Pittman v. State

45 N.E.3d 805

Noah PITTMAN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1504–CR–137.

Court of Appeals of Indiana.

Nov. 5, 2015.

Andrea L. Ciobanu, Alex Beeman, Ciobanu Law, P.C., Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

BROWN, Judge.

[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 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 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 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 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:

(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.”

[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...