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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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