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Fleming v. State

Court of Appeals of Indiana

September 29, 2017

Robert R. Fleming, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Cass Superior Court The Honorable Richard A. Maughmer, Judge Trial Court Cause No. 09D02-1607-CM-537

          ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office Logansport, IN.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Laura R. Anderson Deputy Attorneys General Indianapolis, Indiana.

          MATHIAS, JUDGE.

         [¶1] Robert Fleming ("Fleming") appeals his conviction for Class A misdemeanor intimidation. Specifically, Fleming argues that the State failed to prove that he engaged in a true threat, and that the State failed to prove that he intended to place the victim Keith Kottkamp in fear of retaliation for a prior lawful act.[1]

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Rena and Keith Kottkamp awakened around 10:45 p.m. on June 30, 2016, to a woman's screams of "Help me! Help me!" coming from their front yard. Tr. p. 24. Mrs. Kottkamp arose, turned on the porch light, and saw Keisha Mowery ("Mowery") on their porch and at their front door. Mowery had come from Fleming's home, which is located across the road from the Kottkamps. Mrs. Kottkamp called the police, but while they were waiting for officers to arrive, Mowery returned to Fleming's home.

         [¶4] Cass County Sheriff Department Officers Gary Armstrong and Shane Johnson arrived soon after at Fleming's home. Fleming refused to allow either officer into his home, answer any questions, and repeatedly told the officers to get off of his property using foul language. As the officers left Fleming's property and headed to their vehicles, Fleming followed the officers telling them, "that's right, that's right. You do what I say. You get the f--- off my property." Id. at 53.Fleming then exclaimed, "oh, by the way if I could find your wives I would f--- your wives and show her, show your wives what a real man is." Id. Officers Armstrong and Johnson drove across the street to the Kottkamps. The Kottkamps reiterated what they observed, and the officers left without taking any further action.

         [¶5] The Kottkamps returned to bed and attempted to fall back asleep. Approximately ten to fifteen minutes later, they were awakened again to Mowery's cries of "Help me! Help me!" Id. at 28. Mrs. Kottkamp went to the porch, but this time she made sure Mowery stayed with her while Mr. Kottkamp called the police. While the Kottkamps were waiting for the police, Fleming left his home and began approaching their property.

         [¶6] Fleming stayed on his property as he yelled obscenities across the road at Mrs. Kottkamp, including calling her a "white-haired old bitch." Id. at 42. Upon hearing Fleming curse at his wife, Mr. Kottkamp came out on to the porch where he joined his wife and Mowery. At this point, Fleming yelled, "and what the hell do you want you old bastard?" Id. at 43. Fleming continued shouting across the street at the Kottkamps, at one point telling Mr. Kottkamp "that he was going to come over and kick [Mr. Kottkamp's] ass." Id. Upon hearing this, Mr. Kottkamp laughed. Approximately five minutes later, the police arrived for the second time.

         [¶7] Officer Armstrong was now off duty, but Officer Johnson returned with Officer Brenton McDonald. Once the officers arrived, Fleming began retreating closer to his home, while using offensive language to tell the officers to mind their own business and to get off of his property. At this point, Officer Johnson put Fleming in restraints for "his safety and my safety." Id. at 56. Officer Johnson then arrested Fleming and transported him to jail.

         [¶8] On July 1, 2016, Fleming was charged with Class A misdemeanor intimidation and Class B misdemeanor disorderly conduct. On February 8, 2017, a jury trial was held, and the jury found Fleming guilty of both offenses. The sentencing hearing was held on February 27, 2017, and Fleming was sentenced to 365 days in the Cass County Jail for the intimidation conviction and 180 days in ...


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