Crone, J.
….
[After being arrested and transported to jail on suspicion of OWI,] 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.” [Record citations omitted throughout.] A few minutes later, Holloway stood up, started to approach Officer Stitsworth, and said, “I will f[*]ck you up.” Officer Stitsworth interpreted this as a threat and told Holloway to sit down.
… In May 2015, the trial court [following a bench trial] issued a written order finding Holloway guilty of [Level 6 felony] intimidation. This appeal ensued.
….
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). …
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 [footnote omitted] 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. [Footnote omitted.] In sum, we find Holloway’s argument unavailing and therefore affirm his intimidation conviction.
Affirmed.
Vaidik, C.J., concurs.
Bailey, J., dissents with opinion.
Bailey, Judge, dissenting.
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.
….
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 [second element is that] the communications must have been “likely to actually cause such fear in a reasonable person similarly situated to the target.” Id. …
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. [Citations omitted.] …
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.
Holloway said that he hoped Officer Stitsworth would die that night, said that he would “f**k…up” Officer Stitsworth. 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.” 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.
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.
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. [Citation omitted.]
I therefore respectfully dissent.
….
[After being arrested and transported to jail on suspicion of OWI,] 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.” [Record citations omitted throughout.] A few minutes later, Holloway stood up, started to approach Officer Stitsworth, and said, “I will f[*]ck you up.” Officer Stitsworth interpreted this as a threat and told Holloway to sit down.
… In May 2015, the trial court [following a bench trial] issued a written order finding Holloway guilty of [Level 6 felony] intimidation. This appeal ensued.
….
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). …
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 [footnote omitted] 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. [Footnote omitted.] In sum, we find Holloway’s argument unavailing and therefore affirm his intimidation conviction.
Affirmed.
Vaidik, C.J., concurs.
Bailey, J., dissents with opinion.
Bailey, Judge, dissenting.
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.
….
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 [second element is that] the communications must have been “likely to actually cause such fear in a reasonable person similarly situated to the target.” Id. …
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. [Citations omitted.] …
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.
Holloway said that he hoped Officer Stitsworth would die that night, said that he would “f**k…up” Officer Stitsworth. 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.” 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.
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.
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. [Citation omitted.]
I therefore respectfully dissent.