OPINION
CRONE, Judge.
Case Summary
Donald D. VanHorn appeals his conviction for class D felony stalking. We reverse.
Issue
We address the following dispositive issue: Whether the evidence is sufficient to support VanHorn’s conviction.1
Facts and Procedural History
The evidence most favorable to the verdict follows. Robert Franks lived on South 11th Street in Terre Haute. Franks met VanHorn when Franks worked at Commercial Radio Service. VanHorn had been a regular customer there. Sometime in mid-January 2007, Franks’ wife saw a black SUV park on the opposite side of the street just north of their house, but no one got out of the car. Although the vehicle was parked on the northbound side of the road, it was facing south toward Franks’ house. She informed Franks.
On January 18, 2007, Franks noticed a black SUV parked in the same place. Franks got his binoculars and saw someone in the vehicle looking toward his house. Franks suspected that the person was VanHorn. Frank took photographs of the vehicle. As the vehicle pulled away, Franks saw that it had a Fraternal Order of Police (“FOP”) sticker on its license plate. He called a friend to ask whether VanHorn had a black SUV with an FOP sticker, and the friend answered affirmatively. Franks felt alarmed, upset, and violated.2 Tr. at 147. He called the police.
Officer James Jones came to Franks’ residence to discuss the incident. Franks gave Officer Jones copies of the photographs and made a harassment complaint against VanHorn. Officer Jones observed that Franks was scared and frantic.
On January 19, 2007, Assistant Police Chief Bill Berghem also spoke to Franks regarding the incident. Chief Berghem noticed that Franks was frantic, nervous, and fearful. He gave Franks his cell [910] phone number. On January 22, 2007, Franks called Chief Berghem to report that VanHorn was parked across the street and was watching him with binoculars. Franks called again on January 27, 2007, with the same report.
On February 2, 2007, Chief Berghem obtained a warrant for VanHorn’s arrest. Franks called in to report that VanHorn was parked near his house in a gold Mercedes. Chief Berghem responded to Franks’ call and located VanHorn in a gold Mercedes about one block from Franks’ house. He arrested VanHorn and recovered a pair of binoculars from the front seat of the car.
On that date, the State charged Van-Horn with class D felony stalking. Appellant’s App. at 19. On August 17, 2007, a jury found VanHorn guilty as charged. The trial court imposed a three-year suspended sentence, with three years’ formal probation and six months’ home detention. VanHorn appeals.
Discussion and Decision
VanHorn argues that the evidence is insufficient to support his stalking conviction. In reviewing a claim of insufficient evidence, we neither reweigh the evidence nor assess the credibility of the witnesses. Kien v. State, 782 N.E.2d 398, 407 (Ind.Ct.App.2003), trans. denied. We consider only the evidence most favorable to the verdict and reasonable inferences drawn therefrom, and we will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
To establish that VanHorn committed stalking as a class D felony, see Indiana Code Section 35-45-10-5(a), the State had to prove beyond a reasonable doubt that he (1) knowingly or intentionally (2) engaged in a course of conduct involving repeated or continuing harassment of the victim, (3) that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, and (4) that actually caused the victim to feel terrorized, frightened, intimidated, or threatened. See Ind. Code § 35-45-10-1 (defining “stalk”). Stalking does not include statutorily or constitutionally protected activity. Id.
“ ‘Harassment’ means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Ind.Code § 35-45-10-2.3 “Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.” Id. ‘“Impermissible contact’ includes but is not limited to knowingly or intentionally following or pursuing the victim.” Ind. [911] Code § 35-45-10-3.4
Specifically, VanHorn asserts that the State failed to establish that his conduct constituted “harassment” of or “impermissible contact” with Franks. VanHorn observes that the complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions. He points out that he made no actual physical contact with Franks and that he made no telephone calls, left no notes, or at any time stepped onto Franks’ property. Therefore, he argues, his conduct does not constitute contact, let alone meet the legal definition of “impermissible contact.”
VanHorn presents an issue of first impression. In fact, we have been presented with few opportunities to examine the parameters of “harassment” and “impermissible contact.” In Smith v. State, 802 N.E.2d 948 (Ind.Ct.App.2004), we were asked for the first time to determine whether telephone calls alone could support a conviction for stalking. The defendant there made eight or nine telephone calls to the police officer who arrested him for public intoxication. The phone calls included obscenities and threats on the officer’s life. Later, the defendant encountered another officer who told him that he would be charged with intimidation and harassment if he did not stop calling. The defendant then began leaving threatening voicemail messages for that officer. On appeal, the defendant argued that the statutory definitions appeared to require some physical contact between the defendant and the victim, and therefore the telephone calls could not constitute harassment. We disagreed, noting that other jurisdictions had consistently held that telephone calls alone were a course of conduct that could constitute harassment. Id. at 953-54.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
CRONE, Judge.
Case Summary
Donald D. VanHorn appeals his conviction for class D felony stalking. We reverse.
Issue
We address the following dispositive issue: Whether the evidence is sufficient to support VanHorn’s conviction.1
Facts and Procedural History
The evidence most favorable to the verdict follows. Robert Franks lived on South 11th Street in Terre Haute. Franks met VanHorn when Franks worked at Commercial Radio Service. VanHorn had been a regular customer there. Sometime in mid-January 2007, Franks’ wife saw a black SUV park on the opposite side of the street just north of their house, but no one got out of the car. Although the vehicle was parked on the northbound side of the road, it was facing south toward Franks’ house. She informed Franks.
On January 18, 2007, Franks noticed a black SUV parked in the same place. Franks got his binoculars and saw someone in the vehicle looking toward his house. Franks suspected that the person was VanHorn. Frank took photographs of the vehicle. As the vehicle pulled away, Franks saw that it had a Fraternal Order of Police (“FOP”) sticker on its license plate. He called a friend to ask whether VanHorn had a black SUV with an FOP sticker, and the friend answered affirmatively. Franks felt alarmed, upset, and violated.2 Tr. at 147. He called the police.
Officer James Jones came to Franks’ residence to discuss the incident. Franks gave Officer Jones copies of the photographs and made a harassment complaint against VanHorn. Officer Jones observed that Franks was scared and frantic.
On January 19, 2007, Assistant Police Chief Bill Berghem also spoke to Franks regarding the incident. Chief Berghem noticed that Franks was frantic, nervous, and fearful. He gave Franks his cell [910] phone number. On January 22, 2007, Franks called Chief Berghem to report that VanHorn was parked across the street and was watching him with binoculars. Franks called again on January 27, 2007, with the same report.
On February 2, 2007, Chief Berghem obtained a warrant for VanHorn’s arrest. Franks called in to report that VanHorn was parked near his house in a gold Mercedes. Chief Berghem responded to Franks’ call and located VanHorn in a gold Mercedes about one block from Franks’ house. He arrested VanHorn and recovered a pair of binoculars from the front seat of the car.
On that date, the State charged Van-Horn with class D felony stalking. Appellant’s App. at 19. On August 17, 2007, a jury found VanHorn guilty as charged. The trial court imposed a three-year suspended sentence, with three years’ formal probation and six months’ home detention. VanHorn appeals.
Discussion and Decision
VanHorn argues that the evidence is insufficient to support his stalking conviction. In reviewing a claim of insufficient evidence, we neither reweigh the evidence nor assess the credibility of the witnesses. Kien v. State, 782 N.E.2d 398, 407 (Ind.Ct.App.2003), trans. denied. We consider only the evidence most favorable to the verdict and reasonable inferences drawn therefrom, and we will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
To establish that VanHorn committed stalking as a class D felony, see Indiana Code Section 35-45-10-5(a), the State had to prove beyond a reasonable doubt that he (1) knowingly or intentionally (2) engaged in a course of conduct involving repeated or continuing harassment of the victim, (3) that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, and (4) that actually caused the victim to feel terrorized, frightened, intimidated, or threatened. See Ind. Code § 35-45-10-1 (defining “stalk”). Stalking does not include statutorily or constitutionally protected activity. Id.
“ ‘Harassment’ means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Ind.Code § 35-45-10-2.3 “Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.” Id. ‘“Impermissible contact’ includes but is not limited to knowingly or intentionally following or pursuing the victim.” Ind. [911] Code § 35-45-10-3.4
Specifically, VanHorn asserts that the State failed to establish that his conduct constituted “harassment” of or “impermissible contact” with Franks. VanHorn observes that the complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions. He points out that he made no actual physical contact with Franks and that he made no telephone calls, left no notes, or at any time stepped onto Franks’ property. Therefore, he argues, his conduct does not constitute contact, let alone meet the legal definition of “impermissible contact.”
VanHorn presents an issue of first impression. In fact, we have been presented with few opportunities to examine the parameters of “harassment” and “impermissible contact.” In Smith v. State, 802 N.E.2d 948 (Ind.Ct.App.2004), we were asked for the first time to determine whether telephone calls alone could support a conviction for stalking. The defendant there made eight or nine telephone calls to the police officer who arrested him for public intoxication. The phone calls included obscenities and threats on the officer’s life. Later, the defendant encountered another officer who told him that he would be charged with intimidation and harassment if he did not stop calling. The defendant then began leaving threatening voicemail messages for that officer. On appeal, the defendant argued that the statutory definitions appeared to require some physical contact between the defendant and the victim, and therefore the telephone calls could not constitute harassment. We disagreed, noting that other jurisdictions had consistently held that telephone calls alone were a course of conduct that could constitute harassment. Id. at 953-54.
Unfortunately, Smith is of little assistance. The Smith court determined only that “contact” was not limited to physical contact. The term “contact” is not statutorily defined. Undefined words are given their plain, ordinary and usual meaning. Redden v. State, 850 N.E.2d 451, 463 (Ind.Ct.App.2006), trans. denied. “In order to determine the plain and ordinary meaning of words, courts may properly consult English language dictionaries.” Id. Contact is defined as “an establishing of communication with someone or an observing or receiving of a significant signal from a person or object.” Merriam-Webster’s On-line Dictionary, http://www.merriam-webster.com/dictionary/contact (last visited June 10, 2008). Telephone calls clearly constitute contact. In addition, telephone calls impinge on the recipient’s zone of personal privacy, access to which the recipient has every right to deny or grant permission. When a person continues to call without the recipient’s consent or in [912] disregard of the recipient’s expressed wish that contact be discontinued, telephone calls are clearly “impermissible contact.”
In the present case, there are valid questions as to whether VanHorn’s conduct was “impermissible” and whether it constituted “contact.” While we ultimately do not determine whether VanHorn’s conduct was “contact,” we find guidance in Waldon v. State, 684 N.E.2d 206 (Ind.Ct.App.1997), tram, denied, in determining that VanHorn’s conduct was not “impermissible.” In Waldon, we upheld a conviction for stalking in which the defendant engaged in conduct somewhat similar to VanHorn’s. The victim saw Waldon six times over the course of eleven months: five times near the dance studio where she worked (once peering at her through the fence) and once in the parking lot of the hospital where she worked. However, in Waldon, the defendant and the victim had divorced and stipulated to a mutual restraining order. Therefore, it had already been established that any contact between the defendant and the victim was impermissible. The issue in that case was not whether the defendant’s actions constituted impermissible contact, but whether the evidence was sufficient to establish that the victim was actually terrorized, intimidated, or threatened by his conduct. The Waldon court held that it was. Id. at 208.
Unlike Waldon, VanHorn had no notice of the impermissibility of his conduct. He was parked on a city street. The freedom to park on a city street is generally outside an individual homeowner’s authority to permit or deny. The freedom to be on a public street is one of the personal liberties guaranteed by the federal constitution:
[A]s the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), or the right to move “to whatsoever place one’s own inclination may direct” identified in Blackstone’s Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).
City of Chicago v. Morales, 527 U.S. 41, 53-54, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (footnotes omitted); see also Kent, 357 U.S. at 125, 78 S.Ct. 1113 (“The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment.”). We observe that statutorily or constitutionally protected conduct is specifically exempted from the definition of harassment. Ind.Code § 35-45-10-2. If being on a city street is found to be “impermissible” merely because an individual homeowner did not grant permission, then the victim has been improperly granted power over the defendant that the victim does not possess.
We think that when a defendant’s conduct in a public place where the defendant has a lawful right to be, and that conduct alone, is alleged to constitute harassment, the accused’s due process rights must be safeguarded. In other words, when the government prohibits an individual from engaging in otherwise lawful conduct, it is [913] important to provide the accused with notice and an opportunity to be heard. Judge Barteau’s dissent in Waldon highlights our concerns:
In this case, there was no evidence to support a finding that Waldon intended to harass Majors. Six sightings of an ex-husband in public places during a one-year period do not amount to harassment. There is nothing in the record which would indicate that the six times Majors observed Waldon were anything but chance or coincidental encounters. In three of those encounters, there is no evidence that Waldon even realized he was involved in an encounter. While an individual might dislike a former spouse or might be afraid to be in the vicinity of a former spouse, that person’s subjective reasons for wishing that the former spouse be elsewhere cannot transform the former spouse’s innocent activities into behavior sufficient to support a criminal conviction.
684 N.E.2d at 210 (Barteau, J., dissenting).
The issuance of a protective order pursuant to Indiana Code Section 84-26-5 would address our concerns by providing notice to the individual, an opportunity to be heard, and, where the issuance of a protective order is justified, a clear statement that his or her conduct is impermissible.5 No protective order was sought in this case.6
We do not mean to suggest that no circumstances exist in which only public sightings may constitute harassment or impermissible contact, but in this case nothing occurred that would remotely indicate to VanHorn that his conduct was impermissible.7 The fact that VanHorn was [914] looking in the direction of Franks’ house with binoculars does not alter our analysis. This type of conduct falls more within the ambit of voyeurism, although we are not suggesting that the evidence in the record here would support a conviction for that offense. See Ind.Code § 35-45-4-5 (providing, in part, that a person who peeps, or goes upon the land of another with the intent to peep into an occupied dwelling of another person, or who peeps into an area where an occupant reasonably can be expected to disrobe, without the consent of the other person, commits voyeurism, a class B misdemeanor). Accordingly, we conclude that the evidence was insufficient to support VanHorn’s conviction for stalking.
Reversed.
BARNES, J., concurs.
BRADFORD, J., dissents with opinion.