IN THE
Court of Appeals of Indiana FILED Xavier Isiah Alexander, Jan 21 2026, 9:34 am
Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff
January 21, 2026 Court of Appeals Case No. 25A-CR-1616 Appeal from the Marion Superior Court The Honorable Amy M. Jones, Judge Trial Court Cause No. 49D34-2503-CM-8653
Opinion by Judge Scheele Judges Brown and Felix concur.
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 1 of 13 Scheele, Judge.
Case Summary [1] Xavier Isiah Alexander appeals his conviction for Class B misdemeanor
harassment raising two issues which we restate as: whether the evidence was
sufficient to show Alexander communicated via electronic means with the
intent to harass, annoy, or alarm but with no intent of legitimate
communication; and whether Indiana Code section 35-45-2-2(a)(4)(A) is
unconstitutional as applied to him because it proscribed his protected speech.
We affirm.
Facts and Procedural History [2] Alexander and D.J. were in a romantic relationship that ended in March 2022.
Sometime between March 2022 and August 2024, D.J. “asked [Alexander] not
to contact [her] again.” Tr. Vol. II p. 18.
[3] On August 25, 2024, Alexander sent a text message about himself and his
feelings to D.J.; she did not respond. On September 10, Alexander sent D.J.
another text message with a link to a song posted on YouTube. This time, D.J.
responded telling Alexander, “I have a restraining order on you so you
shouldn’t be contacting me. Leave me tf alone.” 1 Ex. Vol. I p. 4. D.J. “blocked”
1 There is no “restraining” order in the record from before September 2024. The record does contain a no- contact order issued in March 2025, after charges in the instant case were filed. In any event, no issues on appeal are raised regarding D.J.’s statement that a restraining order was in place before September 10, 2024.
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 2 of 13 Alexander’s original telephone number, but Alexander continued to text and
call her from other phone numbers and “from text app.” Tr. Vol. II p. 17.
[4] On approximately December 15, Alexander texted D.J. again. D.J. called the
number to determine who was texting her. After learning it was Alexander,
D.J. said, “[O]h my gosh, stop calling me[,]” and she hung up the phone. Id. at
21. On December 16, Alexander sent D.J. another text, apologizing for
contacting her the day before and telling D.J. there was “[n]o need to call the
police[.]” Ex. Vol. I p. 5.
[5] On December 19, Alexander sent D.J. a text that said, “Ain’t go lie yall mouths
reckless I want yall all to die from homicide fuck you and all your people
bitch… I hate your scary ass too bitch… don’t be sorry[.]” Id. at 6 (errors in
original). D.J. responded, telling Alexander to “[s]top reaching out to [her] for
the MILLIONTH TIME.” Id. D.J. also told him that she was going to call the
police because it had been three years since their split and he was still reaching
out to her. Later at trial, Alexander claimed he sent the text message
referencing homicide in response to a message from D.J. saying “she hates
[him], [he’s] a weirdo, and she hoped [he] die[s] from cancer.” Tr. Vol. II p. 34.
However, Alexander acknowledged that the message referencing cancer was
not introduced into evidence. Alexander sent D.J. a final text message on
December 21 apologizing again and acknowledging that D.J. “told [him] a
million times” to stop. Ex. Vol. I p. 7.
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 3 of 13 [6] D.J. contacted the police and showed them the text messages from Alexander.
In March 2025, the State charged Alexander with Class B misdemeanor
harassment. On June 3, the trial court held a bench trial. Alexander admitted he
sent the text messages to D.J. and acknowledged that D.J. told him to leave her
alone. The trial court found Alexander guilty as charged and sentenced him to
180 days executed in the Marion County Jail. Alexander now appeals.
Discussion and Decision [7] Alexander challenges whether the State presented sufficient evidence to prove
he lacked an intent to legitimately communicate with D.J. and alleges the
speech contained in the text messages he sent was constitutionally protected.
We approach a typical sufficiency challenge with “great deference” to the fact-finder. Brewington v. State, 7 N.E.3d 946, 955 (Ind. 2014). That is, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016). Moreover, we view the “evidence and reasonable inferences drawn therefrom in a light most favorable to the conviction and will affirm ‘if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). However, to the extent the instant appellate issues implicate principles of freedom of speech, the Indiana Supreme Court has held that “[d]eferential review ... creates an unacceptable risk of under-protecting speech.” Brewington, 7 N.E.3d at 955. Indeed, because of the importance of protecting free public discourse, we have a “constitutional duty,” id., to independently examine the record “to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 4 of 13 free expression,” Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 455 (Ind. 1999) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). This rule of independent review—conducted de novo—“assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact,” no matter whether the trier of fact is a judge or a jury. Brewington, 7 N.E.3d at 955 (quoting Bandido’s, 712 N.E.2d at 455).
McGuire v. State, 132 N.E.3d 438, 442-43 (Ind. Ct. App. 2019), trans. denied.
I. Sufficiency of the Evidence
[8] To convict Alexander of harassment as charged, the State was required to prove
beyond a reasonable doubt that Alexander “use[d] a . . . form of electronic
communication to . . . communicate with a person” “with intent to harass,
annoy, or alarm another person but with no intent of legitimate
communication[.]” Ind. Code § 35-45-2-2(a)(4)(A) (1996). Alexander does not
dispute that he sent the text messages to D.J., but asserts the State failed to
prove that he did not intend a legitimate communication. He contends he sent
the text messages with the legitimate intent “to apologize and to help him
moving on with his life and obtaining closure.” Appellant’s Br. p. 9. Alexander
concedes, however, that “[t]he only communication that did not serve this
purpose” was the one message wherein he wished D.J. dead by homicide. Id.
[9] We have used an objective standard to determine whether communications are
made with intent to harass, annoy, or alarm; that is, whether the statements
would harass, annoy, or alarm a “reasonable” person. Leuteritz v. State, 534
N.E.2d 265, 267 (Ind. Ct. App. 1989). A finding that there was no intent of Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 5 of 13 legitimate communication “is a factual determination which will be disturbed
only upon a showing [that] no substantial evidence of probative value exists
from which the trier of fact could reasonably infer the defendant was guilty
beyond a reasonabl[e] doubt.” Brehm v. State, 558 N.E.2d 906, 908 (Ind. Ct.
App. 1990).
[10] As Alexander concedes, his December 19 message to D.J. does not contain any
apology or commentary about moving on, which he alleges would show a
legitimate intent. Instead, Alexander calls D.J. multiple profane names and tells
her, “Ain’t go lie yall mouths reckless I want yall all to die from homicide fuck
you and all your people bitch… I hate your scary ass too bitch… don’t be
sorry[.]” Ex. Vol. I p. 6 (errors in original). A reasonable person would feel
harassed, annoyed, or alarmed by such statements. Thus, this message alone
was sufficient to prove Alexander committed harassment by intending to
harass, annoy, or alarm D.J. without intent of legitimate communication.
[11] Still, Alexander concludes the other messages “could not reasonably be
considered a campaign of harassment or annoyance.” Appellant’s Br. p. 9. In
support of his argument, Alexander simply recounts the text messages and
testimony presented and contends that we should reach a different result than
the trial court. Alexander also contends the trial court “believed that, once a
person asks another to stop contacting them, any further communication made
for any reason is a per se violation of [Indiana Code section] 35-45-2-
2(a)(4)(A).” Appellant’s Br. p. 10 (emphasis omitted). We disagree.
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 6 of 13 [12] Here, Alexander acknowledged that D.J. told him to leave her alone and
admitted he sent her multiple text messages despite her direction to stop
communicating with her. D.J. testified that Alexander’s original number was
“blocked” on her phone, so Alexander contacted her from other phone
numbers. Tr. Vol. II p. 17. D.J. repeatedly told Alexander to stop contacting
her after learning a message or phone call was from him. Specifically, D.J. said
things like “stop texting my fucking phone” and “oh my gosh, stop calling me”
to Alexander. Id. at 19, 21. Alexander texted D.J. at least five times between
August and December 2024, despite the passage of at least two years since their
break-up and her unequivocal direction that he not communicate with her. The
court did not rely on the mere fact that Alexander communicated with D.J. on
an individual occasion after her request that he stop. Rather, the court
concluded Alexander’s continuous communication “is harassing” and “it’s
annoying that she has to the[n] guess what person is now texting her, what
number should she guess to block this week.” Id. at 41. The evidence was
substantially probative and sufficient for the trial court to reasonably infer
Alexander intended to annoy, harass, or alarm D.J. without the intent of
legitimate communication. See Brehm, 558 N.E.2d at 908.
II. Constitutionality
[13] Alexander asserts the harassment statute as applied to him is unconstitutional
because his communications with D.J. were protected free speech under the
United States and Indiana Constitutions. As we noted in McGuire, the intent-of-
legitimate-communication issue collapses into the constitutional-free-speech
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 7 of 13 issue because “we have interpreted the statutory phrase ‘no intent of legitimate
communication’ as creating a ‘specific intent requirement preclud[ing] the
application of this statute to constitutionally protected legitimate
communications.’” McGuire, 132 N.E.3d at 444 (quoting Kinney v. State, 404
N.E.2d 49, 51 (Ind. Ct. App. 1980)).
A. Waiver
[14] As an initial matter, the State contends that Alexander’s Article I, Section 9
claim under the Indiana Constitution is waived because Alexander failed to
make an independent argument. Indiana courts employ a two-step inquiry for
challenges under Article 1, Section 9, which is distinct from a First Amendment
analysis. See McGuire, 132 N.E. 3d at 444-45. Because Alexander failed to
provide such an independent argument, we agree his Article 1, Section 9 claim
is waived. South Bend Trib. v. Elkhart Cir. Ct., 691 N.E.2d 200, 202 n. 6 (Ind. Ct.
App. 1998) (Article 1, Section 9 argument was waived where appellant failed to
make a separate argument on that claim), trans. denied.
[15] The State also argues Alexander’s First Amendment claim is waived because it
was not raised before the trial court. It is well established that issues may not be
raised for the first time on appeal, including constitutional issues. See e.g.,
Washington v. State, 840 N.E.2d 873, 880 (Ind. Ct. App. 2006) (appellant waived
review of his Sixth Amendment claim that was not raised before the trial court),
trans. denied; Plank v. Comm. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013)
(“[T]he general rule is that failure to challenge the constitutionality of a statute
at trial results in waiver of review on appeal[.]”). However, “appellate courts Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 8 of 13 are not prohibited from considering the constitutionality of a statute even
though the issue otherwise has been waived[,] [a]nd indeed a reviewing court
may exercise its discretion to review a constitutional claim on its own
accord.” Plank, 981 N.E.2d at 53-54. Although Alexander failed to raise the
First Amendment issue before the trial court, we exercise our discretion to
review his constitutional claim.
B. First Amendment
[16] The harassment statute regulates speech, which is protected under the First
Amendment. McGuire, 132 N.E.3d at 442. In relevant part, the First
Amendment states, “Congress shall make no law ... abridging the freedom of
speech ...”. U.S. Const. amend. I. To determine the proper standard for
evaluating the harassment statute under the First Amendment, “we must
determine (1) whether the [statute] is content neutral and (2) what type of forum
is involved.” State v. Econ. Freedom Fund, 959 N.E.2d 794, 801 (Ind. 2011), reh’g.
denied. “[T]he government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions are justified
without reference to the content of the regulated speech.” Id. at 801-02 (internal
quotations and citations omitted). A restriction on speech that is unrelated to
the content of expression is deemed neutral, “even if it has an incidental effect
on some speakers or messages but not others.” Price v. State, 622 N.E.2d 954,
965 (Ind. 1993), reh’g. denied. “Furthermore, the standards to evaluate
limitations on speech ‘differ depending on the character of the property at
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 9 of 13 issue.’” Econ. Freedom Fund, 959 N.E.2d at 802 (quoting Frisby v. Schultz, 487
U.S. 474, 479 (1988)).
[17] We have held that some portions of the harassment statute are content-neutral
because it only applies to an intent to engage in speech rather than to the
content of the speech itself, and it does not apply to an intent to legitimately
communicate. Compare Stone v. State, 128 N.E.3d 475, 481-82 (Ind. Ct. App.
2019) (interpreting the harassment statute as content-neutral where a person
must, with the intent to harass, annoy, or alarm another and without the intent
of legitimate communication, “make[] a telephone call, whether or not a
conversation ensues” I.C. §35-45-2-2(a)(1)), trans. denied, with McGuire, 132
N.E.3d at 438 (analyzing the validity of a conviction under the harassment
statute based on the communication’s content where a person must, with the
intent to harass, annoy, or alarm another and without the intent of legitimate
communication, “use[] a computer network ... or other form of electronic
communication to ... transmit an obscene message or indecent or profane words
to a person[.]” I.C. §35-45-2-2(a)(4)(B)).
[18] In the instant case, the State charged Alexander under Indiana Code section 35-
45-2-2(a)(4)(A), which requires that “[a] person . . . with intent to harass,
annoy, or alarm another person but with no intent of legitimate communication
. . . uses a . . . form of electronic communication to . . . communicate with a
person[.]” This statutory language does not distinguish between protected and
prohibited speech on the basis of content; rather, the statute focuses expressly
on the speaker’s intent by the act of communicating to a person, not on the
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 10 of 13 content of his regulated speech within the communication. See Stone, 128
N.E.3d 481-82. Moreover, “the telephone system is neither a public property
nonpublic forum, nor a limited public forum, but a private channel of
communication.” Econ. Freedom Fund, 959 N.E.2d at 802 (internal quotation
and citation omitted). In the instant case, the method of electronic
communication used to transmit text messages was a cellular telephone system.
Because Indiana Code section 35-45-2-2(a)(4)(A) is content-neutral and applies
to speech made through private channels to reach private persons, “the
appropriate test for determining whether the [harassment statute] passes muster
under the First Amendment is whether it is narrowly tailored to serve a
significant governmental interest while leaving open ample alternative channels
for communication of the information.” Id.
[19] “[I]t it is well established that the protection of residential privacy is a
significant governmental interest” and “individuals are not required to welcome
unwanted speech into their own homes[.]” Econ. Freedom Fund, 959 N.E.2d at
802. Indiana Code section 35-45-2-2(a)(4)(A) is narrowly tailored to serve the
significant governmental interest of “the privacy, tranquility, and efficiency of
telephone customers.” Econ. Freedom Fund, 959 N.E.2d at 802 (holding the
same regarding the “Autodialer Law”); see also Stone, 128 N.E.3d at
482 (holding there is a substantial public interest in protecting people from
telephone harassment). Moreover, the harassment statute does not apply to
speech intended to legitimately communicate and leaves open ample alternative
forms of communication of information. In the instant case, the court even
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 11 of 13 noted its understanding that Alexander may want to communicate “things . . .
to get it off [his] conscience . . . and apologize and make amends so [he] can
have closure” but that Alexander could have done so through other forms of
communication such as journaling. Tr. Vol. II pp. 40-41. The statute is
narrowly tailored to serve its legitimate purpose.
[20] Finally, even if the statute as applied to Alexander were content-based, certain
categories of speech are simply unprotected by the First Amendment. McGuire,
132 N.E.3d 444. One such “proscribable category” is speech that constitutes a
“true threat[.]” Id. (citing Virginia v. Black¸538 U.S. 343, 359 (2003)). A true
threat requires “two necessary elements: that the speaker intend his
communications to put his targets in fear for their safety, and that the
communications were likely to actually cause such fear in a reasonable person
similarly situated to the target[.]” Id. (quoting Brewington, 7 N.E.3d at
964). Here, Alexander said in one message to D.J., “I want yall all to die from
homicide fuck you and all your people bitch… I hate your scary ass too bitch…
don’t be sorry[.]” Ex. Vol. I p. 6 (errors in original). It is difficult to conceive
any intention other than to put a target in fear for her safety when wishing her
death by homicide. And it is likely that a reasonable person in D.J.’s place
would fear Alexander after he wished for her murderous death and told her,
“[D]on’t be sorry[.]” Id. Thus, this speech amounted to a constitutionally
proscribable true threat and can be regulated. See McGuire, 132 N.E.3d 444
(citing Brewington, 7 N.E.3d at 978 (the First Amendment “does not permit
threats against the safety and security of any American, . . . regardless of
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 12 of 13 whether those threats are accompanied by some protected criticism”)).
Therefore, the harassment statute does not violate the First Amendment either
facially or as applied to Alexander.
III. Conclusion
[21] The State provided sufficient evidence to prove beyond a reasonable doubt that
Alexander committed harassment under Indiana Code section 35-45-2-
2(a)(4)(A). Additionally, the regulation of Alexander’s speech was
constitutionally permissible and did not violate his First Amendment right to
free speech. We affirm the judgment of the trial court.
[22] Affirmed.
[23] Brown, J., and Felix, J., concur.
ATTORNEYS FOR APPELLANT Steven J. Halbert Talisha R. Griffin Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-CR-1616 | January 21, 2026 Page 13 of 13