Free Speech or Criminal Charge?: The Ins and Outs of Intimidation in Indiana

By now, we are sure you have heard about Purdue superfan Tyler Trent and his battle with cancer over the last five years. However, in the event that name doesn’t ring a bell, Tyler Trent was a student at Purdue University who, at the age of 14, was diagnosed with a rare form of bone cancer. After beating cancer once, it reappeared the year Tyler was set to start school in West Lafayette. In a courageous bout, Tyler made it his personal mission to enroll and attend Purdue despite multiple pleas from doctors to delay enrollment.  Nothing would keep him Tyler fulfilling his dream. A second time, he beat cancer. But months later, cancer came back.

While at Purdue, Tyler became a staple at football and basketball games, almost always decked out from head to toe in black and gold. Once, after receiving chemotherapy, he camped out in order to obtain bowl seats at a Purdue basketball game. Once again Tyler defied the odds when he predicted that the Purdue Boilermakers would beat then-number two ranked Ohio State in football, and they did. In short, Tyler Trent was nothing short of amazing and inspirational. He also happened to attend Attorney Matt Kroes’ alma mater.

On New Year’s Day 2019, Tyler passed away.

This is Where Things Get Legal

Before the services in remembrance of Tyler, a Florida man, using an alias, took to social media to make threats against Tyler’s family.  Some of the threats specifically state:

  1. “just wait until yall hear what I do at his funeral..i promise I will make headlines..i will kill his mother.. just watch I will be talked about forever..this is no idol threat.”
  2. “Cant wait till I can choke the life out of you” … “funerals coming and I will appear like the reaper”

Besides being wholly inappropriate and insensitive, the man drew national attention when he was criminally charged for making a written threat to injure or kill another person in the State of Florida. This is considered a felony charge in the State of Florida. For more information about the charges, you can click this link to view a recent news article.

Intimidation Defined

This got us thinking: could the Florida man be charged in Indiana for his actions on social media? The answer is: yes, absolutely. In Indiana, this is the definition of intimidation. Intimidation is defined as a person who communicates a threat to another person with the intent… that the other person be placed in fear of retaliation for a prior lawful act. Basic intimidation in Indiana is a class a misdemeanor and is punishable with a maximum sentence of 365 days in jail and a $5,000.00 fine.  However, intimidation can rise to a Level 6 felony if, amongst other things, the threat is to commit a forcible felony. A Level 6 felony is punishable up to two and a half years in the Indiana Department of Corrections and a $10,000.00 fine. The highest intimidation charge one can face would be a Level 5 felony and in order to reach Level 5 territory, the threat must be made with the use of a deadly weapon. Without the use of a deadly weapon, and not the threatened use, intimidation will cap off at Level 6 felony.

The intimidation statute, found at IC 35-45-2-1, also clarifies that the communication can be done through a social media website. In addition to the intimidation statute, the Indiana Supreme Court and the Indiana Court of Appeals have both held that a detailed timeline for the threat is not required in order to sustain a conviction for intimidation. In 2016, in an Opinion by the Court of Appeals in which they upheld Roar v. State, the panel of Judges held, “We conclude that, as held by this court in Roar and as adopted by our supreme court, a conviction under the intimidation statute should not depend upon a precise parsing of the threatening language used by a defendant or a detailed timeline of when a threat was issued in relation to a prior lawful act.”

This leads us back to our man from Florida and what would happen if this occurred in Indiana.  We clearly have the presence of threatening language, as so eloquently written on his social media pages. It should also be known that the quotes above are not the full extent of his posts. Some were taken down or deleted. The language was posted from his account onto Tyler Trent’s Facebook page. The threat used was clearly to commit a forcible felony. In other words, murder, which is just about as bad as a felony can get. What’s worse, is that the man used an exact timeline stating what he was going to do, and where he was going to do it.

Level 6 Felony Charges

If this all occurred in Indiana it looks as though the Florida man would be facing a Level 6 felony charge for Intimidation.  Let’s break it down together:

(1.) There was a person who communicated a threat to another person. Check.

(2.) The intent of the threat was that the other person be placed in fear of retaliation. Check. Admittedly though, there is some room for argument here, where a good defense attorney would be able to navigate the tricky waters.

(3.) the other person was engaged in a prior lawful act. Again, check. We can agree there is nothing illegal about a vigil service or a funeral.  

The irony in all of this, is that while writing this blog, Indiana is in the process of extraditing this man from Florida to face potential federal charges. This is not good news for the Florida man. Federal sentences are guided by a Federal Sentencing Guideline Manual and, as attorneys who practice in the Federal arena, we know that when it comes to federal cases, sentences are all about addition and very rarely about subtraction. These cases almost always lead to the violator serving  substantial time in the Federal Bureau of Prisons.

In an era where social media is so prevalent in the everyday lives of citizens, it only stands to reason that intimidation charges will subsequently be on the rise.  So when you are sitting in front of your computer, cell phone, or tablet and are thinking about making a post, whether joking or not, you should think twice about what you are posting, as you never know who is truly watching.  

If you or someone you know happens to be facing criminal charges for intimidation, or any other criminal charges, they need to call the attorneys at the Marc Lopez Law Firm today for a free initial consultation at 317-632-3642.  Remember, be smart and always Plead the Fifth.