Eberle v. State
2011 Ind. App. LEXIS 97
| Ind. Ct. App. | 2011Background
- V.L., Ohio County jail matron, received lewd photos and obscene texts from Eberle via her employer-issued phone on Sept. 7, 2008 while in Dearborn/Indiana.
- A second lewd photo and additional calls occurred Sept. 19, 2008; detective traced the target number to a Verizon prepaid phone registered to David Deckard and linked to Eberle.
- Eberle denied wrongdoing in Nov. 2008 interview, admitting sending photos but claiming they went to the wrong person and that calls were pranks.
- Evidence tied Eberle’s cell phone to the same target number and to prior calls; V.L. returned to the U.S. and faced continued threats Sept. 21, 2008 from Kentucky (Florence) vicinity.
- Charges: multiple counts including class D felony intimidation, class C felony stalking, and class B misdemeanor harassments; venue and severance motions were raised; a change of venue was denied.
- Trial court merged some counts for sentencing, but judgments of conviction remained on all counts; conviction later addressed on double jeopardy theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio County was proper venue for the stalking offense | Venue was proper under IC 35-32-2-1(k) since offense occurred via electronic contact with an Indiana resident. | Insufficient proof of location; venue should have been in Dearborn or Kentucky. | Ohio County proper venue for stalking; other venues possible but statute supports Ohio. |
| Whether the trial court properly refused Eberle's proposed venue instructions | Venue instructions were appropriate given the factual issues on where acts occurred. | Trial court erred by not instructing on venue. | Refusal was harmless error; substantial evidence supported venue without instruction; no reversible error. |
| Whether the evidence supports the intimidation, harassment, and stalking convictions | Evidence showed repeated unwanted calls, lewd images, and threatening language directed at V.L. | Argues insufficient proof of intent, lack of knowledge of V.L.’s role, or misapplication of statute. | Sufficient evidence for harassment and stalking; but no knowledging of V.L. as officer affected enhancement analysis. |
| Whether the double jeopardy issue requires vacating the lesser-included offenses merged into stalking | Convictions for intimidation and harassment should stand alongside stalking. | Convictions should be vacated as they were merged for purposes of sentencing. | Remand to vacate intimidation and harassment convictions; stalking stands; double jeopardy requires vacatur of merged offenses. |
Key Cases Cited
- Alkhalidi v. State, 753 N.E.2d 625 (Ind. 2001) (venue may be proven by preponderance; not an element)
- Stack v. State, 534 N.E.2d 253 (Ind. Ct. App. 1989) (knowledge of victim’s status relevant to felony enhancement)
- Masotto v. State, 907 N.E.2d 1083 (Ind. Ct. App. 2009) (public official protection rationale for enhanced penalties)
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard for sufficiency of evidence; do not reweigh testimony)
- Randolph v. State, 802 N.E.2d 1008 (Ind. Ct. App. 2004) (harmless error analysis for instructional error)