Stalking, Hacking And Sentencing

As Wikipedia notes, stalking “is a term commonly used to refer to unwanted or obsessive attention by an individual or group toward another person.”  It is also a crime, a relatively new crime: As Wikipedia also notes, between 1990 and 1993, “every state in the United States” made stalking a crime. Indiana was one of those states.

And over the last decade and a half, a new type of stalking – cyber-stalking – emerged and became a serious problem.  This post examines a recent decision from the Indiana Court of Appeals in which it reviewed a challenge to a cyber-stalking conviction and the sentence imposed on the defendant:  McClellan v. State, 2012 WL 6082749 (Indiana Court of Appeals 2012).

After a jury convicted him of “two counts of class C felony stalking” in violation of Indiana Code § 35-45-10-5, Michael D. McClellan appealed.  McClellan v. State, supra.  Under the statute, stalking is a Class D felony unless the case involved one of a number of circumstances, two of which were at issue in this case:

(1) A person. . . stalks a victim; and . . . makes an explicit or an implicit threat with the intent to place the victim in reasonable fear of. . . [serious bodily injury or death].

(2) A protective order to prevent domestic or family violence, a no contact order, or other judicial order under any of the following statutes has been issued by the court to protect the same victim or victims from the person and the person has been given actual notice of the order. . . .

McClellan v. State, supra (quoting Indiana Code § 35-45-10-5(b)).

A lot went on that led to the charges against McClellan, but I’ll summarize as best I can.  It began in July, 2005, when Dawn Hillyer (then, Krohn) ended a “dating relationship” with him. McClellan v. State, supra. The next summer they “resumed” a friendship, which Hillyer ended  in August, 2006 “after a falling out with McClellan.”  McClellan v. State, supra. They had “no further contact” until October 12, 2006. McClellan v. State, supra. 

That evening, as Hillyer and her new boyfriend drove back from Chicago, McClellan called her twenty-six times “and sent texts” saying “she needed to call him right away.” McClellan v. State, supra.  She eventually answered a call and refused to let him come to her house that night. McClellan v. State, supra.  He came “anyway and presented her with an alleged background check” on her and said “she had some explaining to do.” McClellan v. State, supra.  When she “denied  the background check had anything to do with her,” McClellan said “he loved her and that was the real reason for his visit.”  McClellan v. State, supra.  Hillyer rejected him. McClellan v. State, supra. 

“From that evening on, McClellan contacted Hillyer multiple times daily by phone, text, email, and/or in person.”  McClellan v. State, supra.  He left “long, rambling voicemail messages and emails about how they belonged together and how much he loved her” and came to her home and workplace “on multiple occasions”.  McClellan v. State, supra. He left gifts, cards, and flowers despite her pleas for him to leave her alone. McClellan v. State, supra.  He confronted her then-boyfriend at her home and only left when Hillyer called the police. McClellan v. State, supra. 

On November 1, McClellan came to Hillyer's work and home multiple times before going to Florida. McClellan v. State, supra.  He returned on November 4 with champagne and glasses, saying he was “moving to Florida”, but did not.  McClellan v. State, supra.  On November 8, he came to her work multiple times, “demanding to see her.” McClellan v. State, supra. She eventually “took him outside,” demanding “that he stop harassing her.”  McClellan v. State, supra.  He kept calling, so Hillyer filed a police report. McClellan v. State, supra.  McClellan came to her house and one of her children called the police while “she pleaded with him to leave.” McClellan v. State, supra.  Officers arrived and told him to leave; the next day, Hillyer got a protective order against him.  McClellan v. State, supra. 

McClellan continued to repeat the pattern of calling and showing up at her place of work. McClellan v. State, supra.  After he came to her work on November 22, she spent the night with a friend and sent her children to her ex-husband; she filed another police report the next day.  McClellan v. State, supra.  A few days later, McClellan confronted her, saying “`he was gonna “kill the bitch”, meaning [Hillyer]’”.  He also told her she “`was gonna be sorry’” if she did not drop the police reports.  McClellan v. State, supra.  Instead, she filed another police report. McClellan v. State, supra. 

This pattern repeated itself throughout December, when she began dating Christopher Hillyer, whom she eventually married.  McClellan v. State, supra.  One evening when they were out together, McClellan confronted Hillyer and when Christopher “stepped in,” asked if he “wanted to `take this outside’”. McClellan v. State, supra.  A police officer escorted McClellan off the premises, after which “Hillyer's cell phone started `getting blasted with text messages’”. McClellan v. State, supra. 

Hillyer changed her phone number and email address, but McClellan “hacked into her new email account and changed the password.”  McClellan v. State, supra. Hillyer had to change accounts because she could not log into her “new” email account.  McClellan v. State, supra. “As a result of the hacking," McClellan "obtained personal emails and photos, as well as her address list of friends, family, and clients.”  McClellan v. State, supra.  He emailed “everyone on her contact list (including business contacts) using a number of anonymous email addresses.”  McClellan v. State, supra.   

The emails “became increasingly vulgar and threatening and often had photos, including a topless picture of Hillyer.”  McClellan v. State, supra.   In February, McClellan began making “phone calls with computer-generated messages to Hillyer's home, cell, and work phones, as well as to her friends and family.”  McClellan v. State, supra.  She also saw him “constantly near her home, office, and `everywhere’”. McClellan v. State, supra. 

McClellan was charged with “three counts of stalking”:  Hillyer was the victim in Counts I and II; her husband was the victim in Count III.  McClellan v. State, supra.  The jury convicted McClellan on Counts I and II but acquitted him on Count III.  McClellan v. State, supra.  The judge sentenced him “to consecutive sentences of five years on each count, for an aggregate executed sentence of ten years.” McClellan v. State, supra.  McClellan appealed, claiming the sentence was “inappropriate in light of his character and the nature of the offense.”  McClellan v. State, supra. 

In ruling on his appeal, the Court of Appeals noted that it has “the constitutional authority to revise a sentence if, after careful consideration of the trial court's decision, we conclude the sentence is inappropriate in light of the nature of the offense and character of the offender.”  McClellan v. State, supra.  As to the nature of the offenses, McClellan argued that the

`circumstances [in this case], a pattern of extensive and extended harassment, are already inherent in the language of the level of the offense charged.’ Appellant's Brief at 19. He then asserts: `the very aspects that elevate these offenses to C felonies should not also be employed to impose enhanced, executed sentences at the greater C felony level.’ Appellant's Brief at 19.

McClellan v. State, supra (quoting McClellan’s brief on appeal).

In ruling on the argument, the Court of Appeals noted, first, that with regard to the nature of the

offenses, McClellan contends that the `circumstances [in this case], a pattern of extensive and extended harassment, are already inherent in the language of the level of the offense charged.’ Appellant's Brief at 19. He then asserts: `the very aspects that elevate these offenses to C felonies should not also be employed to impose enhanced, executed sentences at the greater C felony level.’ Appellant's Brief at 19.

McClellan v. State, supra. 

The court then noted that the charge in

Count I was elevated to a class C felony based upon McClellan making a threat, while stalking Hillyer, with the intent to place her in reasonable fear of serious bodily injury or death. Count II was elevated based upon the existence of a protective order . . . of which McClellan had actual knowledge at the time he stalked her. McClellan fails to explain how the trial court relied upon these additional elements to impose enhanced sentences.

McClellan v. State, supra. 

The Court of Appeals also did not “agree with McClellan's apparent assertion that his crimes otherwise constituted run-of-the-mill stalking.”  McClellan v. State, supra.  It found that “that the nature of McClellan's offenses clearly merited a lengthy executed sentence.”  McClellan v. State, supra.  The court explained that the trial judge based her

decision to order consecutive sentences on `the separate nature of the offenses and the fact that each involves a separate time frame and course of conduct.’ . . . While the time periods listed in the charges overlapped to some extent, . . . the State established at trial that McClellan engaged in a two-stage attack on Hillyer.

The first stage (Count I) was focused on the direct harassment of Hillyer through emails, phone calls, text messages, and personal encounters at work, home, and out in public. This stage included the threat made in a public establishment on November 26, 2007, and continued until the issuance of the protective order on December 22, 2007.

The second stage (Count II) occurred after the protective order was issued and involved a ramped-up, high-tech assault on Hillyer, in which McClellan's harassment of Hillyer quickly spread to her friends and business contacts.

McClellan v. State, supra. 

The court also addressed McClellan’s character, which he brought up by submitting “`testimonials from family and acquaintances who knew firsthand of positive aspects in Mr. McClellan's life’”.  McClellan v. State, supra.  It noted that while his convictions for five “`lower misdemeanor offenses’” were not significant aggravating factors in his sentencing, he had a 1998 conviction “for invasion of privacy, which involved the violation of a protective order issued in favor of his ex-wife.” McClellan v. State, supra. 

But what the court found “most telling” as to McClellan’s character was his

long history of harassing women. . . . [T]here is substantial evidence in the record of at least two other women whom he has terrorized over the years. The first began in 1998 with the harassment of his ex-wife, who remains in `constant fear’ of him even to this day. . . . That harassment lasted about a year and involved following his victim and making repeated phone calls and threats, much like stage one of his attack in [this] case.

The record also reveals that McClellan turned his sights to . . . Crystal Teixeria sometime in 2008 or 2009 through 2011. Teixeria testified that he went to `desperate attempts’ to contact her, through phone calls, texts, and death threats. . . . According to Teixeria, McClellan `opened accounts in my name like Facebook, he pretended to be me. Stole my identity.’ . . . 

Detective [Lorrie] Bandor, [who investigated the case], testified at the sentencing hearing that McClellan even took aim at her and her family during the investigation, using `very personal’ information `he truly should not have had.’

McClellan v. State, supra. 

The court therefore found that “McClellan's ten-year executed sentence is not inappropriate in light of the nature of his offenses and his character.”  McClellan v. State, supra.  So it affirmed his conviction and sentence.  McClellan v. State, supra. 

If you would like to read a little more about the case plus see a photo of McClellan, check out the news story you can find here.