Opinion
23A-CR-2750
08-13-2024
Michael Kotmel, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Warrick Circuit Court The Honorable Greg Granger, Judge Trial Court Cause No. 87C01-1908-F5-397
ATTORNEY FOR APPELLANT
Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE
Case Summary
[¶1] A jury found Michael Kotmel guilty of Level 5 felony stalking, Level 6 felony intimidation, two counts of Class A misdemeanor invasion of privacy, and Class B misdemeanor harassment. Kotmel appeals, raising several issues:
Ind. Code § 35-45-10-5(a), (b)(2) (2014).
I.C. § 35-45-2-1(a)(2), (b)(1)(B) (2019).
I.C. § 35-46-1-15.1(a)(1) (2019).
I.C. § 35-45-2-2(a)(4)(A) (1996).
1) Did the trial court commit fundamental error by allowing the State to amend the charging information for stalking?
2) Did the trial court commit fundamental error by allowing testimony about events occurring before the earliest date alleged in the charging information for stalking?
3) Did the State present sufficient evidence to sustain his convictions of stalking and intimidation?
Kotmel does not challenge the evidence supporting his other convictions.
We affirm in part and reverse in part.
Facts and Procedural History
[¶2] Kotmel and JoAnne were married in 1994, had three children together-a daughter and twin sons-and divorced in May 2019. Under their divorce agreement, JoAnne was the primary custodial parent and Kotmel had parenting time.
[¶3] The day after the divorce was final, JoAnne came home to find her garage door open and inoperable. The remote opener was missing. Thinking someone may have broken in, JoAnne called the police. Police determined someone had tampered with the door and temporarily put screwdrivers in the garage tracks to keep the door from opening. The next day, JoAnne was home waiting on Kotmel to arrive for parenting time. She heard the garage door trying to open and saw Kotmel outside in his car. Shortly after this, JoAnne sought a protective order against Kotmel, in part because of the garage door incident. The trial court issued the ex parte protective order on July 10, ordering Kotmel to stay away from JoAnne's residence and prohibiting Kotmel from "harassing, annoying, telephoning, contacting, or directly or indirectly communicating" with JoAnne except for "[c]ommunication regarding the minor children of the parties only and for parenting time exchanges." Ex. Vol. 4 at 19.
[¶4] On July 11, the twins were to check in for soccer camp at Indiana University in Bloomington. When the plans were made several months prior, Kotmel was going to drive the twins and a couple of their friends to camp. By the time July rolled around, however, JoAnne had decided to drive the kids herself. JoAnne, a pharmaceutical sales representative, went to work that morning. When she returned home to get the boys, several police cars were in her neighborhood and Kotmel was parked on the street in front of JoAnne's house "demanding to take the children to camp." Tr. Vol. 2 at 210. Police gave Kotmel a copy of the protective order. An officer told JoAnne, "[Y]ou are free to go, we've got this. He will not be following you." Id. at 211. JoAnne drove to Bloomington, dropped the kids off to check in, parked, and returned to the registration area to wait for the kids so she could take them to their room and help them settle in. She was not "scared, didn't think we were gonna see [Kotmel]." Id. So she was surprised to see Kotmel at the exit to the registration area. Kotmel squeezed into the elevator with JoAnne and the boys, "just glaring" at JoAnne. Id. at 214. Kotmel did not directly interact with JoAnne while they were in the room.
[¶5] "[L]eery of the situation," JoAnne told a few neighbors she had a protective order against Kotmel and he should not be around her house. Id. at 161. Two neighbors reported seeing Kotmel in the neighborhood, with one saying he saw Kotmel "[d]riving real slow" and pausing on a street where he could see into JoAnne's backyard and the other saying when she saw Kotmel, he was not driving his normal vehicle and it was "a little strange." Id. at 162, 169.
[¶6] On August 14, 2019, the State charged Kotmel with committing stalking and invasion of privacy "on or about July 11, 2019." Appellant's App. Vol. 2 at 3132. In fall 2020, Kotmel sent many text messages and emails to JoAnne. Kotmel also sent numerous group text messages to JoAnne and the twins. There were two common themes in these messages: 1) Kotmel's parenting time and communication with the twins, and 2) Kotmel's requests for tickets to the twins' soccer games. JoAnne described the demands for tickets as "aggressive" and "angry." Tr. Vol. 2 at 218. The twins became frustrated with Kotmel constantly texting them during class. After asking him to stop to no avail, they began ignoring him or blocked him "so he could settle down." Tr. Vol. 3 at 23. They also sometimes refused to participate in parenting time. Both boys testified they stopped communicating or skipped parenting time with Kotmel of their own accord.
At some point after the parties were divorced, their daughter went to live with Kotmel.
Because of COVID-19 restrictions, access to tickets for fall 2020 high school soccer games was limited.
[¶7] In October 2020, JoAnne received a copy of a message Kotmel sent to several soccer families asking for help getting tickets to soccer games. The message began, "This is not cool I'm a parent that can't get tickets because of an ex-wife that had an affair and destroyed my family." Ex. Vol. 4 at 105. The parent who forwarded the message to JoAnne checked on her later, texting, "His emails today are scary, like unhinged and I'm just worried about you. Are you safe?" Id. at 106. Another parent who received the message stated, "[A]t every game that I had been at, I'd seen [Kotmel] there" so it felt like Kotmel sent the message as "a chance to just publicly humiliate Joanne[.]" Tr. Vol. 2 at 179.
[¶8] At the end of October and beginning of November, Kotmel sent a series of emails to JoAnne, his attorney, and/or Newburgh police officer Ryan McIntosh. He accused JoAnne of being unstable, stealing his share of their COVID-19 stimulus check, abusing their daughter, and committing bribery which is "not acceptable in Pharmaceutical Sales." Ex. Vol. 4 at 27. He suggested she should be investigated for harassment and invasion of privacy against him. He alleged he had been in contact with the police, IRS, Department of Child Services, and the FDA about her and was filing contempt charges in their dissolution case. JoAnne was "devastat[ed]" by Kotmel's references to the FDA because an FDA investigation would be "career ending." Tr. Vol. 2 at 227.
Kotmel also continued to text JoAnne, including a text referencing alleged criminal charges that ended, "It's going to be Great being a Single Parent, Yours in Co-Parenting, (for now)." Id. at 78.
[¶9] On November 2, Kotmel emailed JoAnne about his upcoming parenting time, stating he was "entitled to this time" with the twins and accusing her of blocking his number on the twins' phones. Ex. Vol. 4 at 30. JoAnne responded, informing Kotmel the twins "have private passwords and continue to manage their phones." Id. at 33. She explained the twins had been told by the school resource officer "to block you when they don't feel safe or you're sending them inappropriate material and/or inappropriate times of day." Id. Kotmel sent a return email, stating he was friends with various state, county, and local police officers and accusing her of being a "Felony Grand Larcenist, Identity Theif [sic], [and] a Forger" who was about to be charged with child abuse. Id. at 32. And he said, "[Y]our continuing lies . . . will be and already have been exposed." Id. at 33.
[¶10] Throughout this time, JoAnne did not always respond to Kotmel's texts and emails, but once she responded to a text by saying, "You have completely crossed the line. STOP." Id. at 86. JoAnne responded to an email by saying, "I'm not sure why you're continuing to be inappropriate. You are terrifying me and the children. Only communicate with me regarding child exchange." Id. at 35.
[¶11] In November 2020, the State charged Kotmel in a separate case with intimidation, invasion of privacy, and harassment arising from the recent emails. On the State's motion, these charges were eventually joined with the August 2019 charges and the separate cause was dismissed.
[¶12] In February 2023, the State moved to amend the timeframe for the stalking and invasion of privacy charges from "on or about July 11, 2019" to "between July 11, 2019 and November 4, 2020." Appellant's App. Vol. 2 at 166. Kotmel did not object. The trial court granted the motion, and the amended charges were filed on February 6, 2023.
The State first moved to amend the charges in December 2022 to make the same change. Kotmel did not object. The trial court granted the motion, but the State did not immediately file amended charges.
[¶13] Kotmel's jury trial on all five charges began on September 26, 2023. Testimony about and exhibits showing the events described above were admitted into evidence with no objection. The jury found Kotmel guilty as charged, and the trial court sentenced him to a total of five years in the Indiana Department of Correction.
Amendment of Charging Information Was Not Fundamental Error
[¶14] The stalking charge against Kotmel originally alleged:
[O]n or about July 11, 2019 . . . after having been served with a valid protective order to prevent domestic or family violence or harassment issued under I.C. 34-26-5[] by the Superior Court of Warrick County . . . to protect Joanne Kotmel, the defendant, Michael Kotmel, did stalk Joanne Kotmel, by following her by vehicle from Warrick County, Indiana to Bloomington, Indiana[.]Id. at 32. In early 2023, the trial court granted the State's motion to amend the stalking charge to include a date range. The amended charge-filed on February 6, 2023-reads:
[B]etween July 11, 2019 and November 4, 2020 . . . after having been served with a valid protective order to prevent domestic or family violence or harassment issued under I.C. 34-26-5[] by the Superior Court of Warrick County . . . to protect Joanne Kotmel, the defendant, Michael Kotmel, did stalk Joanne Kotmel[.]Id. at 168. Kotmel did not object to the amendment at any time between the State's motion and his trial, which began on September 26, 2023. To avoid waiver, Kotmel claims the trial court committed fundamental error by allowing the amendment.
The State also amended the invasion of privacy charge, but Kotmel makes no argument about the amendment of that charge.
Kotmel filed a motion in limine about evidence of his post-July 11, 2019, conduct before the State filed its motion to amend and alleges that "was enough to preserve the objection to the amendment and the evidence that followed." Appellant's Br. at 17. We disagree-the purpose of the contemporaneous objection requirement "is to give the trial court a chance to avoid or correct the harmful error[.]" Wilder v. State, 91 N.E.3d 1016, 1022 (Ind.Ct.App. 2018). "[A] trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider." Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Kotmel's motion, filed before the State sought to amend the charges, cannot be said to have placed the propriety of the amendment before the trial court.
[¶15] A party's failure to object to an alleged trial error results in waiver of that claim on appeal. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). But a party can raise an otherwise waived issue through a showing of fundamental error. See Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The "fundamental error" exception to waiver is "extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Id. This "formidable standard . . . applies only where the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel." Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021). The mere fact of prejudicial error is not enough to establish there was fundamental error. Absher v. State, 866 N.E.2d 350, 355 (Ind.Ct.App. 2007). Instead, the appellant "faces the heavy burden of showing that the alleged errors are so prejudicial to [their] rights as to 'make a fair trial impossible.'" Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)) (emphasis added).
[¶16] The charging information serves to "advise the accused of the particular offense charged so that he can prepare a defense, and so that he can be protected from being twice placed in jeopardy for the same offense." Absher, 866 N.E.2d at 355 (quotation omitted). Indiana Code Section 35-34-1-5 governs amendments to a charging instrument. Relevant to this case, the statute allows an information to be amended if the amendment does not prejudice the substantial rights of the defendant. I.C. § 35-34-1-5(a)(9), (b)(2) (2014). A defendant's substantial rights include sufficient notice and an opportunity to be heard regarding the charge. Blythe v. State, 14 N.E.3d 823, 829 (Ind.Ct.App. 2014). If the amendment does not affect any particular defense or change the positions of either party, it does not violate these rights. Id. The question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges. Id.
The State's December motion to amend alleged the proposed amendment would correct an immaterial defect. See Appellant's App. Vol. 2 at 159 (citing I.C. § 35-34-1-5(a)(9) (allowing an amendment at any time to correct an immaterial defect)). The State's February motion to amend alleged the proposed amendment was to a matter of substance. See id. at 166; see also I.C. § 35-34-1-5(b) (allowing an amendment prior to trial in matters of substance). On appeal, the State analyzes the amendment as one of substance. See Appellee's Br. at 20-21. We need not decide whether the State's amendment was a matter of form or substance because the prejudice standard is the same.
[¶17] Kotmel claims the amendment made a fair trial impossible because if the stalking charge had not been amended to expand the timeline, the State could not have proved its case and his defense "would have been that the Bloomington incident did not constitute stalking." Appellant's Br. at 20. "Stalking" is defined in part as a "course of conduct involving repeated or continuing harassment of another person[.]" I.C. § 35-45-10-1 (1993). Essentially, Kotmel claims events on one day could not constitute a "course of conduct." But "[t]here is no statutorily determinate timeframe required for a stalking conviction. Stalking could occur over a matter of minutes or years." Nicholson v. State, 963 N.E.2d 1096, 1103 (Ind. 2012). A "charge of stalking may be supported by conduct that is purely continuous in nature." Falls v. State, 131 N.E.3d 1288, 1290-91 (Ind. 2019) (holding defendant's action of following victim in his vehicle for two and one-half hours despite victim's efforts to evade him "certainly fall within the statutory definition of 'continuing harassment'"). "The key is for the trier of fact to determine what the course of conduct was and if it involved repeated or continuing harassment." Nicholson, 963 N.E.2d at 1103. Because the trier of fact could determine one continuous incident constituted stalking, amending the information to expand the allegations from a single date to a date range was not necessary for the State to prove the charge. Further, after the amendment Kotmel continued to claim his conduct did not constitute stalking.
[¶18] Kotmel's trial began seven months after the charges were amended. Kotmel had sufficient notice of the amended charge against him, ample time to object, and a full opportunity to prepare a meaningful defense. Kotmel did not suffer any prejudice from the amendment, let alone such prejudice that he was denied a fair trial. Cf. Shaw v. State, 82 N.E.3d 886, 897 (Ind.Ct.App. 2017) (defendant was not prejudiced by untimely amendment where he "was given notice of the amendment, an opportunity to challenge it, and adequate time to prepare for trial"), trans. denied. Kotmel has not met his "heavy burden" of demonstrating fundamental error. Ryan, 9 N.E.3d at 668.
Kotmel also argues allowing the amendment led "to the erroneous admission of evidence," referring to "alleged instances of stalking that took place after the charges were [originally] filed." Appellant's Br. at 12. But he concedes "once the charges were amended, the challenged [evidence] became relevant and admissible." Id. at 17. Having concluded allowing the amendment was not fundamental error, we need not address the evidentiary issue.
Admission of Pre-July 11 Evidence Was Not Fundamental Error
[¶19] Kotmel alleges the trial court committed fundamental error in allowing JoAnne to testify about the garage door incident because it occurred before July 11, 2019. Kotmel filed a pretrial motion in limine addressing this evidence but concedes he did not object at trial. See Appellant's Br. at 14. Raising an issue through a pretrial motion is insufficient to preserve the issue for appeal. See Viverett v. State, 215 N.E.3d 352, 355 (Ind.Ct.App. 2023), trans. denied. Rather, a contemporaneous objection at the time evidence is introduced at trial is required. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). "Failure to object at trial waives the issue for review unless fundamental error occurred." Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010).
[¶20] As with the amendment to the charging information, Kotmel seeks review of this issue by claiming admission of the evidence was fundamental error. Again, the fundamental error doctrine is an extremely narrow exception to the general rule of waiver and "is meant to permit appellate courts a means to correct the most egregious and blatant trial errors[.]" Ryan, 9 N.E.3d at 668. Fundamental error "presupposes the trial judge erred in performing some duty that the law had charged the judge with performing sua sponte." Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013). "[F]undamental error in the evidentiary decisions of our trial courts is especially rare." Merritt v. State, 99 N.E.3d 706, 709 (Ind.Ct.App. 2018), trans. denied.
[¶21] Kotmel was charged with stalking as a Level 5 felony due to the existence of the protective order. But he did not have notice of the protective order until July 11. He claims JoAnne's testimony about the May garage door incident was irrelevant and its admission "made a fair trial impossible by allowing the State to prove elements of the crime outside the relevant time frame and with acts that do not constitute the crime charged." Appellant's Br. at 16.
[¶22] Kotmel's fundamental error argument fails for several reasons. First, the trial court has no affirmative duty to consider sua sponte the admissibility of each piece of evidence offered by the State. Second, there is little chance the jury relied on this incident in deciding whether Kotmel committed repeated or continuing acts of harassment. JoAnne's description of this incident consists of slightly over two pages in the transcript of a three-day trial, and her testimony explained why she sought the protective order; the State did not reference the garage door incident in its closing argument, instead focusing on Kotmel's conduct beginning on July 11; and the jury instructions made the relevant timeframe of the offense clear. And finally, as addressed in the next section, there was ample evidence Kotmel stalked JoAnne after learning of the protective order on July 11. Considering the totality of the trial, introduction of this single piece of evidence did not have "such an undeniable and substantial effect on the jury's decision" that a fair trial was impossible. Ryan, 9 N.E.3d at 668 (emphasis omitted). Accordingly, Kotmel has failed to show the admission of testimony about the garage door incident was fundamental error.
Kotmel also claims cumulative error from the trial court allowing the amendment and the admission of pre-July 11 evidence. But given our resolution of his individual claims, we need not address his claim of cumulative error.
Sufficiency of the Evidence
[¶23] A sufficiency-of-the-evidence claim warrants a "deferential standard of appellate review, in which we 'neither reweigh the evidence nor judge witness credibility[.]'" Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.'" Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
1. Sufficient Evidence of Stalking
[¶24] Stalking is defined as "a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened." I.C. § 35-45-10-1. "Harassment" is "conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress." I.C. § 35-45-10-2 (1993). And "impermissible contact" includes "[f]ollowing or pursuing the victim" or "[c]ommunicating with the victim in person, in writing, by telephone, by telegraph, or through electronic means." I.C. 35-45-10-3(a)(1), (2) (2019). Stalking is a Level 5 felony if a "protective order to prevent domestic or family violence . . . has been issued by the court to protect the same victim . . . from the person and the person has been given actual notice of the order[.]" I.C. § 35-45-10-5(b)(2) (2014).
[¶25] Kotmel was charged with stalking as a Level 5 felony, requiring proof that Kotmel 1) knowingly or intentionally, 2) engaged in a course of conduct involving repeated or continuing harassment of JoAnne, 3) that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, 4) that actually caused JoAnne to feel terrorized, frightened, intimidated, or threatened, and 5) had actual notice of a protective order issued by a court to protect JoAnne. See I.C. ch. 35-45-10.
[¶26] Kotmel makes a two-fold argument challenging the sufficiency of the evidence against him: 1) the July 11 incident did not violate the protective order, and 2) the times he was seen by neighbors in JoAnne's neighborhood did not put Joanne in fear. He does not address the electronic communications he sent JoAnne.
[¶27] The stalking statute does not require proof Kotmel's course of conduct violated the protective order. It requires only that he have notice there is a protective order. See Joslyn v. State, 942 N.E.2d 809, 811-12 (Ind. 2011) (although conviction of invasion of privacy requires a defendant to knowingly or intentionally violate a protective order, conviction of Level 5 stalking requires only that the defendant has been given actual notice of the order) (citing I.C. § 35-46-1-15.1 (invasion of privacy) and I.C. § 35-45-10-5(b)(2) (Level 5 stalking)). Therefore, Kotmel's actions on July 11 could constitute stalking- independently or in conjunction with Kotmel's conduct on other days- regardless of whether he violated the protective order on that day.
[¶28] With respect to Kotmel's presence in JoAnne's neighborhood, it is true there was no testimony about how JoAnne felt upon learning her neighbors had seen him. But contrary to Kotmel's assertions, the allegations of stalking were not limited to three discrete incidents. They also included Kotmel's continuous harassing communication with and about JoAnne by text and email. JoAnne's own words-both in her rare replies to Kotmel's messages and during her testimony-showed she felt "terrorized, frightened, intimidated, or threatened" by Kotmel's unrelenting, unwanted, and increasingly belligerent communication. As JoAnne described at the beginning of her testimony, "[Kotmel] won't stop. He never will stop." Tr. Vol. 2 at 204.
[¶29] Our Supreme Court has declared the "trier of fact should determine if the course of conduct involved repeated or continuing harassment." Nicholson, 963 N.E.2d at 1101 (quotation and alteration omitted). Kotmel's argument is a request for us to reweigh the evidence in his favor and determine from a cold record his behavior did not cause JoAnne to feel frightened or threatened. We decline his request. The evidence was sufficient to support his conviction of stalking.
2. Insufficient Evidence of Intimidation
[¶30] Kotmel was convicted of Level 6 felony intimidation. A person who communicates a threat with the intent that another person be placed in fear of retaliation for a prior lawful act commits intimidation. I.C. § 35-45-2-1(a)(2) (2019). The offense is a Level 6 felony if the subject of the threat is a witness in a criminal proceeding against the person making the threat. I.C. § 35-45-2-1(b)(1)(B).
[¶31] Kotmel contends the State did not identify a prior lawful act "and certainly makes no nexus between a lawful act made by Joanne and [Kotmel's] call to action." Appellant's Br. at 24. He also claims his early November emails were not threats at all, but only "intended to notify her of reporting of her unlawful acts." Id.
[¶32] In charging Kotmel with intimidation, the State did not allege a specific threat. But in both its opening statement and closing argument, the State identified the threat as Kotmel saying he was going to turn JoAnne into the FDA. See Tr. Vol. 2 at 132; Tr. Vol. 3 at 77. A "threat" is defined as "an expression, by words or action, of an intention to . . . falsely harm the credit or business reputation of a person[.]" I.C. § 35-45-2-1(d)(7). The State explained this definition during its closing argument and the trial court also gave a final instruction defining "threat." "Whether a statement is a threat is an objective question for the trier of fact." B.B. v. State, 141 N.E.3d 856, 860 (Ind.Ct.App. 2020) (quoting Newell v. State, 7 N.E.3d 367, 369 (Ind.Ct.App. 2014), trans. denied). Under the statutory definition and given JoAnne's testimony about what would happen to her career if an FDA investigation were opened, there was evidence from which the jury could determine Kotmel communicated a threat to JoAnne.
The information alleges:
[O]n or about November 5, 2020 . . . Kotmel did communicate a threat to Joanne Kotmel, another person, a witness in a criminal proceeding, with the intent that Joanne Kotmel be placed in f[e]ar of retaliation for a prior lawful act contrary to . . . I.C. 35-45-2-1(a)(1) and I.C. 35-45-2-1(b)(1)(B)[.]Appellant's App. Vol. 2 at 180.
[¶33] As Kotmel notes, the charge also did not specify a prior lawful act by JoAnne. To prove intimidation, the State must prove "the victim had engaged in a prior act, which was not contrary to the law, and . . . the defendant intended to repay the victim for the prior lawful act." Casey v. State, 676 N.E.2d 1069, 1072 (Ind.Ct.App. 1997). Here, the State argued during closing:
[W]hat is the lawful act? . . . It was Joanne saying [to the twins] you guys are 16 years old, you don't have to go over there [to Kotmel's] if you don't want to. So, she was engaged in a lawful act and [Kotmel] was retaliating to that with the texts and the threats and the emails and the false allegations.Tr. Vol. 3 at 77. In its appellate brief, the State identifies additional prior lawful acts for which Kotmel could have been retaliating. See Appellee's Br. at 32 (suggesting JoAnne engaged in the prior lawful acts of divorcing Kotmel, obtaining a protective order, and declining to respond to Kotmel's texts and emails but not addressing the one act identified at trial). But JoAnne encouraging the twins to disregard Kotmel's parenting time was the only act relied upon by the State and argued to the jury at trial, so we limit our consideration to that act.
[¶34] It is clear from the evidence here the relationship between Kotmel and the twins was a major point of conflict in this family. And JoAnne telling the twins they did not have to participate in parenting time or communicate with their father may have sparked Kotmel's threats to retaliate by damaging her career. But for Kotmel's threat to be intimidation, JoAnne's prior act had to be lawful. The evidence at trial showed there was a court order in the dissolution case that Kotmel was to have parenting time with the children. The act of telling the twins they did not have to see Kotmel may not have been illegal-as Kotmel's disregard of the civil protection order was-but it was in violation of a court order and therefore not lawful.
[¶35] In sum, although Kotmel's threats against JoAnne and her livelihood were inappropriate and unproductive, they were not directed at a prior lawful act by JoAnne. We conclude the evidence is insufficient to support Kotmel's intimidation conviction and therefore reverse.
Although we reverse Kotmel's conviction for intimidation, this decision has no impact on his sentence. Kotmel was sentenced to two and one-half years for his intimidation conviction, which was to be served concurrently with his other sentences, including five years for stalking. His total sentence of five years stands.
Conclusion
[¶36] Kotmel failed to show the trial court committed fundamental error denying him a fair trial, and the State presented sufficient evidence of stalking. But the State did not prove a prior lawful act as required to obtain a conviction of intimidation. Kotmel's conviction of intimidation is reversed; his remaining convictions are affirmed.
[¶37] Affirmed in part and reversed in part.
May, J., and Vaidik, J., concur.