The state presented sufficient evidence to prove a Cass County man intimidated his neighbor by engaging in a true threat against his neighbor and intending to place his neighbor in fear of retaliation, the Indiana Court of Appeals has ruled.
On the morning of June 30, 2016, Rena and Keith Kottkamp were awakened by the sound of Keisha Mowery screaming “help me!” at their front door. Mowery had fled from Robert Fleming’s home, which was across the road.
Rena Kottkamp called the police, but Mowery returned to Fleming’s home before Cass County Sheriff’s Department officers Gary Armstrong and Shane Johnson arrived. Fleming refused to allow either officer into his home once they arrived, but instead used foul language to tell them to get off his property and threatened to rape their wives.
After the officers left and the Kottkamps went back to bed, the couple heard Mowery once again crying on their porch, so Rena Kottkamp made sure she stayed with her while Keith Kottkamp called the police. Fleming then left his home and began approaching the Kottkamps’ property while yelling obscenities at Rena Kottkamp. That prompted Keith Kottkamp to step out onto the porch to protect his wife, leading Fleming to threaten physical violence against him.
Johnson returned to the scene with officer Brenton McDonald, so Fleming attempted to return to his home while continuing to shout profanities. Johnson was eventually able to place Fleming in restraints and transported him to jail. He was later charged with Class A misdemeanor intimidation and Class B misdemeanor disorderly conduct.
Fleming was found guilty as charged, but challenged only his intimidation conviction on appeal in Robert R. Fleming v. State of Indiana, 09A05-1703-CR-645. He claimed there was insufficient evidence to sustain his intimidation conviction, but the Indiana Court of Appeals disagreed and affirmed his conviction.
Judge Paul Mathias, writing for the unanimous court, noted in the opinion that Fleming directly threatened physical violence against Keith Kottkamp by threatening to “beat (his) a–,” and made that threat while he was angry. Similarly, Kottkamp testified that Fleming’s words caused him to fear physical harm, thus satisfying both elements of a true threat under the test in Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014), Mathias wrote.
Although the charging information against Fleming did not specify the “prior lawful act” for which he was threatening Kottkamp – an element that must be shown to prove intimidation – Mathias noted the deputy prosecutor had twice described that act as Keith Kottkamp’s act of stepping onto his porch to protect his wife. Then, likening the instant case to that of Chastain v. State, 58 N.E.3d 235, the appellate court concluded “that it was reasonable to infer from the evidence that Fleming’s actions were prompted by Mr. Kottkamp stepping out onto his porch.”