COA: Man’s calls, messages to city employees amounted to unprotected ‘true threats’

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A man who repeatedly called and messaged Fort Wayne city employees about parking enforcement made true threats not protected by the First Amendment, the Court of Appeals of Indiana has ruled.

In January 2022, the Fort Wayne Clerk’s Office received a complaint about a car with a flat tire parked on a street in front of Darin Haberkorn’s house. City ordinance prohibits leaving inoperable cars on city streets for more than 24 hours.

Haberkorn used the car, but it was registered to his mother.

A city parking enforcement officer put a red tag on the car and chalked its tires, alerting the owner that the car had to be moved or would be towed within 72 hours. The car was tagged Jan. 19, ticketed the next day and eventually towed.

On the day the car was tagged, Haberkorn called the clerk’s office to complain, and he made more calls over the next several days. The Court of Appeals described Haberkorn as “extremely angry and rude” on the calls.

“He would interrupt them so that they were unable to answer questions, and he refused to give them the necessary information so that they could address his complaints,” the opinion reads.

In one call, Haberkorn warned the deputy city clerk that she “had better understand that there are consequences” for what had been done to him. When she asked him to stop threatening her and informed him that she perceived his tone as threatening, he replied, “I don’t give a f–k,” and asked her “whose mom” she was.

In a call to another staffer, Haberkorn yelled, “(Y)ou don’t think I can find out who the f–k you are,” and called her a “dumb c–t.”

Haberkorn left a voicemail for the city clerk, Lana Keesling, stating that he was being told by the prosecutor’s office that he was not allowed to go to that office and asking Keesling, “What other course of action do I have?” He then warned Keesling that she should “start thinking about what (she was) doing.”

Haberkorn also posted on Facebook about Keesling, tagging her, and messaged her friends looking for personal information about her. In one message, he said he was going “have her a– in the morning.”

In August 2022, a jury in the Allen Superior Court found Haberkorn guilty of one count of Class B misdemeanor harassment. He was sentenced to a 180-day fully suspended sentence, with 60 days to be served on home detention. He was also fined $100 and ordered to abide by five no-contact orders.

On appeal, Haberkorn challenged the sufficiency of the evidence to support his harassment conviction, claiming his communications were “legitimate communications protected by the First Amendment’s Free Speech Clause.”

The Court of Appeals disagreed, finding Haberkorn’s communications included “true threats,” which aren’t protected by the First Amendment.

“Each time he called, Haberkorn refused to give any information to staffers or communicate such that they could help him with his parking issue,” the opinion reads. “Instead, he simply repeatedly berated and threatened staffers with some sort of retaliation for how he believed he had been wronged.”

Haberkorn argued his communications amounted to “inelegant expression(s) of frustration,” but the Court of Appeals said it had “very little difficulty” concluding that he intended to put his targets in fear for their safety, and that the communications were likely to actually cause such fear in reasonable persons similarly situated.

Haberkorn also argued the trial court committed fundamental error in instructing the jury. He specifically cited an instruction dealing with the legal definition of harassment, saying it would be “at best irrelevant” to the crime of harassment because the definition was pulled verbatim from an Indiana law regarding stalking.

The Court of Appeals disagreed there, too, finding the jury was “thoroughly and adequately instructed” on the elements of the crime of harassment as charged pursuant to Indiana Code § 35-45-2-2.

“Moreover, as noted by the State, the challenged instruction did not purport to define the crime of harassment or its elements, including intent, that the State bore the burden to prove,” the opinion reads. “It simply provided some meaning and context to what type of conduct is considered to be harassing under Indiana law.”

Presiding Judge Terry Cone wrote the opinion. Judges Margret Robb and Dana Kenworthy concurred.

The case is Darin M. Haberkorn v. State of Indiana, 22A-CR-2150.

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