John Patrick McGann, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] John Patrick McGann (“McGann”) appeals his conviction, following a jury trial, for Level 5 felony stalking.¹ He argues that the evidence is insufficient to support his conviction. Concluding that there is sufficient evidence to support McGann's conviction, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether there is sufficient evidence to support McGann's conviction.

Facts

[3] The facts most favorable to the judgment reveal that in December 2022, after forty-six years of marriage, Tessa McGann (“Tessa”) filed a petition to dissolve her marriage to sixty-nine-year-old McGann. McGann expressed his unhappiness about the dissolution of his marriage by texting Tessa and attempting to telephone her. Tessa blocked McGann from contacting her because his messages “felt threatening[.]” (Tr. Vol. 2 at 19).

[4] Shortly thereafter, McGann left a broken Christmas ornament (“the broken ornament”) on Tessa's front porch. The ornament included a character for each family member, and each family member's name was written above its character. Tessa's name was crossed out, and there was an X over her face. McGann included with the broken ornament the following note: “Thanks for breaking up our family[.]” (Tr. Vol. 2 at 26).

[5] Feeling “[v]ery threatened” by McGann, in January 2023, Tessa applied for and was granted a protective order against him. (Tr. Vol. 2 at 26). The protective order prohibited McGann from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” Tessa. (Ex. Vol. at 25). The protective order further provided as follows:

With the exception of court proceedings ․ at which they are ordered to be present together, [McGann] shall remain no less than 300 feet from [Tessa] ․ her residence, and ․ her vehicle at all times. Should [McGann] inadvertently observe [Tessa] in a public place or public road, he ․ shall depart immediately with no verbal or nonverbal communication with [Tessa]. [McGann] shall have no contact or communication with [Tessa] via any internet sites, social media sites, texting, etc.

(Ex. Vol. at 26).

[6] In late January or early February 2023, Tessa received, late in the evening, a telephone call from a person who identified himself as a friend of McGann's (“the friend”). The friend told Tessa that he was with McGann and that McGann wanted him to ask Tessa if she had a spare key to McGann's car. Tessa could hear McGann in the background directing the friend to tell Tessa where to look for the key. Tessa felt that she had to do what McGann told her to do. After Tessa had located the key, the friend told her that he would send someone to pick it up. Before anyone arrived to pick up the key, the friend telephoned Tessa again, and she heard McGann tell the friend that McGann wanted to be sure that Tessa had the correct key. The friend told Tessa to take a photograph of the key and send it to him. Tessa knew that she had the correct key, but she took a photograph of it and texted it to the friend. Later that night, someone came to Tessa's house to pick up the key. Tessa was very uncomfortable about someone coming to her home so late at night.

[7] In the spring of 2023, a friend of Tessa's, who was visiting Tessa's home, saw McGann at the front door. Tessa went into another part of the house to avoid McGann. However, McGann walked around to a window, waved at Tessa, and left something on her front porch.

[8] A few months later, in July 2023, Tessa and McGann were both present in court for a hearing. Before the judge entered the courtroom, McGann approached Tessa and asked her how her trip to Montana was. “At that moment[,] [Tessa] g[o]t scared.” (Tr. Vol. 2 at 30).

[9] In October 2023, Tessa, who was grocery shopping, looked up after placing an item in her cart and saw McGann walking towards her. McGann stopped and talked to Tessa, which startled her because she knew that the protective order prohibited him from approaching her in a public place. As Tessa walked away from McGann, she heard the word “jail[.]” (Tr. Vol. 2 at 35). Then, as Tessa was walking down another aisle, she noticed McGann “coming up that aisle[,]” so she turned around and left the store. (Tr. Vol. 2 at 35).

[10] The following month, November 2023, the trial court ordered McGann to begin making his $700 spousal support payments electronically, and McGann began sending his payments to Tessa via Venmo. From November 2023 through February 2024, McGann made thirteen Venmo payments, and each payment included a message to Tessa. Tessa explained that she was “uncomfortable” that McGann was communicating with her via Venmo and that she had gotten the protective order to prevent this very communication. (Tr. Vol. 2 at 43). In addition, Tessa believed that McGann was “just trying to get to [her]” with the messages. (Tr. Vol. 2 at 47).

[11] Further, according to Tessa, many of the messages were “coded[,] ․ which was unnerving.” (Tr. Vol. 2 at 39). For example, on December 11, 2023, McGann sent Tessa $71 with the following message: “HBD T[.]” (Ex. Vol. at 17). Tessa explained that her birthday was the following day and that she was turning seventy-one years old. On December 16, 2023, McGann sent Tessa $700 with the following message: “143[.]” (Ex. Vol. at 18). According to Tessa, 143 was a code that they had previously used to express their love for each other. Further, on January 12, 2024, McGann sent Tessa $700 with the following message: “I forgive you[.]” (Ex. Vol. at 21). The message also included a praying hands emoji.

[12] In March 2024, Tessa's real estate agent (“the real estate agent”), who was selling the McGann's family home (“the family's home”), contacted Tessa and told her that McGann had contacted the real estate agent. Specifically, according to the real estate agent, McGann had told her to tell Tessa that if Tessa lifted the protective order, he would proceed with a certain detail of selling the house. Later that month, McGann attended an open house at the family's home and introduced himself to the real estate agent. McGann told the real estate agent that he “wanted [her] to put a face with the name[.]” (Tr. Vol. 2 at 85).

[13] Shortly thereafter, in April 2024, McGann and Tessa were in court together for a hearing related to the dissolution proceedings. Before the hearing, while Tessa was sitting in the courthouse's rotunda waiting for her attorney to arrive, McGann approached her and asked her about her recent visit with their new grandson.

[14] Later that month, McGann went to the family's home at a pre-arranged time to retrieve some possessions. Tessa was not at home at that time. When he arrived, McGann pushed the Ring doorbell, waved at the camera, and said, “Hi, Tessa. Thanks for leaving me the grill, and my scrapbooks, but I still want the videos.” (State's Ex. 15A). When he left the house, McGann again pushed the Ring doorbell, waved, and said, “Hi Tessa – bitch” as he walked away. (State's Ex. 15B). Three days later, McGann returned to the family's home, pushed the Ring doorbell, and loudly said, “Hi Tessa – bitch” as he walked into the house. (State's Ex. 16). McGann knew that he could “really get to [Tessa]” with that word, and his use of that word was “very upsetting” and “scary” to Tessa. (Tr. Vol. 2 at 70).

[15] In June 2024, the State charged McGann with two counts of Level 5 felony stalking and Class A misdemeanor invasion of privacy.² At his two-day trial in March 2025, the jury heard the facts as set forth above. In addition, the jury saw a photograph of the broken ornament and photographs of the Venmo messages. The jury also watched the Ring camera videos. During Tessa's testimony, she stated that she was suffering from “[a] lot of anxiety” right then and that she “almost want[ed] to take a break.” (Tr. Vol. 2 at 50-51). The trial court asked her if she wanted to take a break from testifying, and she responded that she did.

[16] The jury convicted McGann of Level 5 felony stalking and Class A misdemeanor invasion of privacy. In April 2025, the trial court sentenced McGann to an aggregate sentence of three (3) years suspended to probation.

[17] McGann now appeals.

Decision

[18] McGann argues that there is insufficient evidence to support his conviction for Level 5 felony stalking. We disagree.

[19] “Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that it is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Konkle v. State, 253 N.E.3d 1068, 1090 (Ind. 2025) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). We review only the evidence most favorable to the verdict and the reasonable inferences therefrom and will reverse “only where it is shown that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. at 1090-91 (cleaned up).

[20] Pursuant to Indiana Code § 35-45-10-5(a), “a person who stalks another person commits stalking, a Level 6 felony.” However, stalking is a Level 5 felony if a “protective order to prevent domestic or family violence ․ has been issued by the court to protect the same victim ․ from the person and the person has been given actual notice of the order[.]” I.C. § 35-45-10-5(b)(2).

[21] Stalking is defined as “a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.” Ind. Code § 35-45-10-1. Harassment is “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” I.C. § 35-45-10-2. Further, Indiana Code § 35-45-10-3(a) provides the following non-exhaustive list of actions that constitute “impermissible contact” in the context of harassment: (1) following or pursuing the victim; (2) communicating with the victim; and (3) posting on social media if the post is directed to the victim or refers directly or indirectly to the victim.

[22] Thus, to convict McGann of Level 5 felony stalking, the State had to prove beyond a reasonable doubt that McGann: (1) knowingly or intentionally; (2) engaged in a course of conduct involving repeated or continuing harassment of Tessa; (3) that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened; (4) that actually caused Tessa to feel terrorized, frightened, intimidated, or threatened; and (5) had actual notice of a protective order issued by a court to protect Tessa. See I.C. ch. 35-45-10.

[23] McGann's sole argument is that the State failed to prove that a reasonable person would have felt terrorized, frightened, intimidated, or threatened by his conduct. Specifically, although McGann acknowledges that Tessa “testified to suffering anxiety and being frightened by [his] conduct,” he contends that “a reasonable person would not have felt the same way.” (McGann's Br. 9).

[24] However, our review of the record reveals that despite the presence of a protective order, from January 2023 through April 2024, McGann regularly contacted Tessa both directly and indirectly. For example, he twice approached her and spoke to her at court hearings. Specifically, he asked her about a trip to Montana and a recent visit with their new grandson, implying that he knew what Tessa had been doing. McGann also approached Tessa and spoke to her while she was grocery shopping, and she heard the word jail as she was walking away from him. Further, McGann went to Tessa's residence and waved at her through the window, and he subsequently left her derogatory messages on her Ring camera. In addition, every time he made a spousal support payment to Tessa via Venmo, he included a message with the payment. Many of the messages were coded and were particularly unnerving for Tessa. For example, McGann sent a “143” message, which was a code that they had previously used to express their love for each other. In addition, McGann sent Tessa $71 with a happy birthday message the day before her seventy-first birthday. Further, McGann sent Tessa a message telling her that he forgave her. That message included a praying hands emoji. In addition, McGann indirectly contacted Tessa through the friend and the real estate agent. He specifically told the real estate agent to tell Tessa that he would proceed with a certain detail of selling the house if Tessa lifted the protective order.

[25] Based on this evidence, the jury could have found, and indeed did find, that McGann's conduct would cause a reasonable person to feel terrorized, frightened, intimidated or threatened. See Moone v. State, 250 N.E.3d 1101, 1109 (Ind. Ct. App. 2025) (concluding that, based on the evidence, a trier of fact could have found that Moone knew that the content and frequency of her messages would have caused a reasonable person to feel frightened), trans. denied; Andrews v. Ivie, 956 N.E.2d 720, 725-26 (Ind. Ct. App. 2011) (concluding that there was sufficient evidence to support the trial court's issuance of a protective order where the evidence revealed that “Andrews engaged in a knowing or an intentional course of conduct involving repeated or continuing harassment of Ivie that would cause a reasonable person and did indeed cause Ivie to feel terrorized, frightened, intimidated, or threatened”). McGann's argument is simply a request that we reweigh the evidence, which we cannot do. See Konkle, 253 N.E.3d at 1090. There is sufficient evidence to support his conviction.³

[26] Affirmed.

Vaidik, J., and Mathias, J., concur.

FOOTNOTES

1.   Ind. Code § 35-45-10-5. The jury also convicted McGann of Class A misdemeanor invasion of privacy; however, McGann does not appeal that conviction.

2.   The State later dismissed one of the Level 5 felony stalking counts.

3.   We note that McGann's reliance on L.O. v. D.O., 124 N.E.3d 1237 (Ind. Ct. App. 2019) and C.V. v. C.R., 64 N.E.3d 850 (Ind. Ct. App. 2016) is misplaced. First, in L.O., we reversed the trial court's issuance of an order of protection where our review of the testimony and the exhibits revealed no evidence that D.O. felt terrorized, frightened, intimidated, or threatened or that D.O. suffered emotional distress as a result of the text messages that L.O. sent her. L.O., 124 N.E.3d at 1241. Here, however, McGann acknowledges that Tessa testified that McGann's conduct caused her to feel frightened and anxious.Second, in C.V., we reversed the trial court's issuance of a protective order where our review of the evidence revealed that C.V.’s contact with C.R., which included leaving notes on her car on four occasions with an interval of seven months passing between two of the notes, was “relatively insignificant.” C.V., 64 N.E.3d at 854. Further, C.R. did not provide any evidence that she had asked C.V. to stop sending her the notes, and a law enforcement officer testified that C.V. had not sent any notes after the officer had contacted him and asked him to stop. Lastly, C.V.’s notes were not admitted into evidence at the protective order hearing. Based on these circumstances, we concluded that there was not sufficient evidence that a reasonable person would have felt terrorized, frightened, intimidate, or threatened by C.V.’s acts. Id. Here, however, McGann's contact with Tessa was regular and significant, there was a protective order in place prohibiting McGann from contacting Tessa, and McGann's Venmo messages to Tessa and the Ring camera videos were admitted into evidence. In addition, Tessa and other witnesses testified about the specifics of McGann's indirect and in-person contacts with Tessa.

Pyle, Judge.