ILNews

Court tosses man's stalking conviction

Michael W. Hoskins
January 1, 2008
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Simply parking on a public street and watching someone's home doesn't alone fall within the definition of "impermissible" conduct and can't be considered stalking, the Indiana Court of Appeals ruled today.

In a case of first impression, the appellate panel ruled 2-1 on Donald D. Vanhorn v. State of Indiana, 84-A01-0711-CR-505, overturning the Terre Haute man's conviction for felony stalking. At issue in the case was the interplay between "harassment" and "impermissible contact" and whether enough evidence existed to support a stalking conviction.

Donald VanHorn knew the alleged victim, Robert Franks, from a radio service business where Franks worked and VanHorn was a regular customer. In mid-January 2007, Franks' wife noticed a black sport utility vehicle parked on the opposite side of the street near their home. The same thing happened three more times, and Franks took photos and notified police, though VanHorn never made any type of contact. VanHorn was eventually arrested and was tried on a felony stalking charge, and a jury convicted him in August 2007. He received three years probation and six months home detention.

On appeal, the appellate panel examined Indiana Codes 35-45-10-2 and 35-45-10-3, which focus on harassment and impermissible contact. The latter definition includes knowingly or intentionally following or pursuing the victim, and that part of the statute exempts statutorily or constitutionally protected conduct from the definition of harassment.

The Court of Appeals decided that the evidence was insufficient and the contact in this case wasn't "impermissible."

"If being on a city street is found to be 'impermissible' merely because an individual homeowner did not grant permission, then the victim has been improperly granted power over the defendant that the victim does not possess," Judge Terry Crone wrote, noting that a defendant's due process rights must be safeguarded in a situation where that person is lawfully in a public place and conduct alone is alleged to constitute harassment.

"In other words, when the government prohibits an individual from engaging in otherwise lawful conduct, it is important to provide the accused with notice and an opportunity to be heard," he wrote, adding that a protective order could be issued to declare any type of conduct off-limits.

"We do not mean to suggest that no circumstances exist in which only public sightings may constitute harassment or impermissible contact, but in this case nothing occurred that would remotely indicate to VanHorn that his conduct was impermissible."

Judge Cale Bradford dissented, writing that he is sympathetic to the majority's perspective but that he sees the jury system as an adequate safeguard for preventing unfair convictions for lawful behavior.

"By requiring official proof of 'impermissibility' to satisfy the harassment component, the majority adds an element of proof which the crime of 'stalking,' as defined, does not contain," the judge wrote. ... "Given my confidence in the fact finder's ability to discern 'stalking' from lawful activity, I would not disturb VanHorn's conviction."
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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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