McGhehey v. State
| Decision Date | 14 May 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1988 |
| Citation | 171 N.E.3d 648 (Table) |
| Court | Indiana Appellate Court |
| Parties | Johanna MCGHEHEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Attorney for Appellant: Timothy J. Burns, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General, Indianapolis, Indiana
[1] Johanna McGhehey ("McGhehey") appeals her conviction of harassment, a Class B misdemeanor,1 following a bench trial.
[2] We affirm.
[3] McGhehey raises two issues which we restate as follows:
[4] Between September 7 and September 28 of 2018, McGhehey made a series of telephone calls, including voicemail messages, to Eric Elmore ("Elmore"). Elmore is the CEO of Fatheads, Inc., an Indianapolis company for which McGhehey's husband, Richard Werkley ("Werkley"), worked until sometime in 2018. In McGhehey's initial telephone calls to Elmore, she inquired as to the whereabouts of Werkley, who had recently left the family residence and ceased communication with McGhehey. McGhehey was very upset during the phone calls she made to Elmore. Elmore informed McGhehey several times that he had no knowledge of Werkley's whereabouts, and Elmore asked McGhehey to stop calling him. McGhehey continued to call Elmore and became "more aggressive," "going after [Elmore] with personal attacks." Tr. at 11, 12. Therefore, Elmore blocked McGhehey's telephone number. However, McGhehey continued to call Elmore from other telephone numbers and leave voicemail messages for him.
[5] On October 1, 2018, the State charged McGhehey with one count of harassment, a Class B misdemeanor. At the October 19 bench trial, the court admitted, over McGhehey's objections, State's Exhibit 2 which consisted of audio recordings of seven voicemail messages McGhehey left for Elmore on his telephone between September 7 and September 28. Each voicemail message contained profanity and insults to Elmore, delivered in angry tones. In the first voicemail message, McGhehey complained, in crude terms, about her husband and asked Elmore (who McGhehey refers to as "Jabba") to give her husband her message. State's Ex. 2, voicemail 1447-090718(2). In the second voicemail message, McGhehey called Elmore various vulgar and/or profane names and insinuated, in crude terms, that Elmore was engaged in a sexual relationship with her husband.
[6] In the third voicemail message, McGhehey again called Elmore various crude names, using profane terms. She also stated that "this is not the end of this," and she was going to put an ad in a newspaper about "that heroin addict." Id ., voicemail 1467-091318. She continued, Id. McGhehey further stated that Elmore was "gonna get served, and that's not a threat, nor is it a promise, that's just the way of life." Id. McGhehey also said she was going to get her child back and she might lose her dog and cat. McGhehey told Elmore about her family background and stated that she "[came] from money." Id.
[7] The fourth voicemail message began, Id ., voicemail 1485-092118. McGhehey accused Elmore of having an affair and stated three more times, "It's not over." Id. McGhehey continued, Id. At random points throughout the voicemail message, McGhehey also mentioned that: she wanted pictures of her children that Elmore had on his phone, she lost her children to "CPS" (i.e., Child Protective Services), she lost her cat and dog, her husband was at Elmore's "beck and call," she was going to have a garage sale, she had not seen her husband since September 3, she had gone to jail twice, she was "in the court system" now, and she only cared about getting her children "out of CPS." Id.
[8] In the fifth voicemail message, McGhehey addressed Elmore as "Jaba," and discussed paying Elmore for Werkley's car. Id ., voicemail 1487-092118(2).
[9] In the sixth voicemail message, McGhehey stated that she had Elmore's drill and asked who needed to pick it up. She also stated, Id ., voicemail 1490-092118. McGhehey further stated in angry tones, Id.
[10] In the seventh voicemail message, McGhehey accused Elmore of "fucking with [her] family," and stated that the police were going to come to Elmore's home. She further stated, then laughs. Id ., at voicemail 091318 or 091418(2).2 McGhehey then identified herself by name and ended with more insults to Elmore.
[11] The trial court admitted, over the State's objection, McGhehey's Defense Exhibit A, which was a recording of the June 10, 2019, deposition of Captain James Dierdorff ("Officer Dierdorff") of the Speedway Police Department. In his recorded deposition statement, Dierdorff indicated that he listened to the voicemail messages McGhehey sent to Elmore. Dierdorff stated that McGhehey's "main focus" in the voicemail messages was her marital problems, but the messages also contained "a lot of profanity." Id. Dierdorff also stated that "there were some threats made" on the messages to discredit Elmore's business. Id.
[12] McGhehey also testified on her own behalf. She stated, "I'm Bipolar," and further testified that her "main intent" in her telephone calls to Elmore was to find her husband. Tr. at 41.
[13] The trial court found McGhehey guilty as charged. In so finding, the court stated in relevant part:
There's the phrase "with no intent of legitimate communication" and having heard these calls, I — I understand your argument Ms. Knipp, and I've listened very carefully to Ms. McGhehey's testimony, but the calls themselves, the nature of the calls, the, uh — it just does not appear to be any intent of legitimate communication in — in those calls. Both in the manner of speaking, the words chosen and the things that are said; I'm not gonna stop, the threatening nature of it. I do take very seriously your argument regarding infringing on anyone's rights, First Amendment Rights, but the Court does believe that the State has proven its case....
Id. at 49. The trial court sentenced McGhehey to 180 days’ incarceration with 176 days suspended and no probation. This appeal ensued.
Discussion and Decision
[14] McGhehey challenges the sufficiency of the evidence to prove she lacked an intent to legitimately communicate with Elmore and alleges that the speech contained in the voicemail messages she left was constitutionally protected by both the federal and state constitutions.
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 ... 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 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 ). The de novo approach has been applied to claims under the First Amendment, see id. , and we see no reason it would not apply to claims under Article 1, Section 9.
McGuire v. State , 132 N.E.3d 438, 442-43 (Ind. Ct. App. 2019), trans. denied.
[15] McGhehey alleges there was insufficient evidence to prove she harassed Elmore. To prove harassment beyond a reasonable doubt, the State was required to provide evidence that McGhehey's telephone call(s) to Elmore were made with the intent to harass, annoy, or alarm him and with no intent of legitimate communication....
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