MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 12 2018, 8:49 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Charles A. Benson                                        Jan M. Carroll
Bunker Hill, Indiana                                     Kara Kapke
                                                         Barnes & Thornburg LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles A. Benson,                                       July 12, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         02A04-1711-CT-2866
        v.                                               Appeal from the Allen Superior
                                                         Court
WANE-TV 15, Rod Hissong,                                 The Honorable David J. Avery,
Ted Linn, Angelia Robinson and                           Judge
Adam Widener,                                            Trial Court Cause No.
Appellees-Defendants                                     02D09-1701-CT-12




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1711-CT-2866 | July 12, 2018              Page 1 of 5
[1]   Charles Benson appeals the trial court’s order dismissing his complaint against

      Fort Wayne’s WANE-TV 15, as well as its current and former reporters and

      editors (collectively, WANE-TV), for defamation. Finding no error, we affirm.


[2]   In January 2016, Benson was charged with attempted murder and related

      offenses after shooting a Fort Wayne police officer. In the months following

      that arrest, WANE-TV produced multiple reports related to the criminal

      proceedings. In the reports, the TV station often referenced Benson’s lengthy

      criminal history, including a 2014 murder charge. In one 2016 report, WANE-

      TV included a 2014 mugshot of Benson. Benson was ultimately found guilty

      and found to be an habitual offender; he was sentenced to over sixty-two years

      in prison. See Benson v. State, 73 N.E.3d 198 (Ind. Ct. 2017) (affirming Benson’s

      convictions in his direct appeal), trans. denied.


[3]   On January 9, 2017, Benson filed a complaint against WANE-TV.1 WANE-

      TV filed an answer, motion to stay, and motion for judgment on the pleadings

      based on the Frivolous Prisoner Claim Statute. 2 In response, Benson filed a

      motion to amend his complaint. Following a hearing, on September 18, 2017,

      the trial court issued an order granting judgment in favor of WANE-TV and

      denying Benson’s motion to amend his complaint. Benson now appeals.




      1
       A separate opinion related to Benson’s lawsuit against a Fort Wayne newspaper on similar grounds is
      available at Benson v. News-Sentinel, No. 02A03-1711-CT-2865 (Ind. Ct. App. July 12, 2018).
      2
          Ind. Code § 34-58-1-1 et seq.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-CT-2866 | July 12, 2018           Page 2 of 5
[4]   The General Assembly enacted the Frivolous Prisoner Claim Statute “to screen

      and prevent abusive and prolific offender litigation in Indiana.” Smith v. Ind.

      Dep’t of Corr., 883 N.E.2d 802, 804 (Ind. 2008). The statute requires trial courts

      to screen complaints filed by offenders as soon as such complaints are received.3

      The trial court must determine whether the offender’s claim is frivolous, is a

      claim upon which no relief may be granted, or is a claim that seeks monetary

      relief from a defendant who is immune. I.C. § 34-58-1-2. A claim is frivolous

      if, among other things, it lacks an arguable basis in law or fact. Id.


[5]   Truth is a complete defense to defamation. E.g., Melton v. Ousley, 925 N.E.2d

      430, 437 (Ind. Ct. App. 2010); see also Journal-Gazette Co. v. Bandido’s, Inc., 712

      N.E.2d 446, 457 (Ind. 1999) (holding that the plaintiff has the burden to prove

      falsity). In this case, the statements complained of by Benson regarding his

      criminal history, including a 2014 murder charge, are true. Indeed, Benson

      does not argue, nor did he plead, otherwise. See Bandido’s, 712 N.E.2d at 456

      (holding that to establish actual malice, which is a required element of

      defamation claims, plaintiff must show that statements were false or made with

      reckless disregard of whether they were false). He argues that WANE-TV’s use

      of a 2014 mugshot was inaccurate and/or misleading, but that does not mean




      3
       In this case, the trial court candidly acknowledged that it was “unaware of the need to conduct the review”
      of Benson’s complaint upon receipt of the pleading. Appellees’ App. Vol. II p. 10. WANE-TV brought the
      need for the review to the trial court’s attention, at which time it complied. We see no reason that this delay
      should affect the outcome of this case.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-CT-2866 | July 12, 2018                 Page 3 of 5
      that it was false.4 Benson concedes that it was a picture of him; it just happened

      to be a mugshot from two years earlier.


[6]   Given that all the statements Benson highlights are true, and that the

      photograph was of Benson, we find that WANE-TV properly found refuge in

      the defense of truth. As a result, the trial court did not err by finding Benson’s

      claims to be frivolous.5


[7]   Benson also argues that the trial court should have granted him leave to amend

      his complaint. His proposed amended complaint, however, contains additional

      arguments but no new factual allegations. The proposed amended complaint

      would neither have cured the defects in the original complaint nor have

      overcome WANE-TV’s defense of truth. Therefore, any error in this ruling was

      harmless.




      4
       It has never been determined in Indiana whether publication of a photograph of a plaintiff can constitute
      defamation. We assume solely for argument’s sake that it can, but leave the underlying question for another
      day and a different case.
      5
        Benson also included claims related to WANE-TV’s 2014 reporting on a prior murder charge, arguing that
      the TV station defamed him by including information regarding his criminal history. The trial court found
      that these claims are time-barred. Even if they were not time-barred, all the information reported by WANE-
      TV was substantially true; therefore, Benson cannot establish defamation and the trial court properly entered
      judgment in favor of the TV station on these claims.
      The TV station concededly was imprecise with its report that Benson had been convicted in the past of
      aggravated battery, rather than felony battery, and escape from prison, rather than violation of home
      detention, but this imprecision “‘fits easily within the breathing space that gives life to the First
      Amendment,’” as the “gist” or “sting” of the profile of Benson’s criminal history is the same either way.
      Bandido’s, 712 N.E.2d at 461 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 513
      (1984)). Therefore, Benson is not entitled to relief on this basis.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-CT-2866 | July 12, 2018                 Page 4 of 5
[8]   The judgment of the trial court is affirmed.


      Kirsch, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1711-CT-2866 | July 12, 2018   Page 5 of 5
