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Judges split on stalking conviction

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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.”

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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

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  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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