Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Appellate Division

Indianapolis, Indiana ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMES AVERITTE, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1303-CR-119

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Gary L. Miller, Judge

Cause No. 49G21-1211-CM-76911

October 31, 2013

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

James Averitte (“Averitte”) appeals from his conviction after a bench trial of one 

count of harassment1as a Class B misdemeanor, contending that Indiana’s harassment 

statute is unconstitutionally vague. Given his waiver of this claim, his failure to show 

any reason that the waiver rule should not be applied to his claim, and precedent against 

his position, we affirm his conviction. 

FACTS AND PROCEDURAL HISTORY

Averitte was the ex-boyfriend of Sharon Bingham (“Bingham”). Their 

relationship ended in May of 2012. In June of 2012, Averitte contacted Bingham 

telephonically on numerous days and numerous times leaving numerous threatening 

voice messages, including threatening to burn down her house. Bingham recognized both 

Averitte’s voice and telephone number. Averitte wanted to restore his relationship with 

Bingham, and she declined on at least four or five occasions, specifically ruling out any 

friendship, let alone a romantic relationship. 

After Averitte repeatedly called Bingham on her cell phone on June 20, 2012

leaving a message that was vulgar, Bingham then sought law enforcement intervention. 

Although Bingham did not answer or return his telephone calls, Averitte continued in his 

efforts to contact Bingham by telephone and email.

The State charged Averitte with Class B misdemeanor harassment for placing the 

telephone call to Bingham on June 20, 2012. Averitte did not file a pre-trial motion to 

dismiss the charges against him, nor did he raise any argument that the statute was 

 

1

See Ind. Code § 35-45-2-2.
3

unconstitutional during his bench trial. At the conclusion of Averitte’s bench trial, the 

trial court found Averitte guilty of one count of Class B misdemeanor harassment and 

sentenced him to a sixty-day sentence, entirely suspended. Averitte now appeals. 

DISCUSSION AND DECISION

Averitte argues on appeal that Indiana’s harassment statute is unconstitutionally 

vague as applied to him because it does not define what constitutes “intent of legitimate 

communication” leaving that definition to “the discretion of juries, judges and 

prosecutors.” Appellant’s Br. at 8. 

Indiana Code section 35-45-2-2 provides in pertinent as follows: a) A person who, 

with intent to harass, annoy, or alarm another person but with no intent of legitimate 

communication: (1) makes a telephone call, whether or not a conversation ensues;

commits harassment, a Class B misdemeanor.

“When considering the constitutionality of a statute, we begin with the 

presumption of constitutional validity, and therefore the party challenging the statute 

labors under a heavy burden to show that the statute is unconstitutional.” Person v. State, 

661 N.E.2d 587, 592 (Ind. Ct. App. 1996) (citing Jackson v. State, 634 N.E.2d 532, 535 

(Ind. Ct. App. 1994)). When the validity of a statute is challenged, we begin with a 

“‘presumption of constitutionality.’” State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985) 

(quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763, 766 (1976)) (upholding the 

constitutionality of Indiana’s dependent neglect statute under a void for vagueness 

challenge). “The burden to rebut this presumption is upon the challenger, and all 

reasonable doubts must be resolved in favor of the statute’s constitutionality.” State v. 
4

Lombardo, 738 N.E.2d 653, 655 (Ind. 2000). 

Averitte has waived his claim of error because he has raised it for the first time on 

appeal. A challenge to the constitutionality of a statute must be raised by a motion to 

dismiss filed prior to trial. “Generally, the failure to file a proper motion to dismiss 

raising the Constitutional challenge waives the issue on appeal.” Payne v. State, 484 

N.E.2d 16, 18 (Ind. 1985). Because Averitte did not file a motion to dismiss prior to trial, 

did not object at trial, nor did he otherwise assert this argument prior to appeal, he has 

waived the argument for purposes of appeal.2 

Affirmed.

ROBB, C.J., and RILEY, J., concur.

 

2 We also note that in Kinney v. State, 404 N.E.2d 49, 50, 52 (Ind. Ct. App. 1980), a panel of this court held 

that the statute was not unconstitutionally vague because it “forbids a specific act, a telephone call, when it is 

accompanied by a specific intent, ‘to harass, annoy, or alarm another person but with no intent of legitimate 

communication.’ This specific intent prevents the statute from being unconstitutionally vague.”