Montgomery v. State, No. 49A04-0703-CR-188.

Docket NºNo. 49A04-0703-CR-188.
Citation878 N.E.2d 262
Case DateDecember 13, 2007
CourtCourt of Appeals of Indiana
878 N.E.2d 262
Allen MONTGOMERY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A04-0703-CR-188.
Court of Appeals of Indiana.
December 13, 2007.

[878 N.E.2d 263]

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.

OPINION

VAIDIK, Judge.


Case Summary

Allen Montgomery ("Montgomery") appeals his two Class D felony convictions for Intimidation and his eleven Class A misdemeanor convictions for Invasion of

878 N.E.2d 264

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.

Facts and Procedural History

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, "You foolishly provided your home address, thereby making it available to anyone with an internet connection. I don't know if you can go back and change that, but I would recommend looking into it. I'd hate to see something happen to you." 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

878 N.E.2d 265

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.

Discussion and Decision

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.

I. Sufficiency of the Evidence

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:

878 N.E.2d 266

(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 "[t]he State's own evidence conclusively establishes that Nancy Broyles is a Commissioner, and not a judge . . . and that her position is different in several respects from being a judge. That is not an evidentiary basis from which a reasonable jury could conclude that Broyles was a judge." Appellant's Br. p. 9. Accordingly,...

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29 practice notes
  • Smoots v. State, Court of Appeals Case No. 20A-CR-2101
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Julio 2021
    ...such 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 fo......
  • Cleveland v. State, Court of Appeals Case No. 18A-CR-2298
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 Julio 2019
    ...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, No. 20A03–1411–CR–404.
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Septiembre 2015
    ...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, Court of Appeals Case No. 19A-MI-1999
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Febrero 2021
    ...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......
  • Request a trial to view additional results
29 cases
  • Smoots v. State, Court of Appeals Case No. 20A-CR-2101
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Julio 2021
    ...such 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 fo......
  • Cleveland v. State, Court of Appeals Case No. 18A-CR-2298
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 Julio 2019
    ...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, No. 20A03–1411–CR–404.
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Septiembre 2015
    ...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, Court of Appeals Case No. 19A-MI-1999
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Febrero 2021
    ...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......
  • Request a trial to view additional results

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