MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 12 2018, 8:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Charles A. Benson Jan M. Carroll
Bunker Hill, Indiana Kara Kapke
Barnes & Thornburg LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles A. Benson, July 12, 2018
Appellant-Plaintiff, Court of Appeals Case No.
02A04-1711-CT-2866
v. Appeal from the Allen Superior
Court
WANE-TV 15, Rod Hissong, The Honorable David J. Avery,
Ted Linn, Angelia Robinson and Judge
Adam Widener, Trial Court Cause No.
Appellees-Defendants 02D09-1701-CT-12
Baker, Judge.
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[1] Charles Benson appeals the trial court’s order dismissing his complaint against
Fort Wayne’s WANE-TV 15, as well as its current and former reporters and
editors (collectively, WANE-TV), for defamation. Finding no error, we affirm.
[2] In January 2016, Benson was charged with attempted murder and related
offenses after shooting a Fort Wayne police officer. In the months following
that arrest, WANE-TV produced multiple reports related to the criminal
proceedings. In the reports, the TV station often referenced Benson’s lengthy
criminal history, including a 2014 murder charge. In one 2016 report, WANE-
TV included a 2014 mugshot of Benson. Benson was ultimately found guilty
and found to be an habitual offender; he was sentenced to over sixty-two years
in prison. See Benson v. State, 73 N.E.3d 198 (Ind. Ct. 2017) (affirming Benson’s
convictions in his direct appeal), trans. denied.
[3] On January 9, 2017, Benson filed a complaint against WANE-TV.1 WANE-
TV filed an answer, motion to stay, and motion for judgment on the pleadings
based on the Frivolous Prisoner Claim Statute. 2 In response, Benson filed a
motion to amend his complaint. Following a hearing, on September 18, 2017,
the trial court issued an order granting judgment in favor of WANE-TV and
denying Benson’s motion to amend his complaint. Benson now appeals.
1
A separate opinion related to Benson’s lawsuit against a Fort Wayne newspaper on similar grounds is
available at Benson v. News-Sentinel, No. 02A03-1711-CT-2865 (Ind. Ct. App. July 12, 2018).
2
Ind. Code § 34-58-1-1 et seq.
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[4] The General Assembly enacted the Frivolous Prisoner Claim Statute “to screen
and prevent abusive and prolific offender litigation in Indiana.” Smith v. Ind.
Dep’t of Corr., 883 N.E.2d 802, 804 (Ind. 2008). The statute requires trial courts
to screen complaints filed by offenders as soon as such complaints are received.3
The trial court must determine whether the offender’s claim is frivolous, is a
claim upon which no relief may be granted, or is a claim that seeks monetary
relief from a defendant who is immune. I.C. § 34-58-1-2. A claim is frivolous
if, among other things, it lacks an arguable basis in law or fact. Id.
[5] Truth is a complete defense to defamation. E.g., Melton v. Ousley, 925 N.E.2d
430, 437 (Ind. Ct. App. 2010); see also Journal-Gazette Co. v. Bandido’s, Inc., 712
N.E.2d 446, 457 (Ind. 1999) (holding that the plaintiff has the burden to prove
falsity). In this case, the statements complained of by Benson regarding his
criminal history, including a 2014 murder charge, are true. Indeed, Benson
does not argue, nor did he plead, otherwise. See Bandido’s, 712 N.E.2d at 456
(holding that to establish actual malice, which is a required element of
defamation claims, plaintiff must show that statements were false or made with
reckless disregard of whether they were false). He argues that WANE-TV’s use
of a 2014 mugshot was inaccurate and/or misleading, but that does not mean
3
In this case, the trial court candidly acknowledged that it was “unaware of the need to conduct the review”
of Benson’s complaint upon receipt of the pleading. Appellees’ App. Vol. II p. 10. WANE-TV brought the
need for the review to the trial court’s attention, at which time it complied. We see no reason that this delay
should affect the outcome of this case.
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that it was false.4 Benson concedes that it was a picture of him; it just happened
to be a mugshot from two years earlier.
[6] Given that all the statements Benson highlights are true, and that the
photograph was of Benson, we find that WANE-TV properly found refuge in
the defense of truth. As a result, the trial court did not err by finding Benson’s
claims to be frivolous.5
[7] Benson also argues that the trial court should have granted him leave to amend
his complaint. His proposed amended complaint, however, contains additional
arguments but no new factual allegations. The proposed amended complaint
would neither have cured the defects in the original complaint nor have
overcome WANE-TV’s defense of truth. Therefore, any error in this ruling was
harmless.
4
It has never been determined in Indiana whether publication of a photograph of a plaintiff can constitute
defamation. We assume solely for argument’s sake that it can, but leave the underlying question for another
day and a different case.
5
Benson also included claims related to WANE-TV’s 2014 reporting on a prior murder charge, arguing that
the TV station defamed him by including information regarding his criminal history. The trial court found
that these claims are time-barred. Even if they were not time-barred, all the information reported by WANE-
TV was substantially true; therefore, Benson cannot establish defamation and the trial court properly entered
judgment in favor of the TV station on these claims.
The TV station concededly was imprecise with its report that Benson had been convicted in the past of
aggravated battery, rather than felony battery, and escape from prison, rather than violation of home
detention, but this imprecision “‘fits easily within the breathing space that gives life to the First
Amendment,’” as the “gist” or “sting” of the profile of Benson’s criminal history is the same either way.
Bandido’s, 712 N.E.2d at 461 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 513
(1984)). Therefore, Benson is not entitled to relief on this basis.
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[8] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur.
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