dissenting.
In my view, otherwise lawful contact may be “impermissible” and satisfy the “harassment” element of stalking without being defined as such by a protective order or other official means providing notice and an opportunity to be heard. I understand the majority’s reluctance to find apparently “lawful” conduct unlawful, but I am confident that the jury system is an adequate safeguard for preventing unfair convictions for lawful behavior. Indeed, otherwise lawful behavior only constitutes “stalking” if the jury, or factfinder, concludes beyond a reasonable doubt that it would cause a reasonable person to feel terrorized.
Here, under the circumstances, the jury determined that VanHorn’s repeated presence on a public street constituted stalking. As I see it, the majority’s view that the victim must buttress his allegation with documentation that the defendant’s contact was officially “impermissible” is overly burdensome and does not comport with the spirit of the statute. Indiana Code section 35-45 — 10—1, which defines “stalking,” is not overly stringent, requiring only that an individual engage in repeated or continuing harassment of another person which would cause a reasonable person to feel terrorized and does, in fact, cause the other person to feel terrorized. By requiring official proof of “impermissi-bility” to satisfy the harassment component, the majority adds an element of proof which the crime of “stalking,” as defined, does not contain.
I understand that Indiana Code sections 35-45-10-1 and -2 specifically exempt “statutorily or constitutionally protected activity” from “stalking” and “harassment,” but given the statutory examples in section 35-45-10-2, which involve labor disputes, it appears that the focus of the exemption is largely on First Amendment activity. In any event, while an individual may have the constitutionally-protected freedom to stand on a public street, this freedom, as observed by the majority,, requires that he have innocent purposes. Op. at 912 (quoting City of Chicago v. Morales, 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). Of course, inherent in a stalking charge is the allegation that the defendant does not have innocent purposes.
Given my confidence in the factfinder’s ability to discern “stalking” from lawful activity, I would not disturb VanHorn’s conviction.