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Miscarriage an 'act' in intimidation charge

January 22, 2009

The Indiana Court of Appeals affirmed today a man's conviction of and sentence for intimidation after he threatened his wife, who recently miscarried. The appellate court ruled the miscarriage fulfilled the "act" part of the charge as contemplated by Indiana statute.

Manuel Clara appealed his conviction and sentence in Manual Clara v. State of Indiana, No. 19A04-0806-CR-345, in which the trial court denied his motion for judgment on the evidence or directed verdict.

Clara blamed his wife, Tosha, for her miscarriage a few weeks earlier and threatened to kill her and their 2-year-old son. He grabbed a knife from the kitchen and even screwed one of their home's doors shut so Tosha couldn't leave. She eventually escaped with their son and called police.

The intimidation charge against Clara provided that he threatened Tosha with the intent she "be placed in fear of retaliation for a prior lawful act, to wit: because [Tosha] had miscarried their child." Clara moved for a directed verdict, arguing miscarriage isn't an "act" as considered by the statute defining intimidation, so the state failed to establish the elements of the offense. The trial court denied the motion and he was found guilty; Clara was sentenced to the advisory sentence of four years on his intimidation conviction.

In his appeal, Clara argued that an "act" under the statute must be volitional, so the miscarriage couldn't count.

Using the dictionary definition of "act" as "the thing done," the act can be intentional, unintentional, volitional, or non-volitional, wrote Senior Judge John Sharpnack. Here, the state alleged and proved Tosha's miscarriage was "the thing done" and further showed Clara's threat to commit a forcible felony was based upon the miscarriage. As a result, the appellate court affirmed the trial court ruling.

The Court of Appeals also affirmed Clara's advisory four-year sentence as appropriate because Clara intimidated Tosha for more than two hours and threatened to kill his son as a result of his wife's miscarriage.

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