                                                                             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.




Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015               Page 1 of 30
[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


      Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 2 of 30
      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

      Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 3 of 30
      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

      Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 4 of 30
      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

      Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015                     Page 5 of 30
       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.

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015                          Page 6 of 30
        (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.”




Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 7 of 30
[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”:


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 8 of 30
        (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)

Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 9 of 30
       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


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 10 of 30
       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


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 11 of 30
       “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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 12 of 30
               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.


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015    Page 13 of 30
[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


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 14 of 30
       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
       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 15 of 30
       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




       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 16 of 30
       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.

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015                      Page 17 of 30
       (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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 18 of 30
       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,
       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 19 of 30
       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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 20 of 30
       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.


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 21 of 30
                                                         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



       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 22 of 30
               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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 23 of 30
       “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.




       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 24 of 30
                                                         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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 25 of 30
       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


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 26 of 30
       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


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 27 of 30
       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

       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 28 of 30
       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.


       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 29 of 30
       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.




       Court of Appeals of Indiana | Opinion 49A05-1504-CR-137 | November 5, 2015   Page 30 of 30
