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-l(b)(l)(B)(i).
[12] Recognizing that speech has constitutional dimensions, courts have recognized limits on criminalization of speech offenses like Intimidation. Thus, the 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, 123 S.Ct. 1536, 155 L.Ed.2d 535 (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, 89 S.Ct. 1399, 22 L.Ed.2d 664 (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 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 Brew-ington’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 *380threats and erratic behavior Brewington displayed. Id. Indeed, the psychologist in Brewington was so concerned by Brewing-ton’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 Stits-worth. (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. 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.