                                                                                  Oct 31 2013, 5:30 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                       GREGORY F. ZOELLER
Marion County Public Defender Agency                Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                               ELLEN H. MEILAENDER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES AVERITTE,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A04-1303-CR-119
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Gary L. Miller, Judge
                            Cause No. 49G21-1211-CM-76911



                                         October 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       James Averitte (“Averitte”) appeals from his conviction after a bench trial of one

count of harassment1 as a Class B misdemeanor, contending that Indiana’s harassment

statute is unconstitutionally vague. Given his waiver of this claim, his failure to show

any reason that the waiver rule should not be applied to his claim, and precedent against

his position, we affirm his conviction.

                           FACTS AND PROCEDURAL HISTORY

       Averitte was the ex-boyfriend of Sharon Bingham (“Bingham”).                Their

relationship ended in May of 2012.        In June of 2012, Averitte contacted Bingham

telephonically on numerous days and numerous times leaving numerous threatening

voice messages, including threatening to burn down her house. Bingham recognized both

Averitte’s voice and telephone number. Averitte wanted to restore his relationship with

Bingham, and she declined on at least four or five occasions, specifically ruling out any

friendship, let alone a romantic relationship.

       After Averitte repeatedly called Bingham on her cell phone on June 20, 2012

leaving a message that was vulgar, Bingham then sought law enforcement intervention.

Although Bingham did not answer or return his telephone calls, Averitte continued in his

efforts to contact Bingham by telephone and email.

       The State charged Averitte with Class B misdemeanor harassment for placing the

telephone call to Bingham on June 20, 2012. Averitte did not file a pre-trial motion to

dismiss the charges against him, nor did he raise any argument that the statute was


       1
           See Ind. Code § 35-45-2-2.


                                                 2
unconstitutional during his bench trial. At the conclusion of Averitte’s bench trial, the

trial court found Averitte guilty of one count of Class B misdemeanor harassment and

sentenced him to a sixty-day sentence, entirely suspended. Averitte now appeals.

                            DISCUSSION AND DECISION

      Averitte argues on appeal that Indiana’s harassment statute is unconstitutionally

vague as applied to him because it does not define what constitutes “intent of legitimate

communication” leaving that definition to “the discretion of juries, judges and

prosecutors.” Appellant’s Br. at 8.

      Indiana Code section 35-45-2-2 provides in pertinent as follows: a) A person who,

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

communication:    (1) makes a telephone call, whether or not a conversation ensues;

commits harassment, a Class B misdemeanor.

      “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.” Person v. State,

661 N.E.2d 587, 592 (Ind. Ct. App. 1996) (citing Jackson v. State, 634 N.E.2d 532, 535

(Ind. Ct. App. 1994)). When the validity of a statute is challenged, we begin with a

“‘presumption of constitutionality.’” State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985)

(quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763, 766 (1976)) (upholding the

constitutionality of Indiana’s dependent neglect statute under a void for vagueness

challenge).   “The burden to rebut this presumption is upon the challenger, and all

reasonable doubts must be resolved in favor of the statute’s constitutionality.” State v.

                                            3
Lombardo, 738 N.E.2d 653, 655 (Ind. 2000).

             Averitte has waived his claim of error because he has raised it for the first time on

appeal. A challenge to the constitutionality of a statute must be raised by a motion to

dismiss filed prior to trial. “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). Because Averitte did not file a motion to dismiss prior to trial,

did not object at trial, nor did he otherwise assert this argument prior to appeal, he has

waived the argument for purposes of appeal.2

         Affirmed.

ROBB, C.J., and RILEY, J., concur.




         2
           We also note that in Kinney v. State, 404 N.E.2d 49, 50, 52 (Ind. Ct. App. 1980), a panel of this court held
that the statute was not unconstitutionally vague because it “forbids a specific act, a telephone call, when it is
accompanied by a specific intent, ‘to harass, annoy, or alarm another person but with no intent of legitimate
communication.’ This specific intent prevents the statute from being unconstitutionally vague.”

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