Shuger v. State
| Decision Date | 17 January 2007 |
| Docket Number | No. 64A03-0509-CR-456.,64A03-0509-CR-456. |
| Citation | 859 N.E.2d 1226 |
| Parties | Frederick S. SHUGER and Roseanne Shuger, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
James A. Morsch, Mark Schwartz, Chicago, IL, John M. Lyons, Valparaiso, IN, Attorneys for Appellants.
Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Frederick and Rosanne Shuger (the "Shugers") were each convicted in Porter Superior Court of two Class C misdemeanors for violating Indiana's Hunter Harassment Act. On appeal, they raise multiple issues, which we consolidate and restate as:
I. Whether Indiana's Hunter Harassment Act is constitutional; and II. Whether the State presented sufficient evidence to support the Shugers' convictions under the Hunter Harassment Act.
We affirm.
In 2001, the Beverly Shores Town Board repealed its anti-hunting ordinance to provide for culling of its overpopulated deer. The Board established an "urban deer zone" in which it was legal to bow-hunt deer during certain prescribed days and hours on lands owned by private individuals who had granted permission for bow hunting on their properties. The Shugers had attended Town Board meetings where the issue of repealing the town's anti-hunting ordinance was discussed, and they had vigorously participated in protests against hunting in the neighboring state park.
On October 5, 2001, Jeffrey Valovich ("Valovich") complained to Department of Natural Resources Officer Roger Bateman ("Officer Bateman") that Frederick Shuger ("Frederick") had threatened him the previous day while he was field dressing a deer he had killed in Beverly Shores. Officer Bateman subsequently went to the Shugers' home to interview them. Frederick admitted to Officer Bateman that he had an altercation with Valovich but denied having threatened him. Frederick was charged with intimidation stemming from this incident. Frederick is not challenging his conviction for intimidation in this appeal.
In early November 2001, Officer Bateman received another complaint from hunters James Myers ("Myers") and Daniel Uzelac ("Uzelac"). Myers and Uzelac had been given permission by Beverly Shores residents Phil and Carol Dickerman to hunt white tail deer on their property as allowed under the town's law. Myers and Uzelac told Officer Bateman, and later testified, that Frederick had confronted them on November 5, 2001, while they were unpacking their hunting gear on a public roadway in Beverly Shores. Frederick had confronted the hunters with expletives, and Uzelac said he was "like a bully looking for trouble." Tr. p. 252.
On a second hunting expedition on November 7, 2001, Myers and Uzelac also witnessed Frederick and Rosanne Shuger ("Rosanne") slowly driving down a nearby gravel road. The Shugers' vehicle was the only vehicle they had seen on the road all day. Rosanne got out of their vehicle and took photographs of the license plate on their truck parked at the side of the road. While driving by the hunters' location, the Shugers also honked their horns, allowed their dog to bark out of the vehicle's open windows, and talked loudly with one another. Several minutes later, the Shugers did a second drive-by. Myers and Uzelac figured that the drive-bys would continue as long as they remained on the property, so they packed up and left. Dale Jalevocky ("Jalevocky") and James Gaskill ("Gaskill") were also hunting in Beverly Shores that day. They also witnessed the Shugers' drive-bys and complained to local law enforcement of the Shugers' disturbance.
On February 8, 2002, the State charged both Frederick and Rosanne with two counts of hunter harassment. The Shugers moved to dismiss the charges on October 31, 2002, arguing that the provision of the Hunter Harassment Act under which they were charged violates the United States and Indiana Constitutions. The trial court denied their motion to dismiss.
The trial court then conducted a jury trial on July 18-20, 2005, and Frederick and Rosanne were found guilty on both counts of violating the Hunter Harassment Act. The trial court sentenced the Shugers on July 25, 2005. The Shugers now appeal. Additional facts will be provided as necessary.
The first issue the Shugers raise is whether Indiana's Hunter Harassment Act violates the First Amendment of the U.S. Constitution. Whether a statute is constitutional on its face is a question of law. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997) (citation omitted). When the issue presented on appeal is a question of law, we review the matter de novo. Id. (citing Brown v. State, 653 N.E.2d 77, 81 (Ind.1995)). A statute is presumed constitutional until the party challenging the statute clearly overcomes this presumption by a contrary showing. Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 349 (Ind.2003) (citing Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)). This court may nullify a statute on constitutional grounds only where such a result is clearly rational and necessary. Id. (citing Bd. of Comm'rs of the County of Howard v. Kokomo City Plan Comm'n, 263 Ind. 282, 330 N.E.2d 92, 95 (1975)).
The First Amendment, incorporated to the states via the Fourteenth Amendment, protects free speech, providing in pertinent part that "Congress shall make no law . . . abridging the freedom of speech." As a threshold matter, we must first determine whether the Hunter Harassment Act encompasses communicative conduct to which we should apply First Amendment scrutiny. The State seems to maintain that this act regulates conduct, and therefore, does not implicate First Amendment concerns. The Hunter Harassment Act provides:
A person who knowingly or intentionally (1) disturbs a game animal; or (2) engages in an activity or places an object or substance that will tend to disturb or otherwise affect the behavior of a game animal; with intent to prevent or hinder the legal taking commits a Class C misdemeanor.
Ind.Code § 14-22-37-2(b) (1998).
The United States Supreme Court "has applied First Amendment scrutiny to a statute regulating conduct which has the incidental effect of burdening the expression of a particular political opinion." Arcara v. Cloud Books, Inc., 478 U.S. 697, 702, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). In fact, "it is now well settled that constitutionally protected forms of communication include parades, dances, artistic expression, picketing, wearing arm bands, burning flags and crosses, commercial advertising, charitable solicitation, rock music, some libelous false statements, and perhaps even sleeping in a public park." J. Stevens, The Freedom of Speech, 102 Yale L.J. 1293, 1298 (1993). Given this precedent, we conclude that the Hunter Harassment Act does have an incidental effect of burdening the expression of a particular political opinion, as demonstrated by this case where animal rights activists attempted to express their political opinion by creating noise during a hunt. Consequently, we proceed to apply First Amendment scrutiny.
To determine the level of First Amendment scrutiny we should apply, we must first inquire into whether the Hunter Harassment Act's proscriptions are content based or content neutral. The government's purpose behind enacting the statute is the controlling consideration in determining whether the statute is content neutral. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). "Government regulation of expressive activity is content neutral so long as it is `justified without reference to the content of the regulated speech.'" Id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)) (emphasis in original). A law is content neutral if it regulates only the time, place, or manner of speech irrespective of content. Consol. Edison Co., v. Pub. Serv. Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (citations omitted).
On appeal, the Shugers concede that "Indiana's Hunter Harassment Act has no explicit content-based limitations on its face." Br. of Appellants at 19. However, they contend that this act is analogous to the federal government's attempt to regulate speech through the Flag Protection Act of 1989, which was held unconstitutional in U.S. v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990). In Eichman, the Supreme Court found that even though the Flag Protection Act contained "no explicit content-based limitation on the scope of prohibited conduct, it [was] nevertheless clear that the Government's asserted interest [was] `related to the suppression of free expression,' and concerned with the content of free expression" as the purpose behind the act was the "perceived need to preserve the flag's status as a symbol of our nation and certain national ideas." Id. at 315, 110 S.Ct. 2404 (quoting Texas v. Johnson, 491 U.S. 397, 410, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)).
"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quotation omitted). In looking to Hill and Eichman for guidance, we determine that the Indiana Hunter Harassment Act passes this test for three independent reasons. First, the statute is not a "regulation of speech." Rather, it is a regulation of the place and the manner where some speech may occur. Protestors' speech is merely limited in that it cannot interfere with a lawful hunt on lands designated for bow hunting.
Second, unlike the statute at issue in Eichman,...
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