Jeremy Arthur v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Jun 15 2016, 7:31 am

Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court 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 Attorney General Indianapolis, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeremy Arthur, June 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1510-CR-1755 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina Appellee-Plaintiff. Klineman, Judge Trial Court Cause No. 49G17-1508-CM-29975

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1755 | June 15, 2016 Page 1 of 5

Case Summary [1] Less than two hours after Jeremy Arthur was served with a protective order that

prohibited him from “harassing, annoying, telephoning, contacting, or directly

or indirectly communicating with” his daughter and another child, he twice

drove “crazy” past a house—where he knew the children would be—when the

children were outside. The State charged Arthur with invasion of privacy as a

Class A misdemeanor, and the trial court found him guilty. Arthur appeals,

challenging the sufficiency of the evidence. Because the evidence shows that

Arthur indirectly communicated with the children, we affirm his conviction for

invasion of privacy.

Facts and Procedural History [2] On Friday, August 21, 2015, Arthur was served with an ex parte protective

order that prohibited him from “harassing, annoying, telephoning, contacting,

or directly or indirectly communicating” with his daughter, R.S., and another

child, S.H. Arthur knew that R.S. and S.H. had been going to Arthur’s

grandfather’s house on Friday afternoons. Less than two hours after Arthur

was served with the protective order, Arthur’s grandmother (who was divorced

from Arthur’s grandfather) went to Arthur’s grandfather’s house and waited in

the driveway to pick up R.S. and S.H. As S.H. came out of the house, Arthur’s

grandmother heard “crazy driving” behind her. Tr. p. 15. She looked up and

saw her ex-husband directing R.S. back into the house. She then saw Arthur

driving down the street. After Arthur drove past, Arthur’s grandmother

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brought R.S. to her car. Arthur then drove by a second time, “squeaking down

the street again.” Id. [3] The State charged Arthur with invasion of privacy as a Class A misdemeanor

for violating the ex parte protective order. See Ind. Code § 35-46-1-15.1.

Following a bench trial, the trial court found Arthur guilty and sentenced him

to 365 days with 351 days suspended.1 [4] Arthur now appeals.

Discussion and Decision [5] Arthur contends that the evidence is insufficient to support his conviction.

When reviewing the sufficiency of the evidence to support a conviction,

appellate courts must consider only the probative evidence and reasonable

inferences supporting the conviction. Sallee v. State, No. 03S00-1504-LW-

00237, 2016 WL 1051588, at *3 (Ind. Mar. 16, 2016). 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. Id. It is not

necessary that the evidence overcome every reasonable hypothesis of

innocence. Id. Evidence is sufficient if an inference may reasonably be drawn

from it to support the conviction. Id.

1 Arthur was also convicted of driving with a suspended license, but he does not challenge that conviction on appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1755 | June 15, 2016 Page 3 of 5 [6] A person who (1) knowingly or intentionally (2) violates an ex parte protective

order commits invasion of privacy as a Class A misdemeanor. See Ind. Code §

35-46-1-15.1(2). Here, it is undisputed that a valid protective order was in place

for the children and that Arthur was aware of it. The only issue is whether

Arthur violated the protective order by “harassing, annoying, telephoning,

contacting, or directly or indirectly communicating with” R.S. or S.H. [7] The record shows that Arthur knew S.H. and R.S. would be at his grandfather’s

house. Less than two hours after being served with the protective order, Arthur

drove “crazy” by the house when S.H. and R.S. were outside, causing Arthur’s

grandfather to direct R.S. back inside. Then, after Arthur’s grandmother loaded

R.S. into her car, Arthur drove by a second time, “squeaking down” the street.

The reasonable inference from the evidence is that Arthur indirectly

communicated with the children. [8] This case is different from those cases where the defendant asked a third person

to convey a letter or message to a protected person, but the letter or message

was never delivered. See, e.g., McElfresh v. State, 40 N.E.3d 1259, 1263 (Ind. Ct.

App. 2015), issue summarily aff’d by No. 32S01-1511-CR-00667, 2016 WL

830921, at *1 (Ind. Mar. 3, 2016) (finding that the evidence supported only

attempted invasion of privacy because the communication was not completed).

In contrast, here Arthur personally went to the place where he knew the

children would be and made noise as he drove by the house—not once but

twice—when they were outside. Because the State presented sufficient evidence

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that Arthur violated the protective order, we affirm his conviction for invasion

of privacy as a Class A misdemeanor. [9] Affirmed.

Barnes, J., and Mathias, J., concur.

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