MEMORANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                             Dec 30 2016, 6:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the               CLERK
                                                             Indiana Supreme Court
purpose of establishing the defense of res judicata,            Court of Appeals
                                                                  and Tax Court
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                          Gregory F. Zoeller
Suzy D. St. John                                         Attorney General of Indiana
Marion County Public Defender
                                                         Larry D. Allen
Indianapolis, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Reid,                                            December 30, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-CR-429
        v.                                               Appeal from Marion Superior Court.
                                                         The Honorable Stanley Kroh,
                                                         Magistrate.
State of Indiana,                                        Cause No. 49G15-1503-F6-8251
Appellee-Plaintiff.




Garrard, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 1 of 13
[1]   Following a jury trial, Michael Reid was convicted of one count of
                         1                                                                      2
      intimidation as a Class A misdemeanor, and one count of harassment as a

      Class B misdemeanor. Judgment of conviction and sentencing was entered on

      only the conviction for misdemeanor intimidation. Reid appeals, contending

      that there is insufficient evidence to support his intimidation conviction, that

      the trial court abused its discretion by instructing the jury on harassment as a

      lesser-included offense, and that the trial court abused its discretion in the

      manner in which it ordered Reid to pay costs and fees. We affirm in part, and

      reverse and remand in part with instructions.


[2]   Reid, a veteran, worked as the secretary for Michael Rilenge at the Veterans

      Affairs Medical Center in Indianapolis from 2007 to 2010. Rilenge described

      Reid as a good employee to whom other workers turned in order to accomplish

      goals and whose behavior was very pleasant, initially. However, Rilenge

      observed that Reid’s demeanor changed a couple of months prior to Reid’s

      voluntary resignation from that position in the spring of 2010, after a routine

      audit of employee transactions revealed that Reid had inappropriately used his

      government travel credit card for purchases at Walmart and Walgreens. As

      Reid’s supervisor, Rilenge was required to sign off on Reid’s suspension for this

      conduct, even though Rilenge had not discovered or reported the conduct.




      1
          Ind. Code § 35-45-2-1 (2014).
      2
          Ind. Code § 35-45-2-2 (1996).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 2 of 13
[3]   Rilenge was fully aware that Reid was seeking government employment

      elsewhere. Reid ultimately resigned from his position as Rilenge’s secretary at

      the Veterans Affairs Medical Center in May 2010. At some point that spring,

      Rilenge received a telephone call from someone at the U.S.D.A. asking for a

      reference for Reid’s performance during the application process. Rilenge

      described his recommendation of Reid as a “good reference.” Tr. p. 47.


[4]   The first communication initiated by Reid to Rilenge after Reid left his job at

      the Veterans Affairs Medical Center was on June 2, 2010, when Reid

      telephoned Rilenge’s work telephone number. Rilenge described Reid’s

      demeanor as very angry and upset, with Reid contending that Rilenge was

      messing with his paycheck and stating that Reid was “coming for” Rilenge. Id.

      at 48. After Rilenge replied that he had nothing to do with Reid’s final

      paycheck, Reid hung up the telephone. Rilenge reported the substance of the

      telephone call in writing to the director, who then reported the incident to

      Veterans Affairs Medical Center Police. The Director of the Veterans Affairs

      Medical Center at that time was Thomas Mattice.


[5]   Nothing further transpired until Rilenge received an email at his government-

      issued email address from Michael.EReid@IRS.gov on August 16, 2013, over

      three years later. The subject line of that email read, “I hope you know that it’s

      not over.” Id. at 53. The text of the email read, “I am still coming for you. . . .

      spineless coward. It will never be over. . . . . Vengeance is mine Punk. Don’t




      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 3 of 13
                                            3
      think I’ve Faded away.” Id.               The signature block read, “Thank You and Have

      A Great Day! ‘A person’s Character is measured by how they react to

      Pressured Situations.’ Mike Reid.” Id.; State’s Ex. 1. Rilenge did not respond

      to the email, but forwarded it to the director, and it was subsequently reviewed

      by Veterans Affairs Medical Center Police.

                                                     4
[6]   The next contact initiated by Reid was an email to Rilenge’s work-issued email

      address from the same IRS email address on October 23, 2014, over a year after

      the last email. Tr. pp. 56-58; State’s Ex. 2. The email, which was initially sent

      to United States Senator Dan Coats and various others at the Department of

      Veterans Affairs, read in pertinent part as follows about an EEOC claim Reid

      had filed:

               [T]he lack of candor, morals, and principles among leadership
               caused me to look for employment elsewhere.
               The retaliatory adverse actions initiated by Michael Rilenge[ . .
               .], have ruined my life[.]
               I initially had an interagency transfer to USDA, I had a start date
               of May 24, 2010. [ ]My Veterans Administration First Line
               supervisor sabotaged that position by calling the Manager I
               would’ve began working for at USDA. The position was
               rescinded the day I cleared Veterans Administration May 19th
               2010. This made my interagency transfer become Null & Void.



      3
       This document was admitted with a limiting instruction to the jury that its admissibility was for the purpose
      of potentially establishing motive, identity, or opportunity.
      4
        Reid admitted in a different proceeding in which Rilenge sought a protective order that he was the author of
      the emails to Rilenge. The trial court limited any reference to the nature of the prior proceeding unless Reid
      placed authorship of the emails at issue.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016           Page 4 of 13
                 This forced me to change the inter-agency transfer to a
                 constructional Discharge. In remarks in the SF-50, I specifically
                 stated I feared reprisal from supervisor & the Indianapolis
                 Medical Center Director.
                 The Indianapolis Veterans Health Administration’s Human
                 Resource Officer, Corey Baute removed my remarks and entered
                 employee offered no explanation for resignation.
      Tr. pp. 56-58; State’s Ex. 2.


[7]   The incidents of March 3, 2015, formed the basis for the charges filed against
                                                                                              5
      Reid. On that date, Reid sent an email from his personal account to Rilenge’s

      work-related email address, bearing the subject line, “YOU are still spineless.”

      State’s Ex. 3. The body of the email read as follows:


                 I am still coming for YOU. It doesn’t matter how many times
                 you contact my agencies [sic] inspector [sic] General. It doesn’t
                 matter, it’ll be well worth losing this job to get to you.
                 AND Thomas Mattice
                 It’s far from over
                 Contact the police again while you’re at it.
                 Neither one of you hold ANY credibility
      Id.

                                                                           6
[8]   Later that same day, Reid left a voicemail message for Rilenge at Rilenge’s

      work number claiming that he was still coming to get Rilenge, but this time




      5
          This email was sent from dakurrupt69@gmail.com, but listed Michael Reid as the sender.
      6
       Attempts to save or forward the message in order to preserve it as evidence were unsuccessful due to system
      upgrades.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016         Page 5 of 13
       communicating that he knew where Rilenge lived. Rilenge was concerned for

       the safety of his employees, himself, and his family.


[9]    Also that day, the Chief of the Veterans Administration Police Department,

       Brian Fogg, was advised of the progress in the investigation in the case by a

       criminal investigator for police services at the Indianapolis Veterans Affairs

       Medical Center, Officer Roman Hollwka. After the update, Chief Fogg, a

       veteran with twenty-two years of active duty experience in the United States

       Navy, decided to call Reid to discuss the controversy veteran-to-veteran. When

       Chief Fogg identified himself as a police officer, Reid became angry and hung

       up. Reid sent a follow-up email to Rilenge, which read as follows:

               So THE vamc police calls me a few minutes ago, stating they will
               contact my agencies [sic] inspector [sic] General and your
               agencies [sic] inspector [sic] General if I send rilenge another
               email.
               So what, do what you have to DO. My agency inspector general
               has already interviewed me twice already. Let’s make it three
               times, I’ve heard it’s a charm
               Michael Rilenge, Thomas Mattice You both are a joke. YOU
               are scared to answer your phone, and will most likely ignore the
               voicemail I left for you Rilenge
               When I called the police service back, they say that no one from
               the police service called me. I am too old for these games.
       State’s Exhibits 4, 5.


[10]   Later that same afternoon, Reid sent another email to Rilenge, which read

       “F**k the chief of police at Indianapolis medical center too[.] Yeah Mr.

       Foggs,[sic] you too[.] Get back on your segway mall cop[.]” State’s Exhibit 6.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 6 of 13
[11]   Rilenge testified at trial that he was unsure why Reid was so angry with him but

       that he considered each post-employment communication to be a personal

       threat.


[12]   On March 12, 2016, the State charged Reid with two counts of intimidation;

       one for the email communication, and one for the telephone call. The charges

       were amended to misdemeanor counts prior to trial, and Reid declined the

       State’s offer of a diversion agreement. After the State’s case, Reid moved for a

       directed verdict, alleging the State had failed to prove a prior lawful act. The

       trial court denied the motion, noting, “I think it is somewhat of a close call but

       the Court believes there is enough evidence in the record to survive a directed

       verdict motion. That the Jury should be the fact finder here because there is

       some evidence in the record.” Tr. p. 109. The State tendered proposed jury

       instructions including Class B misdemeanor harassment as lesser-included

       charges to each of the counts of intimidation. The trial court gave the

       instructions. The jury returned verdicts of guilty as to one count of Class A

       misdemeanor intimidation for the email and one count of Class B misdemeanor

       harassment for the telephone call. The trial court entered a judgment of

       conviction on only the conviction for intimidation for the email.


[13]   Reid received a sentence of 343 days on probation. The trial court also imposed

       court costs on Reid, and ordered the probation department to assess Reid for

       mental health or anger management services and to determine program fees in

       accordance with Reid’s ability to pay. The probation department set Reid’s

       court costs at $183 and assessed a $100 public defender fee. Reid was also

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 7 of 13
       ordered to pay $320 in probation fees, comprised of a $50 administrative fee, a

       $50 initial user fee, and a $20 per month user fee. Reid now appeals.


[14]   First, Reid challenges the sufficiency of the evidence to support his conviction

       for intimidation. Challenges to sufficiency of the evidence involve appellate

       consideration of only the evidence and reasonable inferences most favorable to

       the convictions, neither reweighing evidence nor reassessing witness credibility.

       Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment

       unless no reasonable factfinder could find the defendant guilty of the offense.

       Id.


[15]   Reid also implicitly argues that there is a fatal variance between the charging

       information and the evidence adduced at trial, contending that the State failed

       to establish a prior lawful act matching the allegations in the charging

       information. As stated by our Supreme Court, “because the charging

       information advises a defendant of the accusations against him, the allegations

       in the pleading and the evidence used at trial must be consistent with one

       another.” Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). While a variance is

       an essential difference between the two, not all variances are fatal. Id. For a

       defendant to be awarded relief for a variance, the variance must have (1) misled

       the defendant in preparing a defense, resulting in prejudice, or (2) left the

       defendant vulnerable to future prosecution under the same evidence. Id.


[16]   Before we resolve the issue whether there was a fatal variance between the

       proof at trial and the charging information, we must first determine whether


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 8 of 13
       there is sufficient evidence to support Reid’s conviction of intimidation as a

       Class A misdemeanor. See Daniels v. State, 957 N.E.2d 1025 (Ind. Ct. App.

       2011) (first determined sufficient evidence that defendant used weapon and then

       determined no fatal variance that information instead charged defendant drew

       weapon).


[17]   The statute describes intimidation as follows: “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.” Ind. Code § 35-45-2-1(a)(2) (2014). The

       charging information read as follows:

               On or about March 3, 2015, Michael Reid did communicate a,
               [sic] implied threat to commit a forcible felony, to-wit: a threat
               contained in an email to Michael Rilenge stating that he was
               “coming for” Michael Rilenge and that it would be worth losing
               his job to “get to you”, meaning Michael Rilenge, with the intent
               that Michael Rilenge be placed in fear of retaliation for a prior
               lawful act, to-wit: Michael Rilenge providing a report of Michael
               Reid’s work performance as his supervisor prior to Michael
               Reid’s removal from employment at the Veteran’s
               Administration Medical Center[.].
       Appellant’s App. p. 20.


[18]   Reid contends that the State failed to introduce evidence that Rilenge “provided

       a report” of Reid’s “work performance,” or that the report was provided before

       Reid’s “removal from employment.” Reid, however, was aware during pre-trial

       preparation, arguments of counsel, and rulings of the trial court, that his prior

       emails would be admissible at trial. Those emails revealed that Reid was upset

       because Mattice discovered his improper use of work-related credit cards, and
       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 9 of 13
       Rilenge signed off on the discipline for that impropriety and responded to a

       request for a reference from a manager at the U.S.D.A., both lawful acts

       occurring prior to Reid’s resignation from his position. Preparation and

       maintenance of Reid’s defense was not misled by the imprecise wording of the

       charging information, nor did it lead to harm or prejudice, or vulnerability to

       future prosecution for the same charges.


[19]   Here the jury determined that the State had not proven intimidation with

       respect to Count II and entered a guilty verdict on the offense of harassment.

       However, the trial court vacated the conviction on Count II. Therefore, any

       abuse of discretion with respect to giving the instruction as to Count II is

       harmless error.


[20]   Reid also argues the trial court erred by failing to determine his ability to pay

       prior to imposing costs and fees as part of his sentence. Initially, the trial court

       also imposed a $50 fine, but then vacated it. Although the trial court heard

       evidence with respect to Reid’s qualification for appointed appellate counsel, no

       evidence was heard regarding Reid’s ability to pay costs and fees.


[21]   The trial court stated that “under the circumstances the Court would direct

       Probation to assess the program fees on a sliding scale.” Tr. p. 156. The trial

       court’s written sentencing order reflected no court costs and fees. Sentencing

       Order pp. 1-2. A case transactions summary prepared for Reid’s sentencing

       showed that he was being assessed $603.00 in fees. Appellant’s Appendix, Vol.

       II., pp. 104-05.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 10 of 13
[22]   “Sentencing decisions, which include the imposition of fees, costs, and fines,

       are generally left to the trial court’s discretion.” Henderson v. State, 44 N.E.3d
811, 814 (Ind. Ct. App. 2015). The Supreme Court has held that “a defendant’s

       financial resources are more appropriately determined not at the time of initial

       sentencing but at the conclusion of incarceration, thus allowing consideration of

       whether the defendant may have accumulated assets through inheritance or

       otherwise.” Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002).


[23]   Reid’s conviction was for a misdemeanor offense and he was placed on

       probation. With respect to fees, Indiana Code section 35-38-2-1(e) (2012)

       provides that a court may order each person convicted of a misdemeanor to

       pay: (1) not more than a $50 initial probation user’s fee; (2) a monthly

       probation user’s fee of not less than $10 nor more than $20 for each month that

       the person remains on probation; (3) costs of laboratory tests; and (4) an

       administrative fee of $40 to the probation department or the clerk.


[24]   Here, the probation department, as directed by the trial court, determined that

       Reid should pay various fees and costs. The only fee that does not appear to

       comport with the fee parameters set forth by statute is the supplemental public

       defender fee. Appellant’s Appendix p. 104. The State agrees that the public

       defender fee for a felony conviction is $100 and the public defender fee for a

       misdemeanor conviction is $50. Id. at 101. The probation department’s

       calculation is $100. Id. at 104. Although the offenses were originally charged

       as felonies, the charges were amended and the conviction was for a

       misdemeanor. Therefore, we must remand this matter to the trial court to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 11 of 13
       correct the calculation and assess the fee at the misdemeanor conviction rate.

       Furthermore, pursuant to Indiana Code section 35-33-7-6 (2004), an indigency

       finding must be done when a person requests assigned counsel, prior to the

       imposition of the fee, and the indigency finding may be reviewed at any time

       during the proceedings. See Berry v. State, 950 N.E.2d 798, 799-800, 802 (Ind.

       Ct. App. 2011).


[25]   With respect to probation fees, we have held that a trial court acts “within its

       authority when it chooses to wait and see if a defendant can pay probation fees

       before it finds the defendant indigent.” Johnson v. State, 27 N.E.3d 793, 795

       (Ind. Ct. App. 2015) (citing Ind. Code ch. 35-38-2). However, the trial court

       has a duty to conduct an indigency hearing, at the latest upon the completion of

       the defendant’s sentence. Id. When the trial court imposes costs on a

       defendant, Indiana Code section 33-37-2-3 (2007), explicitly sets forth the

       timing of the hearings to determine indigency.


[26]   In summary, we affirm Reid’s conviction, but reverse and remand to the trial

       court the public defender fee calculation for correction and determination of

       Reid’s ability to pay. As for the probation fees and other costs imposed, the

       trial court must determine Reid’s ability to pay, at the latest, at the completion

       of his sentence.


[27]   Affirmed in part, reversed and remanded in part with instructions.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 12 of 13
Bailey, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-429 | December 30, 2016   Page 13 of 13