Rodney W. Falls v. State of Indiana ( 2019 )

FILED
Jul 25 2019, 8:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodney W. Falls, July 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2948
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable Joe V. Sutton,
Appellee-Plaintiff Judge
Trial Court Cause No.
43D03-1802-F6-166
Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019 Page 1 of 17
[1] Rodney Falls appeals his conviction and the sentence imposed by the trial court
for Level 6 Felony Stalking,1 arguing that (1) the trial court erred when it
refused to give his proffered jury instruction; (2) the evidence was insufficient to
support his conviction; and (3) the sentence is inappropriate in light of the
nature of the offense and his character. Finding no error, the evidence
sufficient, and the sentence not inappropriate, we affirm.
Facts 2
[2] On the evening of February 13, 2018, A.G. left Valparaiso after visiting with
her boyfriend. A.G. exited Interstate 65 onto U.S. Highway 30 and stopped at a
red light. A.G. then saw a man later identified as Falls in the car next to hers.
Falls waved at A.G., but A.G. ignored him and started to drive as soon as the
light turned green. A.G. noticed that Falls immediately got behind her as she
started to drive away.
[3] A.G. suspected that Falls was following her because every time she switched
lanes, sped up, or slowed down, Falls did exactly the same. No matter what
A.G. did, Falls mimicked her actions and stayed behind her for almost an hour
to an hour and a half. A.G. realized that she was running low on gas, but she
still had a long distance to drive before she returned to her school. She began
1
Ind. Code § 35-45-10-5(a).
2
We held oral argument for this case on June 20, 2019, at Trine University in Angola. We thank both parties
for their stimulating discussion, and we thank the faculty at Trine and the staff of the American Legion who
sponsors Boys State for their warm and generous hospitality.
Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019 Page 2 of 17
calculating how long she could go before she had to stop for gas. Ultimately,
she decided to do the following:
[I]t was going to be better to try to push that then it would to stop
and risk. Like I would rather risk knowing that tank is going to run
out and knowing I have that opportunity to call somebody like a
police officer or if I was close enough to somebody that I know
would be able to handle that situation or like that was the better
option for me than stopping at a place where I don’t know anyone
and so far away.
Tr. Vol. II p. 128. A.G. decided to drive until she got to Warsaw.
[4] After exiting U.S. Highway 30 into Warsaw, A.G. saw that Falls had followed
her into town. She then drove through numerous residential streets, circling
different areas and driving up and down the same lanes to see if it was just a
coincidence that Falls had followed her thus far. Again, Falls mimicked her
actions, drove down the same roads, and trailed closely behind her.
[5] Terrified, A.G. drove to the Warsaw Police Department to find help. A.G.
parked her vehicle in the visitor’s parking lot, but Falls pulled up and parked in
between where A.G. was parked and the entrance to the police station. Falls
waved at A.G. A.G. testified that she did not want to exit her vehicle out of fear
that Falls would harm her, so she drove back to the residential streets. Again,
Falls followed her. A.G. called the Warsaw Police Department to make sure it
was open. After someone informed her that it was open, A.G. sped for the
police station in order to lose Falls. A.G. returned, parked in the same parking
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space, and quickly walked towards the front door. A.G. then saw Falls pull into
the visitor’s parking lot, park next to her vehicle, and wave at her again.
[6] Inside, Lynne Lafollette, the Chief’s assistant at the Warsaw Police
Department, and Ellen Hoffer, a clerical worker, saw A.G. walk into the station
looking “nervous” and “very frightened.” Id. at 157. Suspicious that something
was not right, Lafollette buzzed A.G. into the building, even though doing so
went against protocol. Hoffer notified Sergeant Lewis Fuller about what had
happened, and Sergeant Fuller went to talk with and subsequently arrest Falls
for stalking. Sergeant Fuller then impounded Falls’s vehicle because he had
been arrested and because he had parked in a handicap spot without proper
signage. Sergeant Fuller conducted a search of Falls’s vehicle pursuant to his
arrest and found a baggie of marijuana.
[7] On February 15, 2018, the State charged Falls with one count of Level 6 felony
stalking and one count of Class B misdemeanor possession of marijuana. Falls
was released on bond, but on February 21, 2018, the State filed and was granted
a motion to revoke bond because Falls had been arrested for criminal battery.
Falls had previously been convicted of Class D felony burglary and
theft/receiving stolen property, along with five other felonies.
[8] Before the end of Falls’s October 30, 2018, jury trial, Falls asked the trial court
to provide the jury with an instruction detailing the Fifth Amendment right to
travel as a constitutionally protected activity. The instruction reads as follows:
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The right to travel is a constitutionally protected activity. The right
to travel is part of the ‘liberty’ of which the citizen cannot be
deprived without due process of law under the 5th Amendment.
The right to remove from one place to another according to
inclination is[] an []attribute of personal liberty protected by the
Constitution.
Appellant’s App. Vol. II p. 117. The State objected to the instruction as
meritless and lacking in probative value. Following rebuttal, the trial court
denied Falls’s request to tender it as a final instruction to the jury. The jury
found Falls guilty as charged.
[9] At the November 27, 2018, sentencing hearing, the trial court identified four
aggravating factors: (1) Falls’s criminal history; (2) his prior charges of invasion
of privacy; (3) his bond/pre-trial release violation; and (4) his past violation of
probation. Id. at 185. The trial court found no mitigating factors. Id. Thereafter,
Falls was sentenced to consecutive sentences of thirty months for the stalking
conviction and six months suspended to probation for the possession of
marijuana conviction. Falls now appeals.
Discussion and Decision
[10] Falls raises three arguments on appeal: (1) the trial court erred when it refused
to give his proffered jury instruction; (2) the evidence was insufficient to support
his stalking conviction; and (3) the sentence is inappropriate in light of the
nature of the offense and his character.
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I. Jury Instruction
[11] First, Falls argues that the trial court erred when it refused to give his proffered
jury instruction because he wanted to assert that his actions amounted to
constitutionally protected activity, a defense to the crime of stalking.
[12] “Jury instructions are to be considered as a whole and in reference to each
other, and we will not reverse the trial court’s decision . . . unless the
instructions as a whole mislead the jury as to the law of the case.” Walls v. State,
993 N.E.2d 262, 268 (Ind. Ct. App. 2013). When reviewing a trial court’s
decision to grant or deny a request for a tendered jury instruction, we consider
(1) whether the instruction correctly states the law; (2) is supported by the
evidence in the record; and (3) is not covered in substance by other instructions.
Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013). A defendant is
entitled to a reversal if he affirmatively demonstrates that the instructional error
prejudiced his substantial rights. Vaughn v. State, 13 N.E.3d 873, 884 (Ind. Ct.
App. 2014).
[13] The preliminary jury instruction Falls proffered reads as follows:
The right to travel is a constitutionally protected activity. The right
to travel is part of the ‘liberty’ of which the citizen cannot be
deprived without due process of law under the 5th Amendment.
The right to remove from one place to another according to
inclination is[] an []attribute of personal liberty protected by the
Constitution.
Appellant’s App. Vol. II p. 117.
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[14] Falls bases his argument on VanHorn v. State, 889 N.E.2d 908, 912 (Ind. Ct.
App. 2008). In VanHorn, we held, in pertinent part, as follows:
. . . The freedom to be on a public street is one of the personal
liberties guaranteed by the federal constitution:
[A]s the United States recognizes, the freedom to loiter for
innocent purposes is part of the “liberty” protected by the
Due Process Clause of the Fourteenth Amendment. We
have expressly identified this “right to remove from one
place to another according to inclination” as “an attribute of
personal liberty” protected by the Constitution. Williams v.
Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed 186 (1900);
see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92
S.Ct. 839, 31 L.Ed.2d 110 (1972). Indeed, it is apparent that
an individual’s decision to remain in a public place of his
choice is as much a part of his liberty as the freedom of
movement inside frontiers that is “a part of our heritage”
Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d
1204 (1958), or the right to move “to whatsoever place one’s own
inclination may direct” . . . .
VanHorn, 889 N.E.2d at 912 (quoting City of Chicago v. Morales, 527 U.S. 41, 53-
54, 119 S.Ct. 1849, 144 L.E.2d 67 (1999)) (an internal citation omitted)
(emphasis added). Stated another way, the Fifth Amendment protects a
person’s right to move on any public thoroughfare as he may choose. And Falls
wanted to assert this right as a defense to the crime of stalking.
[15] However, the right to travel is not unlimited. See Baxendale v. Raich, 878 N.E.2d
1252, 1259 (Ind. 2008) (holding that “a chilling effect on travel can violate the
federal Constitution, but . . . other considerations may outweigh an individual’s
interest in travel[]”); For example, an individual may not operate a motor
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vehicle without an active driver’s license, Ind. Code § 9-24-1-1, while
intoxicated, Ind. Code § 9-30-5-2(a), with an open alcoholic beverage container,
I.C. § 9-30-15-3, or without proper registration. Ind. Code § 9-18.1-2-3. An
individual may not use public thoroughfares to transport someone to promote
human sex trafficking. Ind. Code § 35-42-3.5-1.1. An individual may not
forcibly kidnap and transport a child by using a vehicle. I.C. § 35-42-3-
2(b)(1)(B). And an individual may not use a vehicle to recklessly kill another
human being. I.C. § 35-42-1-5. More to the point, the General Assembly has
passed numerous laws regarding stalking, abuse, harassment, intimidation, and
impermissible contact, which inhibit a person’s actions, restrict how a person
may travel, preclude when a person may interact with others, and prevent a
person from talking with specific individuals. See generally Ind. Code chs. 35-45-
2, -10.
[16] Thus, while Falls’s jury instruction correctly states a legal principle, it is
incomplete and, therefore, erroneous. The instruction fails to include a section
explaining that the constitutional right to travel is not unlimited—namely, an
explanation that the criminal regulation of stalking is a valid and well-
recognized exception to that right. Without a complete explanation of the
constitutional right to travel and its limitations, the jury instruction Falls
proffered could have confused or misled the jury. See Dill v. State, 741 N.E.2d
1230, 1232 (Ind. 2001) (holding that “[a]n instruction that tends to confuse the
jury is properly rejected[]”).
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[17] Therefore, we find that the trial court did not err when it rejected Falls’s
proffered jury instruction because it is incomplete and misstates the law relevant
to Falls’s case.
II. Sufficiency of Evidence
[18] Next, Falls argues that the evidence was insufficient to support his conviction
for Level 6 felony stalking.
[19] When reviewing the sufficiency of the evidence supporting a conviction, we
must affirm if the probative evidence and reasonable inferences drawn
therefrom could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). It is not our job to reweigh the evidence or to judge the credibility of the
witnesses, and we consider any conflicting evidence most favorably to the trial
court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
[20] To convict Falls of Level 6 felony stalking, the State was required to prove
beyond a reasonable doubt that Falls knowingly or intentionally engaged in
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 caused the victim to feel terrorized, frightened,
intimidated or threatened. I.C. §§ 35-45-10-1, -5(a). “‘Harassment’ means
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
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emotional distress and that actually causes the victim to suffer emotional
distress.” I.C. § 35-45-10-2. “‘Impermissible contact’ includes but is not limited
to knowingly or intentionally following or pursuing the victim.” I.C. § 35-45-10-
3.
[21] Falls contends that the evidence was insufficient to prove that his actions were
“repeated.” First, it is undisputed that Falls’s actions would cause a reasonable
person to feel terrorized, frightened, intimidated, or threatened and that his
actions did, in fact, make A.G. feel terrorized, frightened, intimidated, or
threatened. A.G. testified that she felt nervous after she realized that Falls had
been following her for some time. Then, after Falls left U.S. Highway 30 at the
same time as she did, Falls drove through the same residential areas and
followed her twice to the Warsaw Police Department. And Ellen Hoffer
testified that A.G. appeared “nervous” and “very frightened” when she entered
the police station that night. Tr. Vol. II p. 157. What remains in dispute is
whether Falls’s actions constituted repeated or continuing harassment or
impermissible contact.
[22] Under the totality of the circumstances present in this case, we find that Falls’s
actions fit the statutory definition of stalking. Even though we have defined
“repeated” to mean “more than once,” Johnson v. State, 721 N.E.2d 327, 333
(Ind. Ct. App. 1999), we do not hold that Falls had to follow A.G. a certain
number of times or for a certain number of hours in order for his actions to
constitute stalking. We can see that what transpired between Falls and A.G. fit
well within the statutory definition of stalking, and we do not intend to
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establish a bright-line test for determining when behavior becomes criminal
stalking absent further guidance from the General Assembly. There is sufficient
evidence to show that for hours, Falls followed A.G., sped up, slowed down,
and tracked her as they were driving on interstate and highway roads. Even
after the two left U.S. Highway 30, Falls continued to pursue A.G., turning
down the same roads, driving on the same random paths, and even following
her twice to the police station. It is apparent to us that this behavior constituted
repeated or continuing harassment or impermissible contact.
[23] Moreover, in Nicholson v. State, our Supreme Court held that “absent an explicit
time frame established by the General Assembly during which stalking can
occur, the trier of fact should determine if the course of conduct involv[ed] repeated
or continuing harassment.” 963 N.E.2d 1096, 1101 (Ind. 2012) (internal
quotations omitted) (emphasis added). There is no statutory definition of
“repeated,” so it was ultimately the jury’s obligation to determine whether
Falls’s actions amounted to repeated or continuing harassment or impermissible
contact. Therefore, we conclude that the probative evidence and all reasonable
inferences drawn therefrom could have allowed a reasonable trier of fact to
convict Falls of Level 6 felony stalking beyond a reasonable doubt. In other
words, the evidence is sufficient.
III. Appropriateness
[24] Finally, Falls argues that the sentence imposed by the trial court is
inappropriate in light of the nature of the offense and his character.
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[25] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
In determining whether the sentence is inappropriate, we will consider
numerous factors such as culpability of the defendant, the severity of the crime,
the damage done to others, and a “myriad [of] other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). It is our
job to leaven the outliers, not to achieve a perceived “correct” sentencing result.
Id. at 1225.
[26] The maximum sentence for a Level 6 felony stalking conviction is two and one-
half years, and the minimum sentence is six months. Ind. Code § 35-50-2-7(b).
The advisory sentence is one year. Id. Here, the trial court imposed the
maximum term of thirty months—exactly two and one-half years.
[27] First, as to the nature of the offense, despite the fact that Falls’s actions took
place over the course of one evening, he terrorized A.G., followed her every
step, incessantly pursued her on public roads and throughout winding
residential areas, and attempted to prevent her from seeking help at the Warsaw
Police Department. Falls targeted A.G. for roughly two and one-half hours for
no apparent reason. A.G. testified that Falls’s behavior instilled in her a sense
of dread that something worse would happen:
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I think him following me just kind of just initially caused alarm
because obviously . . . all the time, like getting kidnapped or raped
by random people and it was kind of that thought that was going
through like if I stop I don’t know if that’s something that will
happen to me.
Tr. Vol. II p. 127. In sum, despite the fact that Falls’s actions did not take place
over the course of several days or even weeks, A.G.’s testimony reinforces the
disturbing and frightening nature of what Falls did and how it made her feel.
Therefore, we find that the nature of Falls’s offense does not render his sentence
inappropriate.
[28] Next, as to Falls’s character, Falls has a serious criminal record comprised of
seven different felony convictions, including convictions for Class D felony
burglary and theft/receiving stolen property. Additionally, Falls had previously
been charged with invasion of privacy, had violated probation in the past, and
violated his pre-trial release/bond period in this case when he was charged with
criminal battery. Falls has made no efforts to reform his character, despite
multiple opportunities for improvement after multiple run-ins with the law.
Therefore, we find that Falls’s character does not render his sentence
inappropriate.
[29] In sum, we will not revise Falls’s sentence pursuant to Indiana Appellate Rule
7(B).
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[30] The judgment of the trial court is affirmed.
Robb, J., concurs.
Bailey, J., concurs in part and concurs in result in part with a separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Rodney W. Falls, Court of Appeals Case No.
18A-CR-2948
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Bailey, Judge, concurring in part and concurring in result in part.
[31] Every criminal defendant is entitled to present a defense. See, e.g., Crane v.
Kentucky, 476 U.S. 683, 690 (1986); Pruitt v. State, 834 N.E.2d 90, 119-20 (Ind.
2005). Here, Falls was charged with stalking—and the statutory definition of
“stalk” excludes “constitutionally protected activity.” Ind. Code § 35-45-10-1.
To meet the charge, Falls latched onto this exclusionary language. Indeed,
Falls claimed he was engaged in a constitutionally protected activity—traveling
in his vehicle—and could not be convicted of stalking. To advance this theory
for consideration, Falls tendered a jury instruction that would apprise the jury
of the constitutional right to travel. The trial court refused to give the tendered
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instruction, and the majority upholds that decision. Although I ultimately take
no issue with the result in this case, I write separately because I would conclude
the trial court erred in refusing to give the jury instruction that was foundational
to the theory of the defense—error that was harmless but error nonetheless.
[32] When reviewing the refusal to give a jury instruction, we consider: “(1) whether
the tendered instruction correctly states the law; (2) whether the evidence
supports giving the instruction; and (3) whether other instructions already given
cover the substance of the tendered instruction.” Driver v. State, 760 N.E.2d
611, 612 (Ind. 2002). The majority concludes—and I agree—that the tendered
instruction “correctly states a legal principle.” Slip op. at 8. Moreover, we can
readily dispense with the second and third parts of the inquiry. Indeed, as to
whether the evidence supports giving the instruction, “[e]ven if there is only a
‘scintilla’ of evidence in support of a criminal defendant’s proposed defense
instruction, it should be left to the province of the jury to determine whether
that evidence is believable or unbelievable.” Hernandez v. State, 45 N.E.3d 373,
378 (Ind. 2015). Here, it is undisputed Falls was in a vehicle, moving along
roadways, and so there is at least a scintilla of evidence that supports instructing
the jury regarding the constitutional right to travel—a potential defense to
stalking. Finally, no other instruction apprised the jury of this specific right.
[33] The majority nevertheless concludes the instruction is incomplete in that it
“fails to include a section explaining that the constitutional right to travel is not
unlimited—namely, an explanation that the criminal regulation of stalking is a
valid and well-recognized exception to that right.” Id. The majority upholds
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the refusal to give the instruction on the basis that an incomplete instruction
“could have confused or misled the jury.” Id. Yet, “[j]ury instructions are not
to be considered in isolation but as a whole and with reference to each other.”
Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994). Here, other instructions
apprised the jury of the very limitation on the right to travel that was germane
to the charge and that the majority identifies—i.e., that the jury could convict
Falls for committing the criminal offense of stalking. Thus, when reading the
instructions as a whole, I discern no tendency to confuse or mislead the jury.
[34] For the foregoing reasons, I would conclude the court erred in refusing to give
the instruction. However, reversal is warranted only if the error prejudiced the
defendant’s substantial rights. See Ind. Appellate Rule 66(A); Hernandez, 45
N.E.3d at 376. In this case, the jury was instructed that the terms “stalk” and
“harassment” did not include “statutorily or constitutionally protected
activity.” App. Vol. 2 at 163, 165. In closing arguments, Falls drew attention
to these instructions and argued he was exercising the constitutional right to
travel. Thus, even without the tendered jury instruction, the jury was informed
of the constitutional right to travel and was aware of the potential constitutional
defense to the charge of stalking. The error was harmless.
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