J.T., Appellant-Defendant, v. STATE OF INDIANA (2009)

MEMORANDUM DECISION - NOT FOR PUBLICATION

Case Summary

J.T. (“J.T.”) appeals his conviction of Intimidation, as a Class D felony.¹ We affirm.

Issues

J.T. raises two issues on appeal which we reorder and restate as follows:

I. Whether there was insufficient evidence to find J.T. guilty beyond a reasonable doubt of Intimidation; and

II. Whether the prosecutor's misconduct constituted fundamental error.

Facts and Procedural History

J.T. was convicted based upon his conduct during the jury trial of one of his friends, Marco Washington (“Washington”). Washington was on trial for criminal recklessness and possessing a handgun without a license, arising out of an altercation during which a gun was fired. The lead prosecutor on the case was deputy prosecuting attorney Amy Cressy (“Cressy”). The State's table was closer to the jury than the defense table. Seated at the State's table were deputy prosecuting attorney Ken Cotter (closest to the jury), Cressy (in the middle of the State's table), and Special Agent Jason Gore (“Agent Gore”). J.T. was called as a defense witness. On direct examination, J.T. testified that neither he nor Washington had a gun during the incident. As Cressy cross-examined J.T. regarding his credibility, he became increasingly agitated. After testifying, J.T. walked past the State's table and said “bitch” and “you ought to get blasted.” Transcript at 131, 218. Agent Gore sprang from his chair and followed J.T. out of the courtroom.

The State charged J.T. with Intimidation, as a Class D felony. A jury found him guilty as charged, and the trial court entered judgment. J.T. now appeals his conviction.

Discussion and Decision

I. Sufficiency of the Evidence

J.T. challenges the sufficiency of the evidence that he committed Intimidation, as a Class D felony. In reviewing a challenge to the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict, even when confronted with conflicting evidence. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007). We do not assess witness credibility or reweigh the evidence, affirming a conviction unless no reasonable factfinder could find the elements proven beyond a reasonable doubt. Id. “It is therefore not necessary that the evidence, overcome every reasonable hypothesis of innocence.” Id. at 147 (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

Intimidation is communicating a threat to another person, with the intent “that the other person be placed in fear of retaliation for a prior lawful act.” Ind. Code § 35-45-2-1. The offense is a Class D felony if the threat is communicated to a “law enforcement officer,” including deputy prosecutors. Id.; and Ind. Code § 35-41-1-17. Among other things, a “threat” is an expression of an intent to commit a crime or “unlawfully injure the person threatened.” I.C. § 35-45-2-1.

The evidence clearly supported a finding that J.T. communicated something to a deputy prosecuting attorney, and that he did so in reaction to her cross-examination of him, a prior lawful act. Accordingly, we analyze whether the evidence also supported a finding that J.T. threatened her with the intent that she “be placed in fear of retaliation.” I.C. § 35-45- 2-1. We review objectively, not subjectively, whether the communication was a threat. Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995) (rejecting defendant's argument that his threat was “neither serious nor taken seriously”).

Agent Gore testified that J.T. became “more and more agitated” during Cressy's cross-examination of him. Tr. at 128. J.T. left the witness box and walked with his head down, looking toward the State's table. As J.T. passed the table, he said, “you ought to get blasted.” Tr. at 131. Agent Gore testified that there was “no question” what J.T. had said. Tr. at 132. The officer sprang from his chair, followed J.T. out of the courtroom, and later arrested him. On cross-examination, Agent Gore testified regarding his understanding of J.T.’s comment:

Q: Blasted was the key term you recall?

A: Blasted, yes.

Q: That was as an ATF agent explosions, blast, that kind of caught your attention?

A: Yes.

Q: Because in your business ATF Alcohol, Tobacco and Firearms you're involved in explosives and that kind of thing, is that correct?

A: Yes, sir.

Q: So you hear the term blast that has a particular meaning to you, blast, explode?

A: That and I'm a police officer.

Q: ․ So as a police officer the term blast does have an explosion or a dangerous connotation, correct?

A: Yes, sir.

Tr. at 141. On re-direct, Agent Gore stated that “[t]here was no doubt” what J.T. meant when he used the word “blasted.” Tr. at 149.

Cotter testified that Cressy did a “very impressive job” in impeaching J.T.“s testimony and that J.T. “was visibly upset. ․ [A]s she went through that he got more and more angry and curt.” Tr. at 159. When J.T. was excused, Cressy and Cotter were “whispering or writing a note” regarding whether Cotter should cross-examine the next defense witness. Tr. at 160. Cotter testified that he heard J.T. say “bitch” as he was walking toward the State's table. Tr. at 162. J.T. was looking at Cressy and “was mumbling as he was going by,” but Cotter “couldn't make out all of the rest of the words.” Tr. at 162. Cotter later conferred with Agent Gore to understand the officer's sudden departure from the courtroom. According to Cotter, Agent Gore “said he is going to blast her or she ought to be blasted. I know blasted was in that phrase, meaning she should be shot.” Tr. at 164.

Deputy prosecuting attorney Anthony Rose (“Rose”) was in the back row of the courtroom observing the jury trial of Washington. According to Rose, “it was a real heated cross-examination”; “one of those times where you could feel the tension in the courtroom between him and Amy Cressy.” Tr. at 183. Rose testified that he heard J.T. say “something along the lines of needs to get blasted.” Tr. at 181. The State also called Washington's defense counsel, Dianne Tillman-Reed, who testified that J.T. said “[t]hey should be blasted.” Tr. at 193. Finally, according to Cressy, “I just momentarily looked up and I made eye contact with J.T. and he made eye contact with me, and at that point I heard him call me a bitch.” Tr. at 218. J.T. did not present any evidence.

A jury may make reasonable inferences regarding the meaning of words. For example, in Stewart v. State, Stewart was found guilty of Child Molesting despite the witnesses“ use of the terms “private area,” “private part,” and “private spot,” rather than “penis.” Our Supreme Court affirmed the conviction, reasoning that “the jury very easily could have reached the conclusion that [the witnesses] knew that “private area” or “private part” referred to “penis”. Stewart v. State, 768 N.E.2d 433, 436-37 (Ind. 2002), cert. denied, 537 U.S. 1004 (2002).

Here, Agent Gore and three prosecutors testified that Cressy's cross-examination of J.T. was very tense and that J.T. reacted angrily during his testimony. The jury clearly believed Cotter's and Agent Gore's interpretation that J.T. used the word “blasted” to mean shooting with a gun. Based upon the testimony of the State's witnesses and the reasonable inferences favorable to the verdict, there was sufficient evidence to find that J.T. left the witness box, walked near the State's table, made eye contact with the prosecutor who had just cross-examined him, called her a “bitch,” and said “you ought to get blasted” – implying that she should be shot – in retaliation for her lawful conduct. Tr. at 131, 218. There was sufficient evidence to find J.T. guilty beyond a reasonable doubt of Intimidation.

II. Prosecutorial Misconduct

J.T. also argues that the prosecutor committed misconduct in eliciting testimony regarding J.T.“s gang membership. Specifically, J.T. challenges eight of the State's questions; four posed to Agent Gore and four posed to Cressy.

In analyzing such a claim, we determine whether the prosecutor engaged in misconduct, and if so, whether the misconduct placed the defendant in a position of grave peril to which he or she should not have been subjected. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct.” Id.

To preserve the claim, the correct procedure is to request the trial court to admonish the jury, then, if not satisfied with the admonishment, to move for mistrial. Id. Absent doing so, the defendant must show fundamental error. Id. Fundamental error is error that makes “a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary principles of due process ․ present[ing] an undeniable and substantial potential for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).

J.T. did not seek an admonishment or move for mistrial within the context of any of the eight challenged questions. Furthermore, none of his objections addressed prosecutorial misconduct.² During two sidebar arguments, J.T.“s counsel said absolutely nothing. The failure to present a contemporaneous trial objection asserting prosecutorial misconduct results in waiver of appellate review. Johnson v. State, 725 N.E.2d 864, 867 (Ind. 2000); see also Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Accordingly, J.T. must establish fundamental error.

Immediately before trial, the trial court heard argument regarding whether the State could offer testimony that J.T. was a member of a gang. The trial court granted J.T.“s motion in limine to exclude such testimony, but noted that it was not a final ruling and asked counsel to show “the courtesy of coming up here when you start going into that area.” Tr. at 108.

The first challenged question was clearly not improper. The prosecutor asked Agent Gore whether Cressy asked “questions of Mr. J.T. that he demonstrated any kind of dissatisfaction with answering if you can remember.” Tr. at 123. Agent Gore responded that the “subject came up about the Wild Boys.” Tr. at 123. The trial court sustained J.T.“s objection, and admonished Agent Gore to answer “yes or no as opposed to what the subject matter was.” Tr. at 123. As J.T. acknowledges on appeal, the answer was simply non-responsive. Appellant's Brief at 4. There was nothing improper about the question.

Soon thereafter, the State approached the subject of gang membership.

Pros: Were there other people in the courtroom similarly dressed to him the way he was dressed that day when he sat in the witness box?

Def: Objection, Your Honor.

Court: Sustained at this point. If you would like to come up and talk we can, Mr. Dvorak.

[Sidebar conference held.]

․

Pros: I won't use gangs. I will talk about friends and these were people he was talking with all the time and in front of them.

Court: I don't need you to answer, [defense counsel]. If I need I will ask for your input. I'm going to sustain his objection.

You know why the order in limine is a preliminary determination. If he asks questions you find objectionable, you will object and I deal with them. If you don't object, it comes in. That's the way the rules go.

Tr. at 123-25. The prosecutor then questioned Agent Gore regarding “people of [J.T.’s] age seated in back of the courtroom” and “young people that became rowdy and had to be removed from the courtroom.” Tr. at 125, 127. The trial court overruled J.T.’s objections to these questions.³

The prosecutor pursued the same line of questioning with Cressy, asking her whether the people in the courtroom were “supporters” of Washington, “what those people were doing in the courtroom,” and what “behavior they engaged in the courtroom that the judge had them removed.” Tr. at 210-11. The trial court sustained J.T.“s objections to these three questions. In a sidebar conference, the prosecutor argued,

[Y]ou told me not to go into gangs and I'm not mentioning gangs. I'm not talking about gangs. I'm talking about the contention in the courtroom, what was going on, the atmosphere of the courtroom that makes the intent. ․ It has to do with the violence being threatened by the other people in the courtroom.

Tr. at 211-12.

Finally, the prosecutor asked Cressy “what kind of shirt” J.T. wore. Tr. at 214. Cressy's answer addressed J.T.“s attire on all three days of the trial. J.T. objected to the relevance of what he wore “any other days of the trial,” but not to what he wore the day he testified. Tr. at 214.

In its order in limine and during the first sidebar conference, the trial court noted that the order in limine was a preliminary determination. After the first sidebar conference, the prosecutor “s questions addressed, with one exception that we address below, the age of the people in the gallery, what they did to be removed from the courtroom, and whether they were supporters of Washington. These questions did not pertain to gangs and thereby complied with the spirit of the trial court's evidentiary rulings during the testimony of Agent Gore. Accordingly, we conclude that the prosecutor did not commit misconduct by asking these questions.

Of the eight questions J.T. challenges on appeal, only the final question was improper. During argument on J.T.’s motion in limine, the prosecutor repeatedly referred to the fact that J.T. and a number of young men in the back of the courtroom wore white, baggy t-shirts and that the t-shirts were “all part of the uniform if you will of that group the Wild Boys with whom the defendant admitted an affiliation.” Tr. at 98-99, 101, and 106. In two sidebar conferences during the jury trial, the prosecutor told the trial court that he would not elicit testimony regarding gang membership. (“I won't use gangs.” Tr. at 125. “I assure you we will stay away from gangs.” Tr. at 212.) But moments after the second sidebar conference, the prosecutor asked Cressy “[w]hat kind of shirt” J.T. wore. Tr. at 214. As made clear from the argument on J.T.’s motion in limine, the prosecutor asked this question to begin establishing gang membership – the very subject he had just promised the trial court that he would not approach. Asking this question was prosecutorial misconduct.

The effect of the question, however, was limited. J.T. directs us to no evidence of the attire worn by the young people in the gallery. In light of the testimony of the State's witnesses, J.T. has not established that the prosecutor's misconduct made a fair trial impossible or presented an undeniable and substantial potential for harm. See Benson, 762 N.E.2d at 752-53, 756 (concluding prosecutor's questions were “improper” and “particularly questionable,” but did not constitute fundamental error).

Conclusion

There was sufficient evidence to find J.T. guilty beyond a reasonable doubt of Intimidation. The prosecutor's misconduct did not constitute fundamental error.

Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1.

2.   For the first two, J.T.“s counsel simply said, “objection.” Tr. at 123-24. The other six addressed relevance.

3.   As to the two sentences in J.T.“s brief asserting that the trial court “erred” in admitting this testimony, he fails to develop a cogent argument. Appellant's Brief at 4, 5. The issue is therefore waived. See Ind. Appellate Rule 46(A)(8)(a); and Wentz v. State, 766 N.E.2d 351, 362 (Ind. 2002).

BAILEY, Judge

DARDEN, J., and ROBB, J., concur.