AB v. State

863 N.E.2d 1212, 2007 WL 1040482
CourtIndiana Court of Appeals
DecidedApril 9, 2007
Docket67A01-0609-JV-372
StatusPublished

This text of 863 N.E.2d 1212 (AB v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AB v. State, 863 N.E.2d 1212, 2007 WL 1040482 (Ind. Ct. App. 2007).

Opinion

863 N.E.2d 1212 (2007)

A.B., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 67A01-0609-JV-372.

Court of Appeals of Indiana.

April 9, 2007.

*1214 James R. Recker, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, A.B., appeals the juvenile court's finding of juvenile delinquency based on six Counts of harassment, Ind.Code § 35-45-2-2(a)(4), offenses that would be Class B misdemeanors if committed by an adult.[1]

We reverse and remand with instructions.

ISSUE

A.B. raises five issues on appeal, only one of which we find dispositive and which we restate as follows: Whether the message authored by A.B. and posted on a myspace.com website is protected political speech.

FACTS AND PROCEDURAL HISTORY

In February of 2006, Shawn Gobert (Gobert), principal of the Greencastle Middle School, was informed by some of his students that a derogatory webpage concerning Matthew Taylor, the assistant principal, had been created on the internet. When Gobert and Taylor investigated this information, they not only found the webposting concerning Taylor, but also uncovered a webpage on myspace.com purporting to have been created by Gobert.

In order to view the myspace.com webpage on Gobert, Gobert removed the restriction on his school computer that prevented him access to the site. However, the webpage was created with a private profile and only persons accepted as friends by the creator of the webpage were allowed full access to the page and its comments. Later, it was discovered that R.B. had created the Gobert myspace webpage, purporting to be Gobert, and had invited several of her friends, including A.B., to access the page and view the listings. A.B., knowing that R.B. was the creator of the webpage, made several derogatory postings on the site. On February 15, 2006, A.B. posted the following comment:

Hey you piece of greencastle shit.
What the fuck do you think of me [now] that you can['t] control me? Huh? Ha ha ha guess what I'll wear my fucking piercings all day long and to school and you can['t] do shit about it! Ha ha fucking ha! Stupid bastard! Oh and kudos to whomever made this ([I'm] pretty sure I know who). Get a background.

(Appellant's App. p. 69). The next day, she posted: "die . . . gobert . . . die." *1215 (Appellant's App. p. 70). Separate from the webpage created by R.B., A.B. created a publicly accessible group on myspace.com under the group name "Fuck Mr. Gobert and GC Schools." (Appellant's App. p. 71). Gobert testified that he never received these postings directly, but only viewed them on the respective websites after gaining access to them.

On March 2, 2006, the State filed a delinquency petition alleging A.B. committed acts that, if committed by an adult, would have constituted identity deception, a Class C felony, and harassment, a Class B misdemeanor. On March 10, 2006, the juvenile court approved the filing of the petition. Thereafter, on May 15, 2006, the State amended its petition alleging eight counts of harassment, offenses that would be Class B misdemeanors if committed by an adult, and one count of identity theft, a Class D felony if committed by an adult. At the commencement of the fact-finding hearing, held on May 22, 2006, the State dismissed two counts of harassment and the single count of identity theft. On June 27, 2006, the juvenile court issued its Order adjudicating A.B. to be a delinquent child. As a result of its finding, the juvenile court placed A.B. on nine months of probation combined with various conditions.

A.B. now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. The Juvenile Court's Order

In the instant case, the juvenile court adjudicated A.B. to be a juvenile delinquent based on six Counts of harassment. In support of its findings, the juvenile court issued an elaborate two-page Order on June 27, 2006, separately addressing each issue raised by A.B. Nevertheless, despite its length, the juvenile court's Order is far from clear. Specifically, in its analysis, the court never clarified which message of A.B. it alludes to, even though A.B. raises different arguments for different postings. In fact, the only message verbatim included within the Order, is A.B.'s posting of February 15, 2006. In this regard, the juvenile court states in pertinent part,

3. Was the communication obscene?
The [c]ourt finds that the words "Fuck Mr. Gobert" and "Hey you piece of Greencastle shit what the fuck do you think of me now that you can't control me? Huh? Ha ha ha guess what I'll wear my fucking piercings all day long and to school and you can't do shit about it. Ha ha fucking ha! Stupid bastard" is obscene. As the well known U.S. Supreme Court decision "One knows Pornography when one sees it," this [c]ourt finds that such language is obscene in the context used by [A.B.]. [A.B.] was not exercising her constituted rights of free speech in such a tirade — but to use the most vulgar language she could. Moreover she was not expressing her opinion in her writing.

(Appellant's App. p. 81). Moreover, even though A.B. posted a total of six messages on two different myspace.com websites, the Order only references "message" in the singular, never the plural.

Accordingly, it is unclear to what extent the juvenile court relied on the evidence concerning the other five messages in rendering judgment. Without findings that support the adjudication with regard to A.B.'s other five messages, we must conclude that the juvenile court's Order solely addressed the harassment Count based on A.B.'s message posted on February 15, 2006. Because the juvenile court does not support its finding of adjudication with regard to the other Counts of *1216 harassment but nevertheless rendered judgment on them, we reverse and remand to the juvenile court with instructions to vacate the adjudication with regard to the other five Counts of harassment.

II. Protected Political Speech

With respect to A.B.'s February 15, 2006 posting, A.B. contends that the juvenile court erred by not protecting its content as political speech pursuant to the First Amendment of the United States Constitution and Article 1, Section 9 of the Indiana Constitution. A.B. asserts that her message, made in a public forum and criticizing Gobert, a state actor, in implementing a school policy proscribing decorative piercings is a legitimate communication envisioned within the bounds of protected political speech.[2]

As A.B. raises her argument under both the United States Constitution and the Indiana Constitution, it is sufficient that we find protected speech under either Constitution to reverse the juvenile court's finding. Although we have never analyzed a claim of political speech in the framework of the harassment statute, Indiana has generated an abundance of case law determining the constitutionality of an application of the disorderly conduct statute under section 9 of the Indiana Constitution in light of our supreme court pivotal's decision in Price v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

New Jersey v. T. L. O.
469 U.S. 325 (Supreme Court, 1985)
Madden v. State
786 N.E.2d 1152 (Indiana Court of Appeals, 2003)
Whittington v. State
669 N.E.2d 1363 (Indiana Supreme Court, 1996)
Shoultz v. State
735 N.E.2d 818 (Indiana Court of Appeals, 2000)
Price v. State
622 N.E.2d 954 (Indiana Supreme Court, 1993)
Mishler v. MAC Systems, Inc.
771 N.E.2d 92 (Indiana Court of Appeals, 2002)
A.B. v. State
863 N.E.2d 1212 (Indiana Court of Appeals, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
863 N.E.2d 1212, 2007 WL 1040482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ab-v-state-indctapp-2007.