Indiana Court Decisions: Feb. 22-March 8, 2023

7th Circuit Court of Appeals

March 2

Stant USA Corp., et al. v. Factory Mutual Insurance Company

22-1336

COVID-related closures not ‘physical loss’ under insurance policy, 7th Circuit again affirms

Continuing a trend in Indiana courts, the 7th Circuit Court of Appeals has once again ruled that COVID-related business closures do not qualify as “physical losses” eligible for insurance coverage.

Stant USA Corporation, Stant Foreign Holding Corporation and Vapor US Holding Corporation are manufacturers of products for automobile suppliers and manufacturers. Their products include vapor management systems, fuel delivery systems and thermal management systems.

During the pandemic, production was reduced and Stant alleged it suffered more than $5.3 million in derivative financial losses. It thus sought to recover under an “all-risk” insurance policy sold by Factory Mutual Insurance Company.

Stant filed a lawsuit seeking a declaratory judgment claiming they were entitled to recover under the Factory Mutual insurance policy, but the district court granted the insurer’s motion to dismiss. Stant then appealed.

In affirming, the 7th Circuit pointed to Sandy Point Dental P.C. v. Cincinnati Insurance Co., 20 F.4th 327, 332 (7th Cir. 2021), which held that in order to state a claim for COVID-related losses, a business needed to allege a physical alteration to its property.

Stant tried to distinguish its case from Sandy Point by pointing to language in its policy covering “physical damage or loss,” not “direct physical damage or loss,” as had been the case in Sandy Point. But the 7th Circuit found no difference.

“The language in the policy before us today contains similar language and mandates the same result,” Judge Ilana Rovner wrote. “As with Sandy Point, the policy in this case is limited to ‘physical’ loss or damage.

“… Even if the ‘direct’ qualifier were absent in the language here, that term was not the language that was critical to the limitation of coverage recognized in Sandy Point,” Rovner wrote. “The requirement that the property loss or damage must be “physical” was the limitation that mandated a physical altercation to the property.”

The appellate court also pointed to its decision in Circle Block Partners, LLC v. Fireman’s Fund Insurance Company, 44 F.4th 1014 (7th Cir. 2022), which held that “businesses forced to shut down or reduce operations during the pandemic failed to alleged direct physical loss or damage.”

“Because we hold that Stant’s claim does not fall within the coverage of the policy for physical property loss or damage, we need not address FM’s alternative arguments that the claim would fall within other exclusions in the policy, including the Loss of Use exclusion and the Contamination exclusion,” Rovner concluded. “We have addressed similar exclusions in numerous cases and determined that such COVID-based claims fell within those exclusions but express no opinion as to the applicability in this case.”

The case is Stant USA Corp., et al., v. Factory Mutual Insurance Company, 22-1336.

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March 6

United States of America v. Lavelle Hatley

21-2534

Looking at extortion, 7th Circuit affirms enhanced sentence for Hobbs Act robbery

The 7th Circuit Court of Appeals is once again looking at whether Hobbs Act robbery constitutes a “violent felony.” Both the district and appellate courts found that it does in the instant case under the extortion element of the Hobbs Act.

In United States of America v. Lavelle Hatley, 21-2534, police officers in Gary discovered Lavelle Hatley with a gun in his possession during a traffic stop. Hatley was subsequently charged and ultimately pleaded guilty to being a felon in possession of a firearm.

That charge alone carries a statutory maximum of 10 years. But at his sentencing hearing, the government argued that he should receive an enhanced sentence of at least 15 years under the Armed Career Criminal Act given his criminal history.

The enhanced sentenced required a showing that Hatley had at least three predicate violent felonies. His criminal record included convictions for robbery and criminal battery under state law, which both qualified as violent felonies, as well as eight separate convictions in federal court for Hobbs Act robberies.

Hatley argued that the federal robbery convictions did not count toward the enhancement. But the Indiana Northern District Court disagreed and sentenced him to 15 years.

Hatley appealed his sentence, arguing it was inappropriate. Affirming his sentence, the appellate court revisited the issue of whether Hobbs Act robbery qualifies as a violent felony.

“Put another way, if there is any way to commit Hobbs Act robbery without also committing a ‘violent felony’ under (18 U.S.C.) § 924(e), there is no categorical fit — meaning Hobbs Act robbery is not a violent felony under ACCA,” Judge Michael Scudder wrote. “That conclusion holds even if Hatley’s actual offense conduct for any of his eight prior Hobbs Act robbery convictions involved violent force.”

The 7th Circuit’s analysis focused on whether the elements of Hobbs Act robbery fit within the ACCA’s definition of a violent felony. There were two elements of robbery to consider — force against a person or against property — as well as the second offense included in the Hobbs Act, extortion.

While force against property does not qualify as a violent felony, Hatley was still eligible for an enhanced sentence based on extortion, the 7th Circuit ruled.

“… (T)he question we ask ourselves is whether there is a ‘realistic probability’ that someone could commit a Hobbs Act robbery by using force against property without also committing generic extortion,” Scudder wrote. “… Hatley has not identified any examples, let alone one rising above a ‘fanciful hypothetical[]. … Neither have we, after conducting our own independent review.”

The 7th Circuit distinguished that decision from its previous ruling in Bridges v. United States, 991 F.3d 793 (7th Cir. 2021), which found Hobbs Act robbery was not a crime of violence within the meaning of the Sentencing Guidelines’ career offender provisions.

“We have applied the exact same analytical approach here,” Scudder wrote, comparing Hatley’s case to Bridges. “That we have reached a different conclusion reflects only the differences in how the enumerated clause of § 924(e) and the Guidelines’ career offender provision define extortion.”

Hatley had argued that by using an “either/or” analysis, the district court improperly treated Hobbs Act robbery as a divisible offense, separating crimes of robbery against persons and robbery against property.

“But the district court never suggested that a Hobbs Act offense, while generally divisible between robbery and extortion, was further sub-divisible between robbery committed by using force against persons and robbery committed by using force against property,” Scudder wrote.

Finally, the appellate court rejected Hatley’s argument that a jury, not a judge, should determine whether he met the separate-occasions requirement for a sentencing enhancement. It pointed to United States v. Elliott, 703 F.3d 378 (7th Cir. 2012), which cited Almendarez-Torres v. United States, 523 U.S. 224 (1998).

“We grounded our holding (in Elliott) in longstanding Supreme Court precedent allowing a sentencing judge to find facts related to the existence of prior crimes,” Scudder concluded. “… The Supreme Court has not overruled or limited Almendarez-Torres.”

Indiana Supreme Court

Feb. 28

Charlie D. Leshore, Jr. v. State of Indiana

23S-CR-51

Split justices allow defendant to appeal 70-year sentence despite 16-year delay

A man convicted of multiple felonies more than 20 years ago can pursue an appeal of his 70-year sentence, a split Indiana Supreme Court has ruled. The majority determined that the delay in the appeal was not the defendant’s fault.

The case dates back to 1999, when appellant-defendant Charlie Leshore pleaded guilty to Class B felony burglary, two counts of Class B felony robbery, Class A felony rape and two counts of Class B felony criminal confinement. The terms of the plea agreement prohibited Leshore from appealing his conviction.

Leshore was subsequently sentenced to 70 years in the Indiana Department of Correction.

In 2001, he filed a petition for post-conviction relief, arguing his sentence was inappropriate. The State Public Defender’s Office withdrew its representation after determining Leshore had been advised of all necessary rights, and he eventually abandoned the petition in 2005.

But years later, Leshore petitioned for permission to file a belated notice of appeal, arguing that he had not been advised of the right to appeal his sentence. The Allen Superior Court denied that motion, and the Court of Appeals of Indiana affirmed in a divided opinion.

The COA majority found Leshore was “unable to show that he was diligent in his pursuit of permission to file a belated notice of appeal.” However, in a dissenting opinion, Judge Leanna Weissmann opined that he satisfied the three conditions of Indiana Post-Conviction Rule 2(1)(a) and, thus, should be allowed to pursue his belated appeal.

Granting transfer in a Feb. 28 opinion, a majority of the Indiana Supreme Court agreed. The majority justices pointed to “mistaken advice” given to Leshore.

“Here, the public defender shared mistaken advice with Leshore about his available post-conviction relief,” Justice Mark Massa wrote in Charlie D. Leshore, Jr. v. State of Indiana, 23S-CR-51. “Leshore had a chance to appeal his sentence, but that choice was never presented to him.

“As for the sentencing court’s error, while the lack of appellate advisement is not grounds for overturning a guilty plea … its absence can constitute grounds for satisfying the no-fault requirement under Rule 2(1)(a)(2),” Massa continued.

As for diligence in pursuing the belated appeal, the majority focused on Dec. 1, 2021 — the date another inmate told Leshore he could appeal his sentence. Leshore filed his petition to pursue a belated appeal 19 days later.

“Diligence under these facts is best measured from the time when Leshore learned of his rights to the filing of his permission to file a belated notice of appeal,” Massa wrote. “And while we decline to draw a line for when diligence must always begin, we can say Leshore was prompt enough.

“The Court of Appeals thus erred in affirming the trial court’s decision to deny Leshore’s petition for permission to file a belated appeal, so we grant transfer, vacate the opinion, and remand to the trial court with instructions to grant the petition to allow Leshore’s appeal to proceed,” Massa concluded.

Chief Justice Loretta Rush and Justice Derek Molter concurred.

But Justice Christopher Goff wrote a dissenting opinion, which Justice Geoffrey Slaughter joined.

“Leshore gave up any pursuit of post-conviction relief for a period of sixteen years. Had he proceeded with sentencing claims via Post-Conviction Rule 1 in 2005, he would probably have discovered much sooner that he needed to seek a belated appeal,” Goff wrote, referencing the year when Leshore abandoned his initial PCR petition.

“Because I find that Leshore has not demonstrated diligence in pursuing an appeal, I respectfully dissent,” Goff concluded.

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March 7

Town of Linden, Indiana, et al. v. Darrell Birge and Sandra Birge

22S-PL-352

IN justices vacate, remand trial court’s ruling in Montgomery Co. flooding case

The Indiana Supreme Court has vacated a trial court’s order finding that improvements to a drain caused repeated flooding to a Montgomery County couple’s farmland, ruling the trial court left one question unresolved.

The court remanded the case to the Montgomery Circuit Court for further factual findings and for a final determination of damages, if any.

Darrell and Sandra Birge sued the town of Linden and the Montgomery County commissioners, along with the drainage board and surveyor, in 2014 after improvements were completed to an existing regulated drain to alleviate flooding issues in Linden and the surrounding areas. Part of the drain runs through a preexisting drainage easement on the Birges’ property, which they use for farming.

The Birges claimed that once the drain was improved in 2012, they began to notice water ponding on the lower-
lying areas of the property after any significant rainfall.

Because the flooding made it hard to farm those parts of their property, the Birges refused to pay a $7,679.23 assessment levied against them by the drainage board.

The Birges filed an action for inverse condemnation, but the town was granted a motion to dismiss on the premise that it was immune from liability under the Indiana Tort Claims Act. The Court of Appeals of Indiana reversed the granted motion in 2016.

On remand, the trial court denied the defendants’ motion for summary judgment. It ultimately issued a judgment and order finding the improvements to the drain had caused repeated flooding on the Birges’ property.

But the Court of Appeals reversed again in April 2022, this time finding the evidence did not indicate that there had been a permanent physical invasion.

After a petition for rehearing was denied, a petition to transfer was filed in July, and the Supreme Court granted transfer in October.

The Supreme Court considered two arguments from the Birges.

First, they argued that the trial court properly determined the city’s actions resulted in permanent physical invasion and that the Court of Appeals misconstrued applicable federal precedent by concluding the flooding amounted only to a temporary physical invasion. They also argued the Court of Appeals improperly expanded the defendants’ statutory immunity from a takings claim by limiting the flooding’s impact to those portions of the property lying beyond the drainage easement.

The Supreme Court agreed with the Birges in both cases.

Taking up first the issue of permanent versus temporary physical invasion, the court found the flooding amounted to a “permanent condition” because it was repetitive and of indefinite duration. It cited Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021).

“Indeed, so long as the Property sustains ‘heavy rainfall’ (or unless and until the County takes the necessary corrective measures), the flooding will persist indefinitely,” the opinion reads. “This type of physical appropriation reflects the ‘clearest sort of taking,’ which we assess by ‘using a simple, per se rule: The government must pay for what it takes.’”

The Supreme Court also noted a taking occurs only when the damage is substantial, which the opinion says is a question for the factfinder. The trial court found only that the flooding rendered farming on the property more difficult.

The Supreme Court remanded for further development of the trial court’s factual findings to support its determination on whether the flooding amounted to a permanent physical invasion.

On the issue of the county’s statutory immunity, the court found the right of entry under Indiana Code § 36-9-27-33 does not exempt the county from liability for a takings claim.

The law in question gives to a county a “right of entry over and upon land” lying within 75 feet of a regulated drain, and it exempts a county from liability for any necessary drain “reconstruction or maintenance” that results in damage to crops grown within that right-of-way.

But the court noted counties still have a responsibility to “use due care to avoid damage” to crops in the right-of-way. The court also noted the statute applies to “incidental” intrusions that are “minimal and infrequent,” but the “complete destruction of crops from intermittent yet inevitably recurring” flooding doesn’t allow the farmer to use the land in a manner consistent with drainage law.

“Interpreting the statute as immunizing the county from liability for any loss occurring within the easement would deprive the Birges of their right to farm the land and to realize its fullest economic potential,” the opinion reads.

Justice Christopher Goff wrote the opinion, in which Chief Justice Loretta Rush and Justices Mark Massa, Geoffrey Slaughter and Derek Molter concurred.

The case is Town of Linden, Indiana, et al. v. Darrell Birge and Sandra Birge, 22S-PL-352.

Court of Appeals of Indiana

Feb. 23

Timothy Stark v. State of Indiana

21A-PL-805

Owner of defunct Charlestown zoo featured in ‘Tiger King’ loses liability appeal

The owner of a now-defunct southern Indiana roadside zoo featured in Netflix’s “Tiger King” is liable for the funds he misappropriated from the zoo’s underlying nonprofit, the Court of Appeals of Indiana has affirmed.

The zoo’s owner, Timothy Stark, opened Wildlife in Need and Wildlife in Deed Inc. — also known as WIN — in 1999 with his ex-wife, Melisa Lane. By the time the instant case was filed in February 2020, the facility was home to nearly 300 animals including lions, tigers, bears, dogs, hyenas, monkeys and hybrid animals, among other species.

Perhaps the best known attraction at WIN was its Tiger Baby Playtime program, which allowed visitors to interact with tiger cubs who had been declawed and separated from their mothers.

While Stark had an animal exhibitor license through the United States Department of Agriculture, WIN did not. Although WIN was a nonprofit, its board rarely held formal meetings, did not take notes of meetings that did occur, and did not prepare or review budgets or financial statements.

The zoo was housed on property owned by Stark and Lane, who lived in a residence on the property. WIN didn’t have a formal agreement to lease the property, but it did pay for improvements needed to house the animals. The nonprofit also paid taxes and utility bills for the entire property, including the personal residence, and it frequently paid Stark’s personal credit card bills.

The zoo started bringing in more than $1 million in annual revenue in 2016 when it began advertising Tiger Baby Playtime. But the following year, animal-rights group People for the Ethical Treatment of Animals sued Stark and WIN in federal court over the tiger cub program, which was shut down in 2018.

Stark left Indiana in 2019 to try to form a new zoo in Oklahoma, but after a “falling out” with his partner, Jeff Lowe, he returned to the Hoosier State. Both Stark and Lowe were featured in the hit Netflix documentary “Tiger King: Murder, Mayhem and Madness” in 2020, as well as the 2021 sequel, “Tiger King 2.”

In February 2020, a USDA administrative law judge revoked Stark’s animal exhibitor license due to more than 100 violations of animal welfare regulations. The ALJ also assessed penalties against both Stark and WIN. That same month, the Indiana Attorney General’s Office filed the instant lawsuit in state court seeking to dissolve WIN, remove Stark and Lane from their director and officer positions, and require them to return misappropriated funds.

The complaint alleged, among other things, that Stark had discharged his duties as a director in bad faith, without reasonable care and not in the best interests of the corporation.

The Marion Superior Court entered an injunction to prevent the removal of any of the animals from the property, then named the Indianapolis Zoological Society as the receiver to remove the animals. The trial court subsequently found Stark and WIN in contempt after $100,000 worth of animals were removed from the Charlestown property before the Indy Zoo could take custody of them.

The court also issued a writ of body attachment for Stark, who absconded. He was arrested three weeks later in upstate New York.

Meanwhile, WIN was dissolved and the trial court entered default judgment against the nonprofit in November 2020.

Lane was eventually dismissed from the proceedings, but the trial court entered judgment against Stark in April 2021, permanently enjoining him from “acquiring, owning, and exhibiting any exotic or native animals.” He was also ordered to “return to WIN all funds and assets misappropriated from WIN in an amount and inventory” determined by the corporate receiver.

Appealing that order, Stark, proceeding pro se, argued the trial court erred in granting summary judgment.

But the Court of Appeals noted the lower court did not, in fact, enter summary judgment; rather, it issued findings of fact and conclusions on those findings after an evidentiary hearing.

Thus, the summary judgment argument was waived. But waiver notwithstanding, the COA reviewed the trial court’s findings and conclusions and ultimately upheld them.

“The trial court found that Stark was personally liable under three theories: (1) Stark breached his fiduciary duties to a nonprofit corporation and is liable under Indiana Code Section 23-17-13-1; (2) Stark breached his fiduciary duties to a nonprofit corporation by making unlawful distributions to himself in violation of Indiana Code Section 23-17-13-4; and (3) piercing of the corporate veil was appropriate under the circumstances,” Judge Elizabeth Tavitas wrote in Timothy Stark v. State of Indiana, 21A-PL-805. “… We hold that the trial court’s conclusions are not clearly erroneous under any of the three theories.”

Among other things, the COA pointed to a statement Stark made to support its ruling: “(F)or the last 21 years,” he testified, “I am Wildlife in Need.”

“Stark routinely used WIN to pay his personal obligations, took WIN assets, and commingled WIN assets with his own,” Tavitas wrote. “With Stark as president, WIN failed to maintain proper corporate records and failed to observe the required corporate formalities.

“… The trial court’s conclusion that Stark is personally liable for funds and assets misappropriated from WIN is not clearly erroneous,” she concluded.

Marjorie K. Fox, Stephanie Heggemeier, James Kahrhoff, and Nancy Owens v. Franciscan Alliance, Inc. d/b/a/ Franciscan Health – Indianapolis

22A-CT-2114

Franciscan Health prevails in challenge to summary judgment after patient files improperly accessed

The Court of Appeals of Indiana has affirmed a Marion Superior Court’s decision to grant summary judgment to Franciscan Health – Indianapolis in a dispute involving the plaintiffs’ medical records.

Judge Elizabeth Tavitas wrote the opinion in Marjorie K. Fox, Stephanie Heggemeier, James Kahrhoff, and Nancy Owens v. Franciscan Alliance Inc. d/b/a/Franciscan Health – Indianapolis, 22A-CT-2114. Chief Judge Robert Altice and Judge Elaine Brown concurred.

The dispute traces back to June 2018, when a man named Tad Brewer received harassing emails from his ex-wife, Laura Vardaman. At the time, Vardaman worked for Franciscan as a scheduling assistant and had access to patient records as part of her job.

After receiving the harassing emails, Brewer suspected Vardaman had accessed the records of his then-girlfriend, Stephanie Heggemeier. Brewer reported his suspicions to Franciscan as well as to some of his friends and family members.

Franciscan discovered that Vardaman had improperly accessed Heggemeier’s medical records four times between 2016 and 2017. Franciscan also found that Vardaman had improperly accessed the records of Brewer’s mother, Marjorie Fox; Brewer’s sister, Nancy Owens; and Heggemeier’s ex-husband, James Kahrhoff.

Franciscan then terminated Vardaman’s employment.

Fox, Heggemeier, Kahrhoff and Owens filed suit against Franciscan in October 2018. The plaintiffs also filed a complaint before the Indiana Department of Insurance that month.

The plaintiffs’ complaint included claims of negligence, invasion of privacy via intrusion, invasion of privacy via public disclosure of private facts and intentional infliction of emotional distress.

Franciscan filed a motion for summary judgment in November 2020, but the trial court stayed those proceedings pending a decision in an Indiana Supreme Court case, Community Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022). That case also involved a dispute involving a hospital system employee who had improperly accessed patient records, prompting those patients to sue.

In Community Health, the Supreme Court ruled that Community was entitled to summary judgment on the plaintiffs’ negligence claims.

Based on that ruling, the Marion County trial court granted Franciscan’s motion for summary judgment.

Fox and the other Franciscan plaintiffs appealed that decision, arguing the court had erred in granting summary judgment.

But the Court of Appeals disagreed, saying that the trial court had acted properly.

On the count of invasion of privacy via public disclosure of private facts, for instance, the Court of Appeals agreed with the trial court’s ruling that Vardaman’s conduct failed to meet the legal standard of public disclosure.

“The designated evidence fails to demonstrate that Vardaman communicated the information in a way that either reached or was sure to reach the public in general or a large enough number of persons such that the matter was sure to become public knowledge,” Tavitas wrote.

The plaintiffs also argued the trial court abused its discretion during the discovery process, allowing “‘one of the most egregious patterns of discovery obstructionism ever witnessed by’ Plaintiffs’ counsel.”

The COA disagreed, writing that the plaintiffs “have failed to demonstrate any prejudice related to the trial court’s rulings during the discovery process.”

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Feb. 28

Grace O. Akinlemibola v. National Collegiate Student Loan Trust, 2007-1

21A-CC-2928

Student loan breach of contract ruling affirmed at COA

A student loan recipient sued for breach of contract has failed in her efforts to overturn summary judgment for the loan holder at the Court of Appeals of Indiana.

In December 2006, Grace Akinlemibola applied for and received student loan funding from JP Morgan Chase Bank. The loan was later sold and transferred twice, ending up at National Collegiate Student Loan Trust 2007.

Before the instant case began, Akinlemibola filed an action in federal court against American Education Services regarding the loan. The U.S. District Court for the Northern District of Illinois dismissed the complaint for failure to state a claim, and the 7th Circuit Court of Appeals affirmed.

Then in 2020, the trust filed the instant breach of contract action in state court against Akinlemibola for $11,358.01 plus $1,344.13 in interest. She responded with a counterclaim asserting violations of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act, fraudulent misrepresentation and defamation.

NCSLT moved for summary judgment, which the Hendricks Superior Court granted on all of Akinlemibola’s counterclaims.

Akinlemibola appealed, arguing clear error. Specifically, she said the trial court abused its discretion in the admission and exclusion of evidence, and erred by entering summary judgment for the trust.

The COA disagreed on both issues.

“… (W)e conclude the trial court properly admitted (Anna) Kimbrough’s affidavit and excluded Akinlemibola’s untimely submissions,” Senior Judge Randall Shepard wrote. “Further, as Akinlemibola failed to establish a genuine issue of material fact regarding NCSLT’s ownership of Akinlemibola’s educational loan, NCSLT was entitled to summary judgment as a matter of law, and the trial court properly entered judgment in its favor.”

The case is Grace O. Akinlemibola v. National Collegiate Student Loan Trust 2007-1, 21A-CC-2928.

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March 3

Darin M. Haberkorn v. State of Indiana

22A-CR-2150

Man’s calls, messages to city employees amounted to unprotected ‘true threats’

A man who repeatedly called and messaged Fort Wayne city employees about parking enforcement made true threats not protected by the First Amendment, the Court of Appeals of Indiana has ruled.

In January 2022, the Fort Wayne Clerk’s Office received a complaint about a car with a flat tire parked on a street in front of Darin Haberkorn’s house. City ordinance prohibits leaving inoperable cars on city streets for more than 24 hours.

Haberkorn used the car, but it was registered to his mother.

A city parking enforcement officer put a red tag on the car and chalked its tires, alerting the owner that the car had to be moved or would be towed within 72 hours. The car was tagged Jan. 19, ticketed the next day and eventually towed.

On the day the car was tagged, Haberkorn called the clerk’s office to complain, and he made more calls over the next several days. The Court of Appeals described Haberkorn as “extremely angry and rude” on the calls.

“He would interrupt them so that they were unable to answer questions, and he refused to give them the necessary information so that they could address his complaints,” the opinion reads.

In one call, Haberkorn warned the deputy city clerk that she “had better understand that there are consequences” for what had been done to him. When she asked him to stop threatening her and informed him that she perceived his tone as threatening, he replied, “I don’t give a f–k,” and asked her “whose mom” she was.

In a call to another staffer, Haberkorn yelled, “(Y)ou don’t think I can find out who the f–k you are,” and called her a “dumb c–t.”

Haberkorn left a voicemail for the city clerk, Lana Keesling, stating that he was being told by the prosecutor’s office that he was not allowed to go to that office and asking Keesling, “What other course of action do I have?” He then warned Keesling that she should “start thinking about what (she was) doing.”

Haberkorn also posted on Facebook about Keesling, tagging her, and messaged her friends looking for personal information about her. In one message, he said he was going “have her a– in the morning.”

In August 2022, a jury in the Allen Superior Court found Haberkorn guilty of one count of Class B misdemeanor harassment. He was sentenced to a 180-day fully suspended sentence, with 60 days to be served on home detention. He was also fined $100 and ordered to abide by five no-contact orders.

On appeal, Haberkorn challenged the sufficiency of the evidence to support his harassment conviction, claiming his communications were “legitimate communications protected by the First Amendment’s Free Speech Clause.”

The Court of Appeals disagreed, finding Haberkorn’s communications included “true threats,” which aren’t protected by the First Amendment.

“Each time he called, Haberkorn refused to give any information to staffers or communicate such that they could help him with his parking issue,” the opinion reads. “Instead, he simply repeatedly berated and threatened staffers with some sort of retaliation for how he believed he had been wronged.”

Haberkorn argued his communications amounted to “inelegant expression(s) of frustration,” but the Court of Appeals said it had “very little difficulty” concluding that he intended to put his targets in fear for their safety, and that the communications were likely to actually cause such fear in reasonable persons similarly situated.

Haberkorn also argued the trial court committed fundamental error in instructing the jury. He specifically cited an instruction dealing with the legal definition of harassment, saying it would be “at best irrelevant” to the crime of harassment because the definition was pulled verbatim from an Indiana law regarding stalking.

The Court of Appeals disagreed there, too, finding the jury was “thoroughly and adequately instructed” on the elements of the crime of harassment as charged pursuant to Indiana Code § 35-45-2-2.

“Moreover, as noted by the State, the challenged instruction did not purport to define the crime of harassment or its elements, including intent, that the State bore the burden to prove,” the opinion reads. “It simply provided some meaning and context to what type of conduct is considered to be harassing under Indiana law.”

Presiding Judge Terry Cone wrote the opinion. Judges Margret Robb and Dana Kenworthy concurred.

The case is Darin M. Haberkorn v. State of India