Noah Pittman v. State of Indiana ( 2015 )

Nov 05 2015, 7:53 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu Gregory F. Zoeller
Alex Beeman Attorney General of Indiana
Ciobanu Law, P.C. Kelly A. Miklos
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Noah Pittman, November 5, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1504-CR-137
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff. Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-1501-FB-1101
Brown, Judge.
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[1] Noah Pittman appeals his convictions and sentence for attempted stalking as a
class B felony and carrying a handgun without a license as a class A
misdemeanor. Pittman raises five issues which we revise and restate as:
I. Whether the trial court abused its discretion in denying Pittman’s motion
to dismiss the charge of attempted stalking;
II. Whether the general attempt statute, as applied in this case, is void for
vagueness;
III. Whether the evidence is sufficient to sustain Pittman’s conviction of
attempted stalking;
IV. Whether Pittman’s sentence for attempted stalking as a class B felony is
unconstitutional under Article 1, Section 16 of the Indiana Constitution;
and
V. Whether the crime of carrying a handgun without a license is facially
unconstitutional.
We affirm.
Facts and Procedural History
[2] Pittman and Natasha Small had been in a relationship for approximately two
years and had a child together. Small had previously tried to end the
relationship “a couple times” prior to March 2014 but was unsuccessful in
doing so. Transcript at 44. Pittman’s mother Tina Owens watched the child
five days a week. On March 4, 2014, Small and Pittman “were broken up but
still kind of around each other occasionally. He would sometimes express that
he wanted to get back together and [she] would give him terms and . . . it just
wouldn’t happen so [they] were in an awkward stage.” Id. at 45. At about ten
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o’clock that evening, Small was at her apartment when Pittman came over, and
they discussed that he would sleep on the couch and they would “talk later.”
Id. at 46. During the night, Small was “really tired” and kept trying to go to
sleep, but Pittman kept waking her and asking questions. Id.
[3] The next morning, March 5, 2014, they “decided to talk about [their]
relationship later on that day,” Small believed that they “left off on a pretty
good note,” but soon after leaving her apartment to run errands Pittman called
her and was “kind of upset.” Id. at 47. He called “around ten times,” in which
the calls “started out . . . just like mildly upset” or “kind of annoyed,” but when
she ignored him or did not react the way she believed he wanted her to react
“he’d call [her] and it became back to back calls” and his mood “would be
different each time,” ranging from “screaming or laughing or crying -- whining,
not speaking clearly, mumbling, slamming the phone against things . . . .” Id. at
47-48. Pittman “said that he was gonna kill” Small “a couple of times,” but she
“kind of shrugged it off . . . .” Id. at 48. He also told her that she “better not go
home” and that she “should stay the night with [her] mother.” Id. at 49.
[4] One of the errands Small ran that day was to take the child to a check up at a
primary care center. While at the clinic, Small observed Pittman in the parking
lot on his bicycle making circles, and she assumed he was looking for her car.
She spoke with Owens and told Owens that she and Pittman had argued and he
had gone home, that she was at the doctor’s office with her child and observed
him riding his bike in the parking lot, and that she was annoyed because she
had told him not to show up there. Id. at 38, 51. Owens returned to her home
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to check whether Pittman had taken the spare set of keys to Small’s vehicle, and
saw that Pittman’s bedroom door had been damaged, that her gun case was on
her bedroom floor, and that her gun was gone. Owens called Small, who was
still at the doctor’s office, told her that her gun was missing and that it was
possible Pittman had the gun and bullets on him, and advised Small not to
leave and to call the police.
[5] Small called 911 and told the dispatcher where she was, that her ex-boyfriend
was there looking for her, and that his mother had just phoned to tell her she
believed he had a gun. Small stated further that Pittman had earlier that day
threatened to kill her, she gave a physical description of him, and asked the 911
dispatcher how she could obtain a restraining order against Pittman because she
believed it was “necessary now.” State’s Exhibit 5 at 5:50-5:53.
[6] Indianapolis Metropolitan Police Officer Theodore Sadownik arrived
approximately five minutes later at around 2:17 p.m. While on the way to the
scene, he spoke with Owens. After arriving, a security guard directed him to
Pittman, and he approached Pittman, who was leaning against a vehicle and
had his hands in the sleeves of his “puffy coat.” Transcript at 25. Officer
Sadownik believed Pittman was armed with a Glock .45 caliber handgun and
ordered him to put his hands up. Pittman complied and was placed in
handcuffs. Officer Sadownik patted him down, asked him if he was armed and,
if so, where the gun was located, and Pittman told him that he had a gun in his
backpack. The officer searched the backpack and discovered the gun and a
matching magazine loaded with nine .45 caliber rounds, although the gun did
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not have a bullet in the chamber and did not have the magazine inserted, along
with a box cutter and a t-shirt. Officer Sadownik placed Pittman in the back of
his patrol vehicle and asked him why he had the gun and what his intentions
were, and Pittman stated that “he was there to scare his girlfriend.” Id. at 27.
The officer observed that Pittman stated this “[j]okingly,” and that Pittman
“chuckled and thought it was funny.” Id.
[7] Officer Sadownik called Small and asked her to come and speak with him, but
she would not come because she said “[s]he was too scared.” Id. He spoke
with her briefly on the phone and then called a domestic violence advocate to
assist her. Small was advised by an officer to stay at the Julian Center, and she
did so. Indianapolis Metropolitan Police Department Detective Scott Hunt
took a statement from her regarding the incident during which Small “stated
that she was fearful.” Id. at 60.
[8] On January 13, 2015, the State filed an information which, as amended on
February 18, 2015, charged Pittman with Count I, attempted stalking as a class
B felony; and Count II, carrying a handgun without a license as a class A
misdemeanor.1 On January 21, 2015, Pittman filed a motion to dismiss Count I
1
The original charging information is not contained in the record. However, the State’s motion to amend
reveals that the amendment was limited to changing certain language in the initial charging information
related to Count I and did not change the counts Pittman faced.
Also, in his Statement of the Case, Pittman directs our attention to the docket for Cause No. 49G01-1403-FB-
011363, which states that on March 7, 2014, Pittman was charged with Count I, stalking as a class B felony;
and Count II, carrying a handgun without a license as a class A misdemeanor, and that charges under this
cause number were dismissed on January 13, 2015, the same day the State filed the charging information
under the instant cause number. Pittman further cites to Paragraph 3 of his motion to dismiss filed on
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and a memorandum of law in support in which he argued that Indiana’s
“stalking statute is unique, in that the Indiana legislature has specifically
required that a defendant be successful in causing the victim to experience a
specific mental state” and that “[d]ue to the plain language of the statute,
stalking cannot be charged as an ‘attempt’ crime in Indiana.” Appellant’s
Appendix at 8. The court held a final pretrial conference on February 10, 2015,
and discussed Pittman’s motion to dismiss and took the matter under
advisement. On February 17, 2015, the court issued an order denying
Pittman’s motion to dismiss.
[9] On February 18, 2015, a jury trial was held in which evidence consistent with
the foregoing was presented. The jury found Pittman guilty as charged. On
March 13, 2015, the court sentenced Pittman to an aggregate six-year term,
including four years executed to be served in community corrections followed
by two years suspended to probation.
Discussion
[10] Before addressing the issues raised by Pittman, we recite the applicable criminal
statutes. At the time of the offense, Ind. Code § 35-45-10-5 provided in part:
January 21, 2015, for the proposition that “[d]uring the course of discovery the alleged victim was deposed. .
. . [and] stated that she was not in fear for her safety. After this deposition, the state dismissed the case and
refilled [sic] under the above captioned cause number.” Appellant’s Appendix at 8. We note that a transcript
of this deposition is not contained in the record on appeal.
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(a) A person who stalks another person commits stalking, a Class
D felony.
*****
(c) The offense is a Class B felony if:
(1) the act or acts were committed while the person was
armed with a deadly weapon . . . .
(Subsequently amended by Pub. L. No. 158-2013, § 541 (eff. July 1, 2014)).
Ind. Code § 35-45-10-1 defines “stalk” 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” and “does not include statutorily or constitutionally
protected activity.” Also, Ind. Code § 35-45-10-2 defines “harassment” 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” and similarly “does not include statutorily or constitutionally protected
activity . . . .” Ind. Code § 35-45-10-3 defines “impermissible contact” as
“includ[ing] but is not limited to knowingly or intentionally following or
pursuing the victim.” Finally, Ind. Code § 35-45-10-4 provides that “‘victim’
means a person who is the object of stalking.”
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[11] Furthermore, Ind. Code § 35-41-5-1, the general attempt statute, provided at the
time of the offense as follows:
(a) A person attempts to commit a crime when, acting with the
culpability required for commission of the crime, he engages in
conduct that constitutes a substantial step toward commission of
the crime. An attempt to commit a crime is a felony or
misdemeanor of the same class as the crime attempted.
However, an attempt to commit murder is a Class A felony.
(b) It is no defense that, because of a misapprehension of the
circumstances, it would have been impossible for the accused
person to commit the crime attempted.
(Subsequently amended by Pub. L. No. 168-2014, § 64 (eff. July 1, 2014)).
I.
[12] The first issue is whether the court abused its discretion in denying Pittman’s
motion to dismiss the charge of attempted stalking as a class B felony. We
review a trial court’s ruling on a motion to dismiss a charging information for
an abuse of discretion, which occurs only if a trial court’s decision is clearly
against the logic and effect of the facts and circumstances. An-Hung Yao v. State,
975 N.E.2d 1273, 1276 (Ind. 2012). A trial court also abuses its discretion
when it misinterprets the law. Id.
[13] At the outset, we observe that Ind. Code § 35-34-1-4(a) permits dismissal of a
charging information on motion by a defendant “upon any of the following
grounds”:
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(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense with
sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense
charged.
(7) The prosecution is barred by reason of a previous prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction of
the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter of
law.
In this case, Pittman did not cite to Ind. Code § 35-34-1-4 in his motion to
dismiss, and he does not state on appeal which provision of the statute warrants
dismissal. The State observes in its brief that Ind. Code § 35-34-1-4(a)(1)
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provides that dismissal is warranted where the “information, or any count
thereof, is defective under section 6 of this chapter,” and that Ind. Code § 35-34-
1-6(a)(3) provides that “[a]n indictment or information is defective when . . . the
statute defining the offense charged is unconstitutional or otherwise invalid.”
Although Pittman raises constitutional challenges which we discuss below, for
the purposes of his motion to dismiss his arguments are based on the purported
invalidity of Count I, where in Paragraph 4 he argued specifically that “[d]ue to
the plain language of the statute, stalking can not be charged as an ‘attempt’
crime in Indiana. To allow otherwise would invalidate the legislative intent and
go against the plain language of the statute.” Appellant’s Appendix at 8
(emphasis added).
[14] Pittman argues that “[u]nlike many crimes, stalking has a success or result
element” where the statute defining what constitutes “stalking” includes that
the defendant’s conduct “actually causes the victim to feel terrorized,
frightened, intimidated, or threatened.” Appellant’s Brief at 17 (quoting Ind.
Code § 35-45-10-1) (emphasis omitted). He suggests that “[a] logical and
factual fallacy” therefore occurs when a person is charged with stalking as an
attempt due to the general attempt statute’s provision that legal or factual
impossibility is not a defense for the accused person to commit the crime
attempted because in such a case “a defendant can be charged and convicted for
conduct as an attempt crime that is actually not criminal conduct and is only
criminal conduct when charged as an attempt.” Id. He states that “it appears
clear to [him] that the legislature intended to abrogate” the attempt statute “by
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including a success or result element to prove stalking.” Id. He argues that
“[t]he stalking statute, the more specific statute, should prevail over the general
attempt, general statute, in this case to avoid the illogical and absurd
application of both statutes” because “[i]t is simply evident that the legislature
did not intend to punish an attempt stalking unless there was a present ability to
do so.” Id. at 18.
[15] The State contends that the court properly denied Pittman’s motion to dismiss
and that his suggestion that a charge of attempted stalking is absurd or based on
a legal fallacy is “neither supported by the facts or the plain language of the
statutes and must fail.” Appellee’s Brief at 11. The State notes that Pittman’s
argument is based on an “incorrect premise that the State must prove all of the
elements of the crime that is being attempted in addition to the elements of the
attempt statute.” Id. at 11-12. It argues that the legislature criminalized actions
made with the requisite culpability that constitute a substantial step for the
commission of that crime “even if that behavior does not meet all of the
elements of the crime the defendant is attempting to commit.” Id. at 12. The
State analogizes to other attempted crimes, including attempted rape and
attempted child solicitation, which similarly do not require the State to prove all
of the elements of the completed crime. The State also argues that the
legislature specifically does not permit the defense of impossibility even if it
would have been available had the attempted crime been completed and been
charged and that, in any event, Pittman fails to articulate how the defense of
impossibility would have been available to him. The State further asserts that
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“the record does not support Pittman’s claims as they rest on unsupported
statements” in his brief and that “there are multiple instances in the record to
demonstrate that the victim felt frightened, intimidated, or threatened.” Id. at
14. The State’s position is that it was not required to prove that Pittman
actually caused Small to feel terrorized, frightened, intimidated, or threatened
to prove that he was guilty of attempted stalking but that, if it did, evidence was
presented which satisfied that element. Finally, it states that “under Pittman’s
logic, no person could be convicted of attempted murder or conspiracy to
commit murder unless the intended victim is actually killed . . . .” Id. at 16.
[16] The Indiana Supreme Court discussed the general attempt statute in King v.
State, 921 N.E.2d 1288 (Ind. 2010). In King, the defendant was convicted of,
among other things, attempted dissemination of matter harmful to minors, in
which the completed crime is governed by Ind. Code § 35-49-3-3 and provided
at the time in relevant part:
(a) Except as provided in subsection (b), a person who knowingly
or intentionally:
(1) disseminates matter to minors that is harmful to
minors;
*****
commits a Class D felony.
(b) This section does not apply if a person disseminates, displays,
or makes available the matter described in subsection (a) through
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the Internet, computer electronic transfer, or a computer network
unless:
(1) the matter is obscene under IC 35-49-2-1;
(2) the matter is child pornography under IC 35-42-4-4; or
(3) the person distributes the matter to a child less than
eighteen (18) years of age believing or intending that the
recipient is a child less than eighteen (18) years of age.
921 N.E.2d at 1290 (quoting Ind. Code § 35-49-3-3 (subsequently amended by
Pub. L. No. 158-2013, § 648 (eff. July 1, 2014))).
[17] King noted on appeal that “the completed offense of Dissemination
unambiguously requires that the proscribed Internet matter be distributed to a
child less than eighteen years of age” and made two principal arguments based
thereon. Id. First, he emphasized “the language of the Attempt statute that
requires both that the defendant act with the culpability required ‘for
commission of the crime’ and that the defendant engage in conduct that
constitutes a substantial step ‘toward commission of the crime,’” and he
asserted that “[b]ecause it is not a crime to send [such matter] over the internet
to a person who is over 18 . . . it is not a crime to attempt to engage in that
activity.” Id. He also argued that “subsection (b)(3) of the Dissemination
statute operates to exempt the statute from the general Attempt statute and
indicates the legislature’s intent not to criminalize the Internet transmission of
matter harmful to minors unless the recipient is actually a minor.” Id.
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[18] The Court observed that shortly after the enactment of the attempt statute in
1976 “this Court made clear that the new statute rejected prior views that
limited attempt crimes to ‘conduct which will apparently result in the crime,
unless interrupted by circumstances independent of the doer’s will.’” Id.
(quoting Zickefoose v. State, 270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979)).
“Rather, we held that the ‘new’ general attempt statute ‘now focuses on the
substantial step that the defendant has completed, not on what was left
undone.’” Id. (quoting Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510). The
Court also rejected the historical view that impossibility was a defense to an
attempt crime, noting that “[i]t is not necessary that there be a present ability to
complete the crime, nor [is it] necessary that the crime be factually possible.”
Id. at 1290-1291 (quoting Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510).
[19] The Court found that King, while acting with the culpability required to
commit Dissemination of Matter Harmful to Minors, “took the substantial step
of transmitting by the Internet such proscribed matter to a person he believed
was a fifteen-year-old girl.” Id. at 1291. It held that “[t]his substantial step,
done with the culpability required for commission of the Dissemination offense,
constitutes the charged offense of Attempted Dissemination of Matter Harmful
to Minors” and that it mattered “not that his intended recipient was an adult;
the Attempt statute makes clear that such ‘a misapprehension of the
circumstances’ is no defense.” Id. (citing Ind. Code § 35-41-5-1(b); Zickefoose,
270 Ind. at 623, 388 N.E.2d at 510). It further found that although “the
unambiguous language of the Dissemination statute clearly requires that, for
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the commission of the completed offense, the harmful matter must in fact be
distributed to a child less than eighteen years of age,” this fact did not manifest
“a legislative intent to foreclose application of the general Attempt statute to
prosecute unsuccessful attempts to commit such Dissemination.” Id. It
concluded:
The essence of an attempt is that one or more elements of an
offense are not fully satisfied, but a defendant still has taken a
substantial step toward the offense while acting with the requisite
intent of that offense. If each of the elements of an offense are
fully satisfied, the charged offense will be the offense, not an
attempt of that offense. Here, the defendant disseminated matter
harmful to minors to a person he believed or intended to be a
child less than eighteen years of age. The only element not met
for the offense of disseminating matter harmful to minors is that
the recipient was not in fact a child less than eighteen years of
age. Because the recipient was not a minor, the defendant was
charged with Attempted Dissemination of Matter Harmful to
Minors, rather than Dissemination of Matter Harmful to Minors.
Id.
[20] Similarly here, although the completed crime of stalking requires that the State
prove that the defendant’s conduct “actually causes the victim to feel terrorized,
frightened, intimidated, or threatened,” the crime of attempted stalking does not
require such a showing. Rather, all that is required to prove attempted stalking
is that the defendant took a substantial step toward committing the crime of
stalking while acting with the requisite intent to commit stalking. Although the
unambiguous language of the stalking statute clearly requires that, for the
commission of the completed offense, the defendant’s conduct actually causes
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the victim to feel terrorized, frightened, intimidated, or threatened, this fact
does not manifest a legislative intent to foreclose application of the general
attempt statute to prosecute unsuccessful attempts to commit stalking. We
therefore conclude that the court did not abuse its discretion when it denied
Pittman’s motion to dismiss.
II.
[21] The next issue is whether the general attempt statute, as applied in this case, is
void for vagueness. Pittman argues that “[i]f this case is any indication, the line
of what can be charged as attempted stalking appears to be extremely trivial.”
Appellant’s Brief at 19-20. He asserts: “In this case, Pittman and Small had
been ‘talking’ about their relationship. Pittman was certainly adamant about
discussing his relationship with Small to the point that he called her a number
of times and went to the medical clinic where Small was. Is this really criminal
conduct?” Id. at 20. He argues that “the State could seemingly charge simple
tomfoolery (e.g. the common prank) or even the modest [sic] of domestic
disagreements (e.g. moderately impassioned discussion about a romantic
relationship)” and that these “hypotheticals or situations certainly elucidate the
vagueness analysis.” Id. He notes that “[e]vidence of the absurdity of”
Pittman’s charge of attempted stalking “is that Pittman appears to be the only
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person in Indiana ever charged or convicted of the crime of attempted stalking.”2 Id. at
21.
[22] The State argues that Pittman waived his vagueness challenge by failing to raise
it in a motion to dismiss prior to trial, and that waiver notwithstanding, the
attempted stalking statute is not unconstitutionally vague, noting that a
vagueness challenge “may be overcome in any specific case where reasonable
persons would know that their conduct is at risk.” Appellee’s Brief at 19
(quoting Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857
(1988)). The State maintains that a statute may be found unconstitutionally
vague only if it is vague as applied under the circumstances of that particular
case and that Pittman’s hypotheticals are immaterial. The State also suggests
that Pittman’s arguments in his brief amount to “sanitiz[ing] his behavior [by]
describing it as merely being ‘adamant’ that he wanted to talk to [Small] to
discuss their relationship . . . .” Id. at 22.
[23] As noted in Part I, although Pittman filed a motion to dismiss, he did not raise
any constitutional issues, including whether the attempted stalking statute is
void for vagueness. “Generally, the failure to file a proper motion to dismiss
raising the Constitutional challenge waives the issue on appeal.” Payne v. State,
484 N.E.2d 16, 18 (Ind. 1985); see also Rhinehardt v. State, 477 N.E.2d 89, 93
2
Pittman explains in his reply brief that he “did a thorough Lexis Advance search and was unable to locate a
single reported (or even unreported) [appellate] case involving attempted stalking.” Appellant’s Reply Brief
at 10-11.
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(Ind. 1985) (holding that defendant failed to preserve claim that a statute was
unconstitutionally vague where he failed to raise the issue prior to trial by a
timely and proper motion to dismiss). We agree with the State that Pittman
waived his vagueness challenge. See Wiggins v. State, 727 N.E.2d 1, 5 (Ind. Ct.
App. 2000) (holding that the defendant waived his argument that the statute
was unconstitutionally vague even though he had filed a motion to dismiss
because the motion alleged only that the statute violated the prohibition against
ex post facto laws), trans. denied.
[24] Still, some cases have considered challenges to the constitutionality of statutes
even where the defendant failed to file a motion to dismiss. See Baumgartner v.
State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). Notably, in Morse v. State,
593 N.E.2d 194, 197 (Ind. 1992), reh’g denied, the Indiana Supreme Court
addressed the defendant’s challenge to the constitutionality of a statute even
though the issue was raised for the first time in a pro se motion filed with the
court by a defendant who was represented on appeal by counsel who did not
raise the issue in the appellant’s brief. As explained in Baumgartner, the Morse
Court stated without mentioning Payne or Rhinehardt that “the constitutionality
of a statute may be raised at any stage of the proceeding including raising the
issue sua sponte by this Court.” Id. (quoting Morse, 593 N.E.2d at 197); See also
Boyd v. State, 889 N.E.2d 321, 323-324 (Ind. Ct. App. 2008) (following Morse in
choosing to address on the merits defendant’s claim that statute was
unconstitutionally vague even though he did not file a proper motion to dismiss
and the State argued waiver on appeal), trans. denied; Vaughn v. State, 782
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N.E.2d 417, 420 (Ind. Ct. App. 2003) (citing Morse in deciding to address
defendant’s challenge to constitutionality of statute even though defendant filed
no motion to dismiss and State did argue waiver on appeal), trans. denied,
superseded by statute on other grounds.
[25] Considering Pittman’s argument on the merits, his challenge to the statute as
unconstitutionally vague fails. The constitutionality of statutes is reviewed de
novo. Conley v. State, 972 N.E.2d 864, 877 (Ind. 2012) (citing State v. Moss-
Dwyer, 686 N.E.2d 109, 110 (Ind. 1997)), reh’g denied. “Such review is ‘highly
restrained’ and ‘very deferential,’ beginning ‘with [a] presumption of
constitutional validity, and therefore the party challenging the statute labors
under a heavy burden to show that the statute is unconstitutional.’” Id. (citing
Moss-Dwyer, 686 N.E.2d at 111-112).
[26] Under basic principles of due process, a law is void for vagueness if its
prohibitions are not clearly defined. Klein v. State, 698 N.E.2d 296, 299 (Ind.
1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294 (1972)). A
statute is also void for vagueness if its terms invite arbitrary or discriminatory
enforcement. Id. (citing Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855
(1983)). In other words, a criminal statute may be invalidated for vagueness for
either of two independent reasons: (1) for failing to provide notice enabling
ordinary people to understand the conduct that it prohibits; and (2) for the
possibility that it authorizes or encourages arbitrary or discriminatory
enforcement. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007) (citing City of
Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 1859 (1999); Healthscript,
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Inc. v. State, 770 N.E.2d 810, 815-816 (Ind. 2002)). “A related consideration is
the requirement that a penal statute give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden so that ‘no man shall be held
criminally responsible for conduct which he could not reasonably understand to
be proscribed.’” Id. (quoting Healthscript, Inc., 770 N.E.2d at 816 (quoting
United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812 (1954))). In State v.
Downey, the Court emphasized that “there must be something in a criminal
statute to indicate where the line is to be drawn between trivial and substantial
things so that erratic arrests and convictions for trivial acts and omissions will
not occur. It cannot be left to juries, judges, and prosecutors to draw such
lines.” 476 N.E.2d 121, 123 (Ind. 1985), reh’g denied. “Accordingly, the
statutory language must ‘convey sufficiently definite warning as to the
proscribed conduct when measured by common understanding.’” Id. (quoting
Rhinehardt, 477 N.E.2d at 93).
[27] “A statute is not void for vagueness if individuals of ordinary intelligence could
comprehend it to the extent that it would fairly inform them of the generally
proscribed conduct.” Klein, 698 N.E.2d at 299. The statute does not have to
list specifically all items of prohibited conduct; rather, it must inform the
individual of the conduct generally proscribed. Brown, 868 N.E.2d at 467. The
examination of a vagueness challenge is performed in light of the facts and
circumstances of each individual case. Id.
[28] This court has previously examined whether the stalking statutes are void for
vagueness, and we held that such statutes were not. Johnson v. State, 648
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N.E.2d 666, 670 (Ind. Ct. App. 1995). In so holding we noted in part that
“[t]he reasonableness standards contained in the statutes provide a constraining
and intelligible enforcement standard for those charged with enforcing the
statutes” and “[t]hat the State must prove the defendant himself entertained
specific intent militates against a determination that the statutes are vague.” Id.
We opined that “the statutes contain standards which indicate where the line is
to be drawn between trivial and substantial things so that erratic arrests for
trivial acts and omissions will not occur.” Id.
[29] We believe that, as applied to Pittman, these observations apply with equal
force to the crime of attempted stalking. In order to prove attempted stalking
the State was required to prove that Pittman acted with the specific intent to
commit stalking and that he took a substantial step toward the commission of
the crime, which includes conduct reasonably calculated to make the victim feel
terrorized, frightened, intimidated, or threatened. Again, “[a] statute is not
void for vagueness if individuals of ordinary intelligence could comprehend it to
the extent that it would fairly inform them of the generally proscribed conduct,”
Klein, 698 N.E.2d at 299, and the examination of a vagueness challenge is
performed in light of the facts and circumstances of each individual case.
Brown, 868 N.E.2d at 467. We believe that on these facts, which include that,
following multiple phone calls where he threatened to kill Small, Pittman
traveled to the doctor’s office where she was located while armed with a
handgun for the specific purpose “to scare his girlfriend,” Transcript at 27, the
statute for attempted stalking is not void for vagueness.
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III.
[30] The next issue is whether the evidence is sufficient to sustain Pittman’s
conviction of attempted stalking. When reviewing claims of insufficiency of the
evidence, we do not reweigh the evidence or judge the credibility of witnesses.
Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to
the evidence and the reasonable inferences therefrom that support the verdict.
Id. We will affirm the conviction if there exists evidence of probative value
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. Id.
[31] The State charged Pittman with attempted stalking as follows:
On or about March 5, 2014, NOAH PITTMAN did attempt to
commit the crime of stalking, the course of conduct includes the
following acts:
1. On March 5, 2014, Noah Pittman called and threatened to kill
Natasha Small;
2. On March 5, 2014, Noah Pittman called Natasha Small and
told her she had better not stay in the apartment that evening
because he would kill her;
3. On March 5, 2014, Noah Pittman called Natasha Small and
would laugh;
4. On March 5, 2014, Noah Pittman showed up at St. Vincent’s
Family Physicians, where Natasha Small had an appointment for
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their child in common and Natasha Small observed him at that
location;
Which constituted a substantial step toward the commission of
said crime of Stalking, which is to engage in a knowing 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 actually caused
another person to feel terrorized, frightened, intimidated, or
threatened and that while [Pittman] attempted to commit the
crime of stalking was armed with a deadly weapon, that is: a
handgun . . . .
Appellant’s Appendix at 14-15.
[32] Pittman argues that the State failed to prove intent “because one cannot
knowingly and intentionally intend the victim to feel terrorized, frightened,
intimidated, or threatened.” Appellant’s Brief at 22. He argues that he “cannot
feel for Small” and that he did not complete a substantial step to commit
stalking and instead “called Small a number of times, but that is perfectly
legitimate communication.” Id. at 22, 23. He asks the question: “What did
Pittman complete? What substantial step did Pittman take?” Id. He also
contends that the State “failed to prove that [he] attempted to engage in
‘repeated or continuing harassment of another person’ because [his] conduct
was simply not harassing, even in nature, or could it have been.” Id.
[33] The State maintains that the evidence presented was sufficient to establish that
Pittman acted with the requisite state of mind and took a substantial step to
convict him of attempted stalking as a class B felony, noting specifically that
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“the Legislature did not intend for the knowing and intentional element to
apply to the element in the stalking statute that the victim actually feels the
intended result; he must simply intend the result.” Appellee’s Brief at 28.
[34] Pittman suggests in his reply brief that there is caselaw for the proposition that,
where the victim does not specifically testify “that ‘particular behavior cause[d]
her to feel terrorized, frightened, intimidated, or threatened,’” such “testimony
must be inferred from the victim’s other testimony.” Appellant’s Reply Brief at 8
(citing Johnson v. State, 721 N.E.2d 327, 333 (Ind. Ct. App. 1999), trans. denied).
However, Johnson actually states that whether a defendant’s behavior “caused
her to feel terrorized, frightened, intimidated, or threatened . . . . can be inferred
from the victim’s other testimony.” 721 N.E.2d at 333 (emphasis added). This
proposition does not preclude the State from presenting other evidence to prove
that the victim was, in fact, terrorized, frightened, intimidated, or threatened,
including testimony of police officers and other witnesses.
[35] Based upon the record, including in particular that Pittman admitted to Officer
Sadownik that he was trying to “scare” Small when, after calling her multiple
times and threatening to kill her, he came upon her location at the doctor’s
office armed with a gun and ammunition, we conclude that the State presented
evidence of a probative nature from which the jury could find beyond a
reasonable doubt that Pittman committed the offense of attempted stalking as a
class B felony.
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IV.
[36] The next issue is whether Pittman’s sentence for attempted stalking as a class B
felony is unconstitutional under Article 1, Section 16 of the Indiana
Constitution. Article 1, Section 16 provides that “[a]ll penalties shall be
proportioned to the nature of the offense.” “Though Article 1, Section 16
sweeps somewhat more broadly than the Eighth Amendment, its protections
are still narrow.” Knapp v. State, 9 N.E.3d 1274, 1289 (Ind. 2014), cert. denied,
135 S. Ct. 978 (2015). It is violated only when the criminal penalty is not
graduated and proportioned to the nature of the offense. Id. “Stated
differently, a legislatively determined penalty will be deemed unconstitutional
by reason of its length only if it is ‘so severe and entirely out of proportion to
the gravity of the offense committed as to shock public sentiment and violate
the judgment of reasonable people.’” Foreman v. State, 865 N.E.2d 652, 655
(Ind. Ct. App. 2007) (quoting Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App.
2000), trans. denied), reh’g denied, trans. denied.
[37] Penal sanctions are primarily legislative concerns and hence, our view is highly
restrained by virtue of the separation of powers doctrine. Person v. State, 661
N.E.2d 587, 593 (Ind. Ct. App. 1996), trans. denied. “We will not disturb the
legislative determination of the appropriate penalty for criminal behavior except
upon a showing of clear constitutional infirmity.” Moss-Dwyer, 686 N.E.2d at
111-112. “[F]inding that a statute is unconstitutional should be reserved only
for penalties so disproportionate to the nature of the offense as to amount to
clear constitutional infirmity sufficient to overcome the presumption of
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constitutionality afforded to legislative decisions about penalties.” Id. at 112
(internal quotations omitted). When considering the constitutionality of a
statute, we begin with the presumption of constitutional validity, and therefore,
the party challenging the statute labors under a heavy burden to show that the
statute is unconstitutional. Id. at 112.
[38] Pittman argues that “[t]he statutory scheme and its penal sanctions are
unconstitutional” in that “one can be convicted of a Class B felony for everyday
conduct, and even the modest [sic] of domestic disagreements (as is the case
here).” Appellant’s Brief at 26. He asserts that “[a]ny scheme that allows for
simple, legal conduct be [sic] charged as a Class B felony is more than sever
[sic], it is absurd” and that “[i]f a reasonable person . . . was presented with the
facts of this case, it would be fair to say that a minimum sentence of six (6)
years would be rather shocking for the conduct involved.” Id. at 27.
[39] The State’s position is that Pittman has not met the burden of proving
unconstitutionality and that his arguments fail to acknowledge the severity of
his criminal actions including “repeatedly calling Natasha, threatening her
safety and threatening to kill her a couple of times, taking his mother’s gun and
loaded magazine, and going to a place she told him not to go with the weapon
and bullets to confront” her and their infant child. Appellee’s Brief at 30.
[40] The record reveals that the trial court took great care in arriving at Pittman’s
minimum six-year sentence. Indiana courts have previously stated that “a
sentence may be unconstitutional by reason of its length, if it is so severe and
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entirely out of proportion to the gravity of [the] offense committed as ‘to shock
public sentiment and violate the judgment of a reasonable people.’” Teer, 738
N.E.2d at 290 (quoting Pritscher v. State, 675 N.E.2d 727, 731 (Ind. Ct. App.
1996) (quoting Cox v. State, 203 Ind. 544, 549, 181 N.E. 469, 472 (1932), reh’g
denied)).
[41] At the time of the offense, the stalking statute classified stalking while armed
with a deadly weapon as a class B felony, and the attempt statute specified that
“[a]n attempt to commit a crime is a felony or misdemeanor of the same class
as the crime attempted.” Ind. Code § 35-41-5-1(a). The legislature determined
that the advisory sentence for a class B felony was ten years, with up to ten
years added for aggravating circumstances and up to four years subtracted for
mitigating circumstances, for a minimum sentence of six years. Ind. Code § 35-
50-2-5. Such a sentencing range and the sentence imposed do not “shock public
sentiment” or “violate the judgment of a reasonable people.” See Teer, 738
N.E.2d at 290. We find no violation of Article 1, Section 16 of the Indiana
Constitution.
V.
[42] The final issue is whether the crime of carrying a handgun without a license is
facially unconstitutional. Pittman acknowledges that “[t]his statutory scheme
has been upheld as constitutional by this Court in Lewis v. State, 484 N.E.2d 77
(Ind. Ct. App. 1985)[, reh’g denied, trans. denied,] and by the Indiana Supreme
Court in Harris v. State, 716 N.E.2d 406 (Ind. 1999),” but he “believes this issue
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should be revisited” because those cases “fail to recognize the fundamental
principle and right that the State has the burden to prove each and every
element of a crime beyond a reasonable doubt.” Appellant’s Brief at 28. He
also asserts in a footnote that, “[a]s it stands the State is merely required to
prove you possessed a handgun, which is clearly not a crime” and that “[f]or
this reason, Ind. Code § 35-47-2-24(a) is also an unconstitutional burden on a
defendant’s rights under the Second Amendment of the United States
Constitution [and] Article 1 § 32 of the Indiana Constitution.” Id. at 30 n.12.
[43] The State notes that “Pittman confuses an affirmative defense available under
the statute . . . with an element of the offense” and that “[p]roof of not
possessing a license is not an element of the statute, and thus not the State’s
burden.” Appellee’s Brief at 31, 32. The State also posits that Pittman’s
arguments regarding the Second Amendment and Article 1, Section 32 of the
Indiana Constitution constitute assertions without cogent argument, citation to
the record, or legal authority, that such objections were not made to the trial
court, and that accordingly he has waived those arguments.
[44] Pittman acknowledges that the Indiana Supreme Court held in Harris that
“once the State has established that the defendant carried a handgun on or
about his person, away from his residence or place of business, the burden then
shifts to the defendant to demonstrate that he possessed a valid license.” 716
N.E.2d at 412. The Harris Court explained that Ind. Code § 35-47-2-1, which
provided at the time of Pittman’s offense that “Except as provided in
subsections (b) and (c) and section 2 of this chapter, a person shall not carry a
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handgun in any vehicle or on or about the person’s body without being licensed
under this chapter to carry a handgun,” (subsequently amended by Pub. L. No.
158-2013, § 573 (eff. July 1, 2014), that “[p]roof that [the defendant] had a
license is an exception to the offense, and the burden is on [the defendant] to
prove he possessed a valid license,” and further that Ind. Code § 35-47-2-24
expressly places the burden on the defendant to prove he or she has a license or
was exempt from the statute. 716 N.E.2d at 411 (quoting Washington v. State,
517 N.E.2d 77, 79 (Ind. 1987)). Also, this court has specifically addressed the
issue in Elliott v. State, 435 N.E.2d 302 (Ind. Ct. App. 1982), in which we
explained that “it is not unconstitutional for a statute to impose the burden of
proof upon a defendant for proof of an issue where the issue is not an element
of the crime” that “proof of the presence of a license to carry a handgun is an
exemption or exception to, and not an element of, the crime of carrying a
handgun without a license,” and that the statutory scheme is constitutional.
435 N.E.2d at 304-305. Accordingly, we find that Pittman’s constitutionality
challenge to Ind. Code § 35-47-2-1 and Ind. Code § 35-47-2-24 fails.
[45] To the extent that Pittman cites in a footnote to the Second Amendment of the
United States Constitution and Article 1 § 32 of the Indiana Constitution, we
agree with the State that these statements by Pittman are not accompanied by
cogent argument, citation to the record, or legal authority, and that accordingly
he has waived those arguments. See Cooper v. State, 854 N.E.2d 831, 834 n.1
(Ind. 2006) (holding that the defendant’s contention was waived because it was
“supported neither by cogent argument nor citation to authority”); Shane v.
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State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived
argument on appeal by failing to develop a cogent argument); Smith v. State, 822
N.E.2d 193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue
raised on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record.”), trans. denied.
Conclusion
[46] For the foregoing reasons, we affirm Pittman’s convictions and sentence for
attempted stalking as a class B felony and carrying a handgun without a license
as a class A misdemeanor.
[47] Affirmed.
Riley, J., and Altice, J., concur.
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