MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       Jan 20 2016, 7:18 am

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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Townsend,                                        January 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1506-CR-691
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1503-F6-125



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016         Page 1 of 6
                                                Case Summary
[1]   Michael Townsend (“Townsend”) was convicted of Intimidation, as a Level 6

      felony.1 He now appeals, raising for our review the sole issue of whether there

      was sufficient evidence to sustain his conviction.


[2]   We affirm.



                                 Facts and Procedural History
[3]   On the evening of February 27, 2015, Townsend was at his girlfriend’s home in

      South Bend. Townsend had been drinking to excess that night, and at some

      point discovered that his car’s tires had been slashed. Townsend blamed his

      girlfriend’s ex-boyfriend, and Townsend and his girlfriend began arguing.


[4]   The argument continued into the early morning hours of February 28, 2015.

      Around 3 a.m., police were called to the home. Upon arriving, police detained

      and handcuffed Townsend and commenced an investigation. Based upon this

      investigation, police decided to arrest Townsend for battery and intimidation.


[5]   Prior to this point, Townsend had been cooperative with the officers. Upon

      being informed that he was being placed under arrest, Townsend began to use

      hostile language toward police and made himself dead weight so that two

      officers, Gregory Howard (“Officer Howard”) and David Scotkowski (“Officer




      1
          Ind. Code §§ 35-45-2-1(a)(2) & (b)(1)(B)(i).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016   Page 2 of 6
       Scotkowski”), had to carry Townsend to a patrol car and force him into the

       vehicle.


[6]    After Officers Howard and Scotkowski had put Townsend into their patrol car,

       they transported Townsend to the St. Joseph County Jail. Prior to and during

       the drive to the jail, Townsend was verbally aggressive toward Officers Howard

       and Scotkowski. At various points, Townsend demanded the officers’ full

       names, said he would kill them and would be on the news, said he would blow

       up the county jail, and used various racial epithets toward the officers. (Ex. 1.)


[7]    On March 2, 2015, Townsend was charged with Intimidation as to Officer

       Scotkowski. Townsend was also charged with Battery as to his girlfriend, as a

       Class B misdemeanor.2


[8]    Prior to trial, the State dismissed the charge of Battery. On May 19, 2015, a

       jury trial was conducted on the remaining charge for Intimidation. At the

       conclusion of the trial, the jury found Townsend guilty as charged.


[9]    A sentencing hearing was conducted on June 17, 2015, at the conclusion of

       which the trial court entered judgment of conviction against Townsend and

       sentenced him to thirty months imprisonment.


[10]   This appeal ensued.




       2
           I.C. § 35-42-2-1.


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                                  Discussion and Decision
[11]   Townsend appeals his conviction and challenges the sufficiency of the evidence.

       Our standard of review in sufficiency challenges is well settled. We consider

       only the probative evidence and reasonable inferences supporting the verdict.

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility

       of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

       2000)). “The evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d

       331, 334 (Ind. Ct. App. 2001)). Our judicial system affords “great adherence”

       to the right to trial by jury and to the jury’s verdict. Myers v. State, 27 N.E.3d

       1069, 1071-72 (Ind. 2015). We are therefore mindful on appeal that we must

       respect “‘the jury’s exclusive province to weigh conflicting evidence.’” McHenry

       v. State, 820 N.E.2d 124, 126 (Ind. 2005) (quoting Alkhalidi v. State, 753 N.E.2d

       625, 627 (Ind. 2001)).


[12]   Townsend was charged with Intimidation, as a Level 6 felony. To convict

       Townsend as charged, the State was required to prove beyond a reasonable

       doubt that Townsend communicated a threat to Officer Scotkowski with the

       intent to put Officer Scotkowski in fear of retaliation for a prior lawful act,

       namely, arresting Townsend, where Officer Scotkowski was a law enforcement

       officer and Townsend’s threat was conveyed because of Officer Scotkowski’s



       Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016   Page 4 of 6
       occupation, profession, employment status, or ownership status. See I.C. §§ 35-

       45-2-1(a)(2) & (b)(1)(B)(i); App’x at 20.


[13]   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, and … the communications were 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)). With respect to

       the second element, 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).


[14]   Turning first to the sufficiency of the evidence as to Townsend’s intent, the

       record discloses that Townsend was compliant with police officers, even while

       handcuffed and being detained, until he was informed that he was under arrest.

       Officer Scotkowski testified at trial that upon being informed of the arrest,

       Townsend’s demeanor did a “complete 180,” and Townsend went from

       compliance to using “[t]hreats, racial slurs towards me, threats to myself, upon

       my family.” (Tr. at 38.) Townsend told Officer Scotkowski “that he would kill

       me, he was going to kill my family. And then hoping my mom and my dad

       die.” (Tr. at 39-40.) While being transported to jail in the patrol car, Townsend

       repeated his threats, demanding the officers’ full names, saying he would kill

       Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016   Page 5 of 6
       “you honkies” and would “be on the news.” (Ex. 1.) A reasonable jury could

       conclude that Townsend’s statements were intended to put Officer Scotkowski

       in fear for his safety.


[15]   We turn now to whether a jury could reasonably conclude that Officer

       Scotkowski’s fear for his safety was reasonable. Scotkowski testified that his

       concern for his safety was not related to whether Townsend would at that

       moment cause him harm, but rather was focused on “down the road and when

       I’m off duty.” (Tr. at 48.) Officer Howard, Officer Scotkowski’s training

       officer, stated that he, too, took the threats seriously because they were outside

       of the realm of the abusive language he had encountered in his five years as a

       police officer. Officer Howard noted in particular that Townsend’s threats

       against family members and Townsend’s claim that “he was going to kill us and

       that he was going to be on TV” were particularly out of the ordinary. (Tr. at

       73.) We cannot say that, under the circumstances, there was insufficient

       evidence from which a jury could conclude that Officer Scotkowski’s fear was

       objectively reasonable, and we accordingly adhere to the jury’s verdict. See

       Myers, 27 N.E.3d at 1071-72.


[16]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




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