ILNews

Appeals court rules on Ohio River phone-stalking case

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reaffirmed its standing that prosecutors can’t elevate a misdemeanor crime to a felony if the defendant didn’t know the victim worked in law enforcement.

But in a three-judge panel’s ruling today in Keith Eberle v. State of Indiana, No. 58A01-1003-CR-105, the trial judge’s error in allowing that elevation doesn’t even matter because the conviction was merged into a felony stalking charge the appellate court says was sufficiently supported by evidence.

The case revolves around a Rising Sun woman, V.L., who repeatedly received lewd photos and phone calls on her cell phone over the course of a few weeks in 2008, while in the Ohio River areas of Ohio and Dearborn counties and also across the water in Boone County, Kentucky. Though she worked as an Ohio County jail matron and also dated a sheriff’s deputy in that county, the harassment didn’t appear to be tied to her public duties. Police tracked the phone calls to Dearborn County resident Keith Eberle and charged him with multiple intimidation and harassment counts, then later added two counts of felony stalking against him.

After a three-day trial in September 2009, a jury found him guilty on all charges and Eberle received an eight-year sentence in the Department of Correction. Ohio Circuit Judge James D. Humphrey concluded that the intimidation and harassment counts were lesser-included offenses of stalking and merged them for sentencing purposes, but didn’t vacate those convictions and entered judgments on all of the counts – including one of the merged intimidation charges that had been elevated from a Class A misdemeanor to a Class C felony because V.L. was a law enforcement official.

On appeal, Eberle challenged whether Ohio County was a proper venue, the trial court’s refusal of proposed venue instructions, evidence sufficiency on his convictions, and whether the trial court’s failure to vacate the lesser-included offenses after merging them for sentencing purposes violated Indiana’s prohibition against double jeopardy.

Eberle won on two points, but those aspects ultimately do not change the result and are mostly harmless in the grand scheme of the case, according to the appellate court’s decision. The appellate court found the venue was correct because that’s where the victim lived, and also because state statute allows for the trial to happen anywhere along the border of where the offense may have happened – since electronic communications were at play in the area along the Ohio River, the court found any of those three counties would have been a proper venue.

The judges also determined that the state provided sufficient evidence to support the stalking charge, but did note the judge erred in not vacating the prior lesser-included felonies and ordered Judge Humphreys to do that on remand. But the appeals court also noted that had it not been merged or dismissed on the double jeopardy point, it wouldn’t have been possible to enhance the intimidation count from a misdemeanor to a felony. The rationale is that Eberle didn’t know V.L. was a county jail matron, and so the enhancement statute couldn’t be used based on past caselaw.

“The purpose… for providing increased penalties for crimes when committed against a public official, such as a police officer, is to afford a greater degree of protection to persons who might be subjected to special risks because they are performing public duties,” the court wrote, citing a 2009 decision of Masotto v. State, 907 N.E.2d 1083, 1085. “Public policy requires that law enforcement officials who are subject to the greater threats than the ordinary citizen be given additional protection, but only when the increased risks result from actions involving the execution of their official duties.”

Judge Elaine Brown concurred in result, issuing a separate opinion that says she would have held that any error in the Ohio County venue finding on harassment and intimidation is harmless given that the panel’s remanding with instructions to vacate Eberle’s convictions on double jeopardy grounds.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

ADVERTISEMENT