Falls v. State

130 N.E.3d 618

Rodney W. FALLS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 18A-CR-2948

Court of Appeals of Indiana.

FILED July 25, 2019

Attorney for Appellant: Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General, Indianapolis, Indiana

Baker, Judge.

[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.

Facts²

[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 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 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:

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.

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.

[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 alsoPapachristou 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 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....