Johnson v. State

• Decision Date: 29 December 1999
• Docket Number: No. 82A04-9812-CR-620.,82A04-9812-CR-620.
• Citation: 721 N.E.2d 327
• Parties: Simon JOHNSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

721 N.E.2d 327

Simon JOHNSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A04-9812-CR-620.

Court of Appeals of Indiana.

December 29, 1999.

Transfer Denied March 1, 2000.

John D. Clouse, John P. Brinson, Evansville, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Liisi Brien, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

STATON, Judge

Following a jury trial, Simon Johnson, Jr. appeals his conviction for stalking as a Class C felony.¹ Johnson raises two issues on appeal, which we restate as:

I. Whether the evidence is sufficient to support his conviction.

II. Whether the statute under which Johnson's penalty for stalking was enhanced to a Class C felony is unconstitutional.

We affirm.

The facts most favorable to the verdict reveal that Johnson and the victim were involved in a personal relationship between 1989 and 1994. The victim had three children by Johnson. Johnson's behavior toward the victim was violent and controlling. Johnson beat the victim on two occasions. The victim ended the relationship in 1994 after the second beating.

After his relationship with the victim had ended, Johnson would call the victim at all hours of the night, accuse her of ruining his life, and tell her that she "better not be seeing anyone" or "[b]etter not have a man around the kids." Record at 68. Johnson called the victim frequently, and if the victim refused to talk to him, he would come to her home, beat on the windows and doors, and accuse her of having a man in the house. On these occasions, the victim would also find that the tires on her car had been flattened. Johnson talked about killing the victim, but stated he did not do so only because he loved her. The victim was frightened by these threats. As a result of this behavior, the State filed an information on January 15, 1998, charging Johnson with stalking the victim from August of 1997 to January 15, 1998.

On August 4, 1998, Johnson came to the victim's house at about 1:00 a.m. Johnson began hitting her bedroom window and asking to talk to her. As usual, he suspected that she had been with somebody that night, and he wanted to come inside to check whether a man was in the house. The victim would not let him in the house. Johnson went to the front door and knocked, and the victim repeatedly told him to leave. The knocking stopped. At 3:00 a.m., Johnson began knocking on the window again. He was calling her names and accusing the victim of having a man in the house. Again, the victim refused to let him in and told him to leave. Johnson left. At 6:00 a.m., he returned to the bedroom window. He stated that he was going to wait on whoever it was that the victim had in the house. Johnson went to the front door and knocked for approximately fifteen minutes. The victim called the police. Johnson was arrested. The victim testified that she was angry, tired, and depressed as a result of Johnson's behavior.

The State charged Johnson with a second count of stalking. Following a trial at which both counts of stalking were considered, Johnson was acquitted of the first count and convicted of the second count. Johnson appeals his conviction.

I. Sufficiency of the Evidence

Johnson argues that the evidence is insufficient to support his conviction for stalking. Specifically, Johnson argues that the evidence does not establish that he had repeated or continuing contact with the victim nor does it establish that the victim felt terrorized, frightened, intimidated, or threatened. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

In order to convict Johnson of stalking as a Class C felony, the State was required to prove that Johnson (1) stalked the victim, (2) while a criminal complaint of stalking that concerns an act by Johnson against the same victim was pending in a court, and (3) Johnson had been given actual notice of the complaint. IC XX-XX-XX-X(b)(3). The term "stalk" is defined by IND.CODE § 35-45-10-1 (1998):

As used in this chapter, "stalk" means a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened....

Thus, in order to establish the first element of stalking as a Class C felony, the State was required to prove that Johnson (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.

Johnson first argues that the State presented insufficient evidence to establish that he engaged in a course of conduct involving repeated or continuing harassment of the victim. He contends that the only evidence that supports this element is his conduct on August 4, 1998, and that this evidence, as a matter of law, does not constitute "repeated" or "continuing" harassment as those terms are meant by the anti-stalking law. Johnson argues that where harassment occurs over a period of only several hours, this behavior cannot constitute repeated or continuing contact.

Johnson was acquitted on the first stalking charge, which had alleged that he stalked the victim from August of 1997 to January 15, 1998. However, he was convicted on the second charge, which alleged that his actions on or about August 4, 1998 constituted stalking. The second charge carried enhanced penalties because Johnson had a pending charge filed against him at the time he committed the acts comprising the second charge of stalking. Accordingly, in determining whether Johnson's conduct constituted repeated or continuing harassment of the victim, we may consider only Johnson's actions subsequent to the filing of the initial charge on January 15, 1998. More precisely, we consider only Johnson's actions on August 4, 1998 since the second charging information accused Johnson of stalking the victim based upon his actions on or about that date.² On August 4, 1998, Johnson first came to the victim's house at 1:00 a.m. He began hitting her bedroom window and asking to talk to her. Johnson wanted to come into the house, but the victim would not let him. He went to the front door and knocked, and the victim told him to leave. The knocking stopped. At 3:00 a.m., Johnson began knocking on the victim's window again. He was calling her names and accusing the victim of having someone in the house. The victim refused to let him in and told him to leave. Johnson left. At 6:00 a.m., he returned to the bedroom window. He stated that he was going to wait on whoever it was that the victim had in the house. Johnson went to the front door and knocked for approximately fifteen minutes. Instead of letting him in the house, the victim called the police.

Indiana's anti-stalking law was first enacted in 1993. 1993 Ind. Acts 4464-65, P.L. 242-1993, § 4. Because this law is relatively new in Indiana, our case law regarding it is sparse. See Landis v. State, 693 N.E.2d 570 (Ind.Ct.App.1998), rev'd in part, 704 N.E.2d 113 (Ind.1998); Waldon v. State, 684 N.E.2d 206 (Ind.Ct. App.1997), trans. denied; Burton v. State, 665 N.E.2d 924 (Ind.Ct.App.1996), trans. denied; Hendricks v. State, 649 N.E.2d 1050 (Ind.Ct.App.1995); Johnson v. State, 648 N.E.2d 666 (Ind.Ct.App.1995). Only three of these cases—Waldon, Hendricks, and Johnson—address challenges to the sufficiency of the evidence supporting stalking convictions, and none of them address situations where the alleged act of stalking occurred over the course of a day or less. Johnson argues that his actions, which occurred over a five to six hour period, were neither "repeated" nor "continuing" as those terms are meant by the anti-stalking law.

In construing a statute, we seek to ascertain and give effect to the intention of the legislature as expressed in the statute. In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. State v. Windy City Fireworks, Inc., 600 N.E.2d 555, 558 (Ind.Ct.App.1992), adopted on transfer, 608 N.E.2d 699 (Ind.1993). We presume words appearing in the statute were intended to have meaning, and we endeavor to give those words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise. Indiana Dept. of Human Services v. Firth, 590 N.E.2d 154, 157 (Ind.Ct.App. 1992), trans. denied.

The harassment prohibited by Indiana's anti-stalking law must be either "repeated" or "continuing." "Repeat" is defined in WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985) as "to make, do, or perform again." Id. at 998. In considering the meaning of the term "repeatedly" in Alabama's stalking statute, the Alabama Court of Criminal Appeals held that the term means "more than once." State v. Randall, 669 So.2d 223, 227 (Ala.Crim. App.1995). Accord, People v. Heilman, 25 Cal.App.4th 391, 30 Cal.Rptr.2d 422, 427 (1994) (repeatedly means "more than one time"). Likewise, we conclude that the term "repeated" in Indiana's anti-stalking law means "more than once."

On three different occasions during the same night, Johnson banged on the victim's window and door, requested to be let in, and berated the victim. Because this behavior occurred more than once, it was repeated. It makes no difference that the...