ILNews

Judges split on stalking conviction

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals was divided Friday in reversing a man’s conviction of stalking. The decision hinged on their interpretations of the term “repeated” in Indiana’s anti-stalking laws.

Rodney Nicholson repeatedly called the Wolfe household in 2006, making lewd comments and noises over the phone when Patricia or one of her daughters answered. Nicholson even called the family from right outside their home. He pleaded guilty to voyeurism charges and was incarcerated. The calls stopped while Nicholson was incarcerated, but resumed on Nov. 1, 2008, when he called the home and made lewd comments and noises to Patricia.

He was convicted of Class C felony stalking and Class B misdemeanor harassment stemming from the lewd phone call in 2008 to Patricia. Nicholson challenged his stalking conviction, claiming insufficient evidence.

The state had to prove that Nicholson’s conduct under the stalking statute was “repeated or continuing” harassment. The majority concluded the one phone call in 2008 didn’t constitute repeated harassment and doesn’t support the conviction. Even if taking into consideration the 2006 conduct, the judges also concluded Nicholson couldn’t be convicted under the anti-stalking law.

There is little guidance as to what constitutes “repeated or continuing” for purposes of the stalking or harassment statutes, so the majority relied on the dictionary definition of “repeat” and an Alabama appellate court’s definition of “repeatedly” to hold that the term under the anti-stalking law means “more than once,” wrote Judge Michael Barnes in Rodney Nicholson v. State of Indiana, No. 55A01-1005-CR-251.

The majority noted that the Legislature could have put definitive time limitations in the statute and didn’t, and it believed the timeframe in which the conduct occurred is inherent to the inquiry whether harassment was “repeated or continuing.” Judges Barnes and Terry Crone felt Nicholson’s conduct from the 2008 phone call doesn’t fit any reasonable definition of “repeated or continuing harassment.”

Judge Cale Bradford dissented, writing, “Nicholson repeated essentially the same type of conduct aimed at the same victim. The gap of time between the repeated conduct, occasioned primarily by Nicholson’s incarceration for the first offense against the victim, is a non-factor under the wording of the Indiana stalking statute.”

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. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT