Roar v. State

MAY, Judge,

dissenting.

I would reverse Roar’s conviction, as the State did not prove Roar’s intent to place Olive in fear of retaliation for a prior lawful act. Therefore, I must dissent.

To convict Roar, of Class A misdemeanor intimidation, the State' was required to prove Roar communicated a threat to Olive with the intent she “be placed in fear of retaliation for a prior *945lawful act.” Ind.Code § 35-45-2-1 (emphasis added). Roar told Olive, “if [she] came back on the property, he’d kill [her].” (Tr. at 25.) That threat was aimed at the future conditional act of Olive returning to the property, and was not in retaliation for Olive’s prior act of delivering an eviction notice.

In Causey v. State, 45 N.E.3d 1239 (Ind.Ct.App.2015), police were called to Causey’s residence. Causey told the officers they had no business at his house, then said “you won’t take me alive” and slammed the door. Id. at 1240. Police called for backup, and while they waited Causey opened the door and yelled: “[G]et off my property. You don’t belong on my property. If you come any closer I’ll shoot.” Id. '

Causey was convicted of" Class D felony intimidation. ’We reversed, finding it “apparent” from the language of the intimidation statute that “the legislature intended to require the State to prove that the victim had engaged in a prior act, which was not contrary to law, and that the defendant intended to repay the victim for the prior lawful act.” Id. at 1241 (quoting Casey v. State, 676 N.E.2d 1069, 1072 (Ind.Ct.App.1997)) (emphasis added). In Casey, the State alleged Casey committed intimidation when he told the victim, “You’re next bitch.” 676 N.E.2d at 1073. That statement did not indicate there was a prior lawful action that led to the threats, and there was no evidence the threats were made in retaliation for the victim’s actions prior to the statement. The statement did not “demonstrate his reasons for threatening [the victim] or- indicate that he was doing so because of’any specific prior act.” Id. We -reached the same conclusion in C.L. v. State, 2 N.E.3d 798, 801 (Ind.Ct.App.2014): “statements that are ‘conditional and aimed at future, rather than past, conduct,’ will not support a'finding-that the defendant intended to place the victim in fear of retaliation for prior acts.”

I would not disregard the plain language of the statute or the holdings in our decisions addressing that question. The majority in this case would interpret the intimidation statute to allow a conviction even if a defendant used language that was “conditional and aimed at future, rather than past, conduct,” id., but I do not believe our precedent permits that interpretation. Even if wé are free to “interpret” the plain and explicit language of the intimidation statute, our Supreme Court has instructed us that penal statutes should be construed strictly against the State and ambiguities should be resolved in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind.2005). We assume the language in a statute was used intentionally and that every word should be given effect and meaning. Id.

The intimidation statute requires proof of intent that a victim be placed in fear- of retaliation for a prior lawful act, and the State did not prove that. I must therefore respectfully dissent.