Montgomery v. State
| Decision Date | 13 December 2007 |
| Docket Number | No. 49A04-0703-CR-188.,49A04-0703-CR-188. |
| Citation | 878 N.E.2d 262 |
| Parties | Allen MONTGOMERY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
David A. Happe, Lockwood Williams & Happe, Anderson, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Allen Montgomery ("Montgomery") appeals his two Class D felony convictions for Intimidation and his eleven Class A misdemeanor convictions for Invasion of Privacy. Montgomery contends that insufficient evidence exists to support his Intimidation convictions because the State failed to prove that the victim was a "judge" within the meaning of the statute. Montgomery further complains that his Invasion of Privacy convictions violate his constitutional rights under Article I, § 9 of the Indiana Constitution and the First Amendment to the United States Constitution and that the trial court erred in imposing a four-and-one-half-year habitual offender enhancement. Finding that sufficient evidence exists to support his two Intimidation convictions, that his constitutional argument is precluded from review, and that the trial court did not err in imposing a four-and-one-half-year habitual offender enhancement, we affirm the judgment of the trial court.
On February 19, 2004, Montgomery was convicted of Impersonation of a Public Servant and placed on probation. As a condition of probation, Montgomery was ordered not to have any contact with the Marion County Prosecutor's Office (the "no-contact order") unless the purpose of the contact was to report a crime. On February 25, 2004, for a separate incident, Montgomery was brought before Master Commissioner Nancy Broyles ("Commissioner Broyles") in Marion Superior Court, Criminal Division, Room Five ("trial court") regarding an alleged probation violation. Judge Grant Hawkins ("Judge Hawkins") is the presiding judge of this trial court and appointed Commissioner Broyles and assigned her various duties, including "to hear jury trials, court trials, most everything that [was heard] in that court, with Judge Hawkins' ultimate supervision." Tr. p. 163. Finding that Montgomery violated his probation, Commissioner Broyles revoked his probation and ordered him to serve four years in the Indiana Department of Correction.
Shortly after his incarceration and in violation of the February 19 no-contact order, Montgomery began sending letters to the Marion County Prosecutor's Office. Specifically, on March 7, 2004, Montgomery sent a letter to Marion County Prosecutor Carl Brizzi. In total, between March 7, 2004, and June 11, 2005, Montgomery wrote and sent eleven letters to various individuals within the Marion County Prosecutor's Office, none of which involved the reporting of any crimes. Montgomery claims that he wrote these letters for the purpose of "needling" people and "[t]humbing [his] nose at the No Contact Order." Id. at 197.
In addition to the letters Montgomery sent to the Marion County Prosecutor's Office, he sent a letter to Commissioner Broyles stating, State's Ex. 14. Additionally, on December 27, 2004, Montgomery sent a letter to Judge Hawkins stating, "You may continue to protect Nancy Broyles, if you like, but I think you will find it to be an exercise in futility." State's Ex. 15. Concerned for her safety and the safety of her family, Commissioner Broyles updated her home security system, stopped answering her home telephone, and took other safety precautions.
On February 9, 2006, the State charged Montgomery with five counts of Intimidation as a Class D felony,1 five counts of Intimidation as a Class A misdemeanor,2 and eleven counts of Invasion of Privacy as a Class A misdemeanor.3 On May 15, 2006, the State amended its charging information and alleged that Montgomery was a habitual offender, with the two prior unrelated felony convictions being a 2001 battery conviction and the 2004 conviction for impersonating a public servant.4 Following a jury trial, Montgomery was convicted of two counts of Intimidation as a Class D felony, three counts of Intimidation as a Class A misdemeanor,5 all eleven counts of Invasion of Privacy as a Class A misdemeanor, and was deemed a habitual offender.
In sentencing Montgomery, the trial court identified one aggravator—Montgomery's criminal history, namely, the 2001 felony battery conviction and the 2004 felony conviction for impersonating a public servant—and no mitigators. The trial court sentenced Montgomery to consecutive one-and-one-half-year sentences for the two Class D felony convictions, one of which was enhanced by four-and-one-half years for the habitual offender adjudication, and concurrent one-year sentences for his Intimidation and Invasion of Privacy Class A misdemeanor convictions, resulting in an aggregate sentence of seven-and-one-half years. Montgomery now appeals.
Montgomery raises the following three issues on appeal: (1) whether sufficient evidence exists to support his two Class D felony Intimidation convictions; (2) whether his convictions for Invasion of Privacy violate his constitutional rights under Article I, § 9 of the Indiana Constitution and the First Amendment to the United States Constitution; and (3) whether the trial court erred in imposing a four-and-one-half-year habitual offender enhancement.
Montgomery claims that the evidence presented at trial is insufficient to support his two convictions for Intimidation as a Class D felony. "Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses, and respects the jury's exclusive province to weigh conflicting evidence." McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005) (internal quotations omitted). We must consider only the probative evidence and reasonable inferences supporting the verdict. Id. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
Indiana Code § 35-45-2-1 provides, in pertinent part:
(a) A person who communicates a threat to another person, with the intent:
* * * * * *
(2) that the other person be placed in fear of retaliation for a prior lawful act . . .
* * * * * *
commits intimidation, a Class A misdemeanor.
(b) However, the offense is a:
(1) Class D felony if:
* * * * * *
(B) the person to whom the threat is communicated:
* * * * * *
(ii) is a judge or bailiff of any court[.]
Montgomery argues that the State failed to prove Intimidation as a Class D felony because Appellant's Br. p. 9. Accordingly, Montgomery requests that his Class D felony Intimidation convictions be reduced to Class A misdemeanor Intimidation convictions.
The nature of Montgomery's claim requires this Court to interpret the meaning of the term "judge" as it is written in Indiana Code § 35-45-2-1(b)(1)(B)(ii). Statutory interpretation is a question of law reserved for the court and is reviewed de novo. In re K.J.A., 790 N.E.2d 155, 158 (Ind.Ct.App.2003). The rules of statutory interpretation mandate that we assign words their plain and ordinary meaning unless the statute provides definitions otherwise. Smith v. State, 867 N.E.2d 1286, 1288 (Ind.2007). The Indiana legislature has not defined the term "judge" within Indiana Code § 35-45-2-1. We recognize that the term "judge" is defined in other sections of the Indiana Code. See, e.g., Ind.Code § 33-23-11-7 (); Ind.Code § 33-38-12-3 (). However, because Indiana Code § 35-45-2-1 does not define the term "judge," we give the word its common and ordinary meaning. See Smith, 867 N.E.2d at 1288.
In order to determine the plain and ordinary meaning of words, courts may properly consult English language dictionaries. Ind. Office of Envtl. Adjudication v. Kunz, 714 N.E.2d 1190, 1193 (Ind.Ct. App.1999). According to Black's Law Dictionary, a judge is defined as "[a] public official appointed or elected to hear and decide legal matters in court." Black's Law Dictionary 857 (8th ed.2004). We find that the term "judge" as used in this section is not ambiguous and therefore refuse to interpret its meaning. Instead, we apply its clear and plain meaning, for purposes of this statute, and determine that under these facts Commissioner Broyles is such a person. Judge Hawkins appointed Commissioner Broyles, in part, "to hear jury trials, court trials, most everything that [was heard] in that court. . . ." Tr. p. 163. This is the equivalent of hearing and deciding legal matters in court. Accordingly, sufficient evidence exists to support Montgomery's two Class D felony Intimidation convictions.
Montgomery next argues that his convictions for Invasion of Privacy violate his state and federal constitutional rights. Indiana Code § 35-46-1-15.1(6) provides, in pertinent part:
A person who knowingly or intentionally violates:
*...
To continue reading
Request your trial
-
Smoots v. State
...a finding is left to the trial court's sound discretion. Johnston v. State, 578 N.E.2d 656, 659 (Ind. 1991) ; Montgomery v. State , 878 N.E.2d 262, 267 (Ind. Ct. App. 2007).[35] Smoots points to no authority suggesting that the trial court may not consider the same circumstances when formul......
-
Cleveland v. State
...to do so. [20] Statutory interpretation is a question of law reserved for the court and is reviewed de novo. Montgomery v. State , 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). We assign words their plain and ordinary meaning unless the statute provides other definitions. Id. Our primary rule f......
-
Beathea v. State
...or judge the credibility of witnesses, and respects the jury's exclusive province to weigh conflicting evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind.Ct.App.2007) (quoting Mc Hen ry v. State, 820 N.E.2d 124, 126 (Ind.2005). We must consider only the probative evidence and reasonabl......
-
Brown v. Eaton
...word in a statute according to its plain and ordinary meaning unless the legislature defines the word otherwise. Montgomery v. State , 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). "When the legislature amends a statute, we presume that it intended to change the law unless it clearly appears th......