Constance J. McGuire, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Howard Superior Court The Honorable Douglas A. Tate,
Judge Trial Court Cause No. 34D03-1801-CM-90
ATTORNEYS FOR APPELLANT Donald E.C. Leicht Derick W. Steele
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Supervising Deputy Attorney General
Following a bench trial, Constance McGuire
("McGuire") was convicted of Class B misdemeanor
Harassment relating to statements she posted online.
McGuire now appeals. She challenges the sufficiency of the
evidence and alleges her conviction is improper because she
was engaged in constitutionally protected speech. Because we
identify sufficient evidence and conclude McGuire transmitted
a constitutionally proscribable true threat, we affirm.
and Procedural History
McGuire had a son who died after consuming methamphetamine
during a traffic stop. Officer Jeramie Dodd ("Officer
Dodd") of the Kokomo Police Department was present at
the stop. At some point, McGuire posted several statements on
Facebook mentioning Officer Dodd. These statements were
visible to over 1, 000 people who were "friends"
with McGuire on the social media platform. Officer Dodd was
not within that group of people. However, a concerned citizen
contacted Officer Dodd and passed along the statements. In
those statements, McGuire asserted that Officer Dodd killed
her son. She also said: "Yes he set my son up to die. He
did do it and so did KPD so y'all better watch out for me
cuz I'm coming for all of younand if u work n that Jail
I'm comn for u to so u better watch out this mother is on
a rampage and ready to shoot to kill." Ex.
In one post, McGuire wrote: "Fuck Jeremy Dodd like I
said he a whole bitch kill urself u bastard."
Id. At the end of the post, McGuire wrote:
"Everyone share." Id. McGuire also wrote:
"FUCK KPD OFFICER JERemy DODD yes I said it loud and
proud FUCK U PIG DO SUMTHN BITCH if u don't know now u
kno." Id. McGuire also mentioned Officer Dodd
and said that "when it comes to my kids anyone can get
The State charged McGuire with Class B misdemeanor
Harassment. A bench trial was held in September 2018 at which
McGuire represented herself and elected to testify. The trial
court took the matter under advisement. At an ensuing
hearing, the court found McGuire guilty and pronounced its
McGuire now appeals.
The State charged McGuire with Harassment under Indiana Code
Section 35-45-2-2(a)(4)(B), which provides-in pertinent
part-as follows: "A person who, with intent to harass,
annoy, or alarm another person but with no intent of
legitimate communication . . . uses a computer network . . .
or other form of electronic communication to . . . transmit
an obscene message or indecent or profane words to a person .
. . commits harassment, a Class B misdemeanor."
This statute regulates speech, which is afforded protection
through the First Amendment to the United States Constitution
and Article 1, Section 9 of the Indiana Constitution.
See U.S. Const. amend. I; Ind. Const. art. 1, §
9. The First Amendment reflects the "bedrock principle .
. . that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive
or disagreeable." Texas v. Johnson, 491 U.S.
397, 414 (1989). Indeed, law that "discriminates on the
basis of viewpoint . . . collide[s] with" the First
Amendment. Iancu v. Brunetti, 139 S.Ct. 2294, 2299
(2019). Whereas the federal constitution is concerned with
any viewpoint-based law-irrespective of whether the impaired
speech is political-our Article 1, Section 9 focuses on
protecting political speech. See Price v. State, 622
N.E.2d 954, 963 (Ind. 1993).
There are different types of constitutional challenges. For
example, sometimes litigants directly challenge the
constitutionality of a statute by alleging facial viewpoint
bias. See, e.g., Iancu, 139 S.Ct. at 2298
(involving a facial challenge to a trademark law prohibiting
registration of immoral or scandalous marks). Here, McGuire
presents no challenge to the facial validity of the instant
statute, and so we leave that type of statutory inquiry for
another day. McGuire instead contends her specific Facebook
posts were constitutionally protected, and that her
conviction amounts to an unconstitutional impairment of
speech. McGuire also alleges insufficient evidence supporting
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 instant
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 (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,
of the Evidence
Turning to the sufficiency challenge, McGuire asserts she
failed to transmit messages to Officer Dodd. Yet, there is no
question McGuire engaged in transmission. There was
transmission the moment McGuire posted online, broadcasting
to a virtual room containing more than 1, 000 people. McGuire
appears to be challenging the sufficiency of evidence on the
basis that Officer Dodd was not inside the virtual room, and
it was someone else who passed along the messages
"without permission." Br. of Appellant at 6. Yet,
to be criminally liable under the statute, McGuire need not
have directly transmitted the messages to the target of her
harassment. Rather, McGuire must have transmitted the
messages "to a person," I.C. §
35-45-2-2(a)(4)(B), which she did. To the extent McGuire is
alleging she lacked the intent to harass, annoy, or alarm
Officer Dodd because the messages were not directly available
to him, "[f]or a person to commit an act with the intent
to harass, annoy, or alarm another person, common sense
informs that the person must have a subjective expectation
that the offending conduct will likely come to the attention
of the person targeted for the harassment, annoyance, or
alarm." A.B. v. State, 885 N.E.2d 1223, 1226
(Ind. 2008). Here, McGuire wrote "Everyone share"
in a post suggesting Officer Dodd kill himself. Ex. 1.
McGuire also addressed Officer Dodd: "DO SUMTHN . . . if
u don't know now u kno." Id. She also
wrote: "I'm sure I'll get another visit from KPD
over my post." Id. Thus, in light of the
content of the messages, there is sufficient evidence to
conclude that McGuire had the expectation that the offending
conduct would come to the attention of Officer Dodd when she
transmitted the messages online.
McGuire also asserts her "Facebook postings do not
qualify as obscene." Br. of Appellant at 6. Yet, the
instant statute, written in the disjunctive, criminalizes the
transmission of "an obscene message or indecent or
profane words to a person," I.C. §
35-45-2-2(a)(4)(B)-and we discern no failure of proof
concerning the transmission of indecent or profane words.
Indeed, McGuire issued a profanity-laced threat and urged
Officer Dodd to commit suicide.
Finally, to the extent McGuire challenges the sufficiency of
evidence regarding intent to engage in "legitimate
communication," this inquiry collapses into the next
issue-the constitutional challenge to the conviction. This is
because we have interpreted the statutory phrase "no
intent of legitimate communication" as creating a
"specific intent requirement preclud[ing] the
application of this statute to constitutionally protected
legitimate communications." Kinney v. State,
404 N.E.2d 49, 51 (Ind.Ct.App. 1980). We therefore turn now
to the protections found in ...