Sandleben v. State

• Decision Date: 17 March 2015
• Docket Number: No. 82A01–1407–CR–284.,82A01–1407–CR–284.
• Citation: 29 N.E.3d 126
• Parties: Steven M. SANDLEBEN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

29 N.E.3d 126

Steven M. SANDLEBEN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 82A01–1407–CR–284.

Court of Appeals of Indiana.

March 17, 2015.

Karen M. Heard, Vanderburgh County Public Defender's Office, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Graham T. Youngs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SHARPNACK

, Senior Judge.

Statement of the Case

[1] Steven M. Sandleben appeals his conviction and sentence for stalking, a Class D felony. Ind.Code § 35–45–10–5 (2002)

. We affirm.

Issues

[2] Sandleben presents three issues for our review, which we restate as:

I. Whether there was sufficient evidence to support his conviction of stalking.

II. Whether the trial court abused its discretion by admitting certain evidence at trial.

III. Whether his sentence was inappropriate.

Facts and Procedural History

[3] In August 2012, thirteen-year-old A.S. and her family entered a Target store to do some shopping. Sandleben began following A.S. when she entered the store, and he continued to follow her throughout the store. At some point, A.S.'s father noticed that Sandleben was taking video of A.S. with a small camera. A.S.'s father then contacted the store manager who asked Sandleben to leave the store.

[4] In May 2013, A.S. and her family were again out shopping and entered a Michaels store. After entering the store, A.S.'s father saw Sandleben and recognized him as the man who had followed A.S. in Target the previous August. Sandleben again followed A.S. through the store taking video of her with a small camera. A.S.'s father called 911, and the police arrived at the store. Upon interviewing those involved, the police arrested Sandleben.

[5] Based upon these two incidents, the State charged Sandleben with stalking, as a Class D felony. Following a jury trial, Sandleben was found guilty of the charge and was sentenced to thirty months. It is from this conviction and sentence that he now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[6] When reviewing claims of insufficiency of the evidence, this Court neither reweighs the evidence nor assesses the credibility of the witnesses. Brasher v. State, 746 N.E.2d 71, 72 (Ind.2001)

. Rather, we look to the evidence most favorable to the verdict and any reasonable inferences drawn therefrom. Id. 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. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind.2001).

[7] Sandleben contends that the State failed to present sufficient evidence that he committed the crime of stalking. The State charged Sandleben with stalking by alleging that he knowingly engaged in a course of conduct involving repeated harassment of A.S. by following her closely and taking pictures of her, which caused A.S. to feel terrorized, frightened, intimidated, or threatened. Appellant's App. p. 96.

[8] To establish that Sandleben committed stalking, 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 (1993)

. Stalking does not include statutorily or constitutionally protected activity. Id.

[9] For purposes of the offense of stalking, “harassment” is defined as “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 (1993)

. Harassment does not include statutorily or constitutionally protected activity. Id. “ ‘Impermissible contact’ includes but is not limited to knowingly or intentionally following or pursuing the victim.” Ind.Code § 35–45–10–3 (1993).

[10] The evidence in this case shows that within minutes of A.S. entering a Target store in August 2012, Sandleben began following her. At times, he got close enough to touch A.S. and followed her from aisle to aisle and from section to section. A.S. testified at trial that Sandleben did not appear to be shopping because he would “pick up something but [ ] when I would move he would quickly set it down and follow.” Trial Tr., Vol. III, p. 121. A.S.'s father noticed that Sandleben began following A.S. as soon as they entered the store. A.S.'s father did his own shopping and then rejoined his wife and daughters approximately fifteen minutes later. At that time he noticed that Sandleben was still following A.S. A.S.'s father testified that Sandleben did not have a shopping cart or basket and was walking past A.S. within arm's length. A.S.'s father watched Sandleben take out a small camera and take video as he went past A.S. A.S. testified that Sandleben is a complete stranger and that his actions made her scared and nervous. Id. at 117, 122. A.S.'s father contacted the store manager who asked Sandleben to leave the store.

[11] The evidence also shows that the following May A.S. and her family entered a Michaels store. Sandleben was there and began following A.S. throughout the store. A.S. testified that her father pointed out Sandleben, and she recognized him as the same man from Target the previous August. Again, Sandleben followed A.S. from section to section in the store. A.S.'s father testified that Sandleben again had a small camera in his hand as he followed her. A.S.'s father called 911, and officers arrived to investigate. A.S. testified that Sandleben's actions made her “nervous and scared again.” Id. at 127. Thus, the evidence shows that Sandleben intentionally engaged in a course of conduct that involved repeated and continual harassment of A.S. in both Target and Michaels by intentionally following her and taking video of her throughout both stores, causing A.S. to feel terrorized, frightened, intimidated, or threatened.

[12] Sandleben cites VanHorn v. State, 889 N.E.2d 908 (Ind.Ct.App.2008)

, trans. denied, in support of his sufficiency argument; however, his reliance on this case is misplaced. VanHorn's conduct consisted of parking on a public street near the victim's house and looking at the victim's house through binoculars on several occasions. On appeal, VanHorn argued that the State failed to establish that his conduct constituted “harassment” or “impermissible contact.” While not determining whether VanHorn's conduct was “contact,” this Court held that his conduct was not impermissible and was therefore insufficient to support his conviction of stalking. Similarly, Sandleben asserts that the State failed to prove that his conduct constituted “impermissible contact.” Yet Sandleben's argument ignores Indiana Code section 35–45–10–3, which states that impermissible contact includes knowingly or intentionally following or pursuing the victim. As we stated above, the evidence here was sufficient to support Sandleben's conviction of stalking based upon his intentional following of A.S.

[13] Sandleben also claims that his conduct is constitutionally protected and, thus, may not constitute stalking. Specifically, he maintains that taking video of an individual in a public place is a constitutionally protected activity.

[14] As a preliminary matter, the State contends that Sandleben has waived any federal claim by failing to provide an independent analysis under the federal constitution. We agree. “An appellant's failure to provide us with a separate analysis for each constitutional claim constitutes waiver.” Russell v. State, 993 N.E.2d 1176, 1179 (Ind.Ct.App.2013)

(citing Francis v. State, 764 N.E.2d 641, 647 (Ind.Ct.App.2002) ).

[15] Turning to the state constitutional claim, article I, section 9 of the Indiana Constitution

provides that “[n]o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.” Indiana courts have employed a two-step analysis when addressing article I, section 9 claims. Ogden v. Robertson, 962 N.E.2d 134, 141 (Ind.Ct.App.2012), trans. denied. In the first step of the analysis, we must decide whether the state action has restricted a claimant's expressive activity. Id. Second, if it has, we must determine whether the restricted activity constitutes an “abuse” of the right to speak. Id.

[16] First, it was not Sandleben's act of videotaping that formed the basis for the stalking charge that he claims unconstitutionally restricted his right to speak. Rather, his intentional, repeated acts of harassing A.S. by following her were the basis for the stalking charge. His repeated acts of following A.S. in no way implicated his right to speak. Thus, on this basis alone, we determine that Sandleben's right to speak was not restricted. Nonetheless, we review his claim that his acts were expressive activity that is constitutionally protected.

[17] In determining, under the first step of the analysis, whether the state action has restricted a claimant's expressive activity, we look to whether the state has imposed a direct and significant burden on a person's opportunity to speak his mind, in whatever manner he deems most appropriate. Whittington v. State, 669 N.E.2d 1363, 1368 (Ind.1996)

. As we noted above, the evidence shows that Sandleben was charged with stalking after closely following a teenage girl section by section and aisle by aisle through two different stores on two different occasions and videotaping her as he followed her. First, we note that the acts of videotaping and following someone are nonexpressive. Moreover, Sandleben cites to no legal authority in support of his...