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.
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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
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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
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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.
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[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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