FILED
Sep 29 2017, 7:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office Attorney General of Indiana
Logansport, IN Ian McLean
Laura R. Anderson
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert R. Fleming, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
09A05-1703-CR-645
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1607-CM-537
Mathias, Judge.
[1] Robert Fleming (“Fleming”) appeals his conviction for Class A misdemeanor
intimidation. Specifically, Fleming argues that the State failed to prove that he
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engaged in a true threat, and that the State failed to prove that he intended to
place the victim Keith Kottkamp in fear of retaliation for a prior lawful act. 1
[2] We affirm.
Facts and Procedural History
[3] Rena and Keith Kottkamp awakened around 10:45 p.m. on June 30, 2016, to a
woman’s screams of “Help me! Help me!” coming from their front yard. Tr. p.
24. Mrs. Kottkamp arose, turned on the porch light, and saw Keisha Mowery
(“Mowery”) on their porch and at their front door. Mowery had come from
Fleming’s home, which is located across the road from the Kottkamps. Mrs.
Kottkamp called the police, but while they were waiting for officers to arrive,
Mowery returned to Fleming’s home.
[4] Cass County Sheriff Department Officers Gary Armstrong and Shane Johnson
arrived soon after at Fleming’s home. Fleming refused to allow either officer
into his home, answer any questions, and repeatedly told the officers to get off
of his property using foul language. As the officers left Fleming’s property and
headed to their vehicles, Fleming followed the officers telling them, “that’s
right, that’s right. You do what I say. You get the f--- off my property.” Id. at
53. Fleming then exclaimed, “oh, by the way if I could find your wives I would
f--- your wives and show her, show your wives what a real man is.” Id. Officers
1
We held oral argument in this case at St. Francis University in Fort Wayne, Indiana on September 19,
2017. We thank the faculty, staff, and students for their gracious hospitality.
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Armstrong and Johnson drove across the street to the Kottkamps. The
Kottkamps reiterated what they observed, and the officers left without taking
any further action.
[5] The Kottkamps returned to bed and attempted to fall back asleep.
Approximately ten to fifteen minutes later, they were awakened again to
Mowery’s cries of “Help me! Help me!” Id. at 28. Mrs. Kottkamp went to the
porch, but this time she made sure Mowery stayed with her while Mr.
Kottkamp called the police. While the Kottkamps were waiting for the police,
Fleming left his home and began approaching their property.
[6] Fleming stayed on his property as he yelled obscenities across the road at Mrs.
Kottkamp, including calling her a “white-haired old bitch.” Id. at 42. Upon
hearing Fleming curse at his wife, Mr. Kottkamp came out on to the porch
where he joined his wife and Mowery. At this point, Fleming yelled, “and what
the hell do you want you old bastard?” Id. at 43. Fleming continued shouting
across the street at the Kottkamps, at one point telling Mr. Kottkamp “that he
was going to come over and kick [Mr. Kottkamp’s] ass.” Id. Upon hearing this,
Mr. Kottkamp laughed. Approximately five minutes later, the police arrived for
the second time.
[7] Officer Armstrong was now off duty, but Officer Johnson returned with Officer
Brenton McDonald. Once the officers arrived, Fleming began retreating closer
to his home, while using offensive language to tell the officers to mind their
own business and to get off of his property. At this point, Officer Johnson put
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Fleming in restraints for “his safety and my safety.” Id. at 56. Officer
Johnson then arrested Fleming and transported him to jail.
[8] On July 1, 2016, Fleming was charged with Class A misdemeanor intimidation
and Class B misdemeanor disorderly conduct. On February 8, 2017, a jury trial
was held, and the jury found Fleming guilty of both offenses. The sentencing
hearing was held on February 27, 2017, and Fleming was sentenced to 365 days
in the Cass County Jail for the intimidation conviction and 180 days in the Cass
County Jail for the disorderly conduct conviction. Fleming appeals only the
intimidation conviction.
Standard of Review
[9] Fleming contends that there was insufficient evidence to sustain his conviction
for Class A misdemeanor intimidation. When reviewing sufficiency of the
evidence claims, this court does not reweigh the evidence or assess the
credibility of witnesses. Ransley v. State, 850 N.E.2d 443, 445 (Ind. Ct. App.
2006), trans denied. We consider only the evidence most favorable to the verdict,
together with all reasonable and logical inferences to be drawn therefrom. Id.
The conviction will be affirmed if there is substantial evidence of probative
value to support the conclusion of the trier of fact. Id.
Discussion and Decision
[10] To convict Fleming of Class A misdemeanor intimidation, the State was
required to prove beyond a reasonable doubt that Fleming communicated a
threat to Mr. Kottkamp with the intent that Mr. Kottkamp be placed in fear of
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retaliation for a prior lawful act. See Ind. Code § 35-45-2-1(a)(2). Specifically,
the charging information states, “Robert Ryan Fleming did communicate a
threat to Keith A. Kottkamp, with the intent that Keith A. Kottkamp be placed
in fear of retaliation for a prior lawful act, contrary to the form of the statutes in
such cases made and provided by I.C. 35-45-2-1(a)(2).” Appellant’s App. p. 10.
Therefore, the two questions here are: (1) did Fleming communicate a threat to
Mr. Kottkamp? and (2) did Fleming communicate the threat with the intent
that Mr. Kottkamp be placed in fear of retaliation for a prior lawful act?
I. A True Threat
[11] For purposes of this case, a threat is defined as “an expression, by words or
action, of an intention to . . . unlawfully injure the person threatened.” Ind.
Code § 35-45-2-1(d)(1). Whether a statement is a threat is an objective question
for the fact finder. Newell v. State, 7 N.E.3d 367, 369 (Ind. Ct. App. 2014), trans.
denied. Our supreme court clarified in Brewington v. State that true threats depend
on two necessary elements: (1) that the speaker intend his communications to
put his targets in fear for their safety, and (2) that the communications were
likely to actually cause such fear in a reasonable person similarly situated to the
target. 7 N.E.3d 946, 964 (Ind. 2014), reh’g denied.
[12] Concerning the first element, Fleming argues that his words did not express the
requisite intent to threaten Mr. Kottkamp, but rather his “words were an
invitation to engage in a fight and that he was confident he would ‘whip [Mr.
Kottkamp’s] ass’ during the fight.” Appellant’s Br. at 13. Citing Newell, the
State counters and asserts, “Fleming’s communication was blunt, verbal, and
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uttered in the presence of the victim.” Appellee’s Br. at 12. We agree with the
State.
[13] Fleming directly threatened to “beat [Mr. Kottkamp’s] ass,” Tr. pp. 44–46, 59,
and the threat was made while Fleming was angry. Id. at 34, 44, 45. Therefore,
a reasonable fact finder could conclude that Fleming’s statement intended to
put Mr. Kottkamp in fear for his safety, satisfying Brewington’s first element.2 See
Newell, 7 N.E.3d at 370 (holding that it was for the fact-finder to determine
whether the defendant was venting to a friend, or whether the defendant made
a true threat).
[14] For the second element of a true threat under Brewington, Fleming argues, “An
objectively reasonable person in Mr. Kottkamp’s situation . . . would recognize
that there was no possibility of physical harm so long as Mr. Kottkamp
remained on his own property and took no further action to engage Fleming in
an altercation.” Appellant’s Br. at 13. To support his argument, Fleming
analogizes his statement to Mr. Kottkamp with his statements to the police
officers and notes, “The reasonable officers in this case interpreted Fleming’s
actions as an attempt to provoke a confrontation and departed.” Id. at 14.
2
Fleming argues that Mr. Kottkamp’s laughter in response to his threat shows that Mr. Kottkamp did not
take it seriously. Appellant’s Br. at. 12. In support, Fleming cites to the Supreme Court’s decision in Watts v.
United States, 394 U.S. 705 (1969). However, in Watts the defendant was addressing a crowd in reference to
his opposition to the draft when he stated, “If they ever make me carry a rifle the first man I want to get in
my sights is L.B.J.” 394 U.S. at 706. The circumstances here are factually distinct and the record indicates
that Mr. Kottkamp laughed because he knew the police were already on their way back to the residence. Tr.
p. 44.
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[15] However, Brewington’s second inquiry concerns the reasonableness of a private
citizen in Mr. Kottkamp’s position, and not a person in the position of the
police officers at another time and place. Appellee’s Br. at 16; see Brewington, 7
N.E.3d at 969 (explaining that the question under the second element is
whether it was objectively reasonable for the victim to fear for their safety). The
officers’ reaction to Fleming is irrelevant to how Mr. Kottkamp reacted.
[16] When asked whether he was scared that Fleming would cause him physical
harm, Mr. Kottkamp responded, “Yes, sir.” Tr. p. 43. Under these facts and
circumstances, the evidence was sufficient for the jury to conclude that
Fleming’s words to Mr. Kottkamp represented a true threat.
II. In Retaliation for a Prior Lawful Act
[17] As well as proving a threat was issued, the State was also required to prove that
the threat itself was delivered with the intent to retaliate for a prior lawful act.
See Ind. Code § 35-45-2-1(a)(2). In Casey v. State we explained, “it is apparent
that the legislature intended to require the State to prove that the victim had
engaged in a prior act, which was not contrary to the law, and that the
defendant intended to repay the victim for the prior lawful act.” 676 N.E.2d
1069, 1072 (Ind. Ct. App. 1997).
[18] We initially note that prosecutors’ failure to specify the “prior lawful act” in the
charging information is a recurring issue in appeals of criminal intimidation.
There are times when the State alleges an incorrect prior lawful act. Blackmon v.
State, 32 N.E.3d 1178, 1182 (Ind. Ct. App. 2015) (finding that the State failed to
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present sufficient evidence that the defendant committed the prior lawful act
that was specified in the charging information). In other circumstances, the
State chooses to allege several prior lawful acts. Ransley v. State, 850 N.E.2d
443, 445–46 (Ind. Ct. App. 2006) (the State amended the charging information
five days prior to trial to add a second potential prior lawful act), trans. denied;
Casey, 676 N.E.2d at 1073 (the original charging information did not specify a
prior lawful act, but on a motion to correct errors the State alleged three
potential lawful actions). Also, the State at times relies on the evidence at trial
to argue the prior lawful act that would support the intimidation conviction.
Chastain v. State, 58 N.E.3d 235, 241 (Ind. Ct. App. 2016) (the State identified
the prior lawful act at trial even though the charging information was silent on
its particulars), trans. denied.
[19] Here, Fleming points out that the charging information did not specify the prior
lawful act. Appellant’s Br. at 11. However, the deputy prosecutor explained on
two occasions during trial that the prior lawful act was Mr. Kottkamp “stepping
out on to his front porch which he said he did to protect his wife.” Tr. p. 69; see
also id. at 62. Additionally, Fleming never filed a motion to dismiss for a lack of
specificity with regard to the charging information,3 nor does he raise this as an
issue on appeal, and it is therefore waived. Anderson v. State, 15 N.E.3d 147, 149
(Ind. Ct. App. 2014).
3
See Ind. Code § 35-34-1-8(a); Ind. Code § 35-34-1-4(a)(4).
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[20] Instead, Fleming argues that analogous to our decision in Casey, the State failed
to prove that Fleming made a threat to Mr. Kottkamp in retaliation for a prior
lawful act. Appellant’s Br. at 11. His primary contention here is that the
evidence established that Fleming was attempting to entice Mr. Kottkamp into
a fight, and he was not threatening Mr. Kottkamp for any prior lawful action. 4
Id. The State contends that the prior lawful act was Mr. Kottkamp stepping out
on the porch in support of his wife. Appellee’s Br. at 11.
[21] In Casey, a fight broke out at a bar between Casey and one of the victim’s
friends. 676 N.E.2d at 1071. Later that evening, Casey showed up at the
victim’s home with several friends. Id. The victim exited her apartment with
two other people and pleaded for Casey to leave. Casey refused stating, “Get
inside bitch, you’re next.” Id. Casey then struck one of the victim’s friends in
the head with a baseball bat and told the victim, “You’re next bitch.” Id.
[22] On appeal, we vacated Casey’s intimidation conviction because the record did
not support the contention that the victim was in fear of retaliation for any prior
lawful action. Id. at 1073. We clarified:
4
Fleming is incorrect to the extent that he argues that his actions do not rise to the level of criminal
intimidation because “this case involves a conditional statement.” Appellant’s Br. at 11, 13; Reply Br. at 3. In
Roar v. State, this court wrote and our supreme court adopted the standard that “[m]ere 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.” 52 N.E.3d 940, 943 (Ind. Ct. App. 2016)
(adopted and incorporated by Roar v. State, 54 N.E.3d 1001 (Ind. 2016)). The record identifies Mr.
Kottkamp’s prior lawful act occurred prior to Fleming’s threat. Tr. pp. 62, 69. Therefore, Fleming’s argument
that he lacked the intent to threaten Mr. Kottkamp because the threat was conditioned on a future act fails in
light of Roar.
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[M]ere proof that the victim is engaged in an act which is not
illegal at the time the threat is made is not sufficient. Rather, the
State must establish that the legal act occurred prior to the threat
and that the defendant intended to place the victim in fear of
retaliation for that act.
Id. at 1072. The dispositive issue in Casey was that nothing in the record
indicated that Casey was retaliating against the victim for any of the three prior
lawful acts proffered by the State. Id.
[23] Although not mentioned by either party, we find the case before us more
analogous to our recent decision in Chastain v. State, 58 N.E.3d 235. In Chastain,
the victim was waiting for a table in the parking lot of a restaurant when he
heard and saw Chastain arguing with and then shove a woman. Id. at 236
Chastain noticed the victim walking towards him and asked, “do you have a
f***ing problem?” Id. After the two men had words, Chastain went to his truck
where he retrieved a hand gun, cocked it, and pointed it at the victim saying,
“I’ll f***ing kill you” several times. Id.
[24] On appeal, we found the evidence sufficient to affirm the conviction due to the
nexus between the lawful act and Chastain’s threat to the victim. Id. at 241. We
explained that even though Chastain did not tell the victim why he pointed a
gun at him, “it was reasonable to infer from the evidence that Chastain’s
actions were prompted by the initial lawful act of [the victim] interrupting his
argument with [the woman], and Chastain’s threat was communicated with the
intent to place [the victim] in fear for that act.” Id. at 240.
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[25] In the present case, there is a clear nexus between a prior lawful act and the
issued threat. The record indicates that Mr. Kottkamp walked out onto his
porch after he heard Fleming yelling obscenities at his wife. Just after stepping
outside, he was asked by Fleming, “what the hell do you want you old
bastard?” Tr. p. 43. After Mr. Kottkamp chose not to respond, Fleming told
him that he was going to come over and “kick [Mr. Kottkamp’s] ass because
[Mr. Kottkamp] came out” onto his porch. Id. at 45–46.
[26] Mr. Kottkamp committed a distinct lawful act by stepping out onto his porch
when he heard his wife being insulted. It is clear from the record that Fleming
then reacted in response to Mr. Kottkamp’s actions. While we acknowledge
that Fleming did not explicitly tell Mr. Kottkamp why he was “going to come
over and kick [Mr. Kottkamp’s ass],” Id. at 43, we conclude that it was
reasonable to infer from the evidence that Fleming’s actions were prompted by
Mr. Kottkamp stepping out onto his porch. Chastain, 58 N.E.3d at 241. Any
finding to the contrary would require us to reweigh the evidence, which we will
not do on appeal. Id. at 237.
Conclusion
[27] We as Indiana citizens need to better define the language that can be properly
used during disagreements, in order to avoid a further coarsening of our civil
society. Considering the evidence favorable to the jury’s verdict, we conclude
that the State presented sufficient evidence in this case to support Fleming’s
intimidation conviction.
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[28] Affirmed.
Baker, J., and Crone, J., concur.
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