Tag Archives: intimidation

Court upholds criminal intimidation conviction over threats to distribute sexually explicit photo

State v. Noll, 2011 WL 2418895 (Ind. App. June 14, 2011) (Not selected for publication)

Defendant used a sexually explicit photo of the victim in an attempt to gain leverage in an intra-family dispute. She handed an envelope containing the photo to the victim, and indicated she would begin distributing the photo if certain demands were not met.

Defendant was convicted of intimidation under Indiana law. She sought review of her conviction. On appeal, the court affirmed.

One of the arguments that defendant made on appeal was that there was no intimidation because distribution of the photo to persons such as the victim’s husband or co-workers would not subject her to hatred, contempt, disgrace or ridicule as required by the Indiana statute. Defendant pointed out that the victim had posted the sexually explicit photo of herself at issue on the web five years earlier. So in essence, defendant argued, further distribution would do the victim no harm.

The court rejected this argument, finding:

The fact that [victim] already publicized the material herself certainly merits consideration, but is not alone determinative because publicizing material to a particular audience does not necessarily mean that further, targeted, publication would not lead to hatred, contempt, disgrace, or ridicule. In other words, we consider [victim's] posting of these photographs online in the past as it might mitigate reputational consequences of [defendant] mailing the photographs to others. Although internet websites are of an unusually public and long-lasting nature, we also recognize that making an obscure set of photographs available online is qualitatively different in nature from directly mailing the same photographs as hard-copies addressed to a particular individual or company. [Victim's] husband or employer could have discovered [victim's] prior internet posting of the photographs, but a direct mailing is certain to reach them.

The court similarly rejected defendant’s argument that because the victim had posted the photo on the web before, she had no reasonable expectation of privacy in the photo and thus could not be the subject of intimidation. The court disagreed with the analogy to the Fourth Amendment expectation of privacy because in this case, the privacy interest was the victim’s, not the defendant’s. So use of such an analogy might “misdirect [the court] from the determinative issue of whether she would be exposed to reputational consequences.”

Debt collector broke the law by using MySpace photo to intimidate consumer

Sohns v. Bramacint, 2010 WL 3926264 (D.Minn. October 1, 2010)

Plaintiff fell behind on her car payments. The lender turned the debt over to a collection agency that used technology and some remarkably poor judgment in an attempt to get paid.

The first bad decision was to use a caller-ID spoofer to make it look like the collection call was coming from plaintiff’s mother in law. The next not-smart use of technology was to access plaintiff’s MySpace page, learn that plaintiff had a daughter, and to use that fact to intimidate plaintiff. There was evidence in the record to suggest that the collection agency’s “investigator” said to plaintiff, after mentioning plaintiff’s “beautiful daughter,” something to the effect of “wouldn’t it be terrible if something happened to your kids while the sheriff’s department was taking you away?”

Plaintiff sued the debt collection agency under the Fair Debt Collection Practices Act. The FDCPA sets some restrictions on how debt collectors can go about their business. Plaintiff moved for summary judgment. The court granted the motion.

It held that the collection agency engaged in conduct the natural consequence of which was to harass, oppress, or abuse in connection with the collection of the debt; used false, deceptive, or misleading representations or means in connection with the collection of the debt; and used unfair or unconscionable means to collect or attempt to collect the debt.

Enhanced by Zemanta

Conviction for sending intimidating MySpace message overturned

Marshall v. State, 2009 WL 2243467 (Ind. App. July 28, 2009)

Gotta love the facts of this case from my home state of Indiana.

Marshall and Goodman traded cars with one another, but that deal went sour. Marshall then got into an altercation with Goodman’s mother (named Lee) and Marshall was arrested. She was also ordered to have no contact with either Goodman or Lee. Three days after her arrest, Marshall sent the following (redacted) private message through MySpace to Goodman:

Dont think that you are gonna get away from this s***. you can’t hide forever and one of these days when you are out and about … you know thy aint going to pin nothing on me. Cant prove s***. aint gonna and I am just waiting for that day. You want a war? ? ? Your gonna get it now f*****. I don’t know YET who told you the s*** in my blogs or was feedin you info on me but you can rest assured that I am gonna f*** them uptoo when I found out. And I WILL find out. The s*** aint done and you better know that. Its only a matter of time.

The b**** you know I can be.

(Ed. note: stay classy, Ms. Marshall!)

Based on this message, Marshall was convicted of felony intimidation against Lee. The prosecution had argued that Marshall committed this crime by communicating a threat to knowingly injure Lee, with the intent that Lee be placed in fear of retaliation for calling the police.

Marshall sought review of her conviction with the Indiana Court of Appeals. On appeal, the court reversed the conviction.

The court held that the prosecution failed to prove its allegations of intimidation against Lee, because the message was sent to Goodman’s ( and not Lee’s) MySpace account. Even though an intimidating communication may be indirect, the state had to prove that Marshall must have known or had reason to know that her communication would reach Lee. In this case, there was no such proof.

The MySpace message was not addressed to Lee, nor was she mentioned by name. Accordingly, there was no evidence that Marshall knew or had reason to know that Goodman would show the message to his mother.

Photo courtesy Flickr user subewl under this Creative Commons license.