The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

"[1] Cohabitating While Unmarried, [2] Unfamiliarity with [Shofars], and [3] Being Silly Are All Lawful Acts"

Good to know that!


From Diana v. State, decided yesterday by the Indiana Court of Appeals, in an opinion by Judge Melissa May, joined by Judge James Kirsch and Chief Judge Cale Bradford:

In 2018, Laura Nicoson and three other nurses from Great Lakes Caring, provided in-home care to Diana, who needed nursing care due to a wound on his foot. The in-home care required weekly redressing with bandages, and Nicoson visited Diana's home in Terre Haute several times to provide such care. Diana's home was heavily cluttered, and he displayed guns, handcuffs, leg irons, swords, and battle axes throughout his house. Diana also kept boxes of ammunition and knives laying around the house.

On August 10, 2018, Nicoson had an appointment to provide treatment to Diana at his house. Diana was outside of his house when Nicoson arrived, so Diana and Nicoson walked into the house together for Nicoson to treat him. Diana pulled a shofar out of a bucket laying on the hallway floor, and he asked Nicoson if she knew what the item was. Nicoson stated that she did not know what it was, and Diana told her that she "was a sinner and [she] was gonna go to Hell." He also raised his voice and directed her to read the Bible and attend church. Diana put the shofar back into the bucket, and Diana and Nicoson went into Diana's bedroom.

Diana grabbed a nearby pocketknife and put it in his pocket, then he sat down on his bed. Nicoson sat on a nearby chair and began treating Diana. Diana then called Nicoson a "goober," and he asked Nicoson if she knew what he did with "goobers." Nicoson indicated that she did not know, and Diana said, "I shoot 'em. I have a gun in my pocket." Diana also indicated that the gun was loaded. Nicoson believed Diana "was very serious and [she] was scared." Nicoson finished changing Diana's bandages and left the house.

Diana was convicted of felony intimidation for "communicat[ing] a threat to commit a forcible felony to another person with the intent that the other person be placed in fear of retaliation for a prior lawful act," as well as for possession of unprescribed methadone. The court upheld the convictions, reasoning in part:

While Diana argues the State did not prove his threat was in retaliation for a prior lawful act, the jury could make such a reasonable inference from Nicoson's testimony. Nicoson explained that during one of her previous visits to Diana's house, Diana voiced disapproval of her lifestyle because she lived with a man while unmarried. Diana also criticized Nicoson for not being able to recognize his shofar. Nicoson further testified that Diana called her a "goober" {which he described as a substitute word for "silly person"} before saying he shot "goobers."

Cohabitating while unmarried, unfamiliarity with religious items, and being silly are all lawful acts. See Ind. Const. Art. 1, § 3 ("No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience."). Therefore, we hold the State presented sufficient evidence that Diana threatened Nicoson in retaliation for a prior lawful act.