A man convicted of multiple stalking charges has failed in his bid for post-conviction relief.
In Christopher Johnston v. State of Indiana, 20A-PC-1135, appellant-petitioner Christopher Johnston was convicted of four counts of felony stalking against D.K., whom he met in 2012. According to the Indiana Court of Appeals, “Johnston proceeded to contact D.K. via phone calls, texts, and social media until 2015. D.K. requested, on several occasions and by various means, that Johnston stop contacting her. He did not.”
D.K. obtained a restraining order against Johnston, which he violated multiple times. Johnston was eventually arrested in April 2015 and proceeded to a bench trial.
At his trial, the state introduced as evidence various messages Johnston sent to D.K. using profanity and making threats when D.K. would ignore him or call police. The state also presented testimony from Sgt. Steven Schafer with the Indianapolis police, who qualified as an expert in social media and digital trail forensics.
Different Facebook usernames were used to contact D.K., but Schafer testified that online records showed the same device was used for all usernames. He then testified “that the likelihood of multiple people using the same device and IP addresses to contact D.K. with messages of a similar tone was less likely than ‘being struck by lightning while hitting the super lotto and being bitten by a polar bear at the same time.’”
The Marion Superior Court entered judgment against Johnston and sentenced him to an aggregate of 12 years, with two years suspended. His convictions were upheld on direct appeal, where his appellate counsel unsuccessfully argued Schafer was erroneously qualified as an expert and his “polar bear analogy” was fundamental error.
Johnston then sought post-conviction relief, arguing his trial counsel was ineffective for failing to challenge his multiple stalking charges based on the stalking statute, the continuing crime doctrine and Indiana’s double jeopardy law. Also, he argued his appellate counsel was ineffective for failing to raise the same issues on direct appeal.
The trial court denied his PCR petition, and the Court of Appeals affirmed in a Tuesday opinion.
“Johnston argues that his case shows ‘a ‘course of conduct involving repeated and continuing harassment’ from 2013 to 2015, unbroken by the filing of a criminal charging information for stalking that separated that conduct into distinct and separate series as required by Peckinpaugh,’” Judge Patricia Riley wrote, referencing Peckinpaugh v. State, 743 N.E.2d 1238, 1241 (Ind. Ct. App. 2001), trans denied. “However, Johnston’s argument is based on a misreading of the holding in that case.
“The Peckinpaugh court did not hold that the filing of criminal charges against a defendant is the only manner in which a defendant’s conduct may be divided for purposes of supporting multiple stalking convictions against a defendant; it merely held that in Peckinpaugh’s case the filing of the charges against him was a sufficient division,” Riley wrote.
As to the continuing crime doctrine, the COA said Johnston “makes no effort to explain how his actions were ‘so compressed in terms of time, place, singleness of purposes, and continuity of action as to constitute a single transaction.’” Thus, the denial of post-conviction relief on those grounds was not erroneous.
The COA reviewed Johnston’s double jeopardy argument under the actual evidence test in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The Supreme Court in 2020 announced a new substantive double jeopardy analysis in Wadle v. State, 151 N.E.3d 227, but the COA held that Richardson was applicable to Johnston’s case in light of Taylor v. State, 717 N.E.2d 90, 95 (Ind. 1999).
The appellate court then upheld the denial of post-conviction relief on double jeopardy grounds, finding under Richardson that “Johnston does not argue, based on the charging information, the argument of counsel, or any other factors, that the trial court relied upon the same evidence in concluding that he had engaged in the same course of conduct as to each or any of the challenged convictions.”
Finally as to Johnston’s appellate counsel, the COA held, “Because Johnston merely reiterates his meritless claims in the context of his appellate representation, he has failed to show either that his proffered issues were ‘clearly stronger’ or that, if his chosen issues had been raised, they would have been ‘clearly more likely to result in reversal or an order for a new trial.’” Also, Johnston did not provide a valid reason to question his appellate counsel’s professional judgment in building an appellate argument.
Judge Terry Crone concurred in result without a separate opinion.