FILED Apr 21 2016, 8:30 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Victor Roar, April 21, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-506 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Cook Appellee-Plaintiff. Crawford, Judge Trial Court Cause No. 49F09-1404-FD-18644
Najam, Judge.
Statement of the Case [1] Victor Roar appeals his conviction for intimidation, as a Class A misdemeanor,
following a bench trial. Roar presents two issues for our review:
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 1 of 11 1. Whether the State presented sufficient evidence to show that he communicated a threat with the intent to place his victim in fear of retaliation for a prior lawful act; and
2. Whether the trial court abused its discretion in the admission of certain evidence.
[2] We hold that the State presented sufficient evidence from which a reasonable
fact-finder could conclude that Roar had committed intimidation, and we are
not persuaded by Roar’s argument that the conditional language he used in the
communication of his threat obviates the State’s evidence of his intent to place
his victim in fear of retaliation for a prior lawful act. We also hold that any
error in the court’s admission of the evidence challenged on appeal was
harmless.
[3] Affirmed.
Facts and Procedural History [4] In 2014, Roar’s sister, Ametrua, rented an apartment that was managed by
Tracey Olive. On April 2, Roar was near Ametrua’s apartment when he saw
Olive serve an eviction notice on Ametrua. Roar knew that Ametrua had had
problems paying her rent, and Roar had previously interacted with Olive. He
considered Olive a “slumlord” and thought she had an “attitude.” Tr. at 149-
50. Roar saw Olive knock on Ametrua’s back door, and, when there was no
answer, he saw Olive roll up the eviction notice and place it in the door. Roar
immediately removed the eviction notice from Ametrua’s door. Id. at 149.
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 2 of 11 [5] When Olive turned around to leave, she heard Roar yelling at her. As Olive
later testified, Roar
told me I was bein[g] unprofessional, and . . . that . . . I should . . . go about my job a different way . . . . [A]nd then he basically told me I was a bitch. And . . . I said I’m just dropping the notice of claim [sic]. I’m not . . . here to do anything else. And then he threatened me. . . .
***
He called me a bitch and then told me that if I came back on the property[] he’d kill me.
Id. at 24-25.
[6] The State charged Roar with intimidation, as a Class D felony. After a bench
trial, the court found Roar guilty as charged but reduced his conviction to a
Class A misdemeanor. This appeal ensued.
Discussion and Decision Issue One: Sufficiency of the Evidence
[7] We first consider Roar’s argument that the State failed to present sufficient
evidence to show that he had committed intimidation of Olive. Our standard of
review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740
N.E.2d 109, 111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 3 of 11 [judgment]. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal
quotation marks omitted). To show that Roar committed intimidation, as a
Class A misdemeanor, the State was required to show, first, that Roar
“communicate[d] a threat” to Olive and, second, that he did so with the intent
that Olive “be placed in fear of retaliation for a prior lawful act.” Ind. Code §
35-45-2-1 (2013).
[8] A reasonable fact-finder could conclude that the State presented sufficient
evidence to support its charge of intimidation. Again, the first question under
the intimidation statute is whether Roar “communicate[d] a threat.” I.C. § 35-
45-2-1(a). Roar undoubtedly did this. He told Olive that, “if [she] came back
on the property, he’d kill” her. Tr. at 25. Thus, the State demonstrated that
Roar threatened Olive.
[9] The second, and independent, question under the statute is whether Roar’s
threat was made “with the intent . . . that [Olive] be placed in fear of retaliation
for a prior lawful act.” I.C. § 35-45-2-1(a)(2). The State demonstrated this as
well. Roar knew who Olive was and knew of his sister’s relationship to Olive,
including his sister’s failure to pay rent. Roar knew that Olive was serving an
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 4 of 11 eviction notice on his sister on April 2. And Roar’s threat occurred
immediately after he had observed Olive lawfully serve that eviction notice.
The fact-finder was free to conclude, considering the substantial evidence, that
Roar’s threat was in direct response to Olive’s lawful attempt to evict Roar’s
sister.
[10] Roar argues that, because he conditioned his threat to Olive on “if [she] came
back on the property,” any other evidence concerning whether he intended his
threat to place Olive in fear of retaliation for a prior lawful act is irrelevant. In
support of that analysis, Roar most notably cites C.L. v. State, 2 N.E.3d 798, 801
(Ind. Ct. App. 2014), trans. not sought, in which a majority panel of this court
categorically declared that “conditional” threats cannot demonstrate an intent
to place a victim in fear of retaliation for a prior lawful act. But we agree with
the dissenting opinion in C.L. and conclude that the majority in that case did
not correctly decide that question. See id. at 801-02 (Najam, J., dissenting). As
such, we are also not persuaded by Causey v. State, 45 N.E.2d 1239 (Ind. Ct.
App. 2015), trans. not sought, the only published opinion in Indiana to rely on
the majority’s reasoning in C.L.
[11] Under the reasoning of C.L. and Causey, no defendant can be convicted of
intimidation if he has the presence of mind to explicitly use conditional
language in the course of communicating his threat to another. But that is an
unreasonable interpretation of our intimidation statute. Threats are, by
definition, expressions of an intention to do a future thing, and, thus, to some
degree, all threats are conditional. See I.C. § 35-45-2-1(d). And once the facts
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FILED Apr 21 2016, 8:30 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Victor Roar, April 21, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-506 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Cook Appellee-Plaintiff. Crawford, Judge Trial Court Cause No. 49F09-1404-FD-18644
Najam, Judge.
Statement of the Case [1] Victor Roar appeals his conviction for intimidation, as a Class A misdemeanor,
following a bench trial. Roar presents two issues for our review:
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 1 of 11 1. Whether the State presented sufficient evidence to show that he communicated a threat with the intent to place his victim in fear of retaliation for a prior lawful act; and
2. Whether the trial court abused its discretion in the admission of certain evidence.
[2] We hold that the State presented sufficient evidence from which a reasonable
fact-finder could conclude that Roar had committed intimidation, and we are
not persuaded by Roar’s argument that the conditional language he used in the
communication of his threat obviates the State’s evidence of his intent to place
his victim in fear of retaliation for a prior lawful act. We also hold that any
error in the court’s admission of the evidence challenged on appeal was
harmless.
[3] Affirmed.
Facts and Procedural History [4] In 2014, Roar’s sister, Ametrua, rented an apartment that was managed by
Tracey Olive. On April 2, Roar was near Ametrua’s apartment when he saw
Olive serve an eviction notice on Ametrua. Roar knew that Ametrua had had
problems paying her rent, and Roar had previously interacted with Olive. He
considered Olive a “slumlord” and thought she had an “attitude.” Tr. at 149-
50. Roar saw Olive knock on Ametrua’s back door, and, when there was no
answer, he saw Olive roll up the eviction notice and place it in the door. Roar
immediately removed the eviction notice from Ametrua’s door. Id. at 149.
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 2 of 11 [5] When Olive turned around to leave, she heard Roar yelling at her. As Olive
later testified, Roar
told me I was bein[g] unprofessional, and . . . that . . . I should . . . go about my job a different way . . . . [A]nd then he basically told me I was a bitch. And . . . I said I’m just dropping the notice of claim [sic]. I’m not . . . here to do anything else. And then he threatened me. . . .
***
He called me a bitch and then told me that if I came back on the property[] he’d kill me.
Id. at 24-25.
[6] The State charged Roar with intimidation, as a Class D felony. After a bench
trial, the court found Roar guilty as charged but reduced his conviction to a
Class A misdemeanor. This appeal ensued.
Discussion and Decision Issue One: Sufficiency of the Evidence
[7] We first consider Roar’s argument that the State failed to present sufficient
evidence to show that he had committed intimidation of Olive. Our standard of
review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740
N.E.2d 109, 111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 3 of 11 [judgment]. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal
quotation marks omitted). To show that Roar committed intimidation, as a
Class A misdemeanor, the State was required to show, first, that Roar
“communicate[d] a threat” to Olive and, second, that he did so with the intent
that Olive “be placed in fear of retaliation for a prior lawful act.” Ind. Code §
35-45-2-1 (2013).
[8] A reasonable fact-finder could conclude that the State presented sufficient
evidence to support its charge of intimidation. Again, the first question under
the intimidation statute is whether Roar “communicate[d] a threat.” I.C. § 35-
45-2-1(a). Roar undoubtedly did this. He told Olive that, “if [she] came back
on the property, he’d kill” her. Tr. at 25. Thus, the State demonstrated that
Roar threatened Olive.
[9] The second, and independent, question under the statute is whether Roar’s
threat was made “with the intent . . . that [Olive] be placed in fear of retaliation
for a prior lawful act.” I.C. § 35-45-2-1(a)(2). The State demonstrated this as
well. Roar knew who Olive was and knew of his sister’s relationship to Olive,
including his sister’s failure to pay rent. Roar knew that Olive was serving an
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 4 of 11 eviction notice on his sister on April 2. And Roar’s threat occurred
immediately after he had observed Olive lawfully serve that eviction notice.
The fact-finder was free to conclude, considering the substantial evidence, that
Roar’s threat was in direct response to Olive’s lawful attempt to evict Roar’s
sister.
[10] Roar argues that, because he conditioned his threat to Olive on “if [she] came
back on the property,” any other evidence concerning whether he intended his
threat to place Olive in fear of retaliation for a prior lawful act is irrelevant. In
support of that analysis, Roar most notably cites C.L. v. State, 2 N.E.3d 798, 801
(Ind. Ct. App. 2014), trans. not sought, in which a majority panel of this court
categorically declared that “conditional” threats cannot demonstrate an intent
to place a victim in fear of retaliation for a prior lawful act. But we agree with
the dissenting opinion in C.L. and conclude that the majority in that case did
not correctly decide that question. See id. at 801-02 (Najam, J., dissenting). As
such, we are also not persuaded by Causey v. State, 45 N.E.2d 1239 (Ind. Ct.
App. 2015), trans. not sought, the only published opinion in Indiana to rely on
the majority’s reasoning in C.L.
[11] Under the reasoning of C.L. and Causey, no defendant can be convicted of
intimidation if he has the presence of mind to explicitly use conditional
language in the course of communicating his threat to another. But that is an
unreasonable interpretation of our intimidation statute. Threats are, by
definition, expressions of an intention to do a future thing, and, thus, to some
degree, all threats are conditional. See I.C. § 35-45-2-1(d). And once the facts
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 5 of 11 demonstrate that the defendant communicated a threat, the only question left is
whether the defendant did so “with the intent” to place the victim “in fear of
retaliation for a prior lawful act.” I.C. § 35-45-2-1(a)(2). Mere use of
conditional language in the course of communicating a threat does not vitiate
the statute’s application when the factual predicate for the threat was a prior
lawful act of the victim. Stated another way, the language a defendant uses in
communicating a threat may be relevant to the fact-finder’s assessment of the
defendant’s intent, but the language used is not the only relevant consideration.
[12] Roar also is mistaken in his reliance on Casey v. State, 676 N.E.2d 1069, 1072-73
(Ind. Ct. App. 1997), which is plainly inapposite. In Casey, the defendant
threatened his victim when he told her “you’re next,” but the language of the
threat was not the basis for our reversal of his conviction for intimidation. Id. at
1071. Rather, we reversed the defendant’s conviction because “the State failed
to allege or prove” the victim’s “prior lawful acts which le[d] to the threats.” Id.
at 1072-73. And the defendant’s threat itself did “not demonstrate his reasons
for threatening [the victim] or indicate that he was doing so because of any
specific prior act.” Id. at 1073. Thus, in Casey we reversed the defendant’s
conviction not because of the language used in the threat but because there was
no evidence whatsoever to demonstrate a connection between the threat and
any prior lawful acts of the victim. Unlike Casey, here the State plainly alleged
and demonstrated Olive’s prior lawful acts that immediately preceded and
culminated in Roar’s threats.
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 6 of 11 [13] In its operation and effect, Roar’s exclusive reliance on the conditional
language he used in communicating his threat renders irrelevant all other
evidence that demonstrated his clear intent to place Olive in fear of retaliation
for her prior lawful act. In other words, Roar asks this court to reweigh the
evidence on appeal by giving exclusive weight to the first seven words of his
threat to Olive while simultaneously discrediting all other evidence. We will
not reweigh the evidence on appeal. The trial court was capable of discerning
whether intimidation occurred where, as here, there is a clear nexus between
the prior lawful act and the threat. The evidence plainly demonstrated, first,
that Roar communicated a threat to Olive and, second, that he did so with the
intent to place her in fear of retaliation for a prior lawful act. Accordingly, we
affirm Roar’s conviction for intimidation, as a Class A misdemeanor.
Issue Two: Admission of Evidence
[14] Roar also asserts that the trial court abused its discretion in the admission of
certain evidence, namely, a phone call Ametrua made to Olive well after Roar
had intimidated Olive. We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Hall v. State, 36 N.E.3d 459, 466 (Ind.
2015). However, “[t]he improper admission is harmless error if the conviction
is supported by substantial independent evidence of guilt satisfying the
reviewing court there is no substantial likelihood the challenged evidence
contributed to the conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012). As explained in Issue One, Roar’s conviction is supported by substantial
independent evidence of his guilt, and we are satisfied that there is no
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 7 of 11 substantial likelihood that the challenged evidence contributed to Roar’s
conviction. Accordingly, any error in the admission of the challenged evidence
was harmless.
[15] In sum, we affirm Roar’s conviction for intimidation, as a Class A
misdemeanor.
[16] Affirmed.
Riley, J., concurs.
May, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 8 of 11 IN THE COURT OF APPEALS OF INDIANA
Victor Roar, Court of Appeals Case No. 49A02-1506-CR-506 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
May, Judge, dissenting.
[17] I would reverse Roar’s conviction, as the State did not prove Roar’s intent to
place Olive in fear of retaliation for a prior lawful act. Therefore, I must
dissent.
[18] To convict Roar of Class A misdemeanor intimidation, the State was required
to prove Roar communicated a threat to Olive with the intent she “be placed in
fear of retaliation for a prior lawful act.” Ind. Code § 35-45-2-1 (emphasis
added). Roar told Olive, “if [she] came back on the property, he’d kill [her].”
(Tr. at 25.) That threat was aimed at the future conditional act of Olive
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 9 of 11 returning to the property, and was not in retaliation for Olive’s prior act of
delivering an eviction notice.
[19] In Causey v. State, 45 N.E.3d 1239 (Ind. Ct. App. 2015), police were called to
Causey’s residence. Causey told the officers they had no business at his house,
then said “you won’t take me alive” and slammed the door. Id. at 1240. Police
called for backup, and while they waited Causey opened the door and yelled:
“[G]et off my property. You don’t belong on my property. If you come any
closer I’ll shoot.” Id.
[20] Causey was convicted of Class D felony intimidation. We reversed, finding it
“apparent” from the language of the intimidation statute that “the legislature
intended to require the State to prove that the victim had engaged in a prior act,
which was not contrary to law, and that the defendant intended to repay the
victim for the prior lawful act.” Id. at 1241 (quoting Casey v. State, 676 N.E.2d
1069, 1072 (Ind. Ct. App. 1997)) (emphasis added). In Casey, the State alleged
Casey committed intimidation when he told the victim, “You’re next bitch.”
676 N.E.2d at 1073. That statement did not indicate there was a prior lawful
action that led to the threats, and there was no evidence the threats were made
in retaliation for the victim’s actions prior to the statement. The statement did
not “demonstrate his reasons for threatening [the victim] or indicate that he was
doing so because of any specific prior act.” Id. We reached the same
conclusion in C.L. v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014): “statements
that are ‘conditional and aimed at future, rather than past, conduct,’ will not
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 10 of 11 support a finding that the defendant intended to place the victim in fear of
retaliation for prior acts.”
[21] I would not disregard the plain language of the statute or the holdings in our
decisions addressing that question. The majority in this case would interpret
the intimidation statute to allow a conviction even if a defendant used language
that was “conditional and aimed at future, rather than past, conduct,” id., but I
do not believe our precedent permits that interpretation. Even if we are free to
“interpret” the plain and explicit language of the intimidation statute, our
Supreme Court has instructed us that penal statutes should be construed strictly
against the State and ambiguities should be resolved in favor of the accused.
Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). We assume the language in a
statute was used intentionally and that every word should be given effect and
meaning. Id.
[22] The intimidation statute requires proof of intent that a victim be placed in fear
of retaliation for a prior lawful act, and the State did not prove that. I must
therefore respectfully dissent.
Court of Appeals of Indiana | Opinion 49A02-1506-CR-506 | April 21, 2016 Page 11 of 11