MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 07 2016, 9:37 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick J. Smith Gregory F. Zoeller Bedford, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Omega R. McCullagh, December 7, 2016 Appellant-Defendant, Court of Appeals Case No. 59A01-1604-CR-735 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Larry R. Blanton, Appellee-Plaintiff. Judge Trial Court Cause No. 59C01-1512-F5-813
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 1 of 19 Case Summary and Issues [1] Following a jury trial, Omega McCullagh was convicted of battery against a
public safety official, a Level 5 felony; intimidation, a Level 6 felony; and three
counts of resisting law enforcement, one as a Level 6 felony and two as Class A
misdemeanors. McCullagh now appeals, raising several issues for our review,
which we restate as: (1) whether the trial court abused its discretion in denying
his motion to discharge appointed counsel and counsel’s subsequent motion to
withdraw; (2) whether his battery and resisting law enforcement convictions
violate the prohibition against double jeopardy; (3) whether his three
convictions of resisting law enforcement violate the continuing crime doctrine;
and (4) whether there was sufficient evidence to support his conviction of
intimidation. Concluding the trial court did not abuse its discretion in denying
McCullagh’s or his appointed counsel’s motions, that his convictions of both
battery and resisting law enforcement do not violate the prohibition against
double jeopardy, and that there is sufficient evidence to support his conviction
of intimidation, we affirm in part. However, because we conclude his multiple
convictions of resisting law enforcement violate the continuing crime doctrine,
we reverse in part and remand with instructions for the trial court to vacate
McCullagh’s Class A misdemeanor convictions of resisting law enforcement.
Facts and Procedural History [2] Around 9:00 a.m. on December 14, 2014, Crawford County Sheriff’s Deputy
Debra Young responded to a report of a car accident. When she arrived at the
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 2 of 19 scene, she observed a vehicle that had been driven over the embankment and
crashed into a tree. The driver, later identified as McCullagh, was still in the
driver’s seat with the car running. Deputy Young saw McCullagh exit the
vehicle and walk up the embankment. She observed McCullagh walk
unsteadily and smelled the odor of alcohol. The only injury sustained by
McCullagh was a cut on his face, which was bleeding. After McCullagh
refused field sobriety testing, Deputy Young placed him under arrest for
operating a vehicle while intoxicated and transported him to the Crawford
County Jail. On the way to the jail, McCullagh became verbally abusive and
began making threats to Deputy Young. He told her “he was going to get to
know [her] family real well,” and that he was a “very good investigator.”
Transcript at 148. He also tried to remove his restraints. By the time Deputy
Young arrived at the jail, McCullagh “had the seat belt off and had the cuffs
locked underneath the backs of this [sic] thighs and couldn’t straighten up.” Id.
[3] At the jail, the Sheriff instructed Deputy Young to have McCullagh medically
cleared before he was processed and held by the jail. Deputy Young then
transported McCullagh to Indiana University Health Hospital in Paoli, Indiana.
McCullagh continued to be verbally abusive for the duration of the transport,
forcing Deputy Young to take the precautionary measure of requesting that the
Paoli Police Department provide two officers to assist her at the hospital.
When Deputy Young arrived at the hospital, she was assisted by Paoli police
officers Cody Hill and Brandon Mesarosh.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 3 of 19 [4] At the hospital, McCullagh continued to yell and verbally abuse the officers.
For almost thirty minutes, McCullagh continuously and disruptively asserted
his constitutional rights were being violated, the deputies had no right to be in
his hospital room under federal law, and demanded a federal marshal be
present in his room. He also became argumentative and refused to allow the
nurses to provide medical treatment, forcing the doctor to give him an
ultimatum: let the nurses treat the injury, or be sedated. Ultimately, the doctor
decided the only way they could treat McCullagh’s injury was if he was
sedated. In order to sedate him, the nurse needed to administer a shot,
requiring the officers to restrain McCullagh. Officer Mesarosh and Deputy
Young each grabbed one of McCullagh’s arms, while Officer Hill restrained his
legs. McCullagh screamed, yelled, and twisted his body in an attempt to fight
off the officers. He continuously struggled to “[sit] up when [Officer Mesarosh]
was trying to hold him down,” id. at 184, and at one point he was able to sit up
and “punched [Officer Hill] with a closed fist in [his] arm,” id. at 194.
McCullagh also used his legs to struggle with Officer Hill and “kicked [Officer
Hill] in the groin several times.” Id. at 191. While McCullagh was struggling,
his leg shackles became wrapped around Officer Hill’s arm and caused several
scratches and “peeled the skin off a little bit.” Id. at 192. After the nurse
administered the shot, McCullagh once again began to verbally abuse the
officers, telling Officer Mesarosh he would “get[] to know his family and his
kids,” id. at 156, 181, and “your house will be foreclosed, you are going to be
without a job, you will be working at McDonalds,” id. at 122-23. Eventually,
the medication sedated McCullagh and the nurses were able to treat his injury. Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 4 of 19 [5] The State charged McCullagh with Count I, battery against a public safety
officer, a Level 5 felony; Count II, resisting law enforcement, a Level 6 felony;
Count III and Count IV, resisting law enforcement, Class A misdemeanors; and
Counts V, VI, and VII, intimidation, Level 6 felonies. The trial court found
McCullagh to be indigent and appointed a public defender to represent him,
with his jury trial initially scheduled for May 19, 2015. McCullagh’s initial
public defender declined the appointment on January 7, 2015, and on January
16, 2015, the trial court appointed McCullagh two alternative public defenders.
McCullagh’s new counsel moved for a continuance on April 30, 2015, which
the trial court granted. The new trial date was scheduled for September 22,
2015. On September 22, 2015, for reasons not entirely clear from the record,
the parties’ briefs, or the Chronological Case Summary, the trial was not held.
McCullagh’s counsel moved for another continuance on October 6, 2015,
extending the trial date to January 26, 2016.
[6] On the morning of trial, McCullagh asked the trial court to dismiss his public
defenders on the grounds of improper representation. The trial court denied his
motion to dismiss his public defenders and the case proceeded to trial. A jury
found McCullagh guilty of Counts I, II, III, IV, and VI and the trial court
entered judgment of conviction on those counts. Prior to sentencing,
McCullagh’s counsel filed a motion to withdraw, which the trial court did not
grant until the sentencing hearing was complete. The trial court sentenced
McCullagh to five years executed on Count I, battery against a public safety
official; one year executed on Count II, resisting law enforcement; one year
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 5 of 19 executed on Count III, resisting law enforcement; one year executed on Count
IV, resisting law enforcement; and one year executed on Count VI,
intimidation. The trial court ordered Counts I, II, III, and VI to be served
concurrently; and ordered Count IV to be served consecutively to Counts I, II,
III, and VI. The aggregate sentence imposed was six years executed.
McCullagh now appeals.
Discussion and Decision I. Right to Counsel A. Motion to Discharge Appointed Counsel [7] The Sixth Amendment guarantees a criminal defendant’s right to have the
assistance of counsel for his defense. Lewis v. State, 730 N.E.2d 686, 688 (Ind.
2000). However, the right to counsel in a criminal proceeding does not mean
the defendant has an absolute right to be represented by counsel of his own
choosing. Smith v. State, 474 N.E.2d 973, 97-9 (Ind. 1985). “A trial court may,
in the exercise of its sound discretion, deny a defendant’s request for a new
court appointed attorney.” McBride v. State, 992 N.E.2d 912, 917 (Ind. Ct. App.
2013), trans. denied. Such a ruling is reviewable only for an abuse of discretion.
Id. A defendant may not arbitrarily compel a trial court to discharge competent
appointed counsel. Luck v. State, 466 N.E.2d 450, 451 (Ind. 1984).
[8] McCullagh first argues the trial court abused its discretion in denying his
motion to discharge counsel. Specifically, he contends his request for new
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 6 of 19 counsel was not arbitrary, but based on valid complaints regarding his counsel’s
deficiencies. We disagree.
[9] On the morning of trial, the trial court gave McCullagh the opportunity to voice
his grievances about his appointed counsel. McCullagh raised several
complaints, asserting his counsel did not notify him of the vacated trial date or
obtain his consent to a continuance.1 Further, he asserted, “I have asked her to
go for dismissals and to look into constitutional rights violations which she has
failed to do.” Tr. at 33. We note other than making bald assertions of
constitutional rights violations, McCullagh does not specify what constitutional
violations were present that his counsel failed to investigate. After hearing
McCullagh’s complaints, the trial court informed McCullagh, “you have an
attorney, you have two attorneys who are present. They are competent
attorneys. Just because you don’t agree with strategy is of no import. . . .
[Y]ou have had over a year to petition the Court or to employ an attorney. You
did neither.” Id. at 38-39. Under the circumstances and based on the record,
we cannot say the trial court’s refusal to appoint new attorneys was an abuse of
discretion. The trial court considered McCullagh’s complaints about his
appointed counsel and found them to be without merit. Moreover, it is well
1 As noted above, the record is unclear why the trial date was extended. McCullagh’s October 6, 2015 motion for a continuance asserts “[d]iscovery for this case is still ongoing,” Appellant’s Appendix at 176; however, the trial court indicated the trial date may have been vacated due to the trial judge’s unavailability, tr. at 32-33. Regardless, the grant or denial of a continuance is reviewed for an abuse of discretion, Davis v. State, 487 N.E.2d 817, 820 (Ind. 1986), and McCullagh does not argue the trial court abused its discretion in granting the October 6, 2015 continuance.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 7 of 19 within a trial court’s discretion to deny a last-minute request for new counsel or
to proceed pro se. See Lewis, 730 N.E.2d at 689-90; Smith, 474 N.E.2d at 979.
B. Motion to Withdraw [10] McCullagh also contends the trial court abused its discretion in effectively
denying his appointed counsel’s motion to withdraw before sentencing. The
decision whether to allow counsel to withdraw is within the trial court’s
discretion, and we will reverse only “when denial constitutes a clear abuse of
discretion and prejudices the defendant’s right to a fair trial.” Strong v. State,
633 N.E.2d 296, 300 (Ind. Ct. App. 1994). A trial court may refuse a motion to
withdraw if it determines withdrawal will result in a delay in the administration
of justice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Further, a defendant
must demonstrate that he was prejudiced before we may reverse on this issue.
Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App. 2011), trans. denied.
[11] Indiana Code section 35-36-8-2(b) provides that a trial court shall allow counsel
for the defendant to withdraw from the case if there is a showing that:
(1) counsel for the defendant has a conflict of interest in continued representation of the defendant;
(2) other counsel has been retained or assigned to defend the case, substitution of new counsel would not cause any delay in the proceedings, and the defendant consents to or requests substitution of the new counsel;
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 8 of 19 (3) the attorney-client relationship has deteriorated to a point such that counsel cannot render effective assistance to the defendant;
(4) the defendant insists upon self representation and the defendant understands that the withdrawal of counsel will not be permitted to delay the proceedings; or
(5) there is a manifest necessity requiring that counsel withdraw from the case.
[12] McCullagh’s counsel filed their motion to withdraw on February 24, 2016,
around one month after his trial and two weeks before his sentencing hearing.
The motion alleged a “complete breakdown in the attorney client relationship”
and a significant inability to communicate with McCullagh. Appellant’s App.
at 22. The trial court refused to hear or grant the motion until after sentencing
was complete. Nonetheless, McCullagh has failed to demonstrate how he was
prejudiced at sentencing by counsel’s continued representation. McCullagh
does not argue the relationship deteriorated to a point at which his counsel
could not render effective assistance. See Ind. Code § 35-36-8-2(b)(3). In fact,
his counsel continued with the hearing and argued in his favor, requesting the
trial court sentence him to the minimum statutory sentences and suspend them
to probation. Moreover, McCullagh points to no errors committed by counsel
at the sentencing hearing, and he does not allege how granting the motion
would have affected the sentencing outcome in his favor.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 9 of 19 [13] We further note when McCullagh’s appointed counsel filed their motion to
withdraw, the case had been pending on the trial court’s docket for almost
fourteen months, and only the sentencing hearing remained. Permitting
counsel to withdraw their appearance at such a late stage would further delay
the administration of justice, and the trial court was within its discretion to
refuse to rule on it. See Schmid v. State, 804 N.E.2d 174, 178 (Ind. Ct. App.
2004) (finding that the defendant failed to exercise her right to counsel of choice
at the appropriate stage of the proceeding and noting that it is generally neither
appropriate nor advisable to hire new counsel for a case that has been pending
for seventeen months), trans. denied.
[14] Accordingly, we cannot say that the trial court abused its discretion in
effectively denying the motion to withdraw filed by McCullagh’s appointed
counsel. See Bronaugh, 942 N.E.2d at 829-30 (holding the trial court did not
abuse its discretion in denying the motion to withdraw filed by defendant’s
counsel).
II. Double Jeopardy [15] McCullagh next argues his convictions on Count I, battery against a public
safety officer, and Count II, resisting law enforcement, violate the state
constitutional prohibition against double jeopardy. Specifically, he argues
because both charges stem from “one continuous incident” in the hospital
room, there is a “reasonable possibility that the jury used the same facts to
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 10 of 19 establish the essential elements of both battery and resisting.” Brief of
Appellant at 31.
[16] Article 1, Section 14 of the Indiana Constitution provides, “No person shall be
put in jeopardy twice for the same offense.”
[T]wo or more offenses are the “same offense” in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.
Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in
original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We
review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766
(Ind. Ct. App. 2015).
[17] McCullagh contends his convictions of battery against a public safety official
and resisting law enforcement as a Level 6 felony violate double jeopardy and
he confines his argument to the actual evidence test. Under the actual evidence
test, we examine the actual evidence presented at trial to determine whether
each challenged offense was established by separate and distinct facts. Curry v.
State, 740 N.E.2d 162, 166 (Ind. Ct. App. 2000), trans. denied. To prove a
violation of the actual evidence test, a defendant must show “a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.” Smith v. State, 872 N.E.2d Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 11 of 19 169, 176 (Ind. Ct. App. 2007) (quoting Richardson, 717 N.E.2d at 53), trans.
denied. In determining whether there is a reasonable possibility the jury used
the same evidentiary facts in convicting a defendant of two separate crimes, we
require substantially more than a logical possibility. Lee v. State, 892 N.E.2d
1231, 1236 (Ind. 2008). Double jeopardy is not violated when the evidentiary
facts establishing the essential elements of one offense also establish only one or
even several, but not all, of the essential elements of a second offense. Smith,
872 N.E.2d at 176 (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).
[18] Here, the offense of battery requires proof that McCullagh knowingly or
intentionally touched another person in a “rude, insolent, or angry manner.”
Ind. Code § 35-42-2-1(b)(1) (2014). The touching is a Level 5 felony if it results
in bodily injury to a public safety official. Ind. Code § 35-42-2-1(f)(5)(A) (2014).
The evidence at trial showed that McCullagh kicked Officer Hill in the groin
multiple times, causing him pain. This evidence, as argued by the prosecutor in
closing arguments, supported his battery conviction.
[19] The offense of resisting law enforcement requires proof that McCullagh
knowingly or intentionally “forcibly resist[ed], obstruct[ed], or interfere[d] with
a law enforcement officer or a person assisting the officer while the officer [was]
lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-44.1-
3-1(a)(1). The offense is a Level 6 felony if it causes bodily injury to another
person. Ind. Code § 35-44.1-3-1(b)(1)(B). In addition to being kicked in the
groin, the State produced uncontroverted evidence McCullagh punched Officer
Hill’s arm and used his leg shackles to scratch Officer Hill while he was lawfully
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 12 of 19 engaged in the execution of his duties, causing bodily injury to Officer Hill.
This evidence is sufficient to support his conviction of resisting law
enforcement. While it is theoretically possible the jury used the same fact
(kicking Officer Hill in the groin) to support the bodily injury element of each
charge, we do not think McCullagh has met his burden of demonstrating
“substantially more than a logical possibility.” Lee, 892 N.E.2d at 1236.
Further, the fact the crimes occurred simultaneously is not dispositive in the
Richardson actual evidence analysis. Hardley v. State, 893 N.E.2d 1140, 1145
(Ind. Ct. App. 2008), summarily aff’d on this ground, 905 N.E.2d 399, 404 (Ind.
2009). The only question is whether there is a reasonable possibility the fact-
finder relied on the same evidentiary facts to support the two convictions, and
we conclude here there is not. Therefore, McCullagh’s convictions of battery
and resisting law enforcement do not violate double jeopardy.
III. Continuing Crime Doctrine [20] McCullagh next challenges his three convictions of resisting law enforcement.
Specifically, he contends his convictions violate the continuing crime doctrine,
which prohibits multiple charges for the same crime where the “defendant’s
conduct amounts only to a single chargeable crime.” Hines v. State, 30 N.E.3d
1216, 1219 (Ind. 2015) (citation omitted).
[21] McCullagh points to Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990), in
which this court observed a defendant cannot be held liable for more than one
count of resisting law enforcement, regardless of the number of officers
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 13 of 19 involved, if the charges stem from a single event. As the Armstead court
observed, resisting law enforcement is a crime against the State of Indiana and
law enforcement authority, rather than any particular person. 549 N.E.2d at
401. “It is the act of resisting duly constituted authority which the statute
prohibits, not resisting individual representatives of that authority.” Id.
[22] In Armstead, the defendant, who had approached officers who were questioning
his brother, retreated from an officer, shouted obscenities at him, and assumed
a threatening stance. When the officer indicated he needed to speak to the
defendant, the defendant appeared confrontational and prepared to flee. A
second officer informed the defendant he would be placed under arrest if he did
not calm down, causing the defendant to back into a chain link fence and
continue to yell. This second officer told the defendant he was under arrest and
ordered him to turn around, which the defendant refused to do, so the second
officer tried to turn him around. At this point the defendant punched a third
officer in the face, causing a struggle with all three officers. The defendant was
convicted of Class D felony resisting law enforcement with respect to the third
officer and Class A misdemeanor resisting law enforcement with respect to the
first and second officers. This court reversed the defendant’s misdemeanor
convictions, concluding the defendant had received three convictions based
upon a “single affray with the police.” Id. at 402.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 14 of 19 [23] In response, the State directs us to Williams v. State, 755 N.E.2d 1183, 1186
(Ind. Ct. App. 2001).2 In Williams, we held that “[a] defendant may be
convicted of multiple counts of resisting law enforcement when he has
committed more than one of the acts enumerated under [the resisting law
enforcement statute].” Id. Therefore, we upheld the defendant’s two
convictions of resisting law enforcement—one of which involved the
defendant’s act of fleeing from officers and the other of which involved the
defendant’s infliction of bodily injury upon the officers when they caught him.
Id.; cf. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015) (recognizing the
act of fleeing by vehicle and then by foot constitute one continuous act of
resisting law enforcement).
[24] McCullagh argues that, like in Armstead, he had a “single affray” with the
police. The State responds by asserting McCullagh’s struggle with the police in
the hospital and his act of attempting to remove his restraints in the police
vehicle constitute separate incidents of resisting arrest. We disagree that
McCullagh’s attempts to remove his restraints constitute “forcible resistance.” 3
See Macy v. State, 9 N.E.3d 249, 254 (Ind. Ct. App. 2014) (holding defendant’s
2 The State also points to Whaley v. State, 843 N.E.2d 1, 14 (Ind. Ct. App. 2006), trans. denied. However, this court decided Whaley on double jeopardy grounds, and therefore it is not relevant to the continuing crime issue raised by McCullagh. See Hines v. State, 30 N.E.3d at 1219. 3 As noted above, the State alleged three separate counts of resisting law enforcement, one felony count and two misdemeanor counts. To prove McCullagh violated the statute, the State had to prove he knowingly or intentionally “forcibly resist[ed], obstruct[ed], or interfere[d] with a law enforcement officer . . .” Ind. Code § 35-44.1-3-1(a)(1) (emphasis added).
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 15 of 19 actions of opening the door of the police car and refusing to place her feet inside
the vehicle did not constitute acts of forcible resistance, as required to support
conviction of resisting law enforcement). Further, there is no allegation by the
State that McCullagh committed separate enumerated acts under the statute,
and neither Deputy Young nor Officer Mesarosh testified they were injured by
McCullagh’s conduct.
[25] The instant case is substantially similar to Armstead. In the hospital room, three
officers lawfully attempted to restrain McCullagh so the nurse could administer
medication. In response, McCullagh yelled, twisted his body, pulled away,
kicked his feet, and attempted to sit up. This was a single incident and, as such,
McCullagh’s three convictions of resisting law enforcement cannot stand.
Based on Armstead, McCullagh should be “answerable for the greatest harm
stemming from that single incident.” 549 N.E.2d at 402. With respect to the
three resisting law enforcement convictions, the felony represents the greatest
harm McCullagh committed. Accordingly, we reverse McCullagh’s two
misdemeanor convictions for resisting law enforcement.
IV. Sufficiency of the Evidence [26] Finally, McCullagh asserts the evidence is insufficient to support his conviction
of intimidation. In reviewing sufficiency of the evidence claims, this court does
not reweigh evidence or judge witness credibility. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). “We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from such
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 16 of 19 evidence.” Id. (citation omitted). This court will affirm if there is substantial
evidence of probative value such that a reasonable jury could have concluded
the defendant was guilty beyond a reasonable doubt. Id.
[27] To convict McCullagh of intimidation, the State had to prove beyond a
reasonable doubt he communicated 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). Intimidation is a Level 6 felony if the person to whom
the threat is communicated is a law enforcement officer. Ind. Code § 35-45-2-
1(b)(1)(B)(i). McCullagh argues the words he communicated to Officer
Mesarosh that he would “get[] to know his family and his kids” do not
constitute a threat, tr. at 156; rather, he contends the statement asserted he
would “vigorously pursue lawful remedies against Mesarosh for unlawful
detention or violation of rights,” Br. of Appellant at 36. “Threat” is defined, in
pertinent part, as “an expression, by words or action, of an intention to . . .
unlawfully injure the person threatened or another person, or damage
property.” Ind. Code § 35-45-2-1(d)(1).
[28] 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), the defendant, after
being arrested by a police officer, told the officer he would “get” the officer and
his family “[n]o matter how long it takes me, I will get you.” Id. at 90. This
court held that the jury could have reasonably concluded that by those words,
the defendant communicated a threat to the officer. Id. at 91.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 17 of 19 [29] In Earlywine v. State, 847 N.E.2d 1011 (Ind. Ct. App. 2006), the defendant
communicated to people inside a home that they would “get it” if they stood
between him and his wife. Id. at 1012. This court affirmed the intimidation
conviction, holding there was sufficient evidence the defendant communicated
a threat. This court stated that “threats of potential, nonspecific violence” can
support the threat element of intimidation. Id. at 1014-15.
[30] We find McCullagh’s communications with Officer Mesarosh in this case to be
similar to the communications found to constitute threats in Townsend and
Earlywine. Given the surrounding circumstances and the context of
McCullagh’s communication, the jury could reasonably infer by his statement
he would “get[] to know [Officer Mesarosh’s] family and his kids,” that
McCullagh was threatening physical harm to the officer’s family. Tr. at 156.
Therefore, there was sufficient evidence to support McCullagh’s conviction of
intimidation.
Conclusion [31] The trial court did not abuse its discretion in denying McCullagh’s or his
appointed counsel’s motions regarding counsel’s continued representation.
Further, McCullagh’s convictions of battery and resisting law enforcement do
not violate double jeopardy, and there is sufficient evidence to support his
conviction of intimidation. However, McCullagh’s multiple convictions of
resisting law enforcement violate the continuing crime doctrine. We therefore
affirm in part, reverse in part, and remand with instructions for the trial court to
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 18 of 19 vacate McCullagh’s Class A misdemeanor convictions of resisting law
enforcement.
[32] Affirmed in part, reversed in part, and remanded.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 59A01-1604-CR-735 | December 7, 2016 Page 19 of 19