Opinion
Court of Appeals Case No. 22A-CR-868
09-01-2022
Darla J. ELLIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorney for Appellant: Justin R. Wall, Wall Legal Services, Huntington, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Justin R. Wall, Wall Legal Services, Huntington, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
May, Judge. [1] Darla J. Ellis appeals following her conviction of Level 6 felony stalking. Ellis raises four issues for our review, which we revise and restate as:
Ind. Code § 35-45-10-5.
1. Whether the trial court properly denied Ellis's motion for change of venue;
2. Whether the trial court abused its discretion in denying Ellis's tendered preliminary jury instruction regarding the First Amendment;
3. Whether Ellis's conduct was protected by the freedom of speech guarantees provided in the United States and Indiana Constitutions; and
4. Whether the State presented sufficient evidence to support Ellis's conviction of stalking.
We affirm.
Facts and Procedural History
[2] In 2008, an Indiana State Police Trooper arrested Ellis after Ellis caused a disturbance during Sunday services at a church. The trooper called Terry Stoffel, who was then employed as a police officer with the Huntington Police Department, to transfer Ellis to the jail. Stoffel did so without incident. Two years later, Stoffel won election as Huntington County Sheriff, and he served as the Huntington County Sheriff from 2011 until 2017. After serving two terms as sheriff, Stoffel became a teacher with the Huntington County School Corporation.
[3] Toward the end of Stoffel's second term as sheriff, Stoffel noticed Ellis "yelling and screaming out the window at [him], flipping [him] off, yelling obscenities, things like that." (Tr. Vol. II at 103.) This behavior continued even after Stoffel left his position as sheriff, and Stoffel explained that "it really, really started being evident and frequent in 2020." (Id. at 104.) When Stoffel was teaching, his lunch period began at 10:40 a.m., and Ellis would drive by the school at that time to yell and make obscene gestures toward Stoffel. Stoffel described Ellis's behavior as "relentless." (Id. at 128.) He testified these encounters would occur "sometimes every day ... sometimes every two or three days." (Id. at 107.) When Ellis yelled at Stoffel, "[h]er neck was bulged out and mad, angry, screaming. You know, just very, very angry and upset." (Id. at 104.) The behavior became so frequent that Stoffel modified his lunch routine to minimize having to go outside during that period. In addition to teaching, Stoffel also purchased and renovated properties. James Zahn, a self-employed excavator, was assisting Stoffel at a renovation site in August or September of 2020, when he saw Ellis stopped at a nearby stoplight. Ellis was "blowing the horn and stuck her arm out and gave [Stoffel] the finger. And said, ‘Fuck you, Terry,’ stuff like, ‘I hate you.’ " (Id. at 146.)
[4] In November 2020, Stoffel won election to serve as a Huntington County Commissioner. On December 31, 2020, Ellis sent a Facebook message to Detective Malcolm Jones of the Huntington County Sheriff's Department. The message included two photographs with the script "Nepotism continues in Huntington!!" superimposed over the photographs. (State's Ex. 1.) The message also included a third photograph with "You know who needs to get slapped with a Twisted Tea? Fucking Terry Stoffel" superimposed over a photograph of Stoffel. (Id. ) Detective Jones blocked Ellis from being able to contact him by Facebook Messenger, and he utilized a popular internet search engine to ascertain that Ellis's comment was a reference to a viral video of one man hitting another man in the face with a can of Twisted Tea at an Ohio convenience store. Detective Jones informed Stoffel about the message he received from Ellis.
While the viral video was played for the jury as a demonstrative exhibit, it is not part of the appellate record. Nonetheless, the State has provided us with a link to a news article describing the video. Perma | Viral video of man beaten with Twisted Tea after using racial slur happened in Elyria, Ohio (graphic)
[5] In February 2021, Ellis drove her car up next to Stoffel's car in a shopping center parking lot. She extended her index finger and elevated her thumb, mimicking a gun, and pointed at Stoffel. Stoffel was then able to lip-read her saying "bang, bang." (Tr. Vol. II at 107.) In March 2021, Ellis stopped Joakim Abrahamsson, Huntington County's information technology director, outside the courthouse on a day when the county commissioners were meeting inside the courthouse. She asked Abrahamsson if Stoffel was inside the courthouse, and Abrahamsson indicated he was not sure. Ellis then said, "okay; can you tell [him] that someone is driving around with a sign in the back of their car ... [that] says, ‘Fuck Terry Stoffel.’ " (Id. at 173-74.) Abrahamsson then saw the sign in the back of Ellis's vehicle and realized she was referring to herself. Abrahamsson interrupted the county commissioner meeting and informed Stoffel about his interaction with Ellis.
[6] On March 29, 2021, Ellis drove past Lieutenant James Horne of the Huntington County Sheriff's Department while Lieutenant Horne was conducting a traffic stop near the courthouse. Ellis was "laying on her horn, gesturing at her back windshield." (Id. at 186.) In the back windshield was a sign that said, "Fuck Terry Stoffel." (Id. at 190.) A few days later, while Lieutenant Horne was speaking with a citizen on the citizen's front yard, Ellis "drove by, beeped her horn, gesturing ... [because] she wanted [Lieutenant Horne] to see her message on the back of her car." (Id. at 187.)
[7] Around this time, Stoffel reported Ellis's behavior to Huntington County Prosecutor Amy Richison, which led to Detective Robert Smith of the Indiana State Police initiating an investigation into Ellis's behavior toward Stoffel. Detective Smith interviewed Ellis, and Ellis told him she was angry that Stoffel transported her to jail rather than to a doctor's office in 2008. In addition, Ellis explained she was upset Stoffel did not appear to take seriously a complaint she made to him in the 1990s about a tanning salon employee rubbing a dirty cleaning towel in her face. She characterized Stoffel as "a piece of shit." (Id. at 200.) She also confirmed "flip[ing] him off," honking, and yelling obscenities at Stoffel. (Id. at 201.) On April 30, 2021, the State charged Ellis with one count of Level 6 felony stalking and one count of Level 6 felony intimidation.
[8] On May 13, 2021, Ellis filed a verified motion for change of venue. She asserted:
Defendant will be unlikely to receive a fair trial due to local prejudice or bias regarding a party (victim) former elected Huntington County Sheriff, a current Huntington County elected Commissioner and has a huge array of voters, friends, employees, and connections the victim has in the county. The victim was
also a former Huntington Police Officer that had contact with Defendant.
(App. Vol. II at 68) (errors in original). The trial court held a hearing on Ellis's motion on June 28, 2021, and the court denied the motion. However, the trial court stated it would summon more prospective jurors than the court typically does when trying a Level 6 felony case because of Stoffel's public status. On October 1, 2021, Ellis tendered a proposed preliminary jury instruction regarding the State's duty to prove Ellis was not merely engaged in activity protected by the First Amendment. The State objected to the instruction on the basis that it was an impermissible constitutional challenge. After a hearing on October 4, 2021, the trial court refused Ellis's proposed preliminary instruction.
[9] The trial court then held a two-day jury trial on March 15 and 16, 2022. During voir dire, three prospective jurors indicated they knew Stoffel. Prospective Juror 1 stated: "I know who [Stoffel] is and we—not friends per se, but casual talk, yes." (Tr. Vol. II at 42.) Prospective Juror 7 indicated the juror knew Stoffel "through mutual friends" and interacted with Stoffel "here and there." (Id. ) Prospective Juror 11 indicated the juror knew Stoffel through family members. The trial court excused Prospective Juror 11 for cause, and Ellis used peremptory strikes to remove Prospective Juror 1 and Prospective Juror 7 from the venire. The trial court was then able to seat a jury and the trial proceeded.
[10] Ellis testified at trial that she "flipped [Stoffel] off" when they encountered each other in a shopping center parking lot, but she denied mimicking a gun with her fingers and pointing at Stoffel. (Id. at 239.) She likewise denied encountering Stoffel outside the school during his lunch periods. Ellis acknowledged having a placard in her back window that said, "Fuck Terry Stoffel," (id. at 240), but she accused Abrahamsson and Lieutenant Horne of mischaracterizing her interactions with them regarding the sign. She also said she ignored a request by a Huntington Police Officer to remove the sign because she believed it was her First Amendment right to display the sign. Ellis explained she sent Detective Jones the Facebook message regarding Stoffel because she and Detective Jones "used to joke around and [Ellis] thought it was funny." (Tr. Vol. III at 2.) The jury returned a guilty verdict on the stalking charge and a not guilty verdict on the intimidation charge. On April 18, 2022, the trial court imposed a two-year sentence but suspended the sentence to probation.
Discussion and Decision
1. Motion for Change of Venue
[11] Ellis first argues the trial court erred in denying her motion for a change of venue. We review a trial court's denial of a motion for a change of venue for an abuse of discretion. Nix v. State , 158 N.E.3d 795, 801 (Ind. Ct. App. 2020), trans. denied. "We will affirm the trial court's denial of a motion for a change of venue in a criminal trial where the defendant fails to demonstrate that the jurors were unable to render an impartial verdict." Id. (internal quotation marks omitted).
[12] As we explained in Myers v. State :
The Indiana Supreme Court has repeatedly held that in order to prove that an error occurred in the denial of a motion for change of venue from the county, the defendant must show that he exhausted his peremptory challenges in an effort to secure juror impartiality and also that the jury was so prejudiced against him that it was unable to render
an impartial verdict in accordance with the evidence.
887 N.E.2d 170, 181 (Ind. Ct. App. 2008), reh'g denied , trans. denied. Indiana Code section 35-37-1-3(c) provides that a defendant charged with a Level 6 felony may exercise up to five peremptory challenges. However, Ellis chose to use only three of her allotted challenges. Importantly, Ellis used two of these peremptory strikes to remove prospective jurors who indicated they were acquainted with Stoffel, and the trial court excused for cause the third prospective juror who indicated he knew Stoffel. Ellis accepted the jury even though she had peremptory challenges remaining, and thus, she cannot now claim she received an unfair trial as a result of the trial court's denial of her motion for change of venue. See Bixler v. State , 471 N.E.2d 1093, 1100 (Ind. 1984) (holding trial court did not abuse its discretion in denying motion for change of venue when defendant did not exhaust peremptory challenges and the jurors on the panel indicated they had no preconceived opinion regarding defendant's guilt), reh'g denied.
2. Preliminary Jury Instruction
[13] Second, Ellis argues the trial court erred in denying her tendered preliminary jury instruction. We entrust instructing the jury to the sound discretion of the trial court, and we generally review a trial court's instructions for an abuse of that discretion. Spencer v. State , 129 N.E.3d 209, 211 (Ind. Ct. App. 2019), trans. denied. We evaluate jury instructions on appeal by assessing "whether the tendered instructions correctly state the law, whether there is evidence in the record to support giving the instruction, and whether the substance of the proffered instruction is covered by other instructions." Treadway v. State , 924 N.E.2d 621, 636 (Ind. 2010). Moreover, jury instructions should provide guidance to the jury, and "[a]n instruction that tends to confuse the jury is properly rejected." Dill v. State , 741 N.E.2d 1230, 1232 (Ind. 2001).
[14] Ellis's proposed Preliminary Instruction No. 1 stated:
Plaintiff has the burden that Defendant's acts or comments deprived the Plaintiff of his particular rights under the United States Constitution.
In this case Defendant must prove the following:
a. Defendant was engaged in a constitutionally protected activity.
b. The State's actions against the Defendant would chill a person of ordinary firmness from continuing to engage in the protected activity.
c. Defendant's protected activity was a substantial or motivating factor in her conduct toward the victim.
d. Defendant's actions or comments directed to Terry Stoffel were protected under the 1st Amendment and therefore the Defendant requires no proof.
e. Defendant's actions and/or comments are a substantial or motivating factor for this defense.
(App. Vol. II at 85.)
[15] Ellis's tendered jury instruction was confusing. The first sentence of the proposed instruction does not make sense in a criminal case. The sentence appears to say that the State has the burden of proving Ellis deprived the State of "his" constitutional rights. Id. As the State
It is not clear if the "constitutionally protected activity" in line (a) is speech or something else. It is unclear what line (c) means, where it essentially says that Defendant must prove that her speech ("protected activity") was a substantial or motivating factor in her speech ("conduct toward the victim"). In line (d) it says that Defendant must prove that her
actions were protected under the First Amendment "and therefore the Defendant requires no proof." The State has no idea what this means either—the defendant must prove that she requires no proof. Similarly, line (e) makes no sense—it says, effectively, that the defendant must prove that her speech was a substantial or motivating factor for her free speech defense.
(Appellee's Br. at 22.) We agree with the State that the instruction is incoherent, and the trial court was well within its discretion to refuse an instruction that serves to confuse matters more than provide guidance. See Dill , 741 N.E.2d at 1232 (holding trial court erred in giving jury instruction on flight because the instruction was confusing).
3. Constitutional Arguments
[16] Ellis contends the State cannot convict her of stalking because her behavior was speech protected by the First Amendment of the United States Constitution or by Article 1, Section 9 of the Indiana Constitution. To address these arguments, we must first define stalking. Indiana Code section 35-45-10-5 provides that a "person who stalks another person commits stalking, a Level 6 felony." "Stalk" is defined as
a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened. The term does not include statutorily or constitutionally protected activity.
Ind. Code § 35-45-10-1. "Harassment" is defined as
conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.
Ind. Code § 35-45-10-2. A non-exhaustive list of such "impermissible contact" includes:
(1) Following or pursuing the victim.
(2) Communicating with the victim.
(3) Posting on social media, if the post:
(A) is directed to the victim; or
(B) refers to the victim, directly or indirectly.
3.1 First Amendment of United States Constitution
[17] Ellis argues her behavior amounted to nothing more than constitutionally protected speech, and therefore, it is excepted from the statutory definitions of both "stalk" and "harassment." See Ind. Code § 35-45-10-1 & Ind. Code § 35-45-10-2. Despite our deferential standard of review in assessing the sufficiency of the evidence on appeal, when "constitutional protection for Defendant's speech hinges on state-of-mind issues," such deferential review "creates an unacceptable risk of under-protecting speech." Brewington v. State , 7 N.E.3d 946, 955 (Ind. 2014), reh'g denied , cert. denied , 574 U.S. 1077, 135 S.Ct. 970, 190 L.Ed.2d 834 (2015), reh'g denied. "It is our constitutional duty, then, to ‘make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression.’ " Id. (quoting Journal-Gazette Co. v. Bandido's, Inc. , 712 N.E.2d 446, 455 (Ind. 1999) ) (brackets in Brewington ). We cannot delegate this duty to the finder of fact and must independently review the record de novo. Id. However, in accordance with our deferential standard of review toward the fact-finder's factual findings, we credit the version of facts consistent with the verdict in instances where Ellis and the State presented contradictory accounts of what factually occurred. See , e.g. , McHenry v. State , 820 N.E.2d 124, 127 (Ind. 2005) (holding State put forth sufficient evidence bank teller forged withdrawal slip when surveillance video did not show a customer at the teller's window at the time the withdrawal slip was timestamped, even though the teller testified a customer submitted the slip).
[18] The State contends Ellis waived her argument that her conduct was protected by the First Amendment of the United States Constitution because, while she filed notice of a First Amendment defense, "she effectively abandoned that defense at trial." (Appellee's Br. at 29.) "It is well-settled that issues not raised at the trial court are waived on appeal." See Carmichael v. Separators, Inc. , 148 N.E.3d 1048, 1058 (Ind. Ct. App. 2020) (internal quotation marks and brackets omitted), trans. denied. Nonetheless, even though Ellis's primary defense at trial was that she did not do much of what Stoffel and other witnesses testified she did, she did reference her right to free speech under the First Amendment. For example, Ellis testified she believed she had a First Amendment right to display a sign critical of Stoffel. Moreover, during closing argument, Ellis's counsel argued: "People have the right to express themselves, at least I thought, if you're going to talk about the First Amendment. Okay. What happens when the day comes along I can no longer do that to everybody? [Ellis] was simply expressing herself because of the dislike." (Tr. Vol. III at 58.) Therefore, we conclude the First Amendment issue was adequately presented to the trial court and not waived. See Bailey v. State , 131 N.E.3d 665, 676 (Ind. Ct. App. 2019) (holding defendant preserved issue regarding constitutionality of search for appeal), reh'g denied , trans. denied.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. 1.
[19] As our Indiana Supreme Court has observed, the United States Constitution provides "sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic." Brewington , 7 N.E.3d at 953. This umbrella of protection even envelopes profane commentary directed at law enforcement. See Wood v. Eubanks , 25 F.4th 414, 425 (6th Cir. 2022) (holding county fair patron's yelling of profanities at police officers constituted protected speech), reh'g en banc denied ; see also , City of Houston, Tex. v. Hill , 482 U.S. 451, 462-63, 107 S. Ct. 2502, 2510, 96 L.Ed.2d 398 (1987) ("The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.").
[20] However, the First Amendment does not absolutely protect all categories of speech and means of expression. State v. Katz , 179 N.E.3d 431, 452-53 (Ind. 2022). For example, the First Amendment does not protect speech that constitutes a true threat. McGuire v. State , 132 N.E.3d 438, 444 (Ind. Ct. App. 2019), trans. denied. To demonstrate a true threat, the State must prove "two necessary elements: that the speaker intend his communications to put his targets in fear for their safety, and that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target." Id. (internal quotation marks omitted.) Ellis's behavior went far beyond distasteful criticism of a public official. She engaged in a targeted campaign of harassment and threats against Stoffel. While, in isolation, a post threatening to smack someone in the face with a can of Twisted Tea or mimicking a gun with one's hand may not cause a reasonable person to fear for the person's safety, when that behavior is combined with frequent, animated yelling, cursing, and honking directed at the victim at locations throughout town and combined with public insults targeting the victim by name, it constitutes an unprotected true threat. See id. (holding repeated social media posts blaming a police officer for causing son's death, urging the officer to commit suicide, and stating law enforcement "better watch out this mother is on a rampage and ready to shoot to kill" constituted an unprotected true threat).
3.2 Article 1, Section 9 of Indiana Constitution
[21] We begin our analysis of Ellis's contention that her conduct was protected speech under Article 1, Section 9 of the Indiana Constitution by addressing the State's argument that Ellis waived such argument because she is presenting it for the first time on appeal. Ellis filed a notice of defense of First Amendment protection pursuant to the United States Constitution, but the notice did not mention Article 1, Section 9 of the Indiana Constitution. Ellis also never invoked Article 1, Section 9 of the Indiana Constitution in argument before the trial court. Therefore, we agree with the State that Ellis's argument is waived. See State v. Allen , 187 N.E.3d 221, 228 (Ind. Ct. App. 2022) ("Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal."), trans. denied.
"No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible." Ind. Const. Art. 1, § 9.
[22] Waiver notwithstanding, the Indiana Constitution, like the United States Constitution, does not absolutely protect all speech and every means of expression. See Whittington v. State , 669 N.E.2d 1363, 1368 (Ind. 1996) ("The responsibility clause [at the end of article 1, section 9 ] expressly recognizes the state's prerogative to punish expressive activity that constitutes an ‘abuse’ of the right to speak."). Article 1, section 9 both prohibits the legislature from impairing the flow of ideas and bestows upon the legislature the authority to sanction abusive expression. Price v. State , 622 N.E.2d 954, 958 (Ind. 1993), reh'g denied. It likewise enshrines pure political speech as a core value. Id. at 963.
[23] We employ a two-step inquiry to determine if the State is unconstitutionally restricting speech. Whittington , 669 N.E.2d at 1367. "First, a reviewing court must determine whether state action has restricted a claimant's expressive activity. Second, if it has, the court must decide whether the restricted activity constituted an ‘abuse’ of the right to speak." Id. The first step of this inquiry is met because, as the State concedes, "imposing a criminal conviction and sentence based on communicative activity is a sufficient burden to implicate Article 1, Section 9." (Appellee's Br. at 36.) With respect to the second step, "the inquiry hinges on whether the restricted expression constituted political speech. Speech is political if its point is to comment on government action, whether applauding an old policy or proposing a new one, or ... criticizing the conduct of an official acting under color of law." McGuire , 132 N.E.3d at 444-45 (internal quotation marks and citation omitted). If the expression constitutes political speech, we apply a higher level of review, but if the expression is ambiguous, we analyze any state-imposed restriction on the expression under standard rationality review. Id. at 445. This lower standard requires only that we determine whether the State could reasonably have concluded the activity "was an ‘abuse’ of the right to speak or was, in other words, a threat to peace, safety, and well-being." Whittington , 669 N.E.2d at 1371. Speech exclusively directed at state actors and focused exclusively on the conduct or actions of state actors is political speech. McGuire , 132 N.E.2d at 445. However, speech is not necessarily unambiguously political even if coupled with political statements. Id.
[24] Criticism of Stoffel for transporting Ellis to jail rather than to the hospital in 2008 and for not taking seriously a complaint she made to him when he was a police officer both could be considered legitimate political speech. See Price , 622 N.E.2d at 961 ("When a citizen's protest is occasioned by the conduct of government actors and regards a matter of public concern, it is squarely within the public place. Citizen concern about the role of the police in their neighborhoods is as serious as it is timely."). However, Ellis's speech toward Stoffel did not articulate these concerns. Rather, she directed profane insults toward Stoffel, expressed a desire to see Stoffel battered, and mimicked shooting him. She never explicitly laid out her alleged criticisms to Stoffel. Thus, when viewed in context, we conclude Ellis's speech toward Stoffel was not unambiguously political, and the speech posed a threat to Stoffel's safety. Therefore, it was not constitutionally protected. See Blackman v. State , 868 N.E.2d 579, 588 (Ind. Ct. App. 2007) (holding State did not run afoul of Indiana Constitution in punishing speech that was not unambiguously political and posed a threat to public safety), trans. denied.
[25] Nonetheless, even if Ellis's speech had been pure political expression, it would not have been protected under the Indiana Constitution. The State may constitutionally sanction political expression if it "inflicts upon determinant parties harm analogous to that which would sustain tort liability against the speaker." Price , 622 N.E.2d at 964. For example, Indiana recognizes the tort of intentional infliction of emotional distress. Curry v. Whitaker , 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). "The elements of the tort are that the defendant: (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe emotional distress to another." Id. To satisfy the first element, the conduct must be "so extreme in degree as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society." Id. at 362. Here, Ellis's conduct meets the bar of exceeding all bounds of decency. She tracked down Stoffel to yell and publicly heap abuse upon him on an almost daily basis, and this all occurred over a decade after a supposedly objectionable encounter when he transported her to jail, and after he retired from his career in law enforcement to pursue teaching. See Bradley v. Hall , 720 N.E.2d 747, 753 (Ind. Ct. App. 1999) (holding shouting and criticizing employee in front of other employees, asking employee questions about intimate bodily functions, and misleading employee about job security could be considered extreme and outrageous conduct, precluding summary judgment for supervisor on intentional infliction of emotional distress claim).
4. Sufficient Evidence of Stalking
[26] Ellis also argues the State failed to put forth sufficient evidence to prove two elements of Level 6 felony stalking, "that she engaged in a repeated course of conduct towards Stoffel and that Stoffel actually felt terrorized, frightened, intimidated, or threatened." (Appellant's Br. at 27.) We apply a well-settled standard of review when evaluating challenges to the sufficiency of the evidence to support a conviction:
When reviewing sufficiency of the evidence, we neither reweigh evidence nor assess the credibility of the witnesses. Rather, we look to the evidence most favorable to the judgment, and the reasonable inferences therefrom, and determine whether substantial evidence of probative value supports each element of the crime. If a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt, then we must affirm.
Vasquez v. State , 174 N.E.3d 623, 628 (Ind. Ct. App. 2021) (internal citations omitted), trans. denied.
[27] Stoffel testified that Ellis pursued him around town over a period of years. She routinely appeared at the school where Stoffel taught during Stoffel's lunch hour to yell and curse at him. She went to a commercial property Stoffel was in the process of renovating to honk, scream, and curse at him. She made a threatening gesture by mimicking a gun when she encountered Stoffel in a shopping center parking lot, and she sent a social media message to one of Stoffel's former employees expressing her desire to see Stoffel hit in the face with a canned alcoholic beverage. She not only drove around with a sign containing a derogatory message directed toward Stoffel, but she made sure Abrahamsson and Lieutenant Horne saw the sign. In Abrahamsson's case, she expressly directed him to tell Stoffel about the sign. Stoffel testified Ellis's behavior caused him to feel "very uncomfortable, unsettled." (Tr. Vol. II at 109.) He "didn't know what [Ellis] was capable of with that—with the way she was acting so erratical [sic]." (Id. ) Moreover, Detective Smith testified that when he interviewed Stoffel, Stoffel was "distraught," "fearful at times," "at his wits end, basically." (Id. at 198.) Thus, the State proved that Ellis engaged in a repeated course of conduct and that Stoffel actually felt terrorized, frightened, intimidated, or threatened. Ellis was not engaged in constitutionally protected activity, and the State put forth sufficient evidence to prove each element of Level 6 felony stalking. To the extent Ellis is asking us to credit her testimony over Stoffel's testimony, she is asking us to reweigh the evidence, which we will not do. See Johnson v. State , 933 N.E.2d 544, 548 (Ind. Ct. App. 2010) (holding State presented sufficient evidence to support conviction and refusing to reweigh the evidence).
Conclusion
[28] The trial court did not abuse its discretion when it denied Ellis's motion for change of venue because she accepted the jury without exhausting her peremptory challenges, and each prospective juror who indicated he or she knew Stoffel was removed from the venire. Moreover, the trial court did not err in rejecting Ellis's proposed preliminary instruction because such instruction would have served only to confuse the jury. Regarding Ellis's constitutional claims, the First Amendment of the United States Constitution does not protect true threats, and Ellis threatened Stoffel. Ellis waived her challenge under Article 1, Section 19 of the Indiana Constitution by not presenting the challenge before the trial court. However, waiver notwithstanding, the Indiana Constitution does not protect her speech. Finally, the State presented sufficient evidence to support her conviction as Stoffel testified Ellis continually harassed him and Ellis's conduct frightened him. We affirm the trial court.
[29] Affirmed.
Riley, J., and Tavitas, J., concur.