The Indiana Court of Appeals has reaffirmed its standing that prosecutors can’t elevate a misdemeanor crime to a felony if the defendant didn’t know the victim worked in law enforcement.
But in a three-judge panel’s ruling today in Keith Eberle v. State of Indiana, No. 58A01-1003-CR-105, the trial judge’s error in allowing that elevation doesn’t even matter because the conviction was merged into a felony stalking charge the appellate court says was sufficiently supported by evidence.
The case revolves around a Rising Sun woman, V.L., who repeatedly received lewd photos and phone calls on her cell phone over the course of a few weeks in 2008, while in the Ohio River areas of Ohio and Dearborn counties and also across the water in Boone County, Kentucky. Though she worked as an Ohio County jail matron and also dated a sheriff’s deputy in that county, the harassment didn’t appear to be tied to her public duties. Police tracked the phone calls to Dearborn County resident Keith Eberle and charged him with multiple intimidation and harassment counts, then later added two counts of felony stalking against him.
After a three-day trial in September 2009, a jury found him guilty on all charges and Eberle received an eight-year sentence in the Department of Correction. Ohio Circuit Judge James D. Humphrey concluded that the intimidation and harassment counts were lesser-included offenses of stalking and merged them for sentencing purposes, but didn’t vacate those convictions and entered judgments on all of the counts – including one of the merged intimidation charges that had been elevated from a Class A misdemeanor to a Class C felony because V.L. was a law enforcement official.
On appeal, Eberle challenged whether Ohio County was a proper venue, the trial court’s refusal of proposed venue instructions, evidence sufficiency on his convictions, and whether the trial court’s failure to vacate the lesser-included offenses after merging them for sentencing purposes violated Indiana’s prohibition against double jeopardy.
Eberle won on two points, but those aspects ultimately do not change the result and are mostly harmless in the grand scheme of the case, according to the appellate court’s decision. The appellate court found the venue was correct because that’s where the victim lived, and also because state statute allows for the trial to happen anywhere along the border of where the offense may have happened – since electronic communications were at play in the area along the Ohio River, the court found any of those three counties would have been a proper venue.
The judges also determined that the state provided sufficient evidence to support the stalking charge, but did note the judge erred in not vacating the prior lesser-included felonies and ordered Judge Humphreys to do that on remand. But the appeals court also noted that had it not been merged or dismissed on the double jeopardy point, it wouldn’t have been possible to enhance the intimidation count from a misdemeanor to a felony. The rationale is that Eberle didn’t know V.L. was a county jail matron, and so the enhancement statute couldn’t be used based on past caselaw.
“The purpose… for providing increased penalties for crimes when committed against a public official, such as a police officer, is to afford a greater degree of protection to persons who might be subjected to special risks because they are performing public duties,” the court wrote, citing a 2009 decision of Masotto v. State, 907 N.E.2d 1083, 1085. “Public policy requires that law enforcement officials who are subject to the greater threats than the ordinary citizen be given additional protection, but only when the increased risks result from actions involving the execution of their official duties.”
Judge Elaine Brown concurred in result, issuing a separate opinion that says she would have held that any error in the Ohio County venue finding on harassment and intimidation is harmless given that the panel’s remanding with instructions to vacate Eberle’s convictions on double jeopardy grounds.