COA majority: Conditional language is still a threat

April 21, 2016

The Indiana Court of Appeals affirmed a man’s conviction for Class A misdemeanor intimidation in a 2-1 decision after it found the conditional language he used in the threat placed his victim in danger of retaliation for a lawful act.

Victor Roar was near his sister Ametrua’s apartment, which was managed by Tracy Olive. When Roar saw Olive put an eviction notice in Ametrua’s back door, he yelled at Olive. He told her she was being unprofessional and then threatened to kill her if she came back on the property. He was charged with intimidation as a Class D felony, but that was reduced to a Class A misdemeanor after he was convicted. Roar appealed.

Roar challenged the sufficiency of the evidence against him and said the conditional language he used isn’t enough evidence to show he placed his victim in fear of retaliation for a lawful act. He also said the state erred in admitting certain evidence against him.

The COA majority said the evidence against Roar was clear-cut and more than sufficient to sustain the charge against him. He clearly made a threat, and it was clearly as a result of the eviction notice. Roar cited C.L. v. State, 2 N.E.3d798,801 (Ind Ct. App. 2014), in which a majority declared conditional threats cannot demonstrate an intent to place a victim in fear for retaliation of a lawful act. But Judge Edward Najam, who wrote the decision in this case and dissented in C.L. v State, said the court got that opinion wrong.

Najam wrote that C.L. v State was “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.”

Najam said Roar asked the COA to reweigh evidence on appeal.

“Roar 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.”

Roar also claimed the trial court abused its discretion in the admission of a phone call Ametrua made to Olive after Roar intimidated Olive. However, there is enough evidence to convict Roar without the phone call, so the admission of the evidence was harmless.

Judge Melissa May dissented in the opinion, saying she would reverse it. She said the state was required to prove Roar threatened Olive so she would be in fear of retaliation for a prior lawful act. However, she said Roar’s threat was for a future lawful act, returning to his sister’s property.

May believed the opinions in C.L. v State and a similar case, Causey v. State, 45 N.E. 3d 1239 (Ind. Ct. App 2015) were right, and the court should not have gone against them.

The case is Victor Roar v. State of Indiana, 49A02-1506-CR-506



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