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
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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.
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[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
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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
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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
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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-
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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
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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
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“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).
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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
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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
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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
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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,
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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.
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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
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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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