivering an eviction notice.


[19]   In Causey v. State, 45 N.E.3d 1239 (Ind. Ct. App. 2015), police were called to

       Causey’s residence. Causey told the officers they had no business at his house,

       then said “you won’t take me alive” and slammed the door. Id. at 1240. Police

       called for backup, and while they waited Causey opened the door and yelled:

       “[G]et off my property. You don’t belong on my property. If you come any

       closer I’ll shoot.” Id.


[20]   Causey was convicted of Class D felony intimidation. We reversed, finding it

       “apparent” from the language of the intimidation statute that “the legislature

       intended to require the State to prove that the victim had engaged in a prior act,

       which was not contrary to law, and that the defendant intended to repay the

       victim for the prior lawful act.” Id. at 1241 (quoting Casey v. State, 676 N.E.2d

       1069, 1072 (Ind. Ct. App. 1997)) (emphasis added). In Casey, the State alleged

       Casey committed intimidation when he told the victim, “You’re next bitch.”

       676 N.E.2d at 1073. That statement did not indicate there was a prior lawful

       action that led to the threats, and there was no evidence the threats were made

       in retaliation for the victim’s actions prior to the statement. The statement did

       not “demonstrate his reasons for threatening [the victim] or indicate that he was

       doing so because of any specific prior act.” Id. We reached the same

       conclusion in C.L. v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014): “statements

       that are ‘conditional and aimed at future, rather than past, conduct,’ will not



       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 10 of 11
       support a finding that the defendant intended to place the victim in fear of

       retaliation for prior acts.”


[21]   I would not disregard the plain language of the statute or the holdings in our

       decisions addressing that question. The majority in this case would interpret

       the intimidation statute to allow a conviction even if a defendant used language

       that was “conditional and aimed at future, rather than past, conduct,” id., but I

       do not believe our precedent permits that interpretation. Even if we are free to

       “interpret” the plain and explicit language of the intimidation statute, our

       Supreme Court has instructed us that penal statutes should be construed strictly

       against the State and ambiguities should be resolved in favor of the accused.

       Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). We assume the language in a

       statute was used intentionally and that every word should be given effect and

       meaning. Id.


[22]   The intimidation statute requires proof of intent that a victim be placed in fear

       of retaliation for a prior lawful act, and the State did not prove that. I must

       therefore respectfully dissent.




       Court of Appeals of Indiana | Opinion   49A02-1506-CR-506 | April 21, 2016   Page 11 of 11
