Casey L. Hill v. State of Indiana

FILED Jan 17 2018, 9:03 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana

George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Casey L. Hill, January 17, 2018 Appellant-Defendant, Court of Appeals Case No. 40A04-1707-CR-1697 v. Appeal from the Jennings Circuit Court State of Indiana, The Honorable Jonathan W. Appellee-Plaintiff Webster, Judge Trial Court Cause No. 40C01-1701-F6-1

Altice, Judge.

Case Summary [1] Casey L. Hill appeals his conviction for Level 6 felony intimidation. On

appeal, he contends that the trial court admitted evidence of his subsequent bad

acts in violation of Indiana Evidence Rule 404(b).

Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018 Page 1 of 9 [2] We affirm.

Facts & Procedural History [3] Hill began a relationship with Jennifer Malott in 1999. They lived together for

a number of years and have two children together. Malott moved out with the

children in the fall of 2015 after Hill battered her. Thereafter, Malott and Hill

continued to see each other occasionally and even lived together again for a few

months in 2016. Hill’s physical abuse of Malott escalated during this time from

hitting to “choking, knives, being held at gunpoint.” Transcript Vol. 2 at 159.

Malott’s tactic became trying to calm Hill down and do what he wanted when

he became upset with her. [4] In December 2016, Hill was living with friends – the Miller family – in

Danville, and Malott and the children were living with her cousin in Hayden.

At Hill’s urging, Malott made arrangements so that Hill could spend time with

the children at Christmas. They stayed together with the children at a hotel in

Greenwood from December 24 through December 26. When Malott received a

message on her phone on Christmas morning, Hill became jealous and

demanded to see the phone. Malott refused, resulting in Hill holding a knife to

her and throwing her against a wall. Despite this, Malott drove Hill and the

children to Danville that evening to visit with the Millers. An argument broke

out between Hill and Malott on the Millers’ front porch at some point that

evening. A neighbor called the police believing that Hill struck Malott. After

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the police came and went, the Millers informed Hill that he could no longer live

with them. Malott, Hill, and the children returned to the hotel. [5] After checking out on the morning of December 26, Malott drove Hill back to

Danville. They waited for several hours because Hill was locked out of the

Millers’ residence. Malott eventually drove Hill to his half-brother Richard

Sealy’s home in Commiskey. Richard and his wife Suzanne observed that Hill

was in an agitated state when he arrived that evening. Malott briefly informed

Richard of the recent abuse while Hill was outside retrieving his belongings

from the vehicle. Richard asked Hill later about the abuse, and Hill indicated

that nothing had happened. [6] As Malott drove back to Hayden that night with the children, Hill began calling

and arguing with her on the phone. Eventually, Malott stopped answering her

phone. Hill then sent Malott the follow text messages:

[9:31 p.m.] I see you don’t have anything to talk to me about…

[9:37 p.m.] Nothing at all?? Thanks

[9:39 p.m.] Every time I need you, your [sic] never there for me

[9:50 p.m.] Im [sic] on my way there now walking down the road see you in a Lil bit

Exhibit Vol., State’s Exhibit 1. Malott responded that she was done fighting and

that they would talk tomorrow, and Hill replied:

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[9:56 p.m.] You will own up to it right before I cut your throat,..answer your phone

[9:57 p.m.] No talking bitch..im [sic] walking there now

[10:06 p.m.] Know. I will take your. [sic] Life if you don’t own up to what you have done you have till the morning to do so you fucking bitch..you have fucked me for the last time

[10:11 PM] Your [sic] dead bitch

Exhibit Vol., State’s Exhibits 1 and 2. Hill was angry because Malott would not

admit that she was responsible for him being kicked out of the Millers’ home. [7] Malott became concerned as a result of these threatening messages and Hill’s

relatively close proximity, so she went to the Jennings County Sheriff’s

Department that night. Sergeant Allen Ritchie took photographs of the

messages and urged Malott to file charges, but she refused. Malott indicated

that “she just wanted this incident and everything documented in case

something did happen to her.” Transcript Vol. 2 at 98. [8] Hill continued to send threatening messages to Malott after December 26 and

have angry conversations with her over the phone. After some of these

conversations, the Sealys overheard Hill make reference to cutting Malott’s

throat. On one occasion, Hill said, “I will die a happy man knowing she will

not be the mother to my children”. Id. at 174.

Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018 Page 4 of 9 [9] Late at night on December 29, 2016, Hill posted on his Facebook page:

“Anybody have a firearm they want to trade for some ink? Pm me”. Exhibit

Vol., State’s Exhibit 3. Malott went to the sheriff’s department the next day to

report this post and request the filing of charges. [10] In the early evening of January 3, 2017, Hill sent Facebook messages to Malott

stating, “im [sic] coming after you today…get ready…You going to die bitch.”

Exhibit Vol., State’s Exhibit 4. Hill also warned that he was currently walking to

her house. Malott contacted the police regarding these messages. [11] After walking approximately seventeen miles from Commiskey to Hayden,

Hill showed up at Jeffrey Stidham’s house around 10:00 p.m. Stidham was a

father figure to Malott. Hill was distraught and indicated that Malott was

driving him crazy. Stidham tried to console Hill, but Hill walked off stating, “I

have to kill her.” Transcript Vol. 2 at 167. Stidham immediately contacted the

sheriff’s department and Malott’s mother. Shortly thereafter, Hill was arrested

near Malott’s residence. [12] The State charged Hill with Level 6 felony intimidation based on the threats he

made to Malott on December 26, 2016. At his jury trial in May 2017, Hill

unsuccessfully sought to exclude any evidence of his bad acts/threats that

occurred between December 27, 2016 and January 3, 2017. The jury found Hill

guilty as charged, and the trial court sentenced him to eighteen months in the

Jennings County Jail. Additional facts will be provided below as needed.

Discussion & Decision

Court of Appeals of Indiana | Opinion 40A04-1707-CR-1697 | January 17, 2018 Page 5 of 9 [13] Hill contends that the trial court abused its discretion by admitting evidence of

subsequent bad acts in violation of Evid. R 404(b). Specifically, he challenges

the admission of any statements/threats made by him after December 26, 2016,

the date of the charged crime. [14] We review evidentiary rulings for an abuse of discretion, which will be found

where the ruling is clearly against the logic and effect of the facts and

circumstances. Zanders v. State, 73 N.E.3d 178, 181 (Ind. 2017), cert. pending.

On issues of relevance and unfair prejudice, a trial court’s discretion is

wide. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). [15] Evid. R. 404(b)(1) prohibits admission of evidence of a crime, wrong, or other

act, whether prior or subsequent to the charged crime, when the evidence is

used to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with that character. See id.; see also Southern v.

State, 878 N.E.2d 315, 321-22 (Ind. Ct. App. 2007), trans. denied. Such

evidence, however, “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Evid. R. 404(b)(2). [16] In assessing the admissibility of evidence under Evid. R. 404(b), the trial court

must: (1) determine whether the evidence is relevant to a matter at issue other

than the defendant’s propensity to commit the charged act; and (2) balance the

probative value of the evidence against its prejudicial effect pursuant to Indiana

Evidence Rule 403. Ceaser v. State, 964 N.E.2d 911, 915 (Ind. Ct. App. 2012),

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trans. denied. Under Evid. R. 403, relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. [17] In this case, the State was required to prove that on or about December 26,

2016, Hill communicated a threat to Malott to commit a forcible felony with

the intent that Malott be placed in fear of retaliation for a prior lawful act. See

Ind. Code § 35-45-2-1; Appellant’s Appendix Vol 2 at 24. Hill conceded at trial

that he threatened Malott that he would cut her throat and kill her. There also

appears to be no dispute that he was angry with her because, among other

things, she would not answer her phone and “own up to” causing him to be

unwelcome at the Millers’ residence. Exhibit Vol., State’s Exhibit 1. Hill’s

express defense was that Malott was good at pushing his buttons and “what he

said on the 26th was all talk.” Transcript Vol. 3 at 76. In other words, his defense

amounted to a claim that although he threatened Malott, he did not really

intend for her to be placed in fear of retaliation. [18] Hill first placed his intent at issue during opening statements when counsel,

after noting that Malott had a history of pushing Hill’s buttons, argued:

They’re going to have to prove that he had the intent that she be placed in fear of retaliation for a prior lawful act. And we don’t believe that the State can prove this thing. The State is going to be able to prove that he said those things, those came from his phone and when he testifies he’s going to say I said those things and he’s going to explain why. But as to the other elements, the intent, placing her in fear for retaliation for a prior act we don’t believe the State can prove those beyond a reasonable doubt[.]

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Transcript Vol. 2 at 91-92 (emphasis supplied). During his later testimony, Hill

explained, “She knows I wasn’t going to do anything like that. She knows that,

all talk, that’s how I am when I get shitty.” Transcript Vol. 3 at 61. [19] The record establishes that Hill placed his intent at issue, which made evidence

of his subsequent actions/statements admissible to establish his intent on the

night in question. See Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993) (intent

exception available only when defendant goes beyond merely denying the

charged culpability and affirmatively presents a claim of particular contrary

intent); Christian-Hornaday v. State, 649 N.E.2d 669, 671-72 (Ind. Ct. App. 1995)

(defendant placed intent at issue when during opening statement defense

counsel acknowledged that identity was not at issue but stated that whether

defendant made the call with the intent to annoy or harass the victim was at

issue), abrogated on other grounds by Hicks v. State, 690 N.E.2d 215 (Ind. 1997). [20] Hill argues that even if the evidence of his subsequent bad acts was admissible

to show intent, “its prejudicial nature substantially outweighed the probative

value of the evidence by the sheer volume of evidence presented after the

crime”. Appellant’s Brief at 13. He claims that the volume of evidence regarding

his subsequent acts “would have mislead and confused the jury by diverting

their attention away from the actual charges being presented.” Id. at 15. [21] As set forth above, Hill’s defense was that he did not intend to place Malott in

fear of retaliation and that he was just blowing off steam. His actions in the

eight days following his threats to kill Malott, however, imply otherwise.

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Indeed, Hill continued his threats to kill Malott and openly expressed them to

others, inquired on Facebook about trading his tattoo skills for a gun, and later

walked seventeen miles to confront Malott with the stated intention of killing

her. Hill was fortunately arrested before reaching Malott on January 3, 2017.

These facts were relevant to determining the intent behind the threats he made

on December 26, 2016, and we cannot agree that such evidence was unduly

prejudicial or likely to mislead or confuse the jury. Accordingly, the trial court

did not abuse its discretion by allowing this evidence over Hill’s objection. [22] Judgment affirmed.

May, J. and Vaidik, C.J., concur.

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