Bailey, J.
Following a bench trial, Constance McGuire (“McGuire”) was convicted of Class B misdemeanor Harassment relating to statements she posted online. McGuire now appeals. …
McGuire had a son who died after consuming methamphetamine during a traffic stop. Officer Jeramie Dodd (“Officer Dodd”) of the Kokomo Police Department was present at the stop. At some point, McGuire posted several statements on Facebook mentioning Officer Dodd. These statements were visible to over 1,000 people who were “friends” with McGuire on the social media platform. Officer Dodd was not within that group of people. However, a concerned citizen contacted Officer Dodd and passed along the statements.
In those statements, McGuire asserted that Officer Dodd killed her son. She also said: “Yes he set my son up to die. He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of younand if u work n that Jail I’m comn for u to so u better watch out this mother is on a rampage and ready to shoot to kill.” In one post, McGuire wrote: “Fuck Jeremy Dodd like I said he a whole bitch kill urself u bastard.” At the end of the post, McGuire wrote: “Everyone share.” McGuire also wrote: “FUCK KPD OFFICER JERemy DODD yes I said it loud and proud FUCK U PIG DO SUMTHN BITCH if u don’t know now u kno.” McGuire also mentioned Officer Dodd and said that “when it comes to my kids anyone can get it.”
The State charged McGuire with Class B misdemeanor Harassment. A bench trial was held in September 2018 at which McGuire represented herself and elected to testify. The trial court took the matter under advisement. At an ensuing hearing, the court found McGuire guilty and pronounced its sentence.
The State charged McGuire with Harassment under Indiana Code Section 35-45-2-2(a)(4)(B), which provides—in pertinent part—as follows: “A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication . . . uses a computer network . . . or other form of electronic communication to . . . transmit an obscene message or indecent or profane words to a person . . . commits harassment, a Class B misdemeanor.”
This statute regulates speech, which is afforded protection through the First Amendment to the United States Constitution and Article 1, Section 9 of the Indiana Constitution. See U.S. Const. amend. I; Ind. Const. art. 1, § 9. … Whereas the federal constitution is concerned with any viewpoint-based law—irrespective of whether the impaired speech is political—our Article 1, Section 9 focuses on protecting political speech. See Price v. State, 622 N.E.2d 954, 963 (Ind. 1993).
… Here, McGuire presents no challenge to the facial validity of the instant statute, and so we leave that type of statutory inquiry for another day. McGuire instead contends her specific Facebook posts were constitutionally protected, and that her conviction amounts to an unconstitutional impairment of speech. McGuire also alleges insufficient evidence supporting the conviction.
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Turning to the sufficiency challenge, McGuire asserts she failed to transmit messages to Officer Dodd. … There was transmission the moment McGuire posted online, broadcasting to a virtual room containing more than 1,000 people. McGuire appears to be challenging the sufficiency of evidence on the basis that Officer Dodd was not inside the virtual room, and it was someone else who passed along the messages “without permission.” Yet, to be criminally liable under the statute, McGuire need not have directly transmitted the messages to the target of her harassment. Rather, McGuire must have transmitted the messages “to a person,” I.C. § 35-45-2-2(a)(4)(B), which she did. … Thus, in light of the content of the messages, there is sufficient evidence to conclude that McGuire had the expectation that the offending conduct would come to the attention of Officer Dodd when she transmitted the messages online.
McGuire also asserts her “Facebook postings do not qualify as obscene.” Yet, the instant statute, written in the disjunctive, criminalizes the transmission of “an obscene message or indecent or profane words to a person,” I.C. § 35-45-2-2(a)(4)(B)—and we discern no failure of proof concerning the transmission of indecent or profane words. Indeed, McGuire issued a profanity-laced threat and urged Officer Dodd to commit suicide.
Finally, to the extent McGuire challenges the sufficiency of evidence regarding intent to engage in “legitimate communication,” this inquiry collapses into the next issue—the constitutional challenge to the conviction. This is because we have interpreted the statutory phrase “no intent of legitimate communication” as creating a “specific intent requirement preclud[ing] the application of this statute to constitutionally protected legitimate communications.” Kinney v. State, 404 N.E.2d 49, 51 (Ind. Ct. App. 1980). …
Upon a First Amendment challenge to a conviction, we evaluate whether the speech fell within an “unprotected category.” See Price, 622 N.E.2d at 965. Indeed, certain content is “constitutionally proscribable.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383 (1992) (emphasis removed). One proscribable category is that which constitutes a true threat, Virginia v. Black, 538 U.S. 343, 359 (2003), for which there are “two necessary elements: that the speaker intend his communications to put his targets in fear for their safety, and that the communications were likely to actually cause such fear in a reasonable person similarly situated to the target,” Brewington, 7 N.E.3d at 964. Here, McGuire repeatedly posted about Officer Dodd. She accused Officer Dodd of killing her son, urged him to commit suicide, and suggested law enforcement “better watch out this mother is on a rampage and ready to shoot to kill.” This speech amounted to a constitutionally proscribable true threat. … Moreover, in view of the true threat contained in the speech, there is sufficient evidence McGuire lacked the intent to engage in “legitimate communication” with regard to the United States Constitution.
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… Here, McGuire engaged in some political expression in that parts of the posts concerned tragic events arising from a traffic stop involving Officer Dodd. Yet, McGuire also said she was “coming for” law enforcement and was “on a rampage and ready to shoot to kill.” Moreover, McGuire repeatedly directed posts toward Officer Dodd and suggested that he commit suicide. We conclude, when viewed in context, the instant speech was not unambiguously political. … Because the speech was not unambiguously political, we apply standard rationality review. See Whittington, 669 N.E.2d at 1370. Upon such review, we conclude the State—in electing to prosecute McGuire—could have reasonably concluded that the speech posed a threat to peace, safety, and well-being. …
We discern no failure of proof. The conviction concerned proscribable speech.
Affirmed.
Riley, J., concurs. Pyle, J., dissents with opinion.
Pyle, Judge, dissenting.
There is no question that McGuire’s Facebook posts are distasteful, crude, and worrisome. However, I respectfully dissent from my colleagues’ opinion affirming McGuire’s conviction for class B misdemeanor harassment. This dissent does not condone the disturbing, crass statements made by McGuire about Officer Dodd. However, our primary duty is to uphold the principles enshrined in the Federal and State Constitutions. When a statute falls short, this Court has a duty to reverse a conviction, even if it might leave a sour taste in one’s mouth.
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In this case, I believe that Indiana’s harassment statute is unconstitutionally overbroad and facially invalid because it is susceptible of prohibiting protected expression. …
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… In addition, the State presented no evidence that McGuire’s speech fit within a category which permits restriction by the government. …
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It is clear from the record that the State sought to prosecute McGuire because it was worried about whether her Facebook posts naming Officer Dodd would result in violence. While the State’s concern was warranted, we must still follow the law concerning First Amendment rights. It is well settled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (emphasis added). There was simply no evidence introduced at trial that McGuire’s Facebook posts were directed at producing imminent lawless action and that it was likely to occur. …
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Because I believe IND. CODE § 35-45-2-2(a)(4)(B) is unconstitutionally overbroad and no evidence was introduced showing McGuire’s Facebook posts fit within an unprotected category, I respectfully dissent from my colleagues’ opinion affirming McGuire’s conviction for harassment as a class B misdemeanor.