Charles Jason Montooth v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Aug 30 2017, 6:28 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General Keffer Barnhart LLP Indianapolis, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Jason Montooth, August 30, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1702-CR-319 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1610-F6-5814

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017 Page 1 of 12

Case Summary [1] A jury convicted Charles Jason Montooth of class A misdemeanor

intimidation, class A misdemeanor resisting law enforcement, and class B

misdemeanor disorderly conduct. He appeals, claiming that the trial court

abused its discretion in denying his motion to dismiss two felony intimidation

charges. He also challenges the sufficiency of the evidence to support his

conviction for class A misdemeanor intimidation. We affirm.

Facts and Procedural History [2] Acting on a report of a disturbance at a local home-based services agency,

Vanderburgh County Sheriff’s Department Sergeant Mark Rasure and Deputy

Erik Nilssen interviewed witnesses and learned that Montooth had allegedly

threatened to kill his ex-girlfriend’s family members. Sergeant Rasure located

Montooth at his apartment complex, and Deputy Nilssen transported him to

the command post for an interview. Montooth initially was cooperative.

When Deputy Nilssen informed him that he was being arrested and taken to

jail, he said that he was on probation and begged repeatedly to be released. His

pleas turned to anger, and he became physically combative to the point that it

took four officers to subdue him. [3] As the officers escorted him to a patrol vehicle for transport to jail, he became

verbally aggressive. Deputy Nilssen’s body camera recorded Montooth

repeatedly calling the officers liars and “motherf**kers,” accusing them of

setting him up, and exclaiming, “F**k you.” State’s Ex. 2. Deputy Nilssen

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interviewed Montooth again in a port at the jail, and Montooth had to be

placed in a restraint chair. Montooth said, “I’d like to see you come in a cell

without f**king cuffs on me, I’d tear your f**king head off dude. I’ll f**king

tear your head off.” State’s Ex. 3. Deputy Nilssen asked Montooth why he

would tear his head off, and Montooth responded, “Because you’re a lying a**

motherf**king pig, dude.” Id. The deputy testified that Montooth also said,

“I’ll f**king beat the sh*t out of you you stupid mother**kers …. I wish you’d

just give me one f**king opportunity to get out of this f**king chair and cuffs

man, one f**king opportunity to show you.” Id. Montooth then said, “I’m

sure you had a hundred thousand threats before bud, but you never met Charles

Montooth.” Id. Later, when Deputy Nilssen informed Montooth that he was

going to be barred from entering the home-based service agency’s offices, he

clenched his fists and said, “Nilssen, do you want some of this bro, for real

man, do you f**king want some bro?” Tr. Vol. 2 at 124; State’s Ex. 3. Shortly

thereafter, while Deputy Nilssen was typing up his report, Montooth made a

handgun-like gesture aimed at the deputy. [4] The State charged Montooth with two counts of level 6 felony intimidation,

class A misdemeanor resisting law enforcement, and class B misdemeanor

disorderly conduct. The State subsequently added a habitual offender count.

Montooth filed a motion to dismiss the two intimidation counts, claiming that

they were not charged with sufficient certainty and might subject him to double

jeopardy. The trial court denied his motion to dismiss, as well as his motion to

suppress certain evidence. He filed a motion to reconsider, which the trial court

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denied, and the case proceeded to a jury trial. At the outset of the trial, one of

the felony intimidation counts was dismissed on the State’s motion. The jury

convicted Montooth of intimidation as a class A misdemeanor, as well as class

A misdemeanor resisting law enforcement and class B misdemeanor disorderly

conduct. The habitual offender count was dismissed. The trial court sentenced

Montooth to concurrent 300-day terms on the class A misdemeanor convictions

and 182 days for disorderly conduct. Montooth appeals his intimidation

conviction.

Discussion and Decision

Section 1 – The trial court acted within its discretion in denying Montooth’s motion to dismiss his felony intimidation counts. [5] Montooth challenges the trial court’s denial of his motion to dismiss the level 6

felony intimidation counts, claiming that the charging information lacked

sufficient specificity and might subject him to multiple prosecutions for the

same offense. At the outset, we note that the second count was dismissed on

the State’s motion at the beginning of Montooth’s jury trial. Thus, we review

this issue only as it relates to the first count, of which he was convicted as a

class A misdemeanor. We review the denial of a motion to dismiss for an

abuse of discretion. Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015). An

abuse of discretion occurs when the trial court’s decision is against the logic and

effect of the circumstances before it. Lebo v. State, 977 N.E.2d 1031, 1035 (Ind.

Ct. App. 2012). Montooth asserts that the charging information lacked

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sufficient certainty as to the threats that formed the basis for his first

intimidation count. Indiana Code Section 35-34-1-2(a)(4) requires that the

charging information be in writing and “set[] forth the nature and elements of

the offense charged in plain and concise language without unnecessary

repetition.” A charging information will be sufficient if it contains “a statement

of the essential facts constituting the offense charged, as well as the statutory

citation, the time and place of the commission of the offense, the identity of the

victim (if any), and the weapon used (if any).” Pavlovich v. State, 6 N.E.3d 969,

975 (Ind. Ct. App. 2014) (citing Laney v. State, 868 N.E.2d 561, 566-67 (Ind. Ct.

App. 2007), trans. denied), trans. denied. “The State is not required to include

detailed factual allegations in a charging information.” Laney, 868 N.E.2d at

567. “[T]he probable cause affidavit supporting the charging instrument may

be taken into account in assessing whether a defendant has been apprised of the

charges against him.” Lebo, 977 N.E.2d at 1035. In other words,

[s]ince the charging information and probable-cause affidavit are filed together, they should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with which [he] is charged during the applicable statute of limitations period so that [he] can prepare an appropriate defense.

Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App. 2012). [6] Here, the charging information reads, in pertinent part,

[I]n Vanderburgh County, State of Indiana, on or about September 28, 2016, Charles Jason Montooth did communicate a

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threat to E. Nilssen, a law enforcement officer, with the intent that E. Nilssen be placed in fear of retaliation for a prior lawful act, to-wit: exercising police powers and the threat was communicated to E. Nilssen because of the occupation, profession, employment status, or ownership status of E. Nilssen, contrary to the form of the statutes in such cases made and provided by I.C. 35-45-2-1(a)(2) and I.C. 35-45-2-1(b)(1)(B) and against the peace and dignity of the State of Indiana.

Appellant’s App. Vol. 2 at 117. In his motion to dismiss, Montooth identified

four alleged threats as detailed by Deputy Nilssen in the probable cause

affidavit:

(1) Stating that there “will be bloodshed”; (2) Stating that the Defendant “wanted three minutes alone” with the Deputy; (3) Stating that when the Defendant is released the Deputy will “see him in the streets”; or (4) the Defendant stating that he will “pray for you (Nilssen)” while pointing his hand in a “handgun-like” manner.

Id. at 44. [7] We find it difficult to discern Montooth’s exact argument regarding the State’s

treatment of the threat element. He appears to argue that the State should have

been required to identify one distinct threat upon which it would rely.

However, the State is permitted to present to the jury alternative ways to find

that the defendant committed a particular element of the offense. Baker v. State,

948 N.E.2d 1169, 1175 (Ind. 2011). Montooth decries the State’s heavy

reliance at trial on his alleged threat to tear the deputy’s head off. As best we

can discern, he believes that he was not advised that the State might use this

Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017 Page 6 of 12 statement against him at trial.1 In this vein, we note first that during discovery, Montooth was provided with video footage from Deputy Nilssen’s body camera showing his many threats to Nilssen, including the “tear your head off” threat. State’s Ex. 3. Thus, he cannot make a credible claim that he was unaware of this alleged threat. As for his opportunity to prepare a defense against this statement, it is clear from the transcript that the defense was prepared for the State’s use of this statement. See, e.g., Tr. at 14-15 (defense counsel’s opening argument). Additionally, we observe that the trial court gave an instruction on unanimity of verdict, thus safeguarding against jurors relying on different statements or acts by Montooth to establish the threat element of the offense. See Appellant’s App. Vol. 2 at 81 (Instruction 7).2 See also Baker, 948 N.E.2d at 1177 (where State introduces evidence of multiple acts to meet certain element of offense, trial court should instruct jury that “they must either unanimously agree that the defendant committed the same act or acts or that the defendant

1 Montooth did not allege a material variance in his appellate brief. Nor did he object when the “tear your head off” allegation was raised at trial. As such, he has waived the issue for consideration on appeal. Bayes v. State, 779 N.E.2d 77, 80 (Ind. Ct. App. 2002), trans. denied (2003). 2 Instruction 7 reads:

The Defendant is accused in Count I of having committed Intimidation against E. Nilssen on or about September 28, 2016. The State has presented evidence that the Defendant may have committed more than one act of Intimidation against E. Nilssen on or about September 28, 2016. Before you may find the Defendant guilty, you must all unanimously find and agree that the State proved beyond a reasonable doubt that the Defendant committed the same specific, single act of Intimidation against E. Nilssen on or about September 28, 2016. If you find the Defendant guilty, your verdict does not have to specify the particular act of intimidation that the Defendant committed. Appellant’s App. Vol. 2 at 81.

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committed all of the acts described by the victim and included within the time

period charged.”). [8] As explained more thoroughly below, Montooth made verbal and nonverbal

threats to Deputy Nilssen. He was apprised of the State’s evidence concerning

these threats through multiple means, i.e., the charging information, probable

cause affidavit, and discovery. Based on the foregoing, we conclude that the

trial court acted within its discretion in denying his motion to dismiss.

Section 2 – The evidence is sufficient to support Montooth’s intimidation conviction. [9] Montooth also maintains that the evidence is insufficient to support his

conviction for class A misdemeanor intimidation. When reviewing a challenge

to the sufficiency of evidence, we neither reweigh evidence nor judge witness

credibility. Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider

only the evidence and reasonable inferences most favorable to the verdict and

will affirm the conviction unless no reasonable factfinder could find the

elements of the crime proven beyond a reasonable doubt. Id. [10] The jury convicted Montooth of class A misdemeanor intimidation. To

establish this offense, the State was required to prove that Montooth

communicated a threat to another person (Deputy Nilssen), with the intent of

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placing the other person in fear of retaliation for a prior lawful act.3 Ind. Code §

35-45-2-1(a)(2). Subsection (d) defines “threat” as “an expression, by words or

action, of an intention to … (1) unlawfully injure the person threatened.” [11] With respect to the intentional communication of threats, Montooth

characterized his words and actions as merely unruly and unpleasant, rather

than intentional or threatening, made only because he “became upset” when he

was arrested. Tr. Vol. 2 at 15; Appellant’s Br. at 13. However, he said that he

would tear Deputy Nilssen’s “f**king head off” and “f**king beat the sh*t out

of” the officers. State’s Ex. 3; Tr. Vol. 2 at 122. He even characterized his own

conduct as a threat when he said, “I’m sure you had a hundred thousand

threats before bud, but you never met Charles Montooth.” State’s Ex. 3. He

also said that there would be bloodshed when he got released and that he would

see Deputy Nilssen on the streets. Appellant’s App. Vol. 2 at 121. As for his

nonverbal conduct, we note that after Montooth realized that his pleas for

release from custody had proved unsuccessful, he became physically combative

to the point that it took four officers to subdue him. At the jailhouse, he

clenched his handcuffed fists at Deputy Nilssen and goaded, “do you f**king

want some bro?” Tr. Vol. 2 at 124; State’s Ex. 3. A few minutes later, he

pointed his hand at him in a “handgun-like manner.” Appellant’s App. Vol. 2

3 In his reply brief, Montooth argues for the first time that Deputy Nilssen could not have been in fear of retaliation for a prior lawful act because the officers acted unlawfully in arresting him in the first place. Because he did not raise this in his initial appellate brief, he has failed to preserve the issue for review. See Sisson v. State, 985 N.E.2d 1, 13 n.7 (Ind. Ct. App. 2012) (issues raised for the first time in reply brief are waived), trans. denied (2013).

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at 121. Montooth’s nonverbal conduct sent the additional message to Deputy

Nilssen and the other officers that he had the intent and capability to place them

in fear of retaliation for arresting and holding him rather than releasing him.

His attempts to minimize his words and actions are merely invitations to

reweigh evidence, which we may not and will not do. See Moore, 27 N.E.3d at

754. [12] Montooth also asserts that his statements were merely conditional threats

aimed at future conduct and therefore were not criminalized under the

intimidation statute. He relies on Causey v. State, 45 N.E.3d 1239, 1242 (Ind.

Ct. App. 2015), in which another panel of this Court held the evidence

insufficient to support the defendant’s intimidation conviction where police

responded to a disturbance at his residence, and he yelled, “If you come any

closer I’ll shoot.” Id. The Causey court held that the State’s evidence amounted

to vague descriptions of defendant’s statements pertaining to a future act rather

than a prior act. Id. [13] More recently, in Roar v. State, 52 N.E.3d 940, 942 (Ind. Ct. App. 2016), adopted

and incorporated in part by Roar v. State, 54 N.E.3d 1001 (Ind. 2016), the

defendant challenged the sufficiency of the evidence to support his intimidation

conviction, where his sister’s property manager placed an eviction notice on her

door, and the defendant told the property manager that if she came back on the

property, he would kill her. On appeal, he relied on Causey, arguing that his

threat was conditional and pertained to future conduct. Id. at 943. Another

panel of this Court held that the State presented sufficient evidence that the

Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017 Page 10 of 12 defendant’s threat was made with intent of placing the manager in fear of retaliation for a prior lawful act. Id. at 944.

Under the reasoning of C.L. [v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014)] [4] 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-l(d). And once the facts 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.

Id. Our supreme court granted transfer, specifically adopted and incorporated this rationale, and affirmed Roar’s intimidation conviction. Roar, 54 N.E.3d at 1002.

4 When Roar was decided, Causey was the only published case to rely on C.L., 2 N.E.3d at 801, in which another panel of this Court held that a defendant’s statements that he would beat up the victim if he did not get his money or if he got caught were conditional and aimed at future conduct and therefore did not support a finding that the defendant intended to place the victim in fear of retaliation for prior acts.

Court of Appeals of Indiana | Memorandum Decision 82A01-1702-CR-319 | August 30, 2017 Page 11 of 12 [14] As stated in Roar, threats are by nature expressions of intent to do future acts,

which means they will always be conditional to one degree or another. This is

where the “fear of retaliation” element comes into play, with the victim being

placed in a situation where, if he does or does not do a certain act, he fears that

he will receive a negative consequence at the hands of the perpetrator. This is

precisely the kind of conduct that the intimidation statute seeks to prevent. In

sum, Montooth’s threats indicated his intent to place the deputy in fear of

retaliation for his prior lawful act of arresting and holding him. As such, the

evidence is sufficient to support Montooth’s intimidation conviction.

Accordingly, we affirm. [15] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

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