Russell Finnegan, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Russell Finnegan was found guilty but mentally ill of two counts of misdemeanor intimidation. Finnegan now appeals, raising two issues for our review: whether the trial court erred in declining to give his proposed jury instruction and in issuing nine no-contact orders as part of his terms of probation. Finding no error regarding the jury instructions, we affirm Finnegan's convictions. However, because the record is not clear on the relation of at least some of the no-contact orders to Finnegan's crimes, we remand for further proceedings on the no-contact orders.

Facts and Procedural History

[2] In July 2021, Finnegan sent his parents, Michael and Brenda Finnegan, a letter from Pulaski County Jail, where he was serving a sentence in an unrelated matter. In the letter, he stated in part:

I can't wait to get out. When I get out I am going to drench my mommy in an excelerant [sic] and light her on fire. Then I am going to listen to my mommy burn. Then when my mommy is cooked just right I am going to purposefully extinguish her so she can die two to three weeks after the fact. Then my big brave daddy is going to suck on the end of a shotgun with his pretty mouth.

Ex. Vol. V p. 3. Michael and Brenda showed the letter to their lawyer, who advised them to make a police report. They then took the letter to the Pulaski County Sheriff's Office, discussed it with Sheriff Jeffrey Richwine, and ultimately obtained a police report.

[3] The State charged Finnegan with two counts of Level 6 felony intimidation and two counts of Class A misdemeanor intimidation. The case was originally assigned to Judge Crystal Kocher, who recused herself. Judge Mary Welker was then appointed but recused herself because she “is an alleged victim in [a case] involving” Finnegan. Appellant's App. Vol. II p. 70. Ultimately, a special judge was appointed. The trial court granted the State's request for pre-trial no-contact orders for a variety of individuals, including Scott Thompson, Judge Welker, Judge Kocher, Sheriff Richwine, Phillip Foerg, Bryan Cook, Jay Hirschauer, Andrew Achey, and Sherry Mckinney.¹

[4] On December 5, 2024, a jury trial was held, at which Finnegan represented himself and presented an insanity defense. Michael and Brenda testified, as well as Sheriff Richwine and several of Finnegan's doctors. At the close of evidence, Finnegan proposed a jury instruction with language on the free speech protections laid out in Article 1, Section 9 of the Indiana Constitution. The trial court declined to give such an instruction, citing juror confusion as the proposed instruction “would lead one to believe that there's no restrictions whatsoever on any speech.” Tr. Vol. IV p. 82.

[5] The jury found Finnegan not guilty of the Level 6 felonies and guilty but mentally ill of the Class A misdemeanors. The court sentenced Finnegan to one year, fully suspended to probation. As a condition of probation, the trial court again imposed no-contact orders between Finnegan and the following individuals: Scott Thompson, Judge Welker, Judge Kocher, Sheriff Richwine, Phillip Foerg, Bryan Cook, Jay Hirschauer, Andrew Achey, and Sherry Mckinney. See Appellant's Supp. App. Vol. II. pp. 16-42. Finnegan now appeals.

Discussion and Decision

I. Jury Instruction

[6] Finnegan first challenges the trial court's refusal to tender his proposed jury instruction on freedom of speech. “The trial court has broad discretion as to how to instruct the jury, and we generally review that discretion only for abuse.” Spencer v. State, 129 N.E.3d 209, 211 (Ind. Ct. App. 2019) (quotation omitted), trans. denied. To determine whether a jury instruction was properly refused, we consider: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given. Id. In doing so, we consider the instructions as a whole and in reference to each other. Id.

[7] Finnegan's written tendered jury instruction provided:

Free speech: You, as the trier of fact, are to decide whether the statements the accused is accussed [sic] of saying fall under the protections of Art. 1, Sec. 9 of the Indiana Constitution, which states: Sec. 9 No law shall be passed restraining the free interchange of thought or opinion, or restricting the right to speak, write, or print freely on any subject whatever, but for the abuse of that right, every person shall be responsible. This requires a two-step process. You must first decide whether a state action has in the concrete circumstances of the case restricted the accussed's [sic] opportunity to engage in expressive activity. Second, if it has, you must decide whether the restricted activity constitutes an “abuse” of the right to speak under the Indiana Constitution. Under the Indiana Constitution, expressive conduct is to be given a broad interpretation. It extends to any subject whatever, and reaches every conceivable mode of expression.

Appellant's Second Supp. App. Vol. II p 2.

[8] As a preliminary matter, we note this is not a pattern jury instruction, and the preferred practice is to use pattern jury instructions. See Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied. And while Finnegan's proposed instruction correctly quotes the Indiana Constitution and the analysis in Whittington v. State, 669 N.E.2d 1363 (Ind. 1996), “the mere fact that certain language or expressions are used in the opinions of Indiana's appellate courts does not make it proper language for instructions to a jury.” Id. at 494. Furthermore, the trial court here properly instructed the jury as to the elements of misdemeanor intimidation. See Campbell v. State, 19 N.E.3d 271, 277 (Ind. 2014) (“It is of course the case that an instruction which tracks verbatim the language of a statute is presumptively correct.”).

[9] Yet Finnegan cites to a single case, Brewington v. State, 7 N.E.3d 946 (Ind. 2014), and contends it supports his argument that the court is also required to instruct the jury on free speech protections. We disagree. In Brewington, our Supreme Court explained there may be a need for additional instructions grounded in speech protections where the alleged intimidation is intertwined with constitutionally-protected speech. Id. at 971-75. For example, in Brewington, the challenged speech was not only threats of physical harm but also threats to the victims’ reputations. The Brewington Court held “[t]he same constitutional free-speech protections that apply in civil defamation cases therefore must also apply to prosecutions” for threatening to harm a victim's reputation. Id. at 959. Thus, additional instructions were needed to ensure the jury was not convicting on the basis of the protected speech.

[10] That is not the case here, as Finnegan's statements that he would “light [his mother] on fire” and make his father “suck on the end of a shotgun” were not intertwined with any constitutionally protected speech which could improperly form the basis for his conviction. Ex. Vol. V p. 3. As such, the evidence does not support giving the instruction, and the trial court did not abuse its discretion in declining to do so.²

II. No-Contact Orders

[11] Finnegan also challenges the nine no-contact orders that were issued as a condition of his probation. The protected persons named in those orders are Scott Thompson, Judge Mary Welker, Judge Crystal Kocher, Sheriff Jeffery Richwine, Phillip Foerg, Bryan Cook, Jay Hirschauer, Andrew Achey, and Sherry McKinney.

[12] A trial court may impose a no-contact order as a condition of probation under Indiana Code section 35-38-2-2.3(a)(18) (2018), which specifies that the trial court may order the probationer to “[r]efrain from any direct or indirect contact with an individual[.]” “Trial courts have broad discretion in determining the appropriate conditions of a defendant's probation.” Howe v. State, 25 N.E.3d 210, 213 (Ind. Ct. App. 2015). This discretion is limited only in that the conditions imposed must be reasonably related to the treatment of the defendant and the protection of public safety. Id. We will not set aside a trial court's probation terms absent abuse of that discretion. Id. There must, however, be some nexus between a no-contact order and the crime for which a defendant is being sentenced. Howe, 25 N.E.3d at 214. The nexus may be demonstrated at the guilty plea hearing, sentencing hearing, or a post-trial hearing. Id. at 215.

[13] Finnegan contends no nexus exists between the no-contact orders and the crimes for which he was placed on probation. Aside from Sheriff Richwine and Judges Welker and Kocher, the record here is largely silent as to who the remaining individuals are or their relationship to Finnegan's crimes in this case.

[14] Sheriff Richwine handled the initial investigation and testified at trial. Judges Kocher and Welker were assigned to preside as trial court judges in the attendant legal process before recusing due to prior or ongoing litigation with Finnegan, including Finnegan's prior prosecution for felony intimidation of Judge Welker. See Finnegan v. State, 201 N.E.3d 1186, 1189-90 (Ind. Ct. App. 2023) (affirming Finnegan's conviction for Level 5 felony intimidation of a judicial officer for threatening letters sent to Judge Welker). There is no question these individuals have a connection to the crime for which Finnegan is being sentenced. See Howe, 25 N.E.3d at 214.

[15] For the remaining individuals, the record is not so clear. These individuals were involved in yet another, prior intimidation case against Finnegan and attendant litigation. See Finnegan v. State, No. 22A-CR-1879, 2023 WL 2172347 at *1 (Ind. Ct. App. 2023) (affirming Finnegan's convictions for Level 3 felony criminal confinement and Level 5 felony intimidation against Thompson), trans. denied; Ex. Vol. V pp. 7-25 (prisoner's complaint filed by Finnegan in the Northern District of Indiana naming Foerg, Cook, Hirschauer, Achey, and Mckinney as defendants for their various roles in his intimidation case). The State argues these individuals are “people in the Pulaski County judicial system that [Finnegan] has harassed in the past” and thus preventing contact with them “is reasonably related” to his rehabilitation and the goals of his probation. State's Amended Br. p. 20. Even so, it is not possible to ascertain from this record whether there is “some nexus between the no contact order[s] and the crime for which [Finnegan was] sentenced” or if entry of some of the no-contact orders was an abuse of discretion. See Howe, 25 N.E.3d at 214.

[16] Inasmuch as trial courts have broad discretion in determining the appropriate conditions of a defendant's probation, Id. at 213, and the requisite nexus between a no-contact order and the crime for which a defendant is being sentenced may be demonstrated at the guilty plea hearing, sentencing hearing, or a post-trial hearing, Id. at 214-215, this case is remanded for further proceedings attendant to the subject no-contact orders.

[17] We affirm Finnegan's convictions for misdemeanor intimidation and remand for further proceedings on the no-contact orders.

[18] Affirmed and remanded with instructions.

FOOTNOTES

1.   According to the State, Scott Thompson is a former neighbor of Finnegan's; Bryan Cook, Jay Hirschauer, and Andrew Achey are attorneys; Phillip Foerg is a law enforcement officer; and Sherry Mckinney is a court reporter in Pulaski County. See State's Amended Br. pp. 7, 19.

2.   Finnegan spends large amounts of his brief discussing whether the jury should have been instructed that his speech must constitute a “true threat.” See Appellant's Br. pp. 16-19; see also Appellant's Reply Br. pp. 5-6 (arguing “Brewington and other decisions make it clear that the jury must decide if a true threat exists when an individual is charged with intimidation.”). But Finnegan's proposed jury instruction did not contain language on “true threat,” nor does he now argue fundamental error. He has, therefore, waived this issue for appellate review. See Robinson v. State, 251 N.E.3d 1124, 1130 (Ind Ct. App. 2025) (defendant who failed to tender his own jury instruction on an issue waived appellate review thereof and raised fundamental error in attempt to overcome his waiver).

Scheele, Judge.

Judges Foley and Kenworthy concur. Foley, J., and Kenworthy, J., concur.