BAKER, Judge.
Leonard Blackmon appeals his conviction for Intimidation,
On July 23, 2014, Donald Courtway was at his daughter Megan's house watching
Courtway knew that Megan's neighbor, Winifred Hale, did not have running water and had been borrowing water from neighbors. He picked up the bucket, dumped out the water, and walked on to Hale's driveway. Courtway noticed music coming from Hale's garage and yelled "hey" to try to get someone's attention. Hale and Blackmon exited the garage and walked up the driveway to meet Courtway. Hale and Blackmon eventually moved to a position about fifteen feet away from Courtway.
Courtway threw the bucket towards Hale's house and asked, in an elevated voice, who had broken off the lock to the spigot. He then asked who had given them permission to use the water. Hale told Courtway that she would pay for the water. Courtway declined this offer and told her that he was going to call the police.
Blackmon, who had been silent up to this point, pulled out an open pocket knife and held it above himself. Courtway then placed his hand on his pocket and said "I hope you enjoy your last day on earth" in an effort to make it appear as though he was armed. Tr. p. 33-34. Blackmon said "oh, you gonna shoot me?" Tr. p. 34. Blackmon then put the pocket knife down, offered a few parting expletives, and returned to the garage. Courtway went back to his daughter's house and called the police.
The police arrested Blackmon later that evening. When questioned by an officer, Blackmon admitted to stealing water. He was charged with Level 5 felony intimidation and class A misdemeanor possession of paraphernalia.
On appeal, Blackmon contends that the evidence is insufficient to support his conviction.
Indiana's intimidation statute provides:
Ind.Code § 35-45-2-1. The offense is raised to a Level 5 felony if "while committing it, the person draws or uses a deadly weapon." Id. Here, the State chose to charge Blackmon under subdivision (a)(2) of the statute, seeking to prove at trial that Blackmon had threatened Courtway with the intent that Courtway be placed in fear of retaliation for a prior lawful act. The charging information provided:
Appellant's App. p. 31.
On appeal, Blackmon alleges that the State presented insufficient evidence to prove that his actions constituted a threat or that he intended to place Courtway in fear of retaliation for having caught Blackmon stealing water. Because we find Blackmon's second argument to be dispositive, we need not address his argument that his actions did not constitute a threat.
To convict a defendant of intimidation under Indiana Code section 35-45-2-1(a)(2), the State is required to prove beyond a reasonable doubt that the defendant threatened the victim with the intent "that the other person be placed in fear of retaliation for a prior lawful act." This Court interprets statutes using well-established rules of statutory construction. Casey, 676 N.E.2d at 1072.
Id. (citations omitted).
In Casey, we examined the language of Indiana Code section 35-45-2-1(a)(2) and concluded:
Id.
Here, the charging information specified Courtway's prior lawful act as:
As to Blackmon's first argument, the State maintains that it proved that Courtway caught Blackmon stealing water through circumstantial evidence. The State points out that Courtway saw the broken spigot with Hale's bucket underneath. Appellee's Br. p. 9. The State stresses the fact that Blackmon subsequently admitted to law enforcement that he had taken the water. Tr. p. 73. But while this evidence tends to establish that Blackmon took the water, it does not tend to establish that Courtway caught Blackmon taking the water, as was specified in the charge.
Furthermore, it is apparent from Courtway's testimony that he did not know who had taken the water at the time he went to confront Blackmon and Hale. Id. at 31. During the confrontation, Hale was the only person who made any remarks regarding the water and her statements did not implicate Blackmon. Id. at 32. As there is no evidence indicating that Courtway knew who took the water, there is no evidence that Courtway caught anyone taking the water. Consequently, we find that the State failed to present sufficient evidence that Courtway committed the prior lawful act as specified in the charging information.
Moreover, even had Courtway caught Blackmon stealing water, we believe that the evidence presented by the State was insufficient to allow the jury to reasonably conclude that Blackmon acted with the intent to place Courtway in fear of retaliation for this act. In Casey, we held:
676 N.E.2d at 1072.
Our holding in Ransley v. State is illustrative of this point. 850 N.E.2d 443 (Ind.Ct.App.2006). In that case, Ransley and Nolan were involved in an ongoing property dispute. Id. at 444. Nolan was out one day mowing grass near the disputed portion of the property when he noticed Ransley on his porch. Id. Nolan began to yell at Ransley, who in turn began to walk towards Nolan. Id. Nolan went back to his house, retrieved an axe handle, and came back out to confront Ransley. Id. At this point, Ransley pulled a handgun from his waistband and pointed it at Nolan. Id.
The State charged Ransley with intimidation, alleging in the charging information that Ransley had threatened Nolan "with the intent . . . that Nolan be placed in fear for the prior lawful acts including arguing with Ransley. . . ." Id. at 445. We found the evidence insufficient to establish this element of the charge, noting:
Id. at 447.
The facts of this case are substantially similar. Here, the State presented no evidence that Courtway caught Blackmon stealing water nor did it present any evidence that Blackmon believed he had been caught stealing water. Courtway did not testify that he believed Blackmon would retaliate because he had been caught stealing water. Courtway testified that Blackmon said nothing prior to drawing the knife. Tr. p. 32. It was not until after Courtway threatened to call the police that Blackmon drew the knife. Id. at 32-33. While this may have been evidence that Blackmon intended to stop Courtway from calling the police and thereby intended to make Courtway engage in conduct against his will—a crime under Indiana Code section 35-45-2-1(a)(1), see Johnson v. State, 717 N.E.2d 887, 890 (Ind.Ct.App. 1999)—this was not how the charge was brought. Consequently, we are compelled to conclude that the State failed to present sufficient evidence to prove that Blackmon intended to put Courtway in fear of retaliation for having caught him stealing water—an essential element of the crime as it was charged.
The State argues that even if the evidence does not support a conclusion that Courtway caught Blackmon stealing water, the conviction can still be affirmed. According to the State, it was not required to show that Blackmon acted because Courtway caught him stealing water, but only that he acted because Courtway confronted him about stealing water. The State argues that these two concepts are essentially the same.
"The purpose of the charging instrument is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense." Ben-Yisrayl v. State, 738 N.E.2d 253, 271 (Ind.2000). Accordingly, Indiana Code section 35-34-1-2(a)(4) requires that an indictment or information "allege the commission of an offense by . . . setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition." The indictment or information also must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." I.C. § 35-34-1-2(d).
Our Supreme Court has observed:
Myers v. State, 510 N.E.2d 1360, 1366-67 (Ind.1987) (citations omitted). Here, the State admits that it "alleged that Courtway's prior lawful act was catching Blackmon stealing water" but that it "argued to the jury that his prior lawful act was confronting Blackmon about stealing water." Appellee's Br. p. 13. However, the State maintains that this is an insignificant variance between the charging information and the proof adduced at trial and that, as such, it is not fatal.
"A variance is an essential difference between the pleading and the proof." Madison v. State, 234 Ind. 517, 531, 130 N.E.2d 35, 41 (1955) (quotations omitted). Not all variances between the charging information and the proof offered at trial will warrant reversal. See Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987) (charging information which incorrectly identified the owner of a burglarized church not fatal variance when it "could have in no way misled appellant or caused any hardship in his defense of the allegation."); Daniels v. State, 957 N.E.2d 1025, 1030 (Ind.Ct.App.2011) (charging information alleging that defendant "drew" handgun when State presented evidence that he "used" handgun not fatal variance when there was "no indication that Daniels was prejudiced in the preparation or maintenance of his defense by the variance.")
However, in light of the above-mentioned constitutional concerns, our Supreme Court has observed that a variance warrants reversal when the "variance between the charging information and the proof offered at trial actually misled the defendant in the preparation of her defense." Myers, 510 N.E.2d at 1367; see also Madison, 234 Ind. at 545, 130 N.E.2d at 48 (Arterburn, J., concurring). We believe that such is the case here.
Initially, we note the difference between the words "catch" and "confront." "Catch," in the sense most naturally fitting the facts of this case, means "to discover unexpectedly" or "to become suddenly aware of," as in the phrase: "He was caught in the act." Merriam-Webster's Collegiate Dictionary, 195 (11th ed. 2003). Whereas "confront," in the sense put forward by the State, means "to meet face-to-face" or "to face especially in challenge." Id. at 262. Therefore, in common usage, these two words clearly define mutually exclusive concepts. One can "catch" someone doing something without "confronting" them about it. Likewise, one can "confront" someone about something without having "caught" them doing anything.
Here, the record reveals that Blackmon's defense strategy was based on showing that Courtway had not "caught" Blackmon doing anything. This is apparent from the defense's opening statement. Tr. p. 24. It is also apparent from the defense's cross-examination of Courtway, who was the only eye witness to testify:
Tr. p. 38, 43.
Blackmon's strategy relied on the notion that, if he could show that Courtway never caught him stealing water, it would follow that his actions could not have been intended to place Courtway in fear of retaliation for that act. At the close of evidence, believing that his strategy had been successful, Blackmon moved for a directed verdict. Id. at 102. It was not until this point that the State argued that the phrase in the charging information "Donald Courtway caught Leonard Blackmon stealing water" really meant "Donald Courtway confronted Leonard Blackmon about stealing water."
Following this, the State, in its closing argument, informed the jury that the true prior lawful act at issue in this case was the confrontation.
We believe that proper observance of Blackmon's constitutional right to be adequately informed of the charges
Given the clear difference in meaning between the words "caught" and "confronted," we cannot fault Blackmon for believing that one word did not imply the other and preparing his defense accordingly. The record shows that Blackmon was actually misled by this variance. He argued that the State would not be able to prove that Courtway caught him in his opening statement, devoted a substantial portion of his cross-examination of Courtway seeking to prove that Courtway had not caught him and, at the close of evidence, moved for a directed verdict on the issue. Tr. p. 24, 38, 43, 102-04. Blackmon was not informed that the State was reading the language of the charge in an unusually expansive manner until after he had presented his defense. Under these circumstances, we find that the variance between the charge brought by the State and the proof offered at trial is fatal.
The judgment of the trial court is reversed and remanded with instructions to vacate Blackmon's conviction and sentence for Level 5 felony intimidation. Blackmon's conviction and sentence for class A misdemeanor possession of paraphernalia stands.
MAY, J., concurs, and BRADFORD, J., dissents with an opinion.
BRADFORD, Judge, dissenting.
I must respectfully dissent from the majority's opinion as I would affirm Blackmon's conviction for intimidation.
In its charging information, the State alleged that "Blackmon did communicate a threat to another person, with the intent that said other person be placed in fear of retaliation for a prior lawful act, to-wit; Leonard Blackmon threatened to cut Donald Courtway with a knife, after Donald Courtway caught Leonard Blackmon stealing water." Appellant's App. p. 31. The facts leading up to Blackmon's threatening Courtway are as follows: (1) Courtway found that a spigot lock had been broken off the spigot on the outside of his daughter's house and a bucket placed underneath; (2) Courtway knew that the neighbor, Hale, did not have running water and had been borrowing water from neighbors; (3) Courtway went to Hale's house and confronted Hale and Blackmon about the stolen water; (4) Hale offered to pay for the water; and (5) Courtway declined and told the two he was going to call the police, at which point Blackmon brandished a knife.
Courtway had ample reason to believe that Blackmon and/or Hale had stolen water and it was a lawful act to confront them and subsequently inform them that he was going to call the police. I cannot agree with the majority's conclusion that there is a distinction between "catching" Blackmon stealing water and "confronting" Blackmon about the stolen
Furthermore, I cannot agree with the narrow re-characterization of events to find that Blackmon only threatened Courtway in retaliation for his threatening to call the police, as opposed to his catching Blackmon stealing water. I see little logic in separating the act of catching someone performing illegal activity and subsequently calling the police regarding said activity; the two actions are part of the same series of events and, as such, the same prior lawful act.
Tr. p. 104-05.