Hornsby v. State
| Decision Date | 31 January 2023 |
| Docket Number | Court of Appeals Case No. 22A-CR-1329 |
| Citation | 202 N.E.3d 1135 |
| Parties | Cole HORNSBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Robert P. Magrath, Alcorn Sage Schwartz & Magrath, Madison, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana
[1] Appellant-Defendant, Cole Hornsby (Hornsby), appeals his conviction and sentence for stalking, a Level 6 felony, Ind. Code § 35-45-10-5(a).
[2] We affirm.
[3] Hornsby presents this court with three issues, which we restate as:
[4] Hornsby and L.P. attended the same schools in Dearborn County, Indiana, since middle school, but they were never friends or romantically involved. In 2016 when Hornsby and L.P. were juniors at East Central High School, L.P. worked at a K-Mart in Harrison, Ohio, as a cashier. Hornsby would come through L.P.’s check-out lane when other lanes were open to purchase magnum-sized condoms and attempt small talk with L.P., who was not receptive. During this period, Hornsby contacted L.P. on social media enquiring about gaining employment at K-Mart. L.P. did not respond.
[5] During their senior year which spanned from the fall of 2017 to the spring of 2018, Hornsby would come to L.P.’s locker on a daily basis to stare and smirk at her, attempt small talk, and to ask her out on dates. L.P. told Hornsby repeatedly to his face that she was not interested and to leave her alone, but Hornsby continued. After her stated rejections of Hornsby's advances went unheeded by him, L.P. attempted to ignore Hornsby. In response, Hornsby would call her a bitch for ignoring him. L.P. did not respond to Hornsby's further attempts to contact her on social media, and she blocked Hornsby from calling her cellphone. On a daily basis, Hornsby parked next to or near L.P. in the East Central parking lot so that he could speak to L.P. and walk with her to and from the high school. L.P. did not want to speak or walk with Hornsby, and she told him to leave her alone. After Hornsby continued to park next to L.P., she would wait in her car, sometimes until after the school bell had rung, in an attempt to avoid him. Hornsby also waited. In a further attempt to avoid Hornsby, L.P. changed where she parked. Hornsby also changed where he parked. On one occasion as Hornsby followed L.P. from the school building to the parking lot and L.P. quickened her pace to avoid him, Hornsby tripped her. L.P. yelled at Hornsby, "Leave me alone[!]"
(Transcript Vol. VI, p. 32). Hornsby did not leave L.P. alone. Hornsby stared at L.P. in the one class they shared senior year and continued to do so even after the teacher changed their seating assignments.
[6] Hornsby's unwanted advances upset, overwhelmed, and frightened L.P. to the point that L.P., who was an active and engaged student, did not want to go to school. L.P. was afraid to go outside by herself and had family members escort her whenever possible. On Tuesday, April 10, 2018, at the prompting of her parents, L.P. went to East Central's Assistant Principal, Chad Swinney (Swinney), and reported Hornsby's unwanted conduct. Swinney confirmed L.P.’s report by talking to students whose lockers were close to L.P.’s and by reviewing the high school's parking lot surveillance footage. On Saturday, April 14, 2018, East Central's prom took place. Swinney observed Hornsby follow L.P. around the large prom venue over the course of several hours. One of L.P.’s friends used her cellphone to record Hornsby standing close to L.P., staring at L.P. and saying nothing. Eventually, Swinney took Hornsby outside and asked him why he was following L.P. On Monday, April 16, 2018, Swinney met with Hornsby and told Hornsby that his contact with L.P. was unwanted and that it had to stop. On Tuesday, April 17, 2018, a handgun was found in Hornsby's truck that was parked on East Central school grounds. This was in contravention to East Central's school rules, and Hornsby was immediately expelled. When L.P. was informed of Hornsby's possession of a handgun on school grounds, she was even more fearful for her safety.
[7] On April 17, 2018, the State charged Hornsby in Cause Number 15C01-1904-F5-30 (Cause -30, or the gun case) with Level 5 felony carrying a handgun without a license on or within 500 feet of a school. On April 22, 23, and 24, 2018, Hornsby sent L.P. messages on social media asking her to unblock him so that he could call her and exclaiming that "... [he] could not quit thinking about [her]." (Exh. Vol. p. 5). L.P. did not respond to these messages. From April 17, 2018, to December 24, 2018, Hornsby attempted to call L.P. thirty-one times from jail while he was in custody for the gun case. L.P. did not answer Hornsby's calls. L.P. graduated high school in the spring of 2018 and began college, hoping that Hornsby's involvement in her life was over.
[8] On February 3, 2019, L.P.’s parents were returning to the family home, which was located at the end of a dead-end street, when they spotted Hornsby's car on their street. L.P.’s father told Hornsby, to which Hornsby responded that he just wanted to talk to L.P. (Tr. Vol. IV, p. 244). On February 28, 2019, L.P. was granted a protective order against Hornsby, effective until February 28, 2021. Hornsby was personally served with the protective order on March 1, 2019. On March 5, 2019, Hornsby, who had pleaded guilty in Cause -30, was sentenced to four years in the Department of Correction (DOC), with three years and ninety-five days suspended to time served.
[9] On June 22, 2019, L.P. saw Hornsby in a bar in Harrison, Ohio. Hornsby left the bar as soon as he was spotted by L.P., and he spent the night and the next day at the home of his cousin Ian, who did not have a lock on his cellphone. On June 23, 2019, L.P., who had never met Ian, received a text from Ian's cellphone, stating:
Hey this is Ian Hornsby, and i just wanted to let you know that cole said if you don't drop the protective order by the end of the week, he's going to hire a lawyer and take you to court over it. He said he'll leave you completely alone, but the protective order will be dropped one way or another, because it's completely unnecessary.
(Exh. Vol. p. 19) (sic throughout). During an ensuing investigation, Ian denied sending this text to L.P. On July 5, 2019, the State charged Hornsby in Cause Number 15D01-1907-CM-565 (Cause -565) with Class A misdemeanor invasion of privacy for allegedly violating the protective order by sending L.P. a text through a third party on June 23, 2019. On August 27, 2019, the trial court held an initial hearing in Cause -565, and Hornsby was released on his own recognizance. On September 13, 2019, the State filed a notice alleging that Hornsby had violated his probation in the gun case by committing the new offense of invasion of privacy, as charged in Cause -565. On October 12, 2019, Hornsby used the texting device of a fellow inmate at the Dearborn County Law Enforcement Center to send L.P. a message. Hornsby was subsequently found to have violated his probation in the gun case, and on December 4, 2019, the probation revocation court imposed the entirety of Hornsby's three-year, ninety-five-day suspended sentence. During his allocution at his probation revocation sentencing hearing, Hornsby expressed his love for L.P., who was present at the hearing. Hornsby was remanded to the DOC. On December 9, 2019, the trial court granted the State's motion to dismiss Cause -565 without prejudice.
[10] On June 25, 2020, the State charged Hornsby in Cause Number 15D01-2006-F6-260 (Cause -260) with Level 6 felony stalking based on conduct alleged to have occurred between August 19, 2017, and December 4, 2019. The State also charged Hornsby with two counts of invasion of privacy for allegedly violating the protective order on June 23, 2019, and October 12, 2019. Hornsby was still serving his Cause -30 probation revocation sentence when the State filed the Cause -260 charges. Hornsby was not served with an arrest warrant in Cause - 260, and no initial hearing was held in the matter. During the pendency of Cause -260, Hornsby filed several pro se motions, including an August 11, 2020, motion for a speedy trial.
[11] On August 12, 2021, Hornsby was transported from the DOC to Dearborn County to attend a hearing in Cause -30 post-conviction relief proceedings he had filed. That same day, Hornsby was served with an arrest warrant in Cause -260, and the trial court granted the State's motion to dismiss Cause -260 without prejudice. Hornsby was returned to the DOC, where he had a projected release date of April 19, 2022.
[12] On February 17, 2022, the State filed an Information under Cause Number 15D01-2202-F6-51 (Cause -51, or the instant matter), charging Hornsby with Level 6 felony stalking for conduct alleged to have occurred between April 1, 2018, and December 4, 2019. On February 24, 2022, Hornsby filed a pro se motion to dismiss arguing that there was a lack of evidence to support the charge. On February 25, 2022, the trial court held Hornsby's initial hearing and granted Hornsby's pro se speedy trial motion, setting his jury trial for April 12, 2022. No evidence was heard on Hornsby's pro se motion to dismiss. The trial court took Hornsby's pro se motion to dismiss under advisement and subsequently denied that motion.
[13] On March 4, 2022, Hornsby, who by this time was represented by counsel, filed a second motion to dismiss with supporting memorandum, claiming,...
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