Ex-county official’s conviction reversed

By Brian M. Boyce
The Tribune-Star

TERRE HAUTE July 16, 2008 10:51 pm

— The stalking conviction of a former county official was reversed by the Indiana Court of Appeals Tuesday, and his defense attorney said new legal ground was broken in the case.
“Sadly, here’s an innocent man that’s basically already served his entire punishment,” remarked defense attorney John A. Kesler II on Wednesday afternoon, noting that the home detention aspect of Donald D. VanHorn’s sentence was completed by the time the appeals process concluded.
In an opinion filed by the Court of Appeals of Indiana on Tuesday, the court reversed the class-D felony conviction of stalking found against VanHorn in the Vigo County Superior Court of Judge Barbara Brugnaux on Aug. 17, 2007 based on insufficient evidence.
Joseph Etling, VanHorn’s defense attorney in the original case, said “…the Court of Appeals decision reaffirms our position from the date that the charge was filed,” noting that the issue of insufficient evidence has been raised throughout the nearly year-long process.
VanHorn, formerly a deputy director of the Vigo County Emergency Management Agency, was accused of stalking Terre Haute resident Robert Franks for parking his vehicle across the street from Franks’ home, watching through binoculars and taking photographs.
VanHorn worked for Vigo County from 1991 until his resignation in August of 2006 after being arrested that December on a warrant for intimidation and again in February for the stalking charge involving Franks.
The EMA office was closed for an inventory July 31 of 2006 as weapons and alcohol of undetermined ownership were reportedly found in the offices. VanHorn, who had been convicted of a wiretapping charge in 1985, was restricted in his possession of firearms due to that felony.
He was found guilty last August of the stalking charge and sentenced to three years of formal probation, six months of home detention, and three years of the sentence were suspended.
According to the appeals court, for the state to have established VanHorn’s stalking, it would have had to prove beyond reasonable doubt that he “knowingly or intentionally engaged in a course of conduct involving repeated or continuing harassment of the victim, that would cause a reasonable person to feel terrorized, frightened, intimidated or threatened, and that actually caused the victim to feel terrorized, frightened, intimidated, or threatened.
“Stalking,” according to the court’s decision, “does not include statutorily or constitutionally protected activity.”
The court’s decision, Kesler said, hinged on the term “impermissible contact,” as VanHorn argued that the “complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions.”
VanHorn contended that at no time did he make telephone calls, leave notes or physically touch Franks’ property.
Kesler said that, from a legal perspective, the issue of “impermissible contact” was a “first impression” for the court appeals in that it had never been raised in a stalking case.
“We had raised a new issue that pertained to that stalking statute,” he said.
According to the court’s opinion, “harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.”
That VanHorn was legally parked in a public street watching Franks’ home on four occasions over a 10- to 15-day period did not constitute “impermissible” behavior, Kesler said, since “it’s in a legal parking spot in broad daylight.”
VanHorn referred all comment on the case to Kesler and Etling.
Kesler described VanHorn as “elated” at the decision, noting that there will in all likelihood be no compensation for the six months spent on home detention.
“There’s no way you can go back and undo that,” he said.
Brian Boyce can be reached at (812) 231-4253 or brian.boyce@tribstar.com.

Copyright © 1999-2008 cnhi, inc.