Stone v. State
| Decision Date | 26 June 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-2427 |
| Citation | 128 N.E.3d 475 |
| Parties | Kiel STONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Statement of the Case
[1] Kiel Stone brings this interlocutory appeal from the denial of his motion to dismiss the State's charging information. The State charged Kiel with seven counts of harassment, each a Class B misdemeanor, for phone calls Stone had made to staff members of the Indiana General Assembly and to staff members of the Indiana Secretary of State. Stone raises a single issue for our review, which we restate as the following two issues:
[2] We affirm.
Facts and Procedural History
[3] In 2016, Indiana State Capitol Police officers opened an investigation into Stone after reports from legislative staff members of numerous, daily phone calls Stone had been making to them. According to one of those staff members, when on the phone, Stone would "talk[ ] in circles," was generally "angry," and would "verbally escalate[ ] to swearing and yelling" at them. Appellant's App. Vol. II at 11-12. On May 4, Stone left one staff member a voicemail in which he "demean[ed] the staff members of various offices, calling them morons and idiots," and stated that he was "going to publicly beat the crap out of your office" and "verbally assault the office." Id. at 12 (quotation marks omitted). However, the officers did not pursue that investigation further because the legislative staff members did not obtain requested "supporting information and evidence" the officers deemed necessary. Id. at 14.
[4] On May 24, 2017, Stone contacted Lawrence Hemphill, a legislative assistant to Indiana Senator Mike Bohacek and then-Senator Mike Delph, and requested information relating to a Whitley County traffic violation deferral program and pro bono legal assistance. Hemphill responded to Stone's requests within one hour.
[5] Shortly thereafter, Stone called Hemphill and left a voicemail. In that voicemail, Stone said he was "irritated" with Hemphill; Stone "raised his voice ... and then accused Hemphill of playing the ‘you didn't get my driver's license game’ "; Stone told Hemphill that Stone had already "tried every lawyer" on the pro bono list; Stone "began ranting about how he has called different elected officials and voiced his displeasure in how he is allegedly treated by bodies of government"; Stone "accused Hemphill of receiving money from the [CIA] and allege[d] that someone has been perpetuating a conspiracy against him for the last ten years"; Stone "asked Hemphill what he has to do, who he has to talk to[,] or who he has to bribe to be treated fairly in the State of Indiana"; Stone said "what Hemphill is doing is illegal"; and Stone ended the voicemail "by calling Hemphill a[ ] ‘f[***]ing little worm.’ " Id. at 15.
[6] On September 27, 2017, Stone again called Hemphill and left a voicemail. In that voicemail, Stone stated that he had " ‘had enough of your bullsh[*]t[,] sir’ "; Stone "accused Hemphill of directing [Stone's] call to voicemail"; Stone said that "Hemphill is an agent of the government and again accused Hemphill and [Senator] Bohacek ... of working for the [CIA]"; Stone "accused Hemphill of not treating him fairly"; Stone stated that "he [Stone] is running for the ‘Indiana U.S. Senate’ "; Stone again accused Hemphill of being "an agent of the government"; Stone threatened Hemphill with "legal action"; Stone "stated that he wants to have a conversation with Hemphill in which he is treated respectfully" and they " ‘act correct’ "; and Stone told Hemphill that "the way he is being treated by Hemphill is inappropriate and illegal." Id. at 15-16.
[7] On January 11, 2018, Stone called Mackenzie Nicol of the Indiana Secretary of State's Constituent Services Office at the Indiana Statehouse approximately fifteen times in succession before leaving a voicemail. In that voicemail, Stone stated that staff members for the Indiana Secretary of State had "refused to help me" and "hung up on me." Id. at 22. He then stated that "it[ i]s very apparent that the Secretary of State's Office is treating [me] in this manner because these individuals ... [are] involved in the conspiracy" involving the CIA. Id. He further asserted that, if the Secretary of State and her staff members "are not working for the CIA, are not involved in heroin smuggling[ ] or cocaine smuggling and murdering people ... then why wouldn't you help ...." Id. at 23.
[8] On January 30, 2018, Stone called Hemphill and left another voicemail, which was approximately five minutes long. In that voicemail, Stone, among other things, accused Hemphill of being "discourteous ... over ... the course of about a year"; of acting illegally toward Stone; of being "Agent Hemphill of a governmental agency such as the CIA"; of needing to "check yourself into a psychiatric hospital"; and of being an "idiot[ ]." Id. at 17-18. Stone also told Hemphill that Stone was preparing a "massive federal conspiratorial lawsuit" against Hemphill and other State employees. Id. at 17.
[9] That same day, Stone also called Grant Beanblossom, an intern for Senators Bohacek and Delph. Stone asked for Hemphill, and, when Beanblossom informed Stone that Hemphill was not available, Stone "accused [Beanblossom] of shielding [Hemphill] from talking." Id. at 19. Stone then "transitioned to talking about an issue with police stops and identification." Id. After about five minutes, Beanblossom informed Stone that he "needed to go," and Stone responded that Beanblossom was "being extremely rude to him" and "taking part in a conspiracy against him." Id.
[10] Also on January 30, Stone called Tracy Mann, the administrative assistant to then-Senator David Long. Stone "was angry and informed her that Indiana Senators and [legislative assistants] would not help him or answer his questions." Id. He then began "speaking ... about a conspiracy to kill him, that the Indiana State Police "has tried to kill him ... over one hundred times," that the "CIA ... tried to poison him," and that there has been a conspiracy against him since 2012. Id. During the phone call, Stone "was screaming" and "cursing." Id.
[11] After Mann ended that phone call, Stone immediately called Jen Carlton, the Indiana Senate Deputy Chief of Staff. Stone left Carlton a nearly five-minute voicemail in which he stated, among other things, that "no one will speak to him or provide him with assistance and that it is all part of a conspiracy to kill him." Id. at 19-20.
[12] On February 28, the State charged Stone with seven counts of harassment under Indiana Code Section 35-45-2-2(a) (2018), each a Class B misdemeanor, for the seven phone calls he made between May 24, 2017, and January 30, 2018. Thereafter, Stone moved to dismiss the seven charges on the ground that each charge was predicated on protected political speech. In particular, in his memorandum in support of his motion to dismiss, Stone asserted that his speech was protected under the First Amendment because "[a]ll of the alleged phone calls ... were made on [phone] lines specifically intended for communication between the people and their elected representatives" and the State "is attempting to restrict Stone's speech on the basis of his speech's content." Id. at 72. Similarly, under Article 1, Section 9, Stone argued that his speech was unambiguously political and therefore protected because the speech did not rise to the level of tortious behavior.
[13] In its response to Stone's motion to dismiss, the State argued that Section 35-45-2-2 "criminalizes conduct, not speech"; that, therefore, "a First Amendment analysis premised on an alleged restriction of the freedom of speech is inapplicable"; and that the content of Stone's speech was only relevant, if at all, "in determining the intent of the speaker." Id. at 86-87. As a secondary argument, the State asserted that, even if "[p]ublic phone lines to state lawmakers are a public forum, ... the regulation of [Stone's] speech is appropriate" under the First Amendment because that regulation "is content-neutral." Id. at 88. And, under Article 1, Section 9, the State informed the trial court that, while it "concedes that [Stone's] speech was political," the charges were still valid because Stone's speech "did inflict a particularized harm on the victims." Id. at 90.
[14] The trial court held a hearing on Stone's motion to dismiss, at which the parties argued only the issue of whether, under Article 1, Section 9, Stone's conduct rose to the level of a tort. Following that hearing, the trial court denied Stone's motion to dismiss. The court then certified its order for interlocutory appeal, which we accepted.
Discussion and Decision
Standard of Review
[15] Stone appeals the trial court's denial of his motion to dismiss. A motion to dismiss under Indiana Trial Rule 12(B)(6) challenges only the legal sufficiency of the charges, which presents a question of law that we review de novo . See Ward v. Carter , 90 N.E.3d 660, 662 (Ind. 2018). We may affirm the trial court's judgment under Trial Rule 12(B)(6) on any basis supported by the record. See id. A motion to dismiss under Trial Rule 12(B)(6) is appropriate only when "the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances." Thornton v. State , 43 N.E.3d 585, 587 (Ind. 2015) (quotation marks omitted).
[16] Stone asserts that the State's charges against him seek to penalize him for speech that is protected under both the First Amendment to the United States Constitution and Article 1, Section 9 of the Indiana Constitution. We address each argument in turn.
[17] We first...
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