Najam, J.
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[Roar was at his sister’s home when the landlord, Olive, served an eviction notice on his sister. As Olive turned to leave, Roar “called [her] a bitch” and said that “if [she] came back on the property he’d kill [her].” At bench trial, he was convicted of D-felony intimidation, but the court reduced the conviction to an A misdemeanor.]
A reasonable fact-finder could conclude that the State presented sufficient evidence to support its charge of intimidation. …
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Roar argues that, because he conditioned his threat to Olive on “if [she] came back on the property,” any other evidence concerning whether he intended his threat to place Olive in fear of retaliation for a prior lawful act is irrelevant. In support of that analysis, Roar most notably cites C.L. v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014), trans. not sought, in which a majority panel of this court categorically declared that “conditional” threats cannot demonstrate an intent to place a victim in fear of retaliation for a prior lawful act. But we agree with the dissenting opinion in C.L. and conclude that the majority in that case did not correctly decide that question. See id. at 801-02 (Najam, J., dissenting). As such, we are also not persuaded by Causey v. State, 45 N.E.2d 1239 (Ind. Ct. App. 2015), trans. not sought, the only published opinion in Indiana to rely on the majority’s reasoning in C.L.
Under the reasoning of C.L. 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. § 35-45-2-1(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.
In its operation and effect, Roar’s [argument] … asks this court to reweigh the evidence on appeal by giving exclusive weight to the first seven words of his threat to Olive while simultaneously discrediting all other evidence. We will not reweigh the evidence on appeal. The trial court was capable of discerning whether intimidation occurred where, as here, there is a clear nexus between the prior lawful act and the threat. The evidence plainly demonstrated, first, that Roar communicated a threat to Olive and, second, that he did so with the intent to place her in fear of retaliation for a prior lawful act. Accordingly, we affirm Roar’s conviction for intimidation, as a Class A misdemeanor.
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Riley, J., concurs.
May, J., dissents with separate opinion.
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 lawful 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.
[Discussion of Causey and C.L. omitted.]
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I would not disregard the plain language of the statute or the holdings in our decisions addressing that question. … Even if we 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. [Citation omitted.] …
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.
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[Roar was at his sister’s home when the landlord, Olive, served an eviction notice on his sister. As Olive turned to leave, Roar “called [her] a bitch” and said that “if [she] came back on the property he’d kill [her].” At bench trial, he was convicted of D-felony intimidation, but the court reduced the conviction to an A misdemeanor.]
A reasonable fact-finder could conclude that the State presented sufficient evidence to support its charge of intimidation. …
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Roar argues that, because he conditioned his threat to Olive on “if [she] came back on the property,” any other evidence concerning whether he intended his threat to place Olive in fear of retaliation for a prior lawful act is irrelevant. In support of that analysis, Roar most notably cites C.L. v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014), trans. not sought, in which a majority panel of this court categorically declared that “conditional” threats cannot demonstrate an intent to place a victim in fear of retaliation for a prior lawful act. But we agree with the dissenting opinion in C.L. and conclude that the majority in that case did not correctly decide that question. See id. at 801-02 (Najam, J., dissenting). As such, we are also not persuaded by Causey v. State, 45 N.E.2d 1239 (Ind. Ct. App. 2015), trans. not sought, the only published opinion in Indiana to rely on the majority’s reasoning in C.L.
Under the reasoning of C.L. 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. § 35-45-2-1(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.
In its operation and effect, Roar’s [argument] … asks this court to reweigh the evidence on appeal by giving exclusive weight to the first seven words of his threat to Olive while simultaneously discrediting all other evidence. We will not reweigh the evidence on appeal. The trial court was capable of discerning whether intimidation occurred where, as here, there is a clear nexus between the prior lawful act and the threat. The evidence plainly demonstrated, first, that Roar communicated a threat to Olive and, second, that he did so with the intent to place her in fear of retaliation for a prior lawful act. Accordingly, we affirm Roar’s conviction for intimidation, as a Class A misdemeanor.
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Riley, J., concurs.
May, J., dissents with separate opinion.
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 lawful 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.
[Discussion of Causey and C.L. omitted.]
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I would not disregard the plain language of the statute or the holdings in our decisions addressing that question. … Even if we 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. [Citation omitted.] …
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.