Kiel Stone v. State of Indiana , 128 N.E.3d 475 ( 2019 )


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  •                                                                               FILED
    Jun 26 2019, 8:32 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Rory Gallagher                                             Curtis T. Hill, Jr.
    Marion County Public Defender                              Attorney General of Indiana
    Indianapolis, Indiana
    Ellen H. Meilaender
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Kiel Stone,                                                June 26, 2019
    Appellant-Defendant,                                       Court of Appeals Case No.
    18A-CR-2427
    v.                                                 Appeal from the Marion Superior
    Court
    State of Indiana,                                          The Honorable David J. Certo,
    Appellee-Plaintiff.                                        Judge
    Trial Court Cause No.
    49G12-1802-CM-7004
    Najam, Judge.
    Statement of the Case
    [1]   Kiel Stone brings this interlocutory appeal from the denial of his motion to
    dismiss the State’s charging information. The State charged Kiel with seven
    counts of harassment, each a Class B misdemeanor, for phone calls Stone had
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                           Page 1 of 17
    made to staff members of the Indiana General Assembly and to staff members
    of the Indiana Secretary of State. Stone raises a single issue for our review,
    which we restate as the following two issues:
    1.     Whether the trial court erred when it denied Stone’s
    motion to dismiss the State’s charges under the First Amendment
    to the United States Constitution.
    2.     Whether the trial court erred when it denied Stone’s
    motion to dismiss the State’s charges under Article 1, Section 9 of
    the Indiana Constitution.
    [2]   We affirm.
    Facts and Procedural History
    [3]   In 2016, Indiana State Capitol Police officers opened an investigation into
    Stone after reports from legislative staff members of numerous, daily phone
    calls Stone had been making to them. According to one of those staff members,
    when on the phone, Stone would “talk[] in circles,” was generally “angry,” and
    would “verbally escalate[] to swearing and yelling” at them. Appellant’s App.
    Vol. II at 11-12. On May 4, Stone left one staff member a voicemail in which
    he “demean[ed] the staff members of various offices, calling them morons and
    idiots,” and stated that he was “going to publicly beat the crap out of your
    office” and “verbally assault the office.” 
    Id. at 12
    (quotation marks omitted).
    However, the officers did not pursue that investigation further because the
    legislative staff members did not obtain requested “supporting information and
    evidence” the officers deemed necessary. 
    Id. at 14.
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019        Page 2 of 17
    [4]   On May 24, 2017, Stone contacted Lawrence Hemphill, a legislative assistant to
    Indiana Senator Mike Bohacek and then-Senator Mike Delph, and requested
    information relating to a Whitley County traffic violation deferral program and
    pro bono legal assistance. Hemphill responded to Stone’s requests within one
    hour.
    [5]   Shortly thereafter, Stone called Hemphill and left a voicemail. In that
    voicemail, Stone said he was “irritated” with Hemphill; Stone “raised his
    voice . . . and then accused Hemphill of playing the ‘you didn’t get my driver’s
    license game’”; Stone told Hemphill that Stone had already “tried every
    lawyer” on the pro bono list; Stone “began ranting about how he has called
    different elected officials and voiced his displeasure in how he is allegedly
    treated by bodies of government”; Stone “accused Hemphill of receiving money
    from the [CIA] and allege[d] that someone has been perpetuating a conspiracy
    against him for the last ten years”; Stone “asked Hemphill what he has to do,
    who he has to talk to[,] or who he has to bribe to be treated fairly in the State of
    Indiana”; Stone said “what Hemphill is doing is illegal”; and Stone ended the
    voicemail “by calling Hemphill a[] ‘f[***]ing little worm.’” 
    Id. at 15.
    [6]   On September 27, 2017, Stone again called Hemphill and left a voicemail. In
    that voicemail, Stone stated that he had “‘had enough of your bullsh[*]t[,] sir’”;
    Stone “accused Hemphill of directing [Stone’s] call to voicemail”; Stone said
    that “Hemphill is an agent of the government and again accused Hemphill and
    [Senator] Bohacek . . . of working for the [CIA]”; Stone “accused Hemphill of
    not treating him fairly”; Stone stated that “he [Stone] is running for the ‘Indiana
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 3 of 17
    U.S. Senate’”; Stone again accused Hemphill of being “an agent of the
    government”; Stone threatened Hemphill with “legal action”; Stone “stated
    that he wants to have a conversation with Hemphill in which he is treated
    respectfully” and they “‘act correct’”; and Stone told Hemphill that “the way he
    is being treated by Hemphill is inappropriate and illegal.” 
    Id. at 15-16.
    [7]   On January 11, 2018, Stone called Mackenzie Nicol of the Indiana Secretary of
    State’s Constituent Services Office at the Indiana Statehouse approximately
    fifteen times in succession before leaving a voicemail. In that voicemail, Stone
    stated that staff members for the Indiana Secretary of State had “refused to help
    me” and “hung up on me.” 
    Id. at 22.
    He then stated that “it[ i]s very apparent
    that the Secretary of State’s Office is treating [me] in this manner because these
    individuals . . . [are] involved in the conspiracy” involving the CIA. 
    Id. He further
    asserted that, if the Secretary of State and her staff members “are not
    working for the CIA, are not involved in heroin smuggling[] or cocaine
    smuggling and murdering people . . . then why wouldn’t you help . . . .” 
    Id. at 23.
    [8]   On January 30, 2018, Stone called Hemphill and left another voicemail, which
    was approximately five minutes long. In that voicemail, Stone, among other
    things, accused Hemphill of being “discourteous . . . over . . . the course of
    about a year”; of acting illegally toward Stone; of being “Agent Hemphill of a
    governmental agency such as the CIA”; of needing to “check yourself into a
    psychiatric hospital”; and of being an “idiot[].” 
    Id. at 17-18.
    Stone also told
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 4 of 17
    Hemphill that Stone was preparing a “massive federal conspiratorial lawsuit”
    against Hemphill and other State employees. 
    Id. at 17.
    [9]    That same day, Stone also called Grant Beanblossom, an intern for Senators
    Bohacek and Delph. Stone asked for Hemphill, and, when Beanblossom
    informed Stone that Hemphill was not available, Stone “accused
    [Beanblossom] of shielding [Hemphill] from talking.” 
    Id. at 19.
    Stone then
    “transitioned to talking about an issue with police stops and identification.” 
    Id. After about
    five minutes, Beanblossom informed Stone that he “needed to go,”
    and Stone responded that Beanblossom was “being extremely rude to him” and
    “taking part in a conspiracy against him.” 
    Id. [10] Also
    on January 30, Stone called Tracy Mann, the administrative assistant to
    then-Senator David Long. Stone “was angry and informed her that Indiana
    Senators and [legislative assistants] would not help him or answer his
    questions.” 
    Id. He then
    began “speaking . . . about a conspiracy to kill him,
    that the Indiana State Police “has tried to kill him . . . over one hundred times,”
    that the “CIA . . . tried to poison him,” and that there has been a conspiracy
    against him since 2012. 
    Id. During the
    phone call, Stone “was screaming” and
    “cursing.” 
    Id. [11] After
    Mann ended that phone call, Stone immediately called Jen Carlton, the
    Indiana Senate Deputy Chief of Staff. Stone left Carlton a nearly five-minute
    voicemail in which he stated, among other things, that “no one will speak to
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019         Page 5 of 17
    him or provide him with assistance and that it is all part of a conspiracy to kill
    him.” 
    Id. at 19-20.
    [12]   On February 28, the State charged Stone with seven counts of harassment
    under Indiana Code Section 35-45-2-2(a) (2018), each a Class B misdemeanor,
    for the seven phone calls he made between May 24, 2017, and January 30,
    2018. Thereafter, Stone moved to dismiss the seven charges on the ground that
    each charge was predicated on protected political speech. In particular, in his
    memorandum in support of his motion to dismiss, Stone asserted that his
    speech was protected under the First Amendment because “[a]ll of the alleged
    phone calls . . . were made on [phone] lines specifically intended for
    communication between the people and their elected representatives” and the
    State “is attempting to restrict Stone’s speech on the basis of his speech’s
    content.” 
    Id. at 72.
    Similarly, under Article 1, Section 9, Stone argued that his
    speech was unambiguously political and therefore protected because the speech
    did not rise to the level of tortious behavior.
    [13]   In its response to Stone’s motion to dismiss, the State argued that Section 35-45-
    2-2 “criminalizes conduct, not speech”; that, therefore, “a First Amendment
    analysis premised on an alleged restriction of the freedom of speech is
    inapplicable”; and that the content of Stone’s speech was only relevant, if at all,
    “in determining the intent of the speaker.” 
    Id. at 86-87.
    As a secondary
    argument, the State asserted that, even if “[p]ublic phone lines to state
    lawmakers are a public forum, . . . the regulation of [Stone’s] speech is
    appropriate” under the First Amendment because that regulation “is content-
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 6 of 17
    neutral.” 
    Id. at 88.
    And, under Article 1, Section 9, the State informed the trial
    court that, while it “concedes that [Stone’s] speech was political,” the charges
    were still valid because Stone’s speech “did inflict a particularized harm on the
    victims.” 
    Id. at 90.
    [14]   The trial court held a hearing on Stone’s motion to dismiss, at which the parties
    argued only the issue of whether, under Article 1, Section 9, Stone’s conduct
    rose to the level of a tort. Following that hearing, the trial court denied Stone’s
    motion to dismiss. The court then certified its order for interlocutory appeal,
    which we accepted.
    Discussion and Decision
    Standard of Review
    [15]   Stone appeals the trial court’s denial of his motion to dismiss. A motion to
    dismiss under Indiana Trial Rule 12(B)(6) challenges only the legal sufficiency
    of the charges, which presents a question of law that we review de novo. See
    Ward v. Carter, 
    90 N.E.3d 660
    , 662 (Ind. 2018). We may affirm the trial court’s
    judgment under Trial Rule 12(B)(6) on any basis supported by the record. See
    
    id. A motion
    to dismiss under Trial Rule 12(B)(6) is appropriate only when
    “the facts alleged in the challenged pleading are incapable of supporting relief
    under any set of circumstances.” Thornton v. State, 
    43 N.E.3d 585
    , 587 (Ind.
    2015) (quotation marks omitted).
    [16]   Stone asserts that the State’s charges against him seek to penalize him for
    speech that is protected under both the First Amendment to the United States
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019         Page 7 of 17
    Constitution and Article 1, Section 9 of the Indiana Constitution. We address
    each argument in turn.
    First Amendment
    [17]   We first address Stone’s argument that the State’s seven harassment charges
    against him are based on protected political speech under the First Amendment.
    As the Indiana Supreme Court has explained:
    The First Amendment’s command that “Congress shall make no
    law . . . abridging the freedom of speech” has been incorporated
    into the Fourteenth Amendment and as such applies to the State
    of Indiana. Near v. Minnesota, 
    283 U.S. 697
    , 
    51 S. Ct. 625
    , 75 L.
    Ed. 1357 (1931). First Amendment analysis begins by looking at
    the forum the speaker seeks to employ, because “the standard by
    which limitations on speech must be evaluated ‘differ depending
    on the character of the property at issue[.]’” Frisby v. Schultz, 
    487 U.S. 474
    , 479, 
    108 S. Ct. 2495
    , 2500, 
    101 L. Ed. 2d 420
    (1988)
    (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 
    460 U.S. 37
    , 44, 
    103 S. Ct. 948
    , 954, 
    74 L. Ed. 2d 794
    (1983)). . . .
    When a public forum is at issue, the analysis further turns on
    whether the challenged measure distinguishes between prohibited
    and permitted speech on the basis of content. 
    Frisby, 487 U.S. at 481
    , 108 S. Ct. at 2500. A state may enforce regulations of time,
    manner and place which are “narrowly tailored to serve a
    significant government interest, and leave open ample alternative
    channels of communication.” 
    Perry, 460 U.S. at 45
    , 103 S. Ct. at
    955. On the other hand, content-based restrictions are
    permissible only if they are “‘necessary to serve a compelling
    state interest,’” Burson v. Freeman, 
    504 U.S. 191
    , 198, 
    112 S. Ct. 1846
    , 1851, 
    119 L. Ed. 2d 5
    (1992) (plurality) (quoting 
    Perry, 460 U.S. at 45
    , 103 S. Ct. at 954), and narrowly drawn to achieve
    that end, 
    Perry, 460 U.S. at 45
    , 103 S. Ct. at 954, or are limited to
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 8 of 17
    “constitutionally proscribable content,” R.A.V. v. City of St. Paul,
    
    505 U.S. 377
    , 383, 
    112 S. Ct. 2538
    , 2543, 
    120 L. Ed. 2d 305
                   (1992) (emphasis omitted).
    Price v. State, 
    622 N.E.2d 954
    , 965 (Ind. 1993) (first omission original to Price).
    [18]   The parties here vigorously debate whether the use of any and all phone lines
    into the Indiana Statehouse constitutes the use of a public forum, and whether
    the State’s argument in the trial court precludes the State from arguing on
    appeal that those phone lines are not public forums. We need not decide those
    questions in this appeal. Assuming for the sake of argument that phone lines
    into the Indiana Statehouse are a public forum, we nonetheless hold that the
    State’s charges against Stone are constitutional under the First Amendment.
    [19]   Again, “[w]hen a public forum is at issue,” or, as here, is assumed to be at
    issue, the First Amendment analysis “turns on whether the challenged measure
    distinguishes between prohibited and permitted speech on the basis of content.”
    
    Id. As the
    court in Price explained:
    The principal inquiry in determining whether a statute is content-
    neutral or content-based is the state’s purpose for enacting it.
    Ward v. Rock Against Racism, 
    491 U.S. 781
    , 
    109 S. Ct. 2746
    , 105
    L. Ed.2 d 661 (1989). A regulation that serves purposes
    unrelated to the content of expression is deemed neutral, “even if
    it has an incidental effect on some speakers or messages but not
    others.” 
    Id. In essence,
    “[g]overnment regulation of expressive
    activity is content neutral so long as it is ‘justified without
    reference to the content of the regulated speech.’” 
    Id. (emphasis in
    original).
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019              Page 9 of 17
    
    Id. at 965-66
    (alteration original to Price).
    [20]   The harassment statute on which each of the State’s seven charges against
    Stone is based states in relevant part as follows: “A person who, with intent to
    harass, annoy, or alarm another person but with no intent of legitimate
    communication . . . makes a telephone call, whether or not a conversation
    ensues . . . commits harassment, a Class B misdemeanor.” I.C. § 35-45-2-2(a).
    That statutory language does not distinguish between prohibited and permitted
    speech on the basis of content. Rather, the language of the harassment statute
    is readily justified without reference to the content of the regulated speech—the
    state’s purpose for enacting the harassment statute was to prevent a person from
    using a telephone with the intent to harass, annoy, or alarm others and with no
    intent of a legitimate communication. See 
    Price, 622 N.E.2d at 966
    . The statute
    is expressly framed around the speaker’s intent, not around the content of his
    speech. See I.C. § 35-45-2-2(a). Accordingly, the statute on its face is content-
    neutral.
    [21]   The State may enforce content-neutral regulations of speech in a public forum
    when those regulations are narrowly tailored to serve a significant government
    interest and leave open ample alternative channels of communication. 
    Price, 622 N.E.2d at 965
    (citing 
    Perry, 460 U.S. at 45
    ). “To be narrowly tailored, a
    statute need not employ the least restrictive or least intrusive means of
    accomplishing the governmental purpose.” 
    Id. at 966
    (citing 
    Ward, 491 U.S. at 798
    ). “Rather, the requirement of narrow tailoring is satisfied ‘so long as
    the . . . regulation promotes a substantial governmental interest that would be
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019           Page 10 of 17
    achieved less effectively absent the regulation.’” 
    Id. (quoting Ward,
    491 U.S. at
    799) (omission original to Price).
    [22]   There is a substantial public interest in protecting everyone, including
    government employees, from telephone harassment, and our legislature enacted
    Indiana Code Section 35-45-2-2(a) for that purpose. The statute does not apply
    where the speaker intends to engage in legitimate communication, even if the
    content of that communication is rude or impolite. And “intent is a question of
    fact under Indiana case law.” Horseman v. Keller, 
    841 N.E.2d 164
    , 167 (Ind.
    2006). As the harassment statute is focused on the speaker’s intent, and Stone’s
    intent here is an open question of fact, dismissal of the State’s charges under
    Trial Rule 12(B)(6) would have been inappropriate.
    [23]   Accordingly, assuming for the sake of argument that Stone’s communications
    occurred in a public forum, the harassment statute is a valid, content-neutral
    regulation of Stone’s speech in that forum. We therefore affirm the trial court’s
    denial of Stone’s motion to dismiss the State’s charges against him under the
    First Amendment.
    Article 1, Section 9
    [24]   We next turn to Stone’s argument that the State’s charges against him are
    prohibited under Article 1, Section 9 of the Indiana Constitution. Article 1,
    Section 9 states: “No law shall be passed, restraining the free interchange of
    thought and opinion, or restricting the right to speak, write, or print, freely, on
    any subject whatever; but for the abuse of that right, every person shall be
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 11 of 17
    responsible.” In reviewing an argument under Article 1, Section 9, we employ
    “a two-step inquiry”: first, we “determine whether state action has restricted a
    claimant’s expressive activity”; and, second, we “decide whether the restricted
    activity constituted an ‘abuse’ of the right to speak.” Williams v. State, 
    59 N.E.3d 287
    , 292 (Ind. Ct. App. 2016) (quoting Barnes v. State, 
    946 N.E.2d 572
    ,
    577 (Ind.), aff’d on reh’g, 
    953 N.E.2d 473
    (2011), superseded by statute on other
    grounds, see Cupello v. State, 
    27 N.E.3d 1122
    , 1124 (Ind. Ct. App. 2015)).
    [25]   In other words, our first question here under Article 1, Section 9 is whether
    Stone’s speech was protected political speech. In the trial court, he argued that
    it was and, in response, the State conceded that it was. However, on appeal,
    the State argues that Stone’s speech was not protected political speech under
    Article 1, Section 9. Thus, Stone argues that the State is precluded from
    making that argument on appeal and that our review must be framed around
    the State’s concession in the trial court.
    [26]   We reject Stone’s argument that we are bound by the State’s concession in the
    trial court for two reasons. First, our review of the issues in this appeal is de
    novo and requires us to consider, for ourselves, the State’s charges and the
    corresponding probable-cause affidavit on their face. See, e.g., Woods v. State,
    
    980 N.E.2d 439
    , 443-44 (Ind. Ct. App. 2012). Second, Stone carried the burden
    of proof in the trial court on his motion to dismiss, and that burden included
    demonstrating that his speech was protected political speech. See, e.g., 
    Williams, 59 N.E.3d at 293-94
    . Whatever the State’s response to that argument may have
    been to the trial court, on appeal the State is permitted to assert that Stone failed
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 12 of 17
    to meet that burden in the first instance, and we will review that argument
    accordingly.
    [27]   And we hold that a reasonable trier of fact could conclude from the evidence
    that Stone’s speech was not political. As we have explained:
    Where, as here, the defendant is not the original subject of a
    police investigation, the defendant demonstrates that [his]
    expression was unambiguous political speech when [he] shows
    that the focus of [his] speech exclusively concerned government
    action. Such speech must both be directed at state actors and
    refer to state actors or their conduct. Speech directed toward a
    private party or that refers to a private party, or the conduct of a
    private party, is politically ambiguous for purposes of an
    affirmative defense under art. 1, sec. 9. And when the focus of
    speech is politically ambiguous, a reasonable fact-finder may reject the
    asserted affirmative defense.
    If the defendant does not meet [his] burden of showing that [his]
    speech was unambiguously political, the State’s impairment of
    [his] speech—e.g., the defendant’s arrest . . . —is constitutional
    so long as the State acted rationally in impairing the speech.
    
    Id. at 289-90
    (emphasis added; footnote omitted). Thus, “expression that is
    directed toward a private party or refers to the conduct of a private party, even
    if in part, does not demonstrate protected political expression” under Article 1,
    Section 9. 
    Id. at 293.
    Likewise, “speech in which the speaker refers to him- or
    herself, even when prompted by a [state actor’s] conduct or statements, and
    even when coupled with political statements, permits a reasonable fact-finder to
    conclude that the focus of the entirety of the speech is ambiguous and,
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019              Page 13 of 17
    therefore, not political.” 
    Id. at 294.
    In other words, where speech is at least in
    part not germane to a public issue, a trier of fact may find the speech as a whole
    not protected by Article 1, Section 9. See 
    id. [28] Stone’s
    speech was not unambiguously political as a matter of law. At least
    once in each of the seven charged instances, Stone referred to himself. In
    particular, and among other things, in each of the seven phone calls on which
    the State’s charges are premised, Stone referred to himself as the subject of a
    vast governmental conspiracy. Even if those comments are coupled with
    political statements, a reasonable fact-finder could conclude from them that
    “the focus of the entirety of the speech” for each charge “is ambiguous and,
    therefore, not political.” 
    Id. Thus, the
    State acted rationally in charging Stone,
    and the State has stated valid charges against Stone under Article 1, Section 9.
    We therefore affirm the trial court’s denial of Stone’s motion to dismiss under
    that provision. 1
    Conclusion
    [29]   In sum, we affirm the trial court’s denial of Stone’s motion to dismiss the
    State’s seven charges against him under the harassment statute. Stone has a
    constitutional right to petition the government and, to that end, to engage in
    1
    On remand, the trier of fact may conclude that any of the following three scenarios is true: that Stone’s
    speech was not political and therefore not protected under Article 1, Section 9; that Stone’s speech was
    political but not protected because it “amounted to a public nuisance such that it inflicted particularized harm
    analogous to tortious injury on readily identifiable private interests”; or that Stone’s speech was political and
    protected under Article 1, Section 9. See 
    Williams, 59 N.E.3d at 293
    (quotation marks and brackets omitted).
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                                  Page 14 of 17
    political speech. But there is a question of fact whether he abused that right
    when he confronted numerous State employees with ad hominem verbal
    attacks. Specifically, the question under the statute is whether Stone’s
    comments were merely annoying or impolite, but with a legitimate intent to
    communicate, or whether his hostile verbal attacks on State employees were
    intended to harass, annoy, or alarm others and, as such, went beyond a
    legitimate inquiry, comment, or criticism of government policy or
    administration. Thus, we decline to hold under Trial Rule 12(B)(6) that the
    facts alleged are legally insufficient to support the charges under any set of
    circumstances or that Stone’s phone calls to State employees were per se
    political speech.
    [30]   The State’s charges allege reasonable time, place, and manner restrictions to
    Stone’s speech under the First Amendment, and a reasonable fact-finder could
    conclude that the totality of the evidence supporting each charge demonstrates
    that Stone’s speech was not unambiguously political and is, therefore, not
    protected under Article 1, Section 9. We therefore affirm the trial court’s denial
    of Stone’s motion to dismiss.
    [31]   Affirmed.
    Robb, J., concurs.
    Baker, J., concurs in result with separate opinion.
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019          Page 15 of 17
    IN THE
    COURT OF APPEALS OF INDIANA
    Kiel Stone,                                                Court of Appeals Case No.
    18A-CR-2427
    Appellant-Defendant,
    v.
    State of Indiana,
    Appellee-Plaintiff
    Baker, Judge, concurring in result in part.
    [32]   I fully concur in the portion of the majority opinion dealing with the First
    Amendment to the United States Constitution. And while I concur with the
    result reached by the majority under Article 1, Section 9 of the Indiana
    Constitution, I would reach that result in a different manner.
    [33]   I believe that whether Stone’s speech was political is a far closer question than
    the majority acknowledges. While often—or perhaps always—abusive and
    paranoid, Stone’s many calls addressed a traffic violation program, pro bono
    legal assistance, and, frequently, the treatment of citizens by the state
    Court of Appeals of Indiana | Opinion 18A-CR-2427 | June 26, 2019                      Page 16 of 17
    government. Under these circumstances, I believe that a reasonable person
    could conclude that at least some of Stone’s speech was political.
    [34]   Therefore, I would accept for argument’s sake that Stone’s speech fell under the
    purview of Article 1, Section 9. That same section, however, provides that “for
    the abuse of” the freedoms of speech, thought, and opinion, “every person shall
    be responsible.” I have little difficulty determining that a reasonable factfinder
    could only conclude that Stone’s speech was an abuse of the rights provided for
    by Article 1, Section 9. Thus, while I respectfully disagree with its analysis, I
    agree with the majority that we should affirm.
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