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.
Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016 Page 3 of 6 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
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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.
Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016 Page 3 of 6 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.
Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-691 | January 20, 2016 Page 6 of 6