McGhehey v. State
| Decision Date | 14 May 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1988 |
| Parties | Johanna McGhehey, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Johanna McGhehey, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Court of Appeals Case No. 20A-CR-1988
COURT OF APPEALS OF INDIANA
May 14, 2021
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
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
Appeal from the Marion Superior Court
The Honorable Helen W. Marchal, Judge
The Honorable Stanley E. Kroh, Magistrate
Trial Court Cause No. 49G15-1810-CM-33436
Bailey, Judge.
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[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:
I. Whether the State provided sufficient evidence that McGhehey made a telephone call with intent to harass, annoy, or alarm another person but with no intent of legitimate communication, per Indiana Code Section 35-45-2-2(a)(1).
II. Whether Indiana Code Section 35-45-2-2(a)(1) is unconstitutional as applied to her because it proscribed her protected speech.
[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
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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.
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[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, "Revenge is best served cold in Jesus's name. I will be calling Walmart, your distributor, and shooting them an e-mail and letting them know the dirty business practices you're doing and I have a lot of dirt on you, Mr. Elmore. And all you gotta do is be decent to me." 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, "It's a good thing I'm not scared of jail. You know what, it's not over between you and I personally, Mr. Elmore." Id., voicemail 1485-092118. McGhehey accused Elmore of having an affair and stated three more times, "It's not over." Id. McGhehey continued, "You're full of shit. It's on. And I'm not gonna stop until this man—oh, it's disgusting...." 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
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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...
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