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McGuire v. State

Court of Appeals of Indiana

August 27, 2019

Constance J. McGuire, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Kokomo, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

          BAILEY, JUDGE.

         Case Summary

         [¶1] Following a bench trial, Constance McGuire ("McGuire") was convicted of Class B misdemeanor Harassment[1] 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.

         Facts and Procedural History[2]

         [¶2] 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. 1.[3] 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 it." Id.

         [¶3] 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 sentence.

         [¶4] McGuire now appeals.

         Discussion and Decision

         [¶5] 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."

         [¶6] 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).

         [¶7] 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 the conviction.

         [¶8] 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, Section 9.

         Sufficiency of the Evidence

         [¶9] 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.

         [¶10] 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.

         [¶11] 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 ...


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