"[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.

Comments

[John F. Carr]

They have read the "lawful act" rule out of the statute. Not that there was any way to make it meaningful. In Massachusetts the law about interference with civil rights by a non-state actor is also broad. What is a civil right? It's status or behavior that a judge thinks should be especially protected. This is the law that makes it a felony to say a bad word during the commission of a misdemeanor.

[Dr. Ed 2]

Don't forget 123 MGL 12A: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section12

Just like in the former Soviet Union, it's far easier to simply declare people to be "crazy and dangerous."

What the Soviets realized was that even at a show trial, the defendant had a presumption of a right to present a defense and to introduce facts and such toward such ends. But if you instead declare him insane, everything he says can be dismissed as the raving of a lunatic. It's even better than a show trial, and far more effective...

And while people are complaining about what police officers do (not that they are all angels), what the medical people are doing is worse. Look at the _Lifeline Ambulance_ case and the facts set out in the District decision -- a woman survives the Holocaust to be murdered by the Lynn Police.

[Queen Amalthea]

Lol, your silly hyperbole aside, you're likely worried about this because you increasingly seem to be a poster child for an actual potentially crazy and dangerous nut. Sometimes a cigar is just a cigar.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Lol, look at you and your non-rebuttal which addresses nothing anyone says.

[Dr. Ed 2]

Gaslighting.

In the late 19th and early 20th centuries, before electricity, gas was used for lighting. The blue gas flame was used to heat up a mantle which then gave off white light. See: https://gas-lights.com/humphrey-gas-lights.html And much as the water pressure in a garden hose drops when the washing machine starts to fill, the gas pressure would drop when additional lights were turned on. The lights already on would dim.

A woman is convinced that her husband is doing something up in the attic because the gaslights downstairs keep dimming, i.e. he's lit the ones in the attic. He denies it and tells everyone she's crazy. She somehow manages to get a police detective to come check and he also notices the lights dimming. He goes up into the attic and arrests the husband for something nefarious.

Gaslighting....

[Alpheus W Drinkwater]

Besides which, that is absolutely no way to treat Ingrid Bergman.

[David Nieporent]

Presented without comment:

And while people are complaining about what police officers do (not that they are all angels), what the medical people are doing is worse. Look at the _Lifeline Ambulance_ case and the facts set out in the District decision — a woman survives the Holocaust to be murdered by the Lynn Police.

[Eric VonSalzen]

Suppose Nicoson had said: I'm planning to march peacefully to the US Capitol to demand that Congress reject the electoral votes from several States, because I believe those electoral votes were obtained unlawfully. And Diana said: If you do tnat, you goober, I'll shoot you.

[Rev. Arthur L. Kirkland]

You shouldn't be worried about that, clinger. You should be worried about how a guy like Matt Gaetz is going to fare in prison.

Maybe you should pray for him a spell.

[John F. Carr]

Being a clinger is a lawful act.

[Rev. Arthur L. Kirkland]

I doubt Mr. Gaetz, his legal team, and the prosecutors are focusing on his lawful acts.

[buckleup]

Strange that you are obsessed with him. Maybe you're jealous.

[Rev. Arthur L. Kirkland]

Rep. Gaetz appears headed toward prison, with a political ally and friend likely to testify against him.

He is finding that his only friends at work are the pathetic Marjorie Taylor Greene and Jim Jordan, with his other colleagues (the Republicans) turning on him and apparently enjoying it. Trump, at whose feet he prostrated, has abandoned him.

His record -- coasting on his father's money and connections, making enemies, becoming a smarmy loudmouth and grandstander -- does not appear to position him for a good experience in prison. He seems to have scant chance of exchanging leniency for cooperation. I expect he would cry at a sentencing. He seems destined to become a registered sex offender.

Which part of that situation evokes any thoughts of jealousy?

[Squirrelloid]

politicians behaving badly is a dog bites man story. Why are we obsessing over this. Wait till he's actually convicted... or there's at least an allegation with supportable facts behind it. It's all rumor and innuendo right now.

[Dr. Ed 2]

I think that the GOP base is learning which two members of the House caucus can be trusted.

Gartz is a rich playboy -- so are a *lot* of Democrats, including the entire Kennedy Klan. 17-years-old depends on the jurisdiction, but before he skied into a tree, (married) Michael Kennedy was having sex with his then-14-year-old babysitter, one Marisa Verocchi. There were rumors he got her pregnant...

14 years old -- a Middle Schooler -- is beyond the pale.

Yet I'll bet you never heard about this....

[Dr. Ed 2]

Kirkland, you really WANT a shooting civil war, don't you?

Hint, you won't last long if it comes to that, and I pray it doesn't...

[Rev. Arthur L. Kirkland]

At what point will strong law schools conclude, after reviewing faculty blogs that feature a steady stream of vile racial slurs and threats of violence, that hiring right-wing law professors who attract (and cultivate) such an audience is no longer worthwhile?

[Dr. Ed 2]

At what point will state legislatures conclude that once-strong law schools are now graduating leftist loons instead of lawyers and let absolutely everyone sit for their state's bar exam.

A similar reform would be that one could only take the test once every five years. Hence with upwards of half the graduates of ABA-approved law schools flunking their first try, there'd be a lot of law school grads driving cabs & waiting tables.

[DaivdBehar]

Where is Diana receiving care now?

[Dr. Ed 2]

This is why only a damn fool permits visiting nurses into his/her/its home.

Bear in mind that we are only hearing Nicoson's version of this because Nicoson wrote the medical record, and I've seen things written up very differently in the medical record from the way that I recall them.

For example, I once was rather shocked to read that I had "violently thrown [a fragile optical device] against the wall."

I asked the administrator to confirm that this was a fragile piece of equipment that had lots of breakable parts in it, which she agreed.
I then asked her if she had any record of it having been broken, or any record of having to buy a new one, or even any record of it being out of service. While she hadn't expected to walk into this trap, she was honest and said no -- and this was an expensive enough piece of equipment that she'd have known without having to even check, something she also conceded.

Bear in mind that I'm 6' 03" with forearms bigger than some women's legs.

My final question was "if I had wanted to break [that item], do you honestly think it would still be in one piece?"

She agreed that it wouldn't be...

Reality is that they had dialited my eyes, I was legally blind without my glasses (vision less than 20-200 or the big "E" on top of the chart, and the room was dark while the lights in the hallway outside were blinding -- I honestly never saw the damn thing and there was no small amount of negligence on their part.

But it's who writes the report that matters.

And hence, no VNA in my home. I'll call the police and have them arrested for trespassing...

[nonzenze]

The man had a wound that needed weekly bandage changes. And while it's a free country and you can have a festering wound if you really want to, it really doesn't seem like the best possible alternative all told.

[Dr. Ed 2]

Visiting a walk-in clinic comes to mind, and actually would be cheaper for the insurance company, although try to get them to agree to that...

[bernard11]

You're deranged.

[Queen Amalthea]

"Bear in mind that I’m 6′ 03″ with forearms bigger than some women’s legs."

Yeah, sure Popeye.

[Dr. Ed 2]

While they are made of welded wire mesh now, back in the day the old 4-headed Anderson's (made of oak and ballasted with concrete) weighed upwards of 200 lbs. You go haul 400-500 of those every day and you will look like Popeye.

[Dr. Ed 2]

Lobster traps that is...

[bernard11]

Four or five hundred day?

Call it 450. At one minute each that's 7 1/2 hours of hauling the traps. In one day.

Hmm.

[Dr. Ed 2]

Try 11-12 hours.
4AM to 3-4 PM
In one day. 🙁

[bernard11]

Bear in mind that we are only hearing Nicoson’s version of this because Nicoson wrote the medical record,

You mean Diana wasn't allowed to testify?

and I’ve seen things written up very differently in the medical record from the way that I recall them.

Another fable from Ed, who has perfect recall, it seems.

[Dr. Ed 2]

Mere "he said, she said" doesn't strike me as meeting "beyond reasonable doubt."

[bernard11]

Which doesn't address my point at all.

[Dr. Ed 2]

Nor does it address mine...

[arbitrary aardvark]

this is a rare case of the court citing article I section 3, rights of conscience. it doesn't usually come up.

[Dr. Ed 2]

But what if I, as a patient, request caregivers who aren't "living in sin" -- or who aren't Jewish (and *that* has come up before with rich Arabs and been swept under the rug).

Or in my case, I only want heterosexual males -- not just males, but heterosexual males touching my body in intimate ways. As a similar request from females *is* honored, how is my request unreasonable?

In other words, a woman can request a female doctor, why can't I request a heterosexual male doctor for the exact same (I don't want to be seen as a sex object) reason???

[The Turtle Dove]

Retaliate is from re+talio ("in kind"); even the basic colloquial sense carries the plain meaning that one is taking revenge for an actual harm (however lawful) done to them. So while all three predicate acts might have been lawful, the prosecution was required to prove that the threat was in response to an actual (or perhaps merely perceived) harm. Else, it's just a garden-variety threat.

Also: Using a shofar as a visual shibboleth? Not a mitzvah.

Mr. D.

[Voize of Reazon]

The plain meaning of intimidation is a threat intended to influence a future act, not to create fear of punishment for a past one, but the state of Indiana clearly intended the latter. The courts of that state have also found the fear of retaliation element to require only a connection between the threat and a prior lawful act, not an allegation of harm or even of offense.
Johnson v. State (2001) is an example where even the state supreme court seems to have trouble keeping this straight.
1. Motorist Johnson stops at a red light, gets out of his car, and doesn't get back in when the light turns green.
2. Off-duty cop Kreczmer in the car behind rolls down his window and complains, and gets cursed in return.
3. As cop begins to get out of his car motorist lifts his jacket to display a handgun and says "Don't even think about it".
The court confirmed the conviction for intimidation, saying

The evidence was also sufficient to show that Johnson threatened Kreczmer with the intent to place him in fear of retaliation for a prior lawful act, namely: asking Johnson to move the car.

The evidence would support a finding of intimidation in the usual sense, that Johnson threatened Kreczmer to stop him from completing the act of getting out of the car, but not in the statutory sense of retaliation for a prior act.

[Bustard]

I’m glad I know what a shofar is.

[santamonica811]

"How's your festering wound doing?"

'Shofar; so good.'

[Bored Lawyer]

You're just blowing your own horn!

[Alpheus W Drinkwater]

I was trying to come up with a pun using tekiah or teruah, but I got nothing.

[ragebot]

I only knew what a shofar is because I had just visited a Viking toy on line site looking at drinking cups in the shape of a skull so I could figuratively drink from the skulls of my enemies skull and saw them listed there.

[Doug Huffman]

I am surprised that Diana survived Red Flag ERPO with so much in plain view.

Proprietors have all the power to remove traditional license to trespass. No shoes No shirt No service. No vax No mask No service

Make public record denial of ALL license to trespass.

[bernard11]

What, exactly, is the objection to this?

Looks to me like Diana was clearly guilty.

[MatthewSlyfield]

I don't see any objection to it in the article. It is however, an interesting case.

[bernard11]

I don't either, but a lot of the commenters seem to be worked up.

[Davedave]

Clearly guilty of something, but on the face of it charged with the wrong thing. This wasn't retaliation for a perceived slight, it was unprovoked aggressive nuttiness.

[Geezer]

"Cohabitating" should be "cohabiting."
A previous comment that included links to dictionary definitions of those two words "is awaiting moderation."

[MatthewSlyfield]

And there are no moderators to ever check and approve anything that disappears into the moderation queue.

Hint: Anything with more than one link will go to the moderation queue.

[Geezer]

Thanks for the hint.

[Shamie Ervin iv]

The judge committed a wrong by saying "laying" for "lying."

Damnit, she did it again. Melissa, "lay" is a transitive verb. Where ITH did you get your English?

Now that Diana is a felon, he has to give up his firearms. Good. He should have known how to keep his mouth shut and stay away from illegal narcotics.

[Bored Lawyer]

"The judge committed a wrong by saying “laying” for “lying.”"

Quick, the English language police should arrest him! Haul him off the bench and tar and feather him right there! Such judicial outrages must not be allowed to go unpunished!

[Shamie Ervin iv]

Bored, I didn't want her arrested, just scolded.
I have this "thing" about that error because a judge, long ago, howled at me for using "lying" in my opening statement to a jury when he thought I was using a word that sounded the same but had a different meaning. I had just told the jury that the cop came in and began beating the defendant, even though he was lying flat of his back on his bed trying to get his breath. Defendant had just unsuccessfully hanged himself, and his wife had dialed 911.
The sleepy judge heard my word "lying" and thought I was talking about dishonesty. That poor semi-literate guy soiled the bench for 40 abominable years.

[Dr. Ed 2]

"Now that Diana is a felon, he has to give up his firearms. "

I believe that felons are allowed to posses "antique" and "replica" firearms, not to mention knives, axes, and things I've never heard of.

There's more to this story -- this wasn't Great Lakes Caring's first visit to his home and you gotta wonder why they sent her in alone. Or if she provoked the altercation.

How did he know she was "living in sin"? Nurses aren't supposed to discuss their personal lives! It's like lawyers co-mingling client funds -- prohibited.

[David Nieporent]

How did he know she was “living in sin”? Nurses aren’t supposed to discuss their personal lives! It’s like lawyers co-mingling client funds — prohibited.

I almost admire the way you just completely make stuff up.

[Bored Lawyer]

I am not understanding the point of the statute. What does the "lawful act" part of the statute add to the felony? Why not just punish threatening someone without justification (e.g., they are threatening you)?

So if I tell my neighbor, "If you plant petunias, I am going to break your leg" I have committed the crime (because planting petunias is a lawful act), but if I say "If you don't give me $1000, I am going to break your leg" I am not? Or if I say, "If my boss at work reams me out today, I am going come home and break your legs" that is not a violation?

Makes no sense to me.

[ReaderY]

I was going to say the same thing. It seems to add nothing of importance, and all it does is make prosecutions more difficult.

[Bored Lawyer]

Great minds think alike. 😉

[Voize of Reazon]

This is just one subsection about retaliatory threats, there are lots of other ways to commit criminal intimidation in Indiana. A threat of violence to get someone to act against their will is one of them.

[ragebot]

Stupid peeps doing stupid things. I have often thought there should be a crime on the books called "Criminal Stupidity". Kinda like there is no law against stuffing beans up your nose because it was not really a problem in the past. It seems more and more people are doing stupid things that no one would have ever thought possible in the past.

[Dr. Ed 2]

https://www.youtube.com/watch?v=5a7CbDcipuc

[Shamie Ervin iv]

One thing I note about Prof. Volokh. He is constantly helping to clean up the nation's laws and lend a helping hand to the stumbling mortals who interpret them.

If it were not for those articles he writes and those Amicus briefs he files...