Robert Wright v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 03 2020, 10:54 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Valerie K. Boots Myriam Serrano Marion County Public Defender Agency Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Wright, June 3, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3012 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge Trial Court Cause No. 49G16-1910-CM-39057

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 1 of 6 [1] Robert Wright appeals his conviction for invasion of privacy, a class A

misdemeanor. We affirm.

Facts and Procedural History [2] Wright’s mother, K.W., obtained a protective order against him on September

9, 2019. Prior to the issuance of the protective order, Wright had been staying

at K.W.’s house, which was a unit in a duplex she shared with her nephew,

M.C., who lived in the other unit in the duplex. 1 On September 30, 2019,

Indianapolis Metropolitan Police Officer Joshua Reese served Wright with the

protective order and explained to him that “he couldn’t have any contact with

his mother and that he couldn’t be on the property.” Transcript Volume II at

11. [3] On October 5, 2019, Wright and his girlfriend were living in a car that he had

moved “from in front of the house over to across the alley.” Id. at 6. At some

point, Wright and M.C. had an argument and M.C. or a neighbor called the

police. 2 Officer Reese responded to the call and, upon arriving, he observed

Wright “standing smack dab in the middle of the yard.” Id. at 12. Wright was

arrested for violating the protective order, and the State charged him with

invasion of privacy, a class A misdemeanor.

1 At trial, K.W. responded to the court’s question and identified the pair of addresses associated with the duplex. 2 During direct examination, K.W. indicated M.C. called the police, and during cross-examination, she stated “Allen called . . . right next door; he lives right next door.” Transcript Volume II at 7.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 2 of 6 [4] At the bench trial, the court admitted a copy of the protective order which states

Wright shall be removed and excluded from K.W’s residence and “is ordered to

stay away from the residence” of K.W. Exhibits Volume at 5. It further states

Wright is “ordered to stay away from the following place(s) that is/are

frequented by” K.W., and then lists the address associated with K.W.’s part of

the duplex. Id. During cross-examination K.W. responded to the question, “So,

ma’am, so he didn’t come to your . . . ,” and stated: “No sir . . . my nephew, who

lives next door, was coming up to take out some trash” and Wright “started

talking to him and they had a disagreement.” Transcript Volume II at 7.

Answering a follow-up question, she continued: “Robert was across the street

and then when he saw my nephew he came across this way, back over towards

the house, and he went forward and argued with my nephew.” Id. at 8. When

the court asked K.W. how long Wright lived across the street, she answered: “He

didn’t – he didn’t . . . my house sits on the alley – our house sits (inaudible) your

Honor, and he just moved across the alley. He didn’t have any place to go

because I kicked him out. They just wanted to stay there for nothing and not get

a place.” Id. at 8-9. When the court asked if, when she obtained the protective

order, he was “told he couldn’t come near your house,” she answered

affirmatively. Id. at 8. During cross-examination Officer Reese responded to the

question, “You can’t say for sure if it was [the address associated with K.W.’s

nephew’s part of the duplex] or [the address associated with K.W.’s part of the

duplex],” and stated: “It’s the same house; it’s just a double.” Id. at 12.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 3 of 6 [5] After the State rested its case, Wright moved for a voluntary dismissal under Ind.

Trial Rule 41(B), which the court denied. Wright was convicted as charged and

was sentenced to 180 days, with ten days executed and 170 served on probation,

and to see a mental health counselor.

Discussion [6] The issue is whether the evidence is sufficient to sustain Wright’s 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 verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

factfinder’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. We will affirm unless no reasonable factfinder could find the elements of the

crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. at 147. [7] Ind. Code § 35-46-1-15.1 provides that a person who knowingly or intentionally

violates a protective order to prevent domestic or family violence or harassment

commits invasion of privacy, a class A misdemeanor. In this case, Wright was

charged with knowingly violating a protective order to prevent domestic or

family violence or harassment. [8] Wright only disputes the knowing element of the violation of the protective

order and argues that neither K.W.’s nor Officer Reese’s testimony permitted

an inference that he understood the protective order prohibiting him from being

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 4 of 6

on his mother’s property meant he could not be in the yard of the duplex

communicating with a resident of its other unit. He contends the facts that the

house on the lot was a duplex and he went into the yard during an argument

with the other resident leaves a reasonable doubt as to his mens rea. [9] The State maintains the evidence is sufficient and argues: K.W. told Wright he

could no longer live in her home and she obtained a protective order; he had

knowledge that a protective order prevented him from being at her house, yet

he lived in a car across the alley from her house; despite that he was aware that

he had to stay away, he entered the yard of the structure in which K.W. resided;

and that nothing in the record indicates the yard to the property was split or

separated in any way to indicate it was not part of her property. [10] Wright’s contention that he did not understand the protective order, which he

admits prohibited him from “being on his mother’s property,” Appellant’s Brief at

7, prevented him from entering the yard of her residence is unavailing. “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). The

protective order required him to “stay away” from K.W.’s address; however,

when Officer Reese arrived, he observed Wright standing “smack dab in the

middle” of the yard. Exhibits Volume at 5. Transcript Volume II at 12. In light

of the record and the reasonable inferences supporting the verdict, we find

Wright acted with a high probability that he was violating the protective order.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 5 of 6 [11] To the extent Wright cites to Tharp v. State, 942 N.E.2d 814 (Ind. 2011), we

note that the issue in Tharp was the defendant’s knowledge of the existence of

the protective order at all. “[I]t appear[ed] that the only evidence that Tharp

knew of the protective order was from Pitzer telling him about it – at the same

time she told him it was no longer valid.” 942 N.E.2d at 817. This fell short of

“substantial evidence of probative value from which a finder of fact could find

beyond a reasonable doubt that Tharp knowingly violated a protective order.”

Id. at 818. More specifically, “the evidence [was] insufficient that Tharp

received adequate notice of the protective order.” Id. Here, Wright stayed at

K.W.’s residence before she kicked him out. Moreover, Officer Reese served

Wright with the protective order and explained that he could not have contact

with her or be on the property. Thus, we find the circumstances in this case do

not parallel those found in Tharp. [12] For the foregoing reasons, we affirm Wright’s conviction. [13] Affirmed.

Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3012 | June 3, 2020 Page 6 of 6