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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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