Michael Reid v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Dec 30 2016, 6:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth A. Johnson Gregory F. Zoeller
Suzy D. St. John Attorney General of Indiana
Marion County Public Defender
Larry D. Allen
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Reid, December 30, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-429
v. Appeal from Marion Superior Court.
The Honorable Stanley Kroh,
Magistrate.
State of Indiana, Cause No. 49G15-1503-F6-8251
Appellee-Plaintiff.
Garrard, Senior Judge
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[1] Following a jury trial, Michael Reid was convicted of one count of
1 2
intimidation as a Class A misdemeanor, and one count of harassment as a
Class B misdemeanor. Judgment of conviction and sentencing was entered on
only the conviction for misdemeanor intimidation. Reid appeals, contending
that there is insufficient evidence to support his intimidation conviction, that
the trial court abused its discretion by instructing the jury on harassment as a
lesser-included offense, and that the trial court abused its discretion in the
manner in which it ordered Reid to pay costs and fees. We affirm in part, and
reverse and remand in part with instructions.
[2] Reid, a veteran, worked as the secretary for Michael Rilenge at the Veterans
Affairs Medical Center in Indianapolis from 2007 to 2010. Rilenge described
Reid as a good employee to whom other workers turned in order to accomplish
goals and whose behavior was very pleasant, initially. However, Rilenge
observed that Reid’s demeanor changed a couple of months prior to Reid’s
voluntary resignation from that position in the spring of 2010, after a routine
audit of employee transactions revealed that Reid had inappropriately used his
government travel credit card for purchases at Walmart and Walgreens. As
Reid’s supervisor, Rilenge was required to sign off on Reid’s suspension for this
conduct, even though Rilenge had not discovered or reported the conduct.
1
Ind. Code § 35-45-2-1 (2014).
2
Ind. Code § 35-45-2-2 (1996).
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[3] Rilenge was fully aware that Reid was seeking government employment
elsewhere. Reid ultimately resigned from his position as Rilenge’s secretary at
the Veterans Affairs Medical Center in May 2010. At some point that spring,
Rilenge received a telephone call from someone at the U.S.D.A. asking for a
reference for Reid’s performance during the application process. Rilenge
described his recommendation of Reid as a “good reference.” Tr. p. 47.
[4] The first communication initiated by Reid to Rilenge after Reid left his job at
the Veterans Affairs Medical Center was on June 2, 2010, when Reid
telephoned Rilenge’s work telephone number. Rilenge described Reid’s
demeanor as very angry and upset, with Reid contending that Rilenge was
messing with his paycheck and stating that Reid was “coming for” Rilenge. Id.
at 48. After Rilenge replied that he had nothing to do with Reid’s final
paycheck, Reid hung up the telephone. Rilenge reported the substance of the
telephone call in writing to the director, who then reported the incident to
Veterans Affairs Medical Center Police. The Director of the Veterans Affairs
Medical Center at that time was Thomas Mattice.
[5] Nothing further transpired until Rilenge received an email at his government-
issued email address from Michael.EReid@IRS.gov on August 16, 2013, over
three years later. The subject line of that email read, “I hope you know that it’s
not over.” Id. at 53. The text of the email read, “I am still coming for you. . . .
spineless coward. It will never be over. . . . . Vengeance is mine Punk. Don’t
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3
think I’ve Faded away.” Id. The signature block read, “Thank You and Have
A Great Day! ‘A person’s Character is measured by how they react to
Pressured Situations.’ Mike Reid.” Id.; State’s Ex. 1. Rilenge did not respond
to the email, but forwarded it to the director, and it was subsequently reviewed
by Veterans Affairs Medical Center Police.
4
[6] The next contact initiated by Reid was an email to Rilenge’s work-issued email
address from the same IRS email address on October 23, 2014, over a year after
the last email. Tr. pp. 56-58; State’s Ex. 2. The email, which was initially sent
to United States Senator Dan Coats and various others at the Department of
Veterans Affairs, read in pertinent part as follows about an EEOC claim Reid
had filed:
[T]he lack of candor, morals, and principles among leadership
caused me to look for employment elsewhere.
The retaliatory adverse actions initiated by Michael Rilenge[ . .
.], have ruined my life[.]
I initially had an interagency transfer to USDA, I had a start date
of May 24, 2010. [ ]My Veterans Administration First Line
supervisor sabotaged that position by calling the Manager I
would’ve began working for at USDA. The position was
rescinded the day I cleared Veterans Administration May 19th
2010. This made my interagency transfer become Null & Void.
3
This document was admitted with a limiting instruction to the jury that its admissibility was for the purpose
of potentially establishing motive, identity, or opportunity.
4
Reid admitted in a different proceeding in which Rilenge sought a protective order that he was the author of
the emails to Rilenge. The trial court limited any reference to the nature of the prior proceeding unless Reid
placed authorship of the emails at issue.
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This forced me to change the inter-agency transfer to a
constructional Discharge. In remarks in the SF-50, I specifically
stated I feared reprisal from supervisor & the Indianapolis
Medical Center Director.
The Indianapolis Veterans Health Administration’s Human
Resource Officer, Corey Baute removed my remarks and entered
employee offered no explanation for resignation.
Tr. pp. 56-58; State’s Ex. 2.
[7] The incidents of March 3, 2015, formed the basis for the charges filed against
5
Reid. On that date, Reid sent an email from his personal account to Rilenge’s
work-related email address, bearing the subject line, “YOU are still spineless.”
State’s Ex. 3. The body of the email read as follows:
I am still coming for YOU. It doesn’t matter how many times
you contact my agencies [sic] inspector [sic] General. It doesn’t
matter, it’ll be well worth losing this job to get to you.
AND Thomas Mattice
It’s far from over
Contact the police again while you’re at it.
Neither one of you hold ANY credibility
Id.
6
[8] Later that same day, Reid left a voicemail message for Rilenge at Rilenge’s
work number claiming that he was still coming to get Rilenge, but this time
5
This email was sent from dakurrupt69@gmail.com, but listed Michael Reid as the sender.
6
Attempts to save or forward the message in order to preserve it as evidence were unsuccessful due to system
upgrades.
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communicating that he knew where Rilenge lived. Rilenge was concerned for
the safety of his employees, himself, and his family.
[9] Also that day, the Chief of the Veterans Administration Police Department,
Brian Fogg, was advised of the progress in the investigation in the case by a
criminal investigator for police services at the Indianapolis Veterans Affairs
Medical Center, Officer Roman Hollwka. After the update, Chief Fogg, a
veteran with twenty-two years of active duty experience in the United States
Navy, decided to call Reid to discuss the controversy veteran-to-veteran. When
Chief Fogg identified himself as a police officer, Reid became angry and hung
up. Reid sent a follow-up email to Rilenge, which read as follows:
So THE vamc police calls me a few minutes ago, stating they will
contact my agencies [sic] inspector [sic] General and your
agencies [sic] inspector [sic] General if I send rilenge another
email.
So what, do what you have to DO. My agency inspector general
has already interviewed me twice already. Let’s make it three
times, I’ve heard it’s a charm
Michael Rilenge, Thomas Mattice You both are a joke. YOU
are scared to answer your phone, and will most likely ignore the
voicemail I left for you Rilenge
When I called the police service back, they say that no one from
the police service called me. I am too old for these games.
State’s Exhibits 4, 5.
[10] Later that same afternoon, Reid sent another email to Rilenge, which read
“F**k the chief of police at Indianapolis medical center too[.] Yeah Mr.
Foggs,[sic] you too[.] Get back on your segway mall cop[.]” State’s Exhibit 6.
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[11] Rilenge testified at trial that he was unsure why Reid was so angry with him but
that he considered each post-employment communication to be a personal
threat.
[12] On March 12, 2016, the State charged Reid with two counts of intimidation;
one for the email communication, and one for the telephone call. The charges
were amended to misdemeanor counts prior to trial, and Reid declined the
State’s offer of a diversion agreement. After the State’s case, Reid moved for a
directed verdict, alleging the State had failed to prove a prior lawful act. The
trial court denied the motion, noting, “I think it is somewhat of a close call but
the Court believes there is enough evidence in the record to survive a directed
verdict motion. That the Jury should be the fact finder here because there is
some evidence in the record.” Tr. p. 109. The State tendered proposed jury
instructions including Class B misdemeanor harassment as lesser-included
charges to each of the counts of intimidation. The trial court gave the
instructions. The jury returned verdicts of guilty as to one count of Class A
misdemeanor intimidation for the email and one count of Class B misdemeanor
harassment for the telephone call. The trial court entered a judgment of
conviction on only the conviction for intimidation for the email.
[13] Reid received a sentence of 343 days on probation. The trial court also imposed
court costs on Reid, and ordered the probation department to assess Reid for
mental health or anger management services and to determine program fees in
accordance with Reid’s ability to pay. The probation department set Reid’s
court costs at $183 and assessed a $100 public defender fee. Reid was also
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ordered to pay $320 in probation fees, comprised of a $50 administrative fee, a
$50 initial user fee, and a $20 per month user fee. Reid now appeals.
[14] First, Reid challenges the sufficiency of the evidence to support his conviction
for intimidation. Challenges to sufficiency of the evidence involve appellate
consideration of only the evidence and reasonable inferences most favorable to
the convictions, neither reweighing evidence nor reassessing witness credibility.
Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment
unless no reasonable factfinder could find the defendant guilty of the offense.
Id.
[15] Reid also implicitly argues that there is a fatal variance between the charging
information and the evidence adduced at trial, contending that the State failed
to establish a prior lawful act matching the allegations in the charging
information. As stated by our Supreme Court, “because the charging
information advises a defendant of the accusations against him, the allegations
in the pleading and the evidence used at trial must be consistent with one
another.” Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). While a variance is
an essential difference between the two, not all variances are fatal. Id. For a
defendant to be awarded relief for a variance, the variance must have (1) misled
the defendant in preparing a defense, resulting in prejudice, or (2) left the
defendant vulnerable to future prosecution under the same evidence. Id.
[16] Before we resolve the issue whether there was a fatal variance between the
proof at trial and the charging information, we must first determine whether
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there is sufficient evidence to support Reid’s conviction of intimidation as a
Class A misdemeanor. See Daniels v. State, 957 N.E.2d 1025 (Ind. Ct. App.
2011) (first determined sufficient evidence that defendant used weapon and then
determined no fatal variance that information instead charged defendant drew
weapon).
[17] The statute describes intimidation as follows: “A person who communicates 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) (2014). The
charging information read as follows:
On or about March 3, 2015, Michael Reid did communicate a,
[sic] implied threat to commit a forcible felony, to-wit: a threat
contained in an email to Michael Rilenge stating that he was
“coming for” Michael Rilenge and that it would be worth losing
his job to “get to you”, meaning Michael Rilenge, with the intent
that Michael Rilenge be placed in fear of retaliation for a prior
lawful act, to-wit: Michael Rilenge providing a report of Michael
Reid’s work performance as his supervisor prior to Michael
Reid’s removal from employment at the Veteran’s
Administration Medical Center[.].
Appellant’s App. p. 20.
[18] Reid contends that the State failed to introduce evidence that Rilenge “provided
a report” of Reid’s “work performance,” or that the report was provided before
Reid’s “removal from employment.” Reid, however, was aware during pre-trial
preparation, arguments of counsel, and rulings of the trial court, that his prior
emails would be admissible at trial. Those emails revealed that Reid was upset
because Mattice discovered his improper use of work-related credit cards, and
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Rilenge signed off on the discipline for that impropriety and responded to a
request for a reference from a manager at the U.S.D.A., both lawful acts
occurring prior to Reid’s resignation from his position. Preparation and
maintenance of Reid’s defense was not misled by the imprecise wording of the
charging information, nor did it lead to harm or prejudice, or vulnerability to
future prosecution for the same charges.
[19] Here the jury determined that the State had not proven intimidation with
respect to Count II and entered a guilty verdict on the offense of harassment.
However, the trial court vacated the conviction on Count II. Therefore, any
abuse of discretion with respect to giving the instruction as to Count II is
harmless error.
[20] Reid also argues the trial court erred by failing to determine his ability to pay
prior to imposing costs and fees as part of his sentence. Initially, the trial court
also imposed a $50 fine, but then vacated it. Although the trial court heard
evidence with respect to Reid’s qualification for appointed appellate counsel, no
evidence was heard regarding Reid’s ability to pay costs and fees.
[21] The trial court stated that “under the circumstances the Court would direct
Probation to assess the program fees on a sliding scale.” Tr. p. 156. The trial
court’s written sentencing order reflected no court costs and fees. Sentencing
Order pp. 1-2. A case transactions summary prepared for Reid’s sentencing
showed that he was being assessed $603.00 in fees. Appellant’s Appendix, Vol.
II., pp. 104-05.
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[22] “Sentencing decisions, which include the imposition of fees, costs, and fines,
are generally left to the trial court’s discretion.” Henderson v. State, 44 N.E.3d
811, 814 (Ind. Ct. App. 2015). The Supreme Court has held that “a defendant’s
financial resources are more appropriately determined not at the time of initial
sentencing but at the conclusion of incarceration, thus allowing consideration of
whether the defendant may have accumulated assets through inheritance or
otherwise.” Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002).
[23] Reid’s conviction was for a misdemeanor offense and he was placed on
probation. With respect to fees, Indiana Code section 35-38-2-1(e) (2012)
provides that a court may order each person convicted of a misdemeanor to
pay: (1) not more than a $50 initial probation user’s fee; (2) a monthly
probation user’s fee of not less than $10 nor more than $20 for each month that
the person remains on probation; (3) costs of laboratory tests; and (4) an
administrative fee of $40 to the probation department or the clerk.
[24] Here, the probation department, as directed by the trial court, determined that
Reid should pay various fees and costs. The only fee that does not appear to
comport with the fee parameters set forth by statute is the supplemental public
defender fee. Appellant’s Appendix p. 104. The State agrees that the public
defender fee for a felony conviction is $100 and the public defender fee for a
misdemeanor conviction is $50. Id. at 101. The probation department’s
calculation is $100. Id. at 104. Although the offenses were originally charged
as felonies, the charges were amended and the conviction was for a
misdemeanor. Therefore, we must remand this matter to the trial court to
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correct the calculation and assess the fee at the misdemeanor conviction rate.
Furthermore, pursuant to Indiana Code section 35-33-7-6 (2004), an indigency
finding must be done when a person requests assigned counsel, prior to the
imposition of the fee, and the indigency finding may be reviewed at any time
during the proceedings. See Berry v. State, 950 N.E.2d 798, 799-800, 802 (Ind.
Ct. App. 2011).
[25] With respect to probation fees, we have held that a trial court acts “within its
authority when it chooses to wait and see if a defendant can pay probation fees
before it finds the defendant indigent.” Johnson v. State, 27 N.E.3d 793, 795
(Ind. Ct. App. 2015) (citing Ind. Code ch. 35-38-2). However, the trial court
has a duty to conduct an indigency hearing, at the latest upon the completion of
the defendant’s sentence. Id. When the trial court imposes costs on a
defendant, Indiana Code section 33-37-2-3 (2007), explicitly sets forth the
timing of the hearings to determine indigency.
[26] In summary, we affirm Reid’s conviction, but reverse and remand to the trial
court the public defender fee calculation for correction and determination of
Reid’s ability to pay. As for the probation fees and other costs imposed, the
trial court must determine Reid’s ability to pay, at the latest, at the completion
of his sentence.
[27] Affirmed in part, reversed and remanded in part with instructions.
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Bailey, J., and Altice, J., concur.
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