                                                                         FILED
                                                                    Jul 25 2019, 8:51 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Donald R. Shuler                                            Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                          Attorney General of Indiana
Goshen, Indiana                                             Tiffany A. McCoy
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Rodney W. Falls,                                            July 25, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2948
        v.                                                  Appeal from the Kosciusko
                                                            Superior Court
State of Indiana,                                           The Honorable Joe V. Sutton,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            43D03-1802-F6-166



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019                            Page 1 of 17
[1]   Rodney Falls appeals his conviction and the sentence imposed by the trial court

      for Level 6 Felony Stalking,1 arguing that (1) the trial court erred when it

      refused to give his proffered jury instruction; (2) the evidence was insufficient to

      support his conviction; and (3) the sentence is inappropriate in light of the

      nature of the offense and his character. Finding no error, the evidence

      sufficient, and the sentence not inappropriate, we affirm.


                                                     Facts       2




[2]   On the evening of February 13, 2018, A.G. left Valparaiso after visiting with

      her boyfriend. A.G. exited Interstate 65 onto U.S. Highway 30 and stopped at a

      red light. A.G. then saw a man later identified as Falls in the car next to hers.

      Falls waved at A.G., but A.G. ignored him and started to drive as soon as the

      light turned green. A.G. noticed that Falls immediately got behind her as she

      started to drive away.


[3]   A.G. suspected that Falls was following her because every time she switched

      lanes, sped up, or slowed down, Falls did exactly the same. No matter what

      A.G. did, Falls mimicked her actions and stayed behind her for almost an hour

      to an hour and a half. A.G. realized that she was running low on gas, but she

      still had a long distance to drive before she returned to her school. She began



      1
          Ind. Code § 35-45-10-5(a).
      2
        We held oral argument for this case on June 20, 2019, at Trine University in Angola. We thank both parties
      for their stimulating discussion, and we thank the faculty at Trine and the staff of the American Legion who
      sponsors Boys State for their warm and generous hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019                               Page 2 of 17
      calculating how long she could go before she had to stop for gas. Ultimately,

      she decided to do the following:


              [I]t was going to be better to try to push that then it would to stop
              and risk. Like I would rather risk knowing that tank is going to run
              out and knowing I have that opportunity to call somebody like a
              police officer or if I was close enough to somebody that I know
              would be able to handle that situation or like that was the better
              option for me than stopping at a place where I don’t know anyone
              and so far away.


      Tr. Vol. II p. 128. A.G. decided to drive until she got to Warsaw.


[4]   After exiting U.S. Highway 30 into Warsaw, A.G. saw that Falls had followed

      her into town. She then drove through numerous residential streets, circling

      different areas and driving up and down the same lanes to see if it was just a

      coincidence that Falls had followed her thus far. Again, Falls mimicked her

      actions, drove down the same roads, and trailed closely behind her.


[5]   Terrified, A.G. drove to the Warsaw Police Department to find help. A.G.

      parked her vehicle in the visitor’s parking lot, but Falls pulled up and parked in

      between where A.G. was parked and the entrance to the police station. Falls

      waved at A.G. A.G. testified that she did not want to exit her vehicle out of fear

      that Falls would harm her, so she drove back to the residential streets. Again,

      Falls followed her. A.G. called the Warsaw Police Department to make sure it

      was open. After someone informed her that it was open, A.G. sped for the

      police station in order to lose Falls. A.G. returned, parked in the same parking




      Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019         Page 3 of 17
      space, and quickly walked towards the front door. A.G. then saw Falls pull into

      the visitor’s parking lot, park next to her vehicle, and wave at her again.


[6]   Inside, Lynne Lafollette, the Chief’s assistant at the Warsaw Police

      Department, and Ellen Hoffer, a clerical worker, saw A.G. walk into the station

      looking “nervous” and “very frightened.” Id. at 157. Suspicious that something

      was not right, Lafollette buzzed A.G. into the building, even though doing so

      went against protocol. Hoffer notified Sergeant Lewis Fuller about what had

      happened, and Sergeant Fuller went to talk with and subsequently arrest Falls

      for stalking. Sergeant Fuller then impounded Falls’s vehicle because he had

      been arrested and because he had parked in a handicap spot without proper

      signage. Sergeant Fuller conducted a search of Falls’s vehicle pursuant to his

      arrest and found a baggie of marijuana.


[7]   On February 15, 2018, the State charged Falls with one count of Level 6 felony

      stalking and one count of Class B misdemeanor possession of marijuana. Falls

      was released on bond, but on February 21, 2018, the State filed and was granted

      a motion to revoke bond because Falls had been arrested for criminal battery.

      Falls had previously been convicted of Class D felony burglary and

      theft/receiving stolen property, along with five other felonies.


[8]   Before the end of Falls’s October 30, 2018, jury trial, Falls asked the trial court

      to provide the jury with an instruction detailing the Fifth Amendment right to

      travel as a constitutionally protected activity. The instruction reads as follows:




      Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019          Page 4 of 17
               The right to travel is a constitutionally protected activity. The right
               to travel is part of the ‘liberty’ of which the citizen cannot be
               deprived without due process of law under the 5th Amendment.

               The right to remove from one place to another according to
               inclination is[] an []attribute of personal liberty protected by the
               Constitution.


       Appellant’s App. Vol. II p. 117. The State objected to the instruction as

       meritless and lacking in probative value. Following rebuttal, the trial court

       denied Falls’s request to tender it as a final instruction to the jury. The jury

       found Falls guilty as charged.


[9]    At the November 27, 2018, sentencing hearing, the trial court identified four

       aggravating factors: (1) Falls’s criminal history; (2) his prior charges of invasion

       of privacy; (3) his bond/pre-trial release violation; and (4) his past violation of

       probation. Id. at 185. The trial court found no mitigating factors. Id. Thereafter,

       Falls was sentenced to consecutive sentences of thirty months for the stalking

       conviction and six months suspended to probation for the possession of

       marijuana conviction. Falls now appeals.


                                Discussion and Decision
[10]   Falls raises three arguments on appeal: (1) the trial court erred when it refused

       to give his proffered jury instruction; (2) the evidence was insufficient to support

       his stalking conviction; and (3) the sentence is inappropriate in light of the

       nature of the offense and his character.



       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019              Page 5 of 17
                                        I. Jury Instruction
[11]   First, Falls argues that the trial court erred when it refused to give his proffered

       jury instruction because he wanted to assert that his actions amounted to

       constitutionally protected activity, a defense to the crime of stalking.


[12]   “Jury instructions are to be considered as a whole and in reference to each

       other, and we will not reverse the trial court’s decision . . . unless the

       instructions as a whole mislead the jury as to the law of the case.” Walls v. State,

       993 N.E.2d 262, 268 (Ind. Ct. App. 2013). When reviewing a trial court’s

       decision to grant or deny a request for a tendered jury instruction, we consider

       (1) whether the instruction correctly states the law; (2) is supported by the

       evidence in the record; and (3) is not covered in substance by other instructions.

       Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013). A defendant is

       entitled to a reversal if he affirmatively demonstrates that the instructional error

       prejudiced his substantial rights. Vaughn v. State, 13 N.E.3d 873, 884 (Ind. Ct.

       App. 2014).


[13]   The preliminary jury instruction Falls proffered reads as follows:


               The right to travel is a constitutionally protected activity. The right
               to travel is part of the ‘liberty’ of which the citizen cannot be
               deprived without due process of law under the 5th Amendment.

               The right to remove from one place to another according to
               inclination is[] an []attribute of personal liberty protected by the
               Constitution.


       Appellant’s App. Vol. II p. 117.
       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019              Page 6 of 17
[14]   Falls bases his argument on VanHorn v. State, 889 N.E.2d 908, 912 (Ind. Ct.

       App. 2008). In VanHorn, we held, in pertinent part, as follows:


               . . . The freedom to be on a public street is one of the personal
               liberties guaranteed by the federal constitution:

                        [A]s the United States recognizes, the freedom to loiter for
                        innocent purposes is part of the “liberty” protected by the
                        Due Process Clause of the Fourteenth Amendment. We
                        have expressly identified this “right to remove from one
                        place to another according to inclination” as “an attribute of
                        personal liberty” protected by the Constitution. Williams v.
                        Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed 186 (1900);
                        see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92
                        S.Ct. 839, 31 L.Ed.2d 110 (1972). Indeed, it is apparent that
                        an individual’s decision to remain in a public place of his
                        choice is as much a part of his liberty as the freedom of
                        movement inside frontiers that is “a part of our heritage”
                        Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d
                        1204 (1958), or the right to move “to whatsoever place one’s own
                        inclination may direct” . . . .



       VanHorn, 889 N.E.2d at 912 (quoting City of Chicago v. Morales, 527 U.S. 41, 53-

       54, 119 S.Ct. 1849, 144 L.E.2d 67 (1999)) (an internal citation omitted)

       (emphasis added). Stated another way, the Fifth Amendment protects a

       person’s right to move on any public thoroughfare as he may choose. And Falls

       wanted to assert this right as a defense to the crime of stalking.


[15]   However, the right to travel is not unlimited. See Baxendale v. Raich, 878 N.E.2d

       1252, 1259 (Ind. 2008) (holding that “a chilling effect on travel can violate the

       federal Constitution, but . . . other considerations may outweigh an individual’s

       interest in travel[]”); For example, an individual may not operate a motor


       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019             Page 7 of 17
       vehicle without an active driver’s license, Ind. Code § 9-24-1-1, while

       intoxicated, Ind. Code § 9-30-5-2(a), with an open alcoholic beverage container,

       I.C. § 9-30-15-3, or without proper registration. Ind. Code § 9-18.1-2-3. An

       individual may not use public thoroughfares to transport someone to promote

       human sex trafficking. Ind. Code § 35-42-3.5-1.1. An individual may not

       forcibly kidnap and transport a child by using a vehicle. I.C. § 35-42-3-

       2(b)(1)(B). And an individual may not use a vehicle to recklessly kill another

       human being. I.C. § 35-42-1-5. More to the point, the General Assembly has

       passed numerous laws regarding stalking, abuse, harassment, intimidation, and

       impermissible contact, which inhibit a person’s actions, restrict how a person

       may travel, preclude when a person may interact with others, and prevent a

       person from talking with specific individuals. See generally Ind. Code chs. 35-45-

       2, -10.


[16]   Thus, while Falls’s jury instruction correctly states a legal principle, it is

       incomplete and, therefore, erroneous. The instruction fails to include a section

       explaining that the constitutional right to travel is not unlimited—namely, an

       explanation that the criminal regulation of stalking is a valid and well-

       recognized exception to that right. Without a complete explanation of the

       constitutional right to travel and its limitations, the jury instruction Falls

       proffered could have confused or misled the jury. See Dill v. State, 741 N.E.2d

       1230, 1232 (Ind. 2001) (holding that “[a]n instruction that tends to confuse the

       jury is properly rejected[]”).




       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019            Page 8 of 17
[17]   Therefore, we find that the trial court did not err when it rejected Falls’s

       proffered jury instruction because it is incomplete and misstates the law relevant

       to Falls’s case.


                              II. Sufficiency of Evidence
[18]   Next, Falls argues that the evidence was insufficient to support his conviction

       for Level 6 felony stalking.


[19]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn

       therefrom could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[20]   To convict Falls of Level 6 felony stalking, the State was required to prove

       beyond a reasonable doubt that Falls knowingly or intentionally engaged in

       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 caused the victim to feel terrorized, frightened,

       intimidated or threatened. I.C. §§ 35-45-10-1, -5(a). “‘Harassment’ means

       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


       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019          Page 9 of 17
       emotional distress and that actually causes the victim to suffer emotional

       distress.” I.C. § 35-45-10-2. “‘Impermissible contact’ includes but is not limited

       to knowingly or intentionally following or pursuing the victim.” I.C. § 35-45-10-

       3.


[21]   Falls contends that the evidence was insufficient to prove that his actions were

       “repeated.” First, it is undisputed that Falls’s actions would cause a reasonable

       person to feel terrorized, frightened, intimidated, or threatened and that his

       actions did, in fact, make A.G. feel terrorized, frightened, intimidated, or

       threatened. A.G. testified that she felt nervous after she realized that Falls had

       been following her for some time. Then, after Falls left U.S. Highway 30 at the

       same time as she did, Falls drove through the same residential areas and

       followed her twice to the Warsaw Police Department. And Ellen Hoffer

       testified that A.G. appeared “nervous” and “very frightened” when she entered

       the police station that night. Tr. Vol. II p. 157. What remains in dispute is

       whether Falls’s actions constituted repeated or continuing harassment or

       impermissible contact.


[22]   Under the totality of the circumstances present in this case, we find that Falls’s

       actions fit the statutory definition of stalking. Even though we have defined

       “repeated” to mean “more than once,” Johnson v. State, 721 N.E.2d 327, 333

       (Ind. Ct. App. 1999), we do not hold that Falls had to follow A.G. a certain

       number of times or for a certain number of hours in order for his actions to

       constitute stalking. We can see that what transpired between Falls and A.G. fit

       well within the statutory definition of stalking, and we do not intend to

       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019        Page 10 of 17
       establish a bright-line test for determining when behavior becomes criminal

       stalking absent further guidance from the General Assembly. There is sufficient

       evidence to show that for hours, Falls followed A.G., sped up, slowed down,

       and tracked her as they were driving on interstate and highway roads. Even

       after the two left U.S. Highway 30, Falls continued to pursue A.G., turning

       down the same roads, driving on the same random paths, and even following

       her twice to the police station. It is apparent to us that this behavior constituted

       repeated or continuing harassment or impermissible contact.


[23]   Moreover, in Nicholson v. State, our Supreme Court held that “absent an explicit

       time frame established by the General Assembly during which stalking can

       occur, the trier of fact should determine if the course of conduct involv[ed] repeated

       or continuing harassment.” 963 N.E.2d 1096, 1101 (Ind. 2012) (internal

       quotations omitted) (emphasis added). There is no statutory definition of

       “repeated,” so it was ultimately the jury’s obligation to determine whether

       Falls’s actions amounted to repeated or continuing harassment or impermissible

       contact. Therefore, we conclude that the probative evidence and all reasonable

       inferences drawn therefrom could have allowed a reasonable trier of fact to

       convict Falls of Level 6 felony stalking beyond a reasonable doubt. In other

       words, the evidence is sufficient.


                                      III. Appropriateness
[24]   Finally, Falls argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offense and his character.

       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019          Page 11 of 17
[25]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” The defendant bears the burden of persuading us that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       In determining whether the sentence is inappropriate, we will consider

       numerous factors such as culpability of the defendant, the severity of the crime,

       the damage done to others, and a “myriad [of] other factors that come to light

       in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). It is our

       job to leaven the outliers, not to achieve a perceived “correct” sentencing result.

       Id. at 1225.


[26]   The maximum sentence for a Level 6 felony stalking conviction is two and one-

       half years, and the minimum sentence is six months. Ind. Code § 35-50-2-7(b).

       The advisory sentence is one year. Id. Here, the trial court imposed the

       maximum term of thirty months—exactly two and one-half years.


[27]   First, as to the nature of the offense, despite the fact that Falls’s actions took

       place over the course of one evening, he terrorized A.G., followed her every

       step, incessantly pursued her on public roads and throughout winding

       residential areas, and attempted to prevent her from seeking help at the Warsaw

       Police Department. Falls targeted A.G. for roughly two and one-half hours for

       no apparent reason. A.G. testified that Falls’s behavior instilled in her a sense

       of dread that something worse would happen:



       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019          Page 12 of 17
               I think him following me just kind of just initially caused alarm
               because obviously . . . all the time, like getting kidnapped or raped
               by random people and it was kind of that thought that was going
               through like if I stop I don’t know if that’s something that will
               happen to me.


       Tr. Vol. II p. 127. In sum, despite the fact that Falls’s actions did not take place

       over the course of several days or even weeks, A.G.’s testimony reinforces the

       disturbing and frightening nature of what Falls did and how it made her feel.

       Therefore, we find that the nature of Falls’s offense does not render his sentence

       inappropriate.


[28]   Next, as to Falls’s character, Falls has a serious criminal record comprised of

       seven different felony convictions, including convictions for Class D felony

       burglary and theft/receiving stolen property. Additionally, Falls had previously

       been charged with invasion of privacy, had violated probation in the past, and

       violated his pre-trial release/bond period in this case when he was charged with

       criminal battery. Falls has made no efforts to reform his character, despite

       multiple opportunities for improvement after multiple run-ins with the law.

       Therefore, we find that Falls’s character does not render his sentence

       inappropriate.


[29]   In sum, we will not revise Falls’s sentence pursuant to Indiana Appellate Rule

       7(B).




       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019         Page 13 of 17
[30]   The judgment of the trial court is affirmed.


       Robb, J., concurs.
       Bailey, J., concurs in part and concurs in result in part with a separate opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019        Page 14 of 17
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Rodney W. Falls,                                            Court of Appeals Case No.
                                                                   18A-CR-2948
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Bailey, Judge, concurring in part and concurring in result in part.


[31]   Every criminal defendant is entitled to present a defense. See, e.g., Crane v.

       Kentucky, 476 U.S. 683, 690 (1986); Pruitt v. State, 834 N.E.2d 90, 119-20 (Ind.

       2005). Here, Falls was charged with stalking—and the statutory definition of

       “stalk” excludes “constitutionally protected activity.” Ind. Code § 35-45-10-1.

       To meet the charge, Falls latched onto this exclusionary language. Indeed,

       Falls claimed he was engaged in a constitutionally protected activity—traveling

       in his vehicle—and could not be convicted of stalking. To advance this theory

       for consideration, Falls tendered a jury instruction that would apprise the jury

       of the constitutional right to travel. The trial court refused to give the tendered

       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019                       Page 15 of 17
       instruction, and the majority upholds that decision. Although I ultimately take

       no issue with the result in this case, I write separately because I would conclude

       the trial court erred in refusing to give the jury instruction that was foundational

       to the theory of the defense—error that was harmless but error nonetheless.


[32]   When reviewing the refusal to give a jury instruction, we consider: “(1) whether

       the tendered instruction correctly states the law; (2) whether the evidence

       supports giving the instruction; and (3) whether other instructions already given

       cover the substance of the tendered instruction.” Driver v. State, 760 N.E.2d

       611, 612 (Ind. 2002). The majority concludes—and I agree—that the tendered

       instruction “correctly states a legal principle.” Slip op. at 8. Moreover, we can

       readily dispense with the second and third parts of the inquiry. Indeed, as to

       whether the evidence supports giving the instruction, “[e]ven if there is only a

       ‘scintilla’ of evidence in support of a criminal defendant’s proposed defense

       instruction, it should be left to the province of the jury to determine whether

       that evidence is believable or unbelievable.” Hernandez v. State, 45 N.E.3d 373,

       378 (Ind. 2015). Here, it is undisputed Falls was in a vehicle, moving along

       roadways, and so there is at least a scintilla of evidence that supports instructing

       the jury regarding the constitutional right to travel—a potential defense to

       stalking. Finally, no other instruction apprised the jury of this specific right.


[33]   The majority nevertheless concludes the instruction is incomplete in that it

       “fails to include a section explaining that the constitutional right to travel is not

       unlimited—namely, an explanation that the criminal regulation of stalking is a

       valid and well-recognized exception to that right.” Id. The majority upholds

       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019          Page 16 of 17
       the refusal to give the instruction on the basis that an incomplete instruction

       “could have confused or misled the jury.” Id. Yet, “[j]ury instructions are not

       to be considered in isolation but as a whole and with reference to each other.”

       Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994). Here, other instructions

       apprised the jury of the very limitation on the right to travel that was germane

       to the charge and that the majority identifies—i.e., that the jury could convict

       Falls for committing the criminal offense of stalking. Thus, when reading the

       instructions as a whole, I discern no tendency to confuse or mislead the jury.


[34]   For the foregoing reasons, I would conclude the court erred in refusing to give

       the instruction. However, reversal is warranted only if the error prejudiced the

       defendant’s substantial rights. See Ind. Appellate Rule 66(A); Hernandez, 45

       N.E.3d at 376. In this case, the jury was instructed that the terms “stalk” and

       “harassment” did not include “statutorily or constitutionally protected

       activity.” App. Vol. 2 at 163, 165. In closing arguments, Falls drew attention

       to these instructions and argued he was exercising the constitutional right to

       travel. Thus, even without the tendered jury instruction, the jury was informed

       of the constitutional right to travel and was aware of the potential constitutional

       defense to the charge of stalking. The error was harmless.




       Court of Appeals of Indiana | Opinion 18A-CR-2948 | July 25, 2019         Page 17 of 17
