Ellis v. State

• Decision Date: 01 September 2022
• Docket Number: 22A-CR-868
• Parties: Darla J. Ellis, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

Darla J. Ellis, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 22A-CR-868

Court of Appeals of Indiana

September 1, 2022

Appeal from the Huntington Circuit Court The Honorable Davin G Smith, Judge Trial Court Cause No. 35C01-2104-F6-145

ATTORNEY FOR APPELLANT Justin R. Wall Wall Legal Services Huntington, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

May Judge.

[¶1] Darla J. Ellis appeals following her conviction of Level 6 felony stalking.^[1] Ellis raises four issues for our review which we revise and restate as:

1.Whether the trial court properly denied Ellis's motion for change of venue;

2. Whether the trial court abused its discretion in denying Ellis's tendered preliminary jury instruction regarding the First Amendment;

3.Whether Ellis's conduct was protected by the freedom of speech guarantees provided in the United States and Indiana Constitutions; and

4.Whether the State presented sufficient evidence to support Ellis's conviction of stalking.

We affirm.

Facts and Procedural History

[¶2] In 2008, an Indiana State Police Trooper arrested Ellis after Ellis caused a disturbance during Sunday services at a church. The trooper called Terry Stoffel, who was then employed as a police officer with the Huntington Police Department, to transfer Ellis to the jail. Stoffel did so without incident. Two years later, Stoffel won election as Huntington County Sheriff, and he served as the Huntington County Sheriff from 2011 until 2017. After serving two terms as sheriff, Stoffel became a teacher with the Huntington County School Corporation.

[¶3] Toward the end of Stoffel's second term as sheriff, Stoffel noticed Ellis "yelling and screaming out the window at [him], flipping [him] off, yelling obscenities, things like that." (Tr. Vol. II at 103.) This behavior continued even after Stoffel left his position as sheriff, and Stoffel explained that "it really, really started being evident and frequent in 2020." (Id. at 104.) When Stoffel was teaching, his lunch period began at 10:40 a.m., and Ellis would drive by the school at that time to yell and make obscene gestures toward Stoffel. Stoffel described Ellis's behavior as "relentless." (Id. at 128.) He testified these encounters would occur "sometimes every day . . . sometimes every two or three days." (Id. at 107.) When Ellis yelled at Stoffel, "[h]er neck was bulged out and mad, angry, screaming. You know, just very, very angry and upset." (Id. at 104.) The behavior became so frequent that Stoffel modified his lunch routine to minimize having to go outside during that period. In addition to teaching, Stoffel also purchased and renovated properties. James Zahn, a self-employed excavator, was assisting Stoffel at a renovation site in August or September of 2020, when he saw Ellis stopped at a nearby stoplight. Ellis was "blowing the horn and stuck her arm out and gave [Stoffel] the finger. And said, 'Fuck you, Terry,' stuff like, 'I hate you.'" (Id. at 146.)

[¶4] In November 2020, Stoffel won election to serve as a Huntington County Commissioner. On December 31, 2020, Ellis sent a Facebook message to Detective Malcolm Jones of the Huntington County Sheriff's Department. The message included two photographs with the script "Nepotism continues in Huntington!!" superimposed over the photographs. (State's Ex. 1.) The message also included a third photograph with "You know who needs to get slapped with a Twisted Tea? Fucking Terry Stoffel" superimposed over a photograph of Stoffel. (Id.) Detective Jones blocked Ellis from being able to contact him by Facebook Messenger, and he utilized a popular internet search engine to ascertain that Ellis's comment was a reference to a viral video of one man hitting another man in the face with a can of Twisted Tea at an Ohio convenience store.^[2] Detective Jones informed Stoffel about the message he received from Ellis.

[¶5] In February 2021, Ellis drove her car up next to Stoffel's car in a shopping center parking lot. She extended her index finger and elevated her thumb, mimicking a gun, and pointed at Stoffel. Stoffel was then able to lip-read her saying "bang, bang." (Tr. Vol. II at 107.) In March 2021, Ellis stopped Joakim Abrahamsson, Huntington County's information technology director, outside the courthouse on a day when the county commissioners were meeting inside the courthouse. She asked Abrahamsson if Stoffel was inside the courthouse, and Abrahamsson indicated he was not sure. Ellis then said, "okay; can you tell [him] that someone is driving around with a sign in the back of their car . . . [that] says, 'Fuck Terry Stoffel.'" (Id. at 173-74.) Abrahamsson then saw the sign in the back of Ellis's vehicle and realized she was referring to herself. Abrahamsson interrupted the county commissioner meeting and informed Stoffel about his interaction with Ellis.

[¶6] On March 29, 2021, Ellis drove past Lieutenant James Horne of the Huntington County Sheriff's Department while Lieutenant Horne was conducting a traffic stop near the courthouse. Ellis was "laying on her horn, gesturing at her back windshield." (Id. at 186.) In the back windshield was a sign that said, "Fuck Terry Stoffel." (Id. at 190.) A few days later, while Lieutenant Horne was speaking with a citizen on the citizen's front yard, Ellis "drove by, beeped her horn, gesturing . . . [because] she wanted [Lieutenant Horne] to see her message on the back of her car." (Id. at 187.)

[¶7] Around this time, Stoffel reported Ellis's behavior to Huntington County Prosecutor Amy Richison, which led to Detective Robert Smith of the Indiana State Police initiating an investigation into Ellis's behavior toward Stoffel. Detective Smith interviewed Ellis, and Ellis told him she was angry that Stoffel transported her to jail rather than to a doctor's office in 2008. In addition, Ellis explained she was upset Stoffel did not appear to take seriously a complaint she made to him in the 1990s about a tanning salon employee rubbing a dirty cleaning towel in her face. She characterized Stoffel as "a piece of shit." (Id. at 200.) She also confirmed "flip[ing] him off," honking, and yelling obscenities at Stoffel. (Id. at 201.) On April 30, 2021, the State charged Ellis with one count of Level 6 felony stalking and one count of Level 6 felony intimidation.^[3]

[¶8] On May 13, 2021, Ellis filed a verified motion for change of venue. She asserted:

Defendant will be unlikely to receive a fair trial due to local prejudice or bias regarding a party (victim) former elected Huntington County Sheriff, a current Huntington County elected Commissioner and has a huge array of voters, friends, employees, and connections the victim has in the county. The victim was also a former Huntington Police Officer that had contact with Defendant.

(App. Vol. II at 68) (errors in original). The trial court held a hearing on Ellis's motion on June 28, 2021, and the court denied the motion. However, the trial court stated it would summon more prospective jurors than the court typically does when trying a Level 6 felony case because of Stoffel's public status. On October 1, 2021, Ellis tendered a proposed preliminary jury instruction regarding the State's duty to prove Ellis was not merely engaged in activity protected by the First Amendment. The State objected to the instruction on the basis that it was an impermissible constitutional challenge. After a hearing on October 4, 2021, the trial court refused Ellis's proposed preliminary instruction.

[¶9] The trial court then held a two-day jury trial on March 15 and 16, 2022. During voir dire, three prospective jurors indicated they knew Stoffel. Prospective Juror 1 stated: "I know who [Stoffel] is and we-not friends per se, but casual talk, yes." (Tr. Vol. II at 42.) Prospective Juror 7 indicated the juror knew Stoffel "through mutual friends" and interacted with Stoffel "here and there." (Id.) Prospective Juror 11 indicated the juror knew Stoffel through family members. The trial court excused Prospective Juror 11 for cause, and Ellis used peremptory strikes to remove Prospective Juror 1 and Prospective Juror 7 from the venire. The trial court was then able to seat a jury and the trial proceeded.

[¶10] Ellis testified at trial that she "flipped [Stoffel] off" when they encountered each other in a shopping center parking lot, but she denied mimicking a gun with her fingers and pointing at Stoffel. (Id. at 239.) She likewise denied encountering Stoffel outside the school during his lunch periods. Ellis acknowledged having a placard in her back window that said, "Fuck Terry Stoffel," (id. at 240), but she accused Abrahamsson and Lieutenant Horne of mischaracterizing her interactions with them regarding the sign. She also said she ignored a request by a Huntington Police Officer to remove the sign because she believed it was her First Amendment right to display the sign. Ellis explained she sent Detective Jones the Facebook message regarding Stoffel because she and Detective Jones "used to joke around and [Ellis] thought it was funny." (Tr. Vol. III at 2.) The jury returned a guilty verdict on the stalking charge and a not guilty verdict on the intimidation charge. On April 18, 2022, the trial court imposed a two-year sentence but suspended the sentence to probation.

Discussion and Decision

1. Motion for Change of Venue

[¶11] Ellis first argues the trial court erred in denying her motion for a change of venue. We review a trial court's denial of a motion for a change of venue for an abuse of discretion. Nix v. State, 158 N.E.3d 795, 801 (Ind.Ct.App. 2020), trans. denied. "We will affirm the trial court's denial of a motion...