Feb 18 2016, 9:32 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demetrius Holloway, February 18, 2016
Appellant-Defendant, Court of Appeals Case No.
71A04-1508-CR-1292
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff Hurley, Judge
Trial Court Cause No.
71D08-1408-F6-71
Crone, Judge.
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Case Summary
[1] A police officer arrested Demetrius Holloway for operating a motor vehicle
while intoxicated (“OWI”) and took him to jail, where Holloway threatened to
“f[*]ck [the officer] up.” Tr. at 23. Holloway pled guilty to class A
misdemeanor OWI, and the trial court found him guilty of level 6 felony
intimidation. On appeal, he challenges the sufficiency of the evidence
supporting his intimidation conviction. We affirm.
Facts and Procedural History
[2] On the afternoon of August 1, 2014, Holloway drank some beer and drove to a
fast food restaurant, where he collided and had an altercation with another
motorist. South Bend Police Officer Joseph Stitsworth was dispatched to the
scene. Officer Stitsworth suspected that Holloway was intoxicated and
administered field sobriety tests, all of which Holloway failed. The officer
handcuffed Holloway and transported him to jail.
[3] Holloway was uncooperative getting into and out of Officer Stitsworth’s vehicle
and repeatedly claimed that he had done nothing wrong. During the jail
booking procedure, the handcuffed Holloway became agitated and said to
Officer Stitsworth, “I hope you die. I hope you die tonight.” Id. A few minutes
later, Holloway stood up, started to approach Officer Stitsworth, and said, “I
will f[*]ck you up.” Id. Officer Stitsworth interpreted this as a threat and told
Holloway to sit down.
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[4] The State charged Holloway with level 6 felony intimidation, class A
misdemeanor OWI, class C misdemeanor OWI, and class B misdemeanor
battery. In April 2015, Holloway pled guilty to class A misdemeanor OWI, and
the State dismissed the other misdemeanor charges. A bench trial was held on
the intimidation charge. Both Officer Stitsworth and Holloway testified. The
State offered into evidence a DVD containing video and audio of the field
sobriety tests and Holloway’s trip to jail and audio of his interactions with
Officer Stitsworth inside the jail, all of which was recorded by the officer’s in-
car camera and body microphone. At the close of evidence, the trial court took
the matter under advisement. In May 2015, the trial court issued a written
order finding Holloway guilty of intimidation. This appeal ensued.
Discussion and Decision
[5] Holloway challenges the sufficiency of the evidence supporting his intimidation
conviction. Our standard of review is well settled:
This court will not reweigh the evidence or assess the credibility
of witnesses. Only the evidence most favorable to the judgment,
together with all reasonable inferences that can be drawn
therefrom will be considered. If a reasonable trier of fact could
have found the defendant guilty based on the probative evidence
and reasonable inferences drawn therefrom, then a conviction
will be affirmed.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007) (citations omitted).
“Reversal is appropriate only when reasonable persons would not be able to
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form inferences as to each material element of the offense.” Naas v. State, 993
N.E.2d 1151, 1152 (Ind. Ct. App. 2014).
[6] The State alleged that Holloway committed level 6 felony intimidation by
communicating a threat to a law enforcement officer (i.e., that he would “f[*]ck
[Officer Stitsworth] up”), with the intent that the officer be placed in fear of
retaliation for a prior lawful act (i.e., placing Holloway under arrest). See
Appellant’s App. at 22 (trial court’s order), 35 (original charging information);
Tr. at 3-4 (information as amended before trial); Ind. Code § 35-45-2-1(b), -(c)
(intimidation statute as of August 1, 2014, when crime was committed). The
intimidation statute defines “threat” as “an expression, by words or action, of
an intention to … unlawfully injure the person threatened or another person[.]”
Ind. Code § 35-45-2-1(c)(1).
[7] The gist of Hollway’s argument appears to be that his profane statement to
Officer Stitsworth did not constitute a threat because it was brief and he was
handcuffed and in jail when he uttered it. Holloway attempts to contrast his
statement with that of the defendant 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). After Townsend was arrested, handcuffed, and placed in a patrol
car, he told the arresting officer, “I'm going to get you and I’m going to get your
family. You’re not safe from me anywhere. No matter how long it takes me, I
will get you.” Id. at 90. He was convicted of intimidation and argued on
appeal that “there was no proof” that his statements could be viewed as a
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threat. Id. at 91. We disagreed and held that “the jury could reasonably
conclude that Townsend communicated a threat to” the officer. Id.
[8] We find no basis for distinguishing Townsend’s threat from Holloway’s. Both
men were handcuffed and incapable of carrying out their stated intent to injure 1
when the statements were made. Holloway cites no authority for the
proposition that a person must be capable of inflicting injury when the
statement is made or that a statement must be lengthy or detailed in order to
constitute a threat. Likewise, he cites no authority for his suggestion that a
person must make multiple statements over a “long period” before he may be
convicted of intimidation. Appellant’s Br. at 5. 2 In sum, we find Holloway’s
argument unavailing and therefore affirm his intimidation conviction.
[9] Affirmed.
Vaidik, C.J., concurs.
Bailey, J., dissents with opinion.
1
Holloway’s contention that his statement “is more akin to a ‘F*** you’ than to a threat to do physical
harm” is a blatant request to reweigh evidence in his favor, which we may not do. Appellant’s Br. at 5.
2
In its written order, the trial court addressed the concept of a “true threat” as discussed in Brewington v.
State, 7 N.E.3d 946 (Ind. 2014), and found that “it was objectively reasonable for Officer Stitsworth to be
placed in fear for his safety based upon [Holloway’s] threat.” Appellant’s App. at 22-23. Holloway does not
mention “true threat” or objective reasonableness in his appellant’s brief and merely attempts to distinguish
Brewington based on the number of statements that Brewington made and the period of time over which he
made them.
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IN THE
COURT OF APPEALS OF INDIANA
Demetrius Holloway, February 18, 2016
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Bailey, Judge, dissenting.
[10] Holloway challenges his conviction for Intimidation, arguing that there was
insufficient evidence to sustain the conviction in the absence of a true threat.
The majority affirms. Because I disagree with this conclusion, I respectfully
dissent.
[11] The statute that defines the offense of Intimidation provides, in relevant part,
“A person who communicates a threat to another person, with the intent …
that the other person be placed in fear of relation for a prior lawful act
…commits intimidation.” Ind. Code § 35-45-2-1(a). What is otherwise a Class
A misdemeanor is elevated to a Level 6 felony when the target of the threat is a
law enforcement officer. I.C. § 35-45-2-1(b)(1)(B)(i).
[12] Recognizing that speech has constitutional dimensions, courts have recognized
limits on criminalization of speech offenses like Intimidation. Thus, the
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Indiana Supreme Court has held that 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”—that is, the elements of the
Intimidation statute must be met—and the communications must have been
“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)).
[13] As to the second element, the likelihood of the statement’s effect, 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). Context is crucial in
cases such as this. Virginia v. Black, 538 U.S. 343, 357, 365-66 (2003)
(recognizing that even for cross-burning, context is central to whether speech is
a threat or protected expression); Watts v. United States, 394 U.S. 705, 707 (1969)
(holding, with respect to a statute criminalizing threats against the President of
the United States, that “a statute such as this one, which makes criminal a form
of pure speech, must be interpreted with the commands of the First
Amendment clearly in mind,” so that “a threat must be distinguished from
what is constitutionally protected speech”). Thus, the nature of the alleged
victim’s experience and work has played a role in the Indiana Supreme Court’s
jurisprudence on the question of a true threat. In Brewington, our supreme court
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observed that part of what made Brewington’s communications threatening,
beyond their repetitiveness and clear meaning, was how unusual they were
relative to the experiences of Brewington’s victims, a psychologist and a judge.
7 N.E.3d at 970-71. Each victim commented in testimony that in their
extensive experiences, they had never encountered the persistent and repeated
threats and erratic behavior Brewington displayed. Id. Indeed, the psychologist
in Brewington was so concerned by Brewington’s threats to his family that
additional home security and police protection were put in place. Id. at 971.
These reactions, the Brewington Court held, “are precisely what we would
expect of objectively reasonable people under similar circumstances”: not only
were Brewington’s statements threatening, but the victims “did in fact feel
threatened and fearful for their family’s [sic] safety.” Id. at 971.
[14] Against this background, the issue here is whether there was sufficient evidence
from which a fact-finder could infer that a person in the same circumstances as
Officer Stitsworth would reasonably experience the kind of visceral reaction
that would make a person fear for his safety.
[15] Holloway said that he hoped Officer Stitsworth would die that night, said that
he would “f**k…up” Officer Stitsworth. (Tr. at 23.) In response, Officer
Stitsworth told Holloway that he had acquired another criminal charge. A few
seconds later, Officer Stitsworth told Holloway to sit down after Holloway had
gotten up from a seat and begun walking toward the officer—all while
staggering drunk, handcuffed in the Saint Joseph County Jail, and wearing
pants that were unbuttoned and falling down, thus impeding his movement.
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Officer Stitsworth testified that he understood Holloway’s statement as
conveying a message that he “meant to do me harm.” (Tr. at 23.) But Officer
Stitsworth did not testify that he was fearful or that he felt threatened by
Holloway’s words. Moreover, another deputy was present in the room at the
time, but there was no testimony that these words would or did elicit any
reaction—let alone a visceral one—from him or others similarly situated.
[16] Granted, Officer Stitsworth testified that he understood the meaning of
Holloway’s statement, but that speaks only to Holloway’s intent. Importantly,
Officer Stitsworth’s responses to Holloway, telling Holloway that an additional
charge would be entered against him and telling Holloway to sit down, give no
indication as to whether a person in Officer Stitsworth’s position could
reasonably believe Holloway’s statement under the circumstances was a true
threat. See Brewington, 7 N.E.3d at 969, 971. And because context matters,
there is an absence of evidence on this element of the offense.
[17] Being a police officer is often fraught with danger and unpleasantness. But to
affirm under these circumstances seems to me perilously close to rendering
illusory the right to appeal a conviction such as this. See Milam v. State, 14
N.E.3d 879, 881 (Ind. Ct. App. 2014) (observing that “[a]n impossible standard
of review under which appellate courts merely ‘rubber stamp’ the fact finder’s
determinations, no matter how unreasonable, would raise serious constitutional
concerns because it would make the right to an appeal illusory.”)
[18] I therefore respectfully dissent.
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