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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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