Holloway v. State , 2016 Ind. App. LEXIS 45 ( 2016 )

CRONE, Judge.

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[*]ek [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 Stits-worth 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 Stits-worth, “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.

[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 form inferences as to each material element of the offense.” Naas v. State, 993 N.E.2d 1151, 1152 (Ind.Ct.App.2013).

[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[*]ek [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-l(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[J” Ind.Code § 35-45-2-1(c)(1).

[7] The gist of Holloway’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 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 injure¹ 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 Brewing-ton based on the number of statements that Brewington made and the period of time over which he made them.