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Date: 05-15-2021
Case Style:
Johanna McGhehey v. State of Indiana
Case Number: 20A-CR-01988
Judge: L. Mark Bailey
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney Genera
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Johanna McGhehey with appealing her conviction of harassment charge
Between September 7 and September 28 of 2018, McGhehey made a series of
telephone calls, including voicemail messages, to Eric Elmore (“Elmore”).
Elmore is the CEO of Fatheads, Inc., an Indianapolis company for which
McGhehey’s husband, Richard Werkley (“Werkley”), worked until sometime
1
Ind. Code § 35-45-2-2(a)(1).Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 3 of 15
in 2018. In McGhehey’s initial telephone calls to Elmore, she inquired as to the
whereabouts of Werkley, who had recently left the family residence and ceased
communication with McGhehey. McGhehey was very upset during the phone
calls she made to Elmore. Elmore informed McGhehey several times that he
had no knowledge of Werkley’s whereabouts, and Elmore asked McGhehey to
stop calling him. McGhehey continued to call Elmore and became “more
aggressive,” “going after [Elmore] with personal attacks.” Tr. at 11, 12.
Therefore, Elmore blocked McGhehey’s telephone number. However,
McGhehey continued to call Elmore from other telephone numbers and leave
voicemail messages for him.
[5] On October 1, 2018, the State charged McGhehey with one count of
harassment, a Class B misdemeanor. At the October 19 bench trial, the court
admitted, over McGhehey’s objections, State’s Exhibit 2 which consisted of
audio recordings of seven voicemail messages McGhehey left for Elmore on his
telephone between September 7 and September 28. Each voicemail message
contained profanity and insults to Elmore, delivered in angry tones. In the first
voicemail message, McGhehey complained, in crude terms, about her husband
and asked Elmore (who McGhehey refers to as “Jabba”) to give her husband
her message. State’s Ex. 2, voicemail 1447-090718(2). In the second voicemail
message, McGhehey called Elmore various vulgar and/or profane names and
insinuated, in crude terms, that Elmore was engaged in a sexual relationship
with her husband. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 4 of 15
[6] In the third voicemail message, McGhehey again called Elmore various crude
names, using profane terms. She also stated that “this is not the end of this,”
and she was going to put an ad in a newspaper about “that heroin addict.” Id.,
voicemail 1467-091318. She continued, “Revenge is best served cold in Jesus’s
name. I will be calling Walmart, your distributor, and shooting them an e-mail
and letting them know the dirty business practices you’re doing and I have a lot
of dirt on you, Mr. Elmore. And all you gotta do is be decent to me.” Id.
McGhehey further stated that Elmore was “gonna get served, and that’s not a
threat, nor is it a promise, that’s just the way of life.” Id. McGhehey also said
she was going to get her child back and she might lose her dog and cat.
McGhehey told Elmore about her family background and stated that she
“[came] from money.” Id.
[7] The fourth voicemail message began, “It’s a good thing I’m not scared of jail.
You know what, it’s not over between you and I personally, Mr. Elmore.” Id.,
voicemail 1485-092118. McGhehey accused Elmore of having an affair and
stated three more times, “It’s not over.” Id. McGhehey continued, “You’re full
of shit. It’s on. And I’m not gonna stop until this man—oh, it’s disgusting….”
Id. At random points throughout the voicemail message, McGhehey also
mentioned that: she wanted pictures of her children that Elmore had on his
phone, she lost her children to “CPS” (i.e., Child Protective Services), she lost
her cat and dog, her husband was at Elmore’s “beck and call,” she was going to
have a garage sale, she had not seen her husband since September 3, she had Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 5 of 15
gone to jail twice, she was “in the court system” now, and she only cared about
getting her children “out of CPS.” Id.
[8] In the fifth voicemail message, McGhehey addressed Elmore as “Jaba,” and
discussed paying Elmore for Werkley’s car. Id., voicemail 1487-092118(2).
[9] In the sixth voicemail message, McGhehey stated that she had Elmore’s drill
and asked who needed to pick it up. She also stated, “This is not going to go
away. By the way, I had a good conversation with the Speedway police
department. I’m getting a hold of your wife, bitch.” Id., voicemail 1490-
092118. McGhehey further stated in angry tones, “I’m about to knock on your
door, bro. Maybe I should just freaking go to your fucking house off of Kessler
and knock on your door. I think I should do that, you fucking Jabba fat-ass…”
Id.
[10] In the seventh voicemail message, McGhehey accused Elmore of “fucking with
[her] family,” and stated that the police were going to come to Elmore’s home.
She further stated, “It’s not gonna go away from you, bitch…. Put a restraining
order on me, bitch….I’m gonna handle this. I’m not gonna vandalize your
property,” then laughs. Id., at voicemail 091318 or 091418(2).
2
McGhehey
then identified herself by name and ended with more insults to Elmore.
2
State’s Exhibit 2 contains the alternative numbering for the seventh voicemail message, without
explanation.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 6 of 15
[11] The trial court admitted, over the State’s objection, McGhehey’s Defense
Exhibit A, which was a recording of the June 10, 2019, deposition of Captain
James Dierdorff (“Officer Dierdorff”) of the Speedway Police Department. In
his recorded deposition statement, Dierdorff indicated that he listened to the
voicemail messages McGhehey sent to Elmore. Dierdorff stated that
McGhehey’s “main focus” in the voicemail messages was her marital problems,
but the messages also contained “a lot of profanity.” Id. Dierdorff also stated
that “there were some threats made” on the messages to discredit Elmore’s
business. Id.
[12] McGhehey also testified on her own behalf. She stated, “I’m Bipolar,” and
further testified that her “main intent” in her telephone calls to Elmore was to
find her husband. Tr. at 41.
[13] The trial court found McGhehey guilty as charged. In so finding, the court
stated in relevant part:
There’s the phrase “with no intent of legitimate communication”
and having heard these calls, I — I understand your argument
Ms. Knipp, and I’ve listened very carefully to Ms. McGhehey’s
testimony, but the calls themselves, the nature of the calls, the,
uh — it just does not appear to be any intent of legitimate
communication in — in those calls. Both in the manner of
speaking, the words chosen and the things that are said; I’m not
gonna stop, the threatening nature of it. I do take very seriously
your argument regarding infringing on anyone’s rights, First
Amendment Rights, but the Court does believe that the State has
proven its case….Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 7 of 15
Id. at 49. The trial court sentenced McGhehey to 180 days’ incarceration with
176 days suspended and no probation. This appeal ensued.
Discussion and Decision
[14] McGhehey challenges the sufficiency of the evidence to prove she lacked an
intent to legitimately communicate with Elmore and alleges that the speech
contained in the voicemail messages she left was constitutionally protected by
both the federal and state constitutions.
We approach a typical sufficiency challenge with “great
deference” to the fact-finder. Brewington v. State, 7 N.E.3d 946,
955 (Ind. 2014). That is, “[w]e neither reweigh evidence nor
judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210
(Ind. 2016). Moreover, we view the “evidence and reasonable
inferences drawn therefrom in a light most favorable to the
conviction and will affirm ‘if there is substantial evidence of
probative value supporting each element of the crime from which
a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.’” Walker v. State, 998 N.E.2d 724,
726 (Ind. 2013) (quoting Davis v. State, 813 N.E.2d 1176, 1178
(Ind. 2004)). However, to the extent the … appellate issues
implicate principles of freedom of speech, the Indiana Supreme
Court has held that “[d]eferential review ... creates an
unacceptable risk of under-protecting speech.” Brewington, 7
N.E.3d at 955. Indeed, because of the importance of protecting
free public discourse, we have a “constitutional duty,” id., to
independently examine the record “to assure ourselves that the
judgment does not constitute a forbidden intrusion on the field of
free expression,” Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712
N.E.2d 446, 455 (Ind. 1999) (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). This
rule of independent review—conducted de novo—“assigns to Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 8 of 15
judges a constitutional responsibility that cannot be delegated to
the trier of fact,” no matter whether the trier of fact is a judge or a
jury. Brewington, 7 N.E.3d at 955 (quoting Bandido’s, 712 N.E.2d
at 455). The de novo approach has been applied to claims under
the First Amendment, see id., and we see no reason it would not
apply to claims under Article 1, Section 9.
McGuire v. State, 132 N.E.3d 438, 442-43 (Ind. Ct. App. 2019), trans. denied.
Sufficiency of the Evidence
[15] McGhehey alleges there was insufficient evidence to prove she harassed
Elmore. To prove harassment beyond a reasonable doubt, the State was
required to provide evidence that McGhehey’s telephone call(s) to Elmore were
made with the intent to harass, annoy, or alarm him and with no intent of
legitimate communication. I.C. § 35-45-2-2(a)(1). Whether comments are
made with intent to harass, annoy, or alarm must be determined using an
objective standard; that is, a consideration of whether the statements would
harass, annoy, or alarm a “reasonable person.” Leuteritz v. State, 534 N.E.2d
265, 267 (Ind. Ct. App. 1989). A trial court finding that there was no intent of
legitimate communication “is a factual determination which will be disturbed
only upon a showing [that] no substantial evidence of probative value exists
from which the trier of fact could reasonably infer the defendant was guilty
beyond a reasonabl[e] doubt.” Brehm v. State, 558 N.E.2d 906, 908 (Ind. Ct.
App. 1990).
[16] McGhehey’s second voicemail message to Elmore does not contain any of the
communications McGhehey alleges show an intent to legitimately Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 9 of 15
communicate; in that message she does not discuss looking for her husband,
paying off her husband’s car loan, or returning Elmore’s drill. Rather, in an
angry and aggressive tone, McGhehey calls Elmore multiple crude and/or
profane names and ends by stating that Elmore should tell her husband that “he
can shove a penis up his ass,” followed by the question, “Are you the giver or
receiver in that relationship.” State’s Ex. 2, voicemail 1447-090718(2). A
reasonable person would feel harassed, annoyed, or alarmed by such
statements. Thus, the evidence of the second voicemail message alone was
sufficient to prove McGhehey committed harassment; i.e., that she intended to
harass, annoy, or alarm Elmore with no intent of legitimate communication.
I.C. § 35-45-2-2(a)(1).
[17] Evidence of additional voicemail messages provided additional proof of
harassment, including threats. For example, in the third voicemail message,
McGhehey noted that “revenge is best served cold” and then threatened to call
Elmore’s distributor and disparage Elmore’s business unless Elmore was
“decent” to her. State’s Ex. 2, voicemail 1467-091318. In the fourth voicemail
message, McGhehey repeatedly stated that “it’s not over” between her and
Elmore, and she also stated that she was “not gonna stop until” some
undisclosed “man” did some undisclosed thing. State’s Ex. 2, voicemail 1485-
092118. In the sixth voicemail message, McGhehey similarly stated, “This is
not going to go away, bitch” and threatened that she was “getting a hold of
[Elmore’s] wife” and would go to Elmore’s house. Id., voicemail 1490-092118.
And in the seventh voicemail to Elmore, McGhehey again stated, “It’s not Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 10 of 15
gonna go away from you, bitch,” and then said she was “gonna handle this.”
Id., voicemail 091318 or 091418(2). A reasonable person would consider these
to be harassing and/or threatening statements. And McGhehey’s additional,
random comments about topics such as her missing husband, the loss of her
children and pets, and returning a drill do not convert her harassing and
threatening statements into attempts at legitimate communication. See McGuire,
132 N.E.3d at 445 (holding threatening speech showed lack of intent to engage
in legitimate communication despite being accompanied by some political
expression).
[18] Through testimony and exhibits, the State provided sufficient evidence that
McGhehey made a telephone call to Elmore with the intent to harass, annoy, or
alarm him and with no intent of legitimate communication. McGhehey’s
contention to the contrary is a request that we reweigh the evidence and judge
witness credibility, which we cannot do. Gibson, 51 N.E.3d at 210.
Free Speech
[19] McGhehey asserts that the harassment statute, as applied to her, is
unconstitutional under the federal and state constitutions because it proscribes
her legitimate communication. As we noted in McGuire, the issue of intent to
engage in legitimate communication under the statute collapses into the
constitutional free speech challenge 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 Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 11 of 15
protected legitimate communications.’” McGuire, 132 N.E.3d at 444 (quoting
Kinney v. State, 404 N.E.2d 49, 51 (Ind. Ct. App. 1980)).
[20] As an initial matter, the State contends that McGhehey has waived her free
speech claim by failing to raise it in a motion to dismiss prior to trial under
Indiana Code Sections 35-34-1-4 and -6. Generally, failure to file a proper
motion to dismiss raising a constitutional challenge to a criminal statute waives
the issue on appeal. E.g., Coleman v. State, 149 N.E.3d 313, 318 (Ind. Ct. App.
2020), trans. denied. However, the “‘appellate courts are not prohibited from
considering the constitutionality of a statute even though the issue otherwise
has been waived[,] [a]nd indeed a reviewing court may exercise its discretion to
review a constitutional claim on its own accord.’” Id. (quoting Plank v. Cmty.
Hosps. of Ind., Inc., 981 N.E.2d 49, 53-54 (Ind. 2013)). Although McGhehey
failed to raise the issue of free speech in a motion to dismiss prior to trial, we
exercise our discretion to review her constitutional claim. Id.
First Amendment to United States Constitution
[21] The harassment statute regulates speech, which is protected under the First
Amendment.3
McGuire, 132 N.E.3d at 442. To determine the proper standard
for evaluating the harassment statute under the First Amendment, we must
determine (1) whether the statute is content-neutral, and (2) what type of forum
3
The First Amendment states, in relevant part: “Congress shall make no law … abridging the freedom of
speech …”. U.S. Const. amend. I. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 12 of 15
is involved. State v. Econ. Freedom Fund, 959 N.E.2d 794, 801 (Ind. 2011).
“[T]he government may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions are justified without
reference to the content of the regulated speech.” Id. at 801-02. A restriction
on speech that is unrelated to the content of expression is deemed neutral,
“even if it has an incidental effect on some speakers or messages but not
others.” Price v. State, 622 N.E.2d 954, 965 (Ind. 1993). In addition, the
standards used to evaluate restrictions on speech “differ depending on the
character of the property at issue.” Econ. Freedom Fund, 959 N.E.2d at 802
(quoting Frisby v. Schultz, 487 U.S. 474, 479 (1988)).
[22] The harassment statute is content-neutral because it only applies to an intent to
engage in speech rather than applying to the content of the speech itself, and it
does not apply to an intent to legitimately communicate. Stone v. State, 128
N.E.3d 475, 482 (Ind. Ct. App. 2019), trans. denied. Moreover, “the telephone
system is neither a public property nonpublic forum, nor a limited public forum,
but a private channel of communication.” Econ. Freedom Fund, 959 N.E.2d at
802 (quotation and citation omitted). Because the statute is content-neutral and
applies to speech made through private channels to reach private persons, the
appropriate test for determining whether its restrictions violate the First
Amendment is “whether it is narrowly tailored to serve a significant
governmental interest while leaving open ample alternative channels for
communication of the information.” Id. (citing Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)).Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 13 of 15
[23] Subsection (a)(1) of Indiana Code Section 35-45-2-2 is narrowly tailored to
serve the significant governmental interest of protecting “the privacy,
tranquility, and efficiency of telephone customers.” Econ. Freedom Fund, 959
N.E.2d at 802 (holding the same regarding the “Autodialer Law”); see also
Stone, 128 N.E.3d at 482 (holding there is a substantial public interest in
protecting people from telephone harassment).
[I]t is well established that the protection of residential privacy is
a significant governmental interest. See, e.g., Frisby, 487 U.S. at
484, 108 S. Ct. 2495. The United States Supreme Court has
“repeatedly held that individuals are not required to welcome
unwanted speech into their own homes and that the government
may protect this freedom.” Id. at 485, 108 S. Ct. 2495.
Econ. Freedom Fund, 959 N.E.2d at 802. Moreover, the harassment statute does
not apply to speech that is intended to legitimately communicate with another.
Therefore, it is narrowly tailored to serve its legitimate purpose, and it leaves
open ample alternative forms of communication, e.g., telephone calls intended
to legitimately communicate.
[24] In addition, there are certain categories of speech that are simply not protected
by the First Amendment. McGuire, 132 N.E.3d at 444. True threats are one
such category. Id. (citing Virginia v. Black, 538 U.S. 343, 359 (2003)). A “true
threat” is one where “‘the speaker intend[s] his communications to put his
targets in fear for their safety, and the communications were likely to actually
cause such fear in a reasonable person similarly situated to the target.’” Id.
(quoting Brewington, 7 N.E.3d at 964). The First Amendment “does not permit Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 14 of 15
threats against the safety and security of any American, even public officials,
regardless of whether those threats are accompanied by some protected
criticism.” Brewington, 7 N.E.3d at 963.
[25] Here, as we discussed above, McGhehey’s voicemail messages to Elmore did
not show an intent to legitimately communicate with him but rather to harass,
annoy, or alarm him with profane slurs. And it is likely that a reasonable
person in Elmore’s place would feel harassed, annoyed, or alarmed by the
messages. Moreover, McGhehey’s speech contained true threats, which are not
protected by the First Amendment at all; e.g., threatening to “get[] ahold of
[Elmore’s] wife” and go to his house. State’s Ex. 2, voicemail 1490-092118.
Therefore, the harassment statute does not violate the First Amendment either
on its face or as applied to McGhehey.
Article 1, Section 9, of Indiana Constitution
[26] Article 1, Section 9, of the Indiana Constitution4 also protects speech, with a
focus on protecting political speech. McGuire, 132 N.E.3d at 442. In a
challenge under Article 1, Section 9, we employ a two-step inquiry: first we
determine whether the state action has restricted expressive activity and,
second, we determine whether the restricted activity constituted an abuse of the
right to speak. Id. at 444 (quoting Whittington v. State, 669 N.E.2d 1363, 1367
4 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 responsible.” Ind. Const. art. 1, § 9.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1988 | May 14, 2021 Page 15 of 15
(Ind. 1996)). As to the second inquiry, if the expressive activity is not
unambiguously political, we review it under a rational basis standard. That is,
“we ‘determin[e] whether the state could reasonably have concluded that [the]
expressive activity ... was an ‘abuse’ of the right to speak or was, in other
words, a threat to peace, safety, and well-being.’” Id. at 445 (quoting
Whittington, 669 N.E.2d at 1371).
[27] As discussed above, the harassment statute clearly restricts expressive activity.
However, McGhehey’s expressive activity constituted an abuse of the right to
speak in that it was not intended to be political speech or other legitimate
communication, and it was a threat to the peace, safety, and well-being of
another. Id. Therefore, that expressive activity could be regulated “without
running afoul of Article 1, Section 9.” Id.
Outcome: The State provided sufficient evidence that McGhehey made a telephone call to
Elmore with the intent to harass, annoy, or alarm him and with no intent of
legitimate communication, and thereby committed harassment, a Class B
misdemeanor. Moreover, because the conviction concerned proscribable
speech, it did not run afoul of the federal or state rights to free speech.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: