                                                                              FILED
                                                                          Jun 26 2019, 8:32 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Rory Gallagher                                             Curtis T. Hill, Jr.
      Marion County Public Defender                              Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Ellen H. Meilaender
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kiel Stone,                                                June 26, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2427
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable David J. Certo,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G12-1802-CM-7004



      Najam, Judge.


                                         Statement of the Case
[1]   Kiel Stone brings this interlocutory appeal from the denial of his motion to

      dismiss the State’s charging information. The State charged Kiel with seven

      counts of harassment, each a Class B misdemeanor, for phone calls Stone had
      Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                           Page 1 of 17
      made to staff members of the Indiana General Assembly and to staff members

      of the Indiana Secretary of State. Stone raises a single issue for our review,

      which we restate as the following two issues:


              1.     Whether the trial court erred when it denied Stone’s
              motion to dismiss the State’s charges under the First Amendment
              to the United States Constitution.


              2.     Whether the trial court erred when it denied Stone’s
              motion to dismiss the State’s charges under Article 1, Section 9 of
              the Indiana Constitution.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In 2016, Indiana State Capitol Police officers opened an investigation into

      Stone after reports from legislative staff members of numerous, daily phone

      calls Stone had been making to them. According to one of those staff members,

      when on the phone, Stone would “talk[] in circles,” was generally “angry,” and

      would “verbally escalate[] to swearing and yelling” at them. Appellant’s App.

      Vol. II at 11-12. On May 4, Stone left one staff member a voicemail in which

      he “demean[ed] the staff members of various offices, calling them morons and

      idiots,” and stated that he was “going to publicly beat the crap out of your

      office” and “verbally assault the office.” Id. at 12 (quotation marks omitted).

      However, the officers did not pursue that investigation further because the

      legislative staff members did not obtain requested “supporting information and

      evidence” the officers deemed necessary. Id. at 14.

      Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019        Page 2 of 17
[4]   On May 24, 2017, Stone contacted Lawrence Hemphill, a legislative assistant to

      Indiana Senator Mike Bohacek and then-Senator Mike Delph, and requested

      information relating to a Whitley County traffic violation deferral program and

      pro bono legal assistance. Hemphill responded to Stone’s requests within one

      hour.


[5]   Shortly thereafter, Stone called Hemphill and left a voicemail. In that

      voicemail, Stone said he was “irritated” with Hemphill; Stone “raised his

      voice . . . and then accused Hemphill of playing the ‘you didn’t get my driver’s

      license game’”; Stone told Hemphill that Stone had already “tried every

      lawyer” on the pro bono list; Stone “began ranting about how he has called

      different elected officials and voiced his displeasure in how he is allegedly

      treated by bodies of government”; Stone “accused Hemphill of receiving money

      from the [CIA] and allege[d] that someone has been perpetuating a conspiracy

      against him for the last ten years”; Stone “asked Hemphill what he has to do,

      who he has to talk to[,] or who he has to bribe to be treated fairly in the State of

      Indiana”; Stone said “what Hemphill is doing is illegal”; and Stone ended the

      voicemail “by calling Hemphill a[] ‘f[***]ing little worm.’” Id. at 15.


[6]   On September 27, 2017, Stone again called Hemphill and left a voicemail. In

      that voicemail, Stone stated that he had “‘had enough of your bullsh[*]t[,] sir’”;

      Stone “accused Hemphill of directing [Stone’s] call to voicemail”; Stone said

      that “Hemphill is an agent of the government and again accused Hemphill and

      [Senator] Bohacek . . . of working for the [CIA]”; Stone “accused Hemphill of

      not treating him fairly”; Stone stated that “he [Stone] is running for the ‘Indiana

      Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 3 of 17
      U.S. Senate’”; Stone again accused Hemphill of being “an agent of the

      government”; Stone threatened Hemphill with “legal action”; Stone “stated

      that he wants to have a conversation with Hemphill in which he is treated

      respectfully” and they “‘act correct’”; and Stone told Hemphill that “the way he

      is being treated by Hemphill is inappropriate and illegal.” Id. at 15-16.


[7]   On January 11, 2018, Stone called Mackenzie Nicol of the Indiana Secretary of

      State’s Constituent Services Office at the Indiana Statehouse approximately

      fifteen times in succession before leaving a voicemail. In that voicemail, Stone

      stated that staff members for the Indiana Secretary of State had “refused to help

      me” and “hung up on me.” Id. at 22. He then stated that “it[ i]s very apparent

      that the Secretary of State’s Office is treating [me] in this manner because these

      individuals . . . [are] involved in the conspiracy” involving the CIA. Id. He

      further asserted that, if the Secretary of State and her staff members “are not

      working for the CIA, are not involved in heroin smuggling[] or cocaine

      smuggling and murdering people . . . then why wouldn’t you help . . . .” Id. at

      23.


[8]   On January 30, 2018, Stone called Hemphill and left another voicemail, which

      was approximately five minutes long. In that voicemail, Stone, among other

      things, accused Hemphill of being “discourteous . . . over . . . the course of

      about a year”; of acting illegally toward Stone; of being “Agent Hemphill of a

      governmental agency such as the CIA”; of needing to “check yourself into a

      psychiatric hospital”; and of being an “idiot[].” Id. at 17-18. Stone also told



      Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 4 of 17
       Hemphill that Stone was preparing a “massive federal conspiratorial lawsuit”

       against Hemphill and other State employees. Id. at 17.


[9]    That same day, Stone also called Grant Beanblossom, an intern for Senators

       Bohacek and Delph. Stone asked for Hemphill, and, when Beanblossom

       informed Stone that Hemphill was not available, Stone “accused

       [Beanblossom] of shielding [Hemphill] from talking.” Id. at 19. Stone then

       “transitioned to talking about an issue with police stops and identification.” Id.

       After about five minutes, Beanblossom informed Stone that he “needed to go,”

       and Stone responded that Beanblossom was “being extremely rude to him” and

       “taking part in a conspiracy against him.” Id.


[10]   Also on January 30, Stone called Tracy Mann, the administrative assistant to

       then-Senator David Long. Stone “was angry and informed her that Indiana

       Senators and [legislative assistants] would not help him or answer his

       questions.” Id. He then began “speaking . . . about a conspiracy to kill him,

       that the Indiana State Police “has tried to kill him . . . over one hundred times,”

       that the “CIA . . . tried to poison him,” and that there has been a conspiracy

       against him since 2012. Id. During the phone call, Stone “was screaming” and

       “cursing.” Id.


[11]   After Mann ended that phone call, Stone immediately called Jen Carlton, the

       Indiana Senate Deputy Chief of Staff. Stone left Carlton a nearly five-minute

       voicemail in which he stated, among other things, that “no one will speak to




       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019         Page 5 of 17
       him or provide him with assistance and that it is all part of a conspiracy to kill

       him.” Id. at 19-20.


[12]   On February 28, the State charged Stone with seven counts of harassment

       under Indiana Code Section 35-45-2-2(a) (2018), each a Class B misdemeanor,

       for the seven phone calls he made between May 24, 2017, and January 30,

       2018. Thereafter, Stone moved to dismiss the seven charges on the ground that

       each charge was predicated on protected political speech. In particular, in his

       memorandum in support of his motion to dismiss, Stone asserted that his

       speech was protected under the First Amendment because “[a]ll of the alleged

       phone calls . . . were made on [phone] lines specifically intended for

       communication between the people and their elected representatives” and the

       State “is attempting to restrict Stone’s speech on the basis of his speech’s

       content.” Id. at 72. Similarly, under Article 1, Section 9, Stone argued that his

       speech was unambiguously political and therefore protected because the speech

       did not rise to the level of tortious behavior.


[13]   In its response to Stone’s motion to dismiss, the State argued that Section 35-45-

       2-2 “criminalizes conduct, not speech”; that, therefore, “a First Amendment

       analysis premised on an alleged restriction of the freedom of speech is

       inapplicable”; and that the content of Stone’s speech was only relevant, if at all,

       “in determining the intent of the speaker.” Id. at 86-87. As a secondary

       argument, the State asserted that, even if “[p]ublic phone lines to state

       lawmakers are a public forum, . . . the regulation of [Stone’s] speech is

       appropriate” under the First Amendment because that regulation “is content-

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 6 of 17
       neutral.” Id. at 88. And, under Article 1, Section 9, the State informed the trial

       court that, while it “concedes that [Stone’s] speech was political,” the charges

       were still valid because Stone’s speech “did inflict a particularized harm on the

       victims.” Id. at 90.


[14]   The trial court held a hearing on Stone’s motion to dismiss, at which the parties

       argued only the issue of whether, under Article 1, Section 9, Stone’s conduct

       rose to the level of a tort. Following that hearing, the trial court denied Stone’s

       motion to dismiss. The court then certified its order for interlocutory appeal,

       which we accepted.


                                       Discussion and Decision
                                               Standard of Review

[15]   Stone appeals the trial court’s denial of his motion to dismiss. A motion to

       dismiss under Indiana Trial Rule 12(B)(6) challenges only the legal sufficiency

       of the charges, which presents a question of law that we review de novo. See

       Ward v. Carter, 90 N.E.3d 660, 662 (Ind. 2018). We may affirm the trial court’s

       judgment under Trial Rule 12(B)(6) on any basis supported by the record. See

       id. A motion to dismiss under Trial Rule 12(B)(6) is appropriate only when

       “the facts alleged in the challenged pleading are incapable of supporting relief

       under any set of circumstances.” Thornton v. State, 43 N.E.3d 585, 587 (Ind.

       2015) (quotation marks omitted).


[16]   Stone asserts that the State’s charges against him seek to penalize him for

       speech that is protected under both the First Amendment to the United States

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019         Page 7 of 17
       Constitution and Article 1, Section 9 of the Indiana Constitution. We address

       each argument in turn.


                                                First Amendment

[17]   We first address Stone’s argument that the State’s seven harassment charges

       against him are based on protected political speech under the First Amendment.

       As the Indiana Supreme Court has explained:


               The First Amendment’s command that “Congress shall make no
               law . . . abridging the freedom of speech” has been incorporated
               into the Fourteenth Amendment and as such applies to the State
               of Indiana. Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L.
               Ed. 1357 (1931). First Amendment analysis begins by looking at
               the forum the speaker seeks to employ, because “the standard by
               which limitations on speech must be evaluated ‘differ depending
               on the character of the property at issue[.]’” Frisby v. Schultz, 487
               U.S. 474, 479, 108 S. Ct. 2495, 2500, 101 L. Ed. 2d 420 (1988)
               (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
               37, 44, 103 S. Ct. 948, 954, 74 L. Ed. 2d 794 (1983)). . . .


               When a public forum is at issue, the analysis further turns on
               whether the challenged measure distinguishes between prohibited
               and permitted speech on the basis of content. Frisby, 487 U.S. at
               481, 108 S. Ct. at 2500. A state may enforce regulations of time,
               manner and place which are “narrowly tailored to serve a
               significant government interest, and leave open ample alternative
               channels of communication.” Perry, 460 U.S. at 45, 103 S. Ct. at
               955. On the other hand, content-based restrictions are
               permissible only if they are “‘necessary to serve a compelling
               state interest,’” Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct.
               1846, 1851, 119 L. Ed. 2d 5 (1992) (plurality) (quoting Perry, 460
               U.S. at 45, 103 S. Ct. at 954), and narrowly drawn to achieve
               that end, Perry, 460 U.S. at 45, 103 S. Ct. at 954, or are limited to

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 8 of 17
               “constitutionally proscribable content,” R.A.V. v. City of St. Paul,
               505 U.S. 377, 383, 112 S. Ct. 2538, 2543, 120 L. Ed. 2d 305
               (1992) (emphasis omitted).


       Price v. State, 622 N.E.2d 954, 965 (Ind. 1993) (first omission original to Price).


[18]   The parties here vigorously debate whether the use of any and all phone lines

       into the Indiana Statehouse constitutes the use of a public forum, and whether

       the State’s argument in the trial court precludes the State from arguing on

       appeal that those phone lines are not public forums. We need not decide those

       questions in this appeal. Assuming for the sake of argument that phone lines

       into the Indiana Statehouse are a public forum, we nonetheless hold that the

       State’s charges against Stone are constitutional under the First Amendment.


[19]   Again, “[w]hen a public forum is at issue,” or, as here, is assumed to be at

       issue, the First Amendment analysis “turns on whether the challenged measure

       distinguishes between prohibited and permitted speech on the basis of content.”

       Id. As the court in Price explained:


               The principal inquiry in determining whether a statute is content-
               neutral or content-based is the state’s purpose for enacting it.
               Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105
               L. Ed.2 d 661 (1989). A regulation that serves purposes
               unrelated to the content of expression is deemed neutral, “even if
               it has an incidental effect on some speakers or messages but not
               others.” Id. In essence, “[g]overnment regulation of expressive
               activity is content neutral so long as it is ‘justified without
               reference to the content of the regulated speech.’” Id. (emphasis
               in original).



       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019              Page 9 of 17
       Id. at 965-66 (alteration original to Price).


[20]   The harassment statute on which each of the State’s seven charges against

       Stone is based states in relevant part as follows: “A person who, with intent to

       harass, annoy, or alarm another person but with no intent of legitimate

       communication . . . makes a telephone call, whether or not a conversation

       ensues . . . commits harassment, a Class B misdemeanor.” I.C. § 35-45-2-2(a).

       That statutory language does not distinguish between prohibited and permitted

       speech on the basis of content. Rather, the language of the harassment statute

       is readily justified without reference to the content of the regulated speech—the

       state’s purpose for enacting the harassment statute was to prevent a person from

       using a telephone with the intent to harass, annoy, or alarm others and with no

       intent of a legitimate communication. See Price, 622 N.E.2d at 966. The statute

       is expressly framed around the speaker’s intent, not around the content of his

       speech. See I.C. § 35-45-2-2(a). Accordingly, the statute on its face is content-

       neutral.


[21]   The State may enforce content-neutral regulations of speech in a public forum

       when those regulations are narrowly tailored to serve a significant government

       interest and leave open ample alternative channels of communication. Price,

       622 N.E.2d at 965 (citing Perry, 460 U.S. at 45). “To be narrowly tailored, a

       statute need not employ the least restrictive or least intrusive means of

       accomplishing the governmental purpose.” Id. at 966 (citing Ward, 491 U.S. at

       798). “Rather, the requirement of narrow tailoring is satisfied ‘so long as

       the . . . regulation promotes a substantial governmental interest that would be

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 10 of 17
       achieved less effectively absent the regulation.’” Id. (quoting Ward, 491 U.S. at

       799) (omission original to Price).


[22]   There is a substantial public interest in protecting everyone, including

       government employees, from telephone harassment, and our legislature enacted

       Indiana Code Section 35-45-2-2(a) for that purpose. The statute does not apply

       where the speaker intends to engage in legitimate communication, even if the

       content of that communication is rude or impolite. And “intent is a question of

       fact under Indiana case law.” Horseman v. Keller, 841 N.E.2d 164, 167 (Ind.

       2006). As the harassment statute is focused on the speaker’s intent, and Stone’s

       intent here is an open question of fact, dismissal of the State’s charges under

       Trial Rule 12(B)(6) would have been inappropriate.


[23]   Accordingly, assuming for the sake of argument that Stone’s communications

       occurred in a public forum, the harassment statute is a valid, content-neutral

       regulation of Stone’s speech in that forum. We therefore affirm the trial court’s

       denial of Stone’s motion to dismiss the State’s charges against him under the

       First Amendment.


                                               Article 1, Section 9

[24]   We next turn to Stone’s argument that the State’s charges against him are

       prohibited under Article 1, Section 9 of the Indiana Constitution. Article 1,

       Section 9 states: “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


       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 11 of 17
       responsible.” In reviewing an argument under Article 1, Section 9, we employ

       “a two-step inquiry”: first, we “determine whether state action has restricted a

       claimant’s expressive activity”; and, second, we “decide whether the restricted

       activity constituted an ‘abuse’ of the right to speak.” Williams v. State, 59

       N.E.3d 287, 292 (Ind. Ct. App. 2016) (quoting Barnes v. State, 946 N.E.2d 572,

       577 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011), superseded by statute on other

       grounds, see Cupello v. State, 27 N.E.3d 1122, 1124 (Ind. Ct. App. 2015)).


[25]   In other words, our first question here under Article 1, Section 9 is whether

       Stone’s speech was protected political speech. In the trial court, he argued that

       it was and, in response, the State conceded that it was. However, on appeal,

       the State argues that Stone’s speech was not protected political speech under

       Article 1, Section 9. Thus, Stone argues that the State is precluded from

       making that argument on appeal and that our review must be framed around

       the State’s concession in the trial court.


[26]   We reject Stone’s argument that we are bound by the State’s concession in the

       trial court for two reasons. First, our review of the issues in this appeal is de

       novo and requires us to consider, for ourselves, the State’s charges and the

       corresponding probable-cause affidavit on their face. See, e.g., Woods v. State,

       980 N.E.2d 439, 443-44 (Ind. Ct. App. 2012). Second, Stone carried the burden

       of proof in the trial court on his motion to dismiss, and that burden included

       demonstrating that his speech was protected political speech. See, e.g., Williams,

       59 N.E.3d at 293-94. Whatever the State’s response to that argument may have

       been to the trial court, on appeal the State is permitted to assert that Stone failed

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 12 of 17
       to meet that burden in the first instance, and we will review that argument

       accordingly.


[27]   And we hold that a reasonable trier of fact could conclude from the evidence

       that Stone’s speech was not political. As we have explained:


               Where, as here, the defendant is not the original subject of a
               police investigation, the defendant demonstrates that [his]
               expression was unambiguous political speech when [he] shows
               that the focus of [his] speech exclusively concerned government
               action. Such speech must both be directed at state actors and
               refer to state actors or their conduct. Speech directed toward a
               private party or that refers to a private party, or the conduct of a
               private party, is politically ambiguous for purposes of an
               affirmative defense under art. 1, sec. 9. And when the focus of
               speech is politically ambiguous, a reasonable fact-finder may reject the
               asserted affirmative defense.


               If the defendant does not meet [his] burden of showing that [his]
               speech was unambiguously political, the State’s impairment of
               [his] speech—e.g., the defendant’s arrest . . . —is constitutional
               so long as the State acted rationally in impairing the speech.


       Id. at 289-90 (emphasis added; footnote omitted). Thus, “expression that is

       directed toward a private party or refers to the conduct of a private party, even

       if in part, does not demonstrate protected political expression” under Article 1,

       Section 9. Id. at 293. Likewise, “speech in which the speaker refers to him- or

       herself, even when prompted by a [state actor’s] conduct or statements, and

       even when coupled with political statements, permits a reasonable fact-finder to

       conclude that the focus of the entirety of the speech is ambiguous and,


       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019              Page 13 of 17
       therefore, not political.” Id. at 294. In other words, where speech is at least in

       part not germane to a public issue, a trier of fact may find the speech as a whole

       not protected by Article 1, Section 9. See id.


[28]   Stone’s speech was not unambiguously political as a matter of law. At least

       once in each of the seven charged instances, Stone referred to himself. In

       particular, and among other things, in each of the seven phone calls on which

       the State’s charges are premised, Stone referred to himself as the subject of a

       vast governmental conspiracy. Even if those comments are coupled with

       political statements, a reasonable fact-finder could conclude from them that

       “the focus of the entirety of the speech” for each charge “is ambiguous and,

       therefore, not political.” Id. Thus, the State acted rationally in charging Stone,

       and the State has stated valid charges against Stone under Article 1, Section 9.

       We therefore affirm the trial court’s denial of Stone’s motion to dismiss under

       that provision. 1


                                                     Conclusion
[29]   In sum, we affirm the trial court’s denial of Stone’s motion to dismiss the

       State’s seven charges against him under the harassment statute. Stone has a

       constitutional right to petition the government and, to that end, to engage in




       1
         On remand, the trier of fact may conclude that any of the following three scenarios is true: that Stone’s
       speech was not political and therefore not protected under Article 1, Section 9; that Stone’s speech was
       political but not protected because it “amounted to a public nuisance such that it inflicted particularized harm
       analogous to tortious injury on readily identifiable private interests”; or that Stone’s speech was political and
       protected under Article 1, Section 9. See Williams, 59 N.E.3d at 293 (quotation marks and brackets omitted).

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                                  Page 14 of 17
       political speech. But there is a question of fact whether he abused that right

       when he confronted numerous State employees with ad hominem verbal

       attacks. Specifically, the question under the statute is whether Stone’s

       comments were merely annoying or impolite, but with a legitimate intent to

       communicate, or whether his hostile verbal attacks on State employees were

       intended to harass, annoy, or alarm others and, as such, went beyond a

       legitimate inquiry, comment, or criticism of government policy or

       administration. Thus, we decline to hold under Trial Rule 12(B)(6) that the

       facts alleged are legally insufficient to support the charges under any set of

       circumstances or that Stone’s phone calls to State employees were per se

       political speech.


[30]   The State’s charges allege reasonable time, place, and manner restrictions to

       Stone’s speech under the First Amendment, and a reasonable fact-finder could

       conclude that the totality of the evidence supporting each charge demonstrates

       that Stone’s speech was not unambiguously political and is, therefore, not

       protected under Article 1, Section 9. We therefore affirm the trial court’s denial

       of Stone’s motion to dismiss.


[31]   Affirmed.


       Robb, J., concurs.


       Baker, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 15 of 17
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Kiel Stone,                                                Court of Appeals Case No.
                                                                  18A-CR-2427
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, concurring in result in part.


[32]   I fully concur in the portion of the majority opinion dealing with the First

       Amendment to the United States Constitution. And while I concur with the

       result reached by the majority under Article 1, Section 9 of the Indiana

       Constitution, I would reach that result in a different manner.


[33]   I believe that whether Stone’s speech was political is a far closer question than

       the majority acknowledges. While often—or perhaps always—abusive and

       paranoid, Stone’s many calls addressed a traffic violation program, pro bono

       legal assistance, and, frequently, the treatment of citizens by the state

       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                      Page 16 of 17
       government. Under these circumstances, I believe that a reasonable person

       could conclude that at least some of Stone’s speech was political.


[34]   Therefore, I would accept for argument’s sake that Stone’s speech fell under the

       purview of Article 1, Section 9. That same section, however, provides that “for

       the abuse of” the freedoms of speech, thought, and opinion, “every person shall

       be responsible.” I have little difficulty determining that a reasonable factfinder

       could only conclude that Stone’s speech was an abuse of the rights provided for

       by Article 1, Section 9. Thus, while I respectfully disagree with its analysis, I

       agree with the majority that we should affirm.




       Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019        Page 17 of 17
