Danny Lewis v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Feb 20 2015, 9:50 am
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
Lawrence D. Newman Gregory F. Zoeller
Newman & Newman, P.C. Attorney General of Indiana
Noblesville, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny Lewis, February 20, 2015
Appellant-Defendant, Court of Appeals Cause No.
29A04-1409-CR-440
v. Appeal from the Hamilton County
Superior Court
The Honorable William J. Hughes
State of Indiana, Cause No. 29D03-1401-CM-377
Appellee-Plaintiff
Bailey, Judge.
Case Summary
[1] Danny Lewis (“Lewis”) was convicted after a bench trial of one count of
Invasion of Privacy, as a Class A misdemeanor. He now appeals, raising for
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our review one issue: whether there was sufficient evidence to support his
conviction.
[2] We affirm.
Facts and Procedural History
[3] On January 13, 2012, in Cause Number 29D03-1104-FB-006367 (“Cause
6367”), Lewis was convicted of one count of Child Molesting. Part of Lewis’s
sentence was suspended to probation.
[4] Included among the terms of his probation was the requirement that Lewis
comply with a no-contact order as to H.E., his victim in the Child Molesting
case. (Exs. 1 & 2.) The order provided, in relevant part, that Lewis could have
no contact with H.E. “in person, by telephone or letter, through an
intermediary, or in any other way, directly or indirectly, except through an
attorney of record” during his probation. (Ex. 2.) In addition, a separate no-
contact order was entered when Lewis was sentenced, which proscribed contact
with H.E. during the period of Lewis’s executed sentence in the Department of
Correction. (App’x at 11-12.) Lewis was present at the sentencing hearing
where these requirements were imposed, and signed and initialed an Order of
Probation that included reference to the no-contact order during the term of
probation. (Ex. 3.)
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[5] On December 20, 2013, Lewis sent mail to H.E. and her mother (“Mother”).
The envelope was addressed to both H.E. and Mother. The envelope included
two Christmas cards, one for H.E., and one for Mother. (Ex. 4; Tr. at 8.)
[6] The card addressed to H.E. had “Winnie the Pooh” art and was addressed to
“Pooh,” which was Lewis’s nickname for H.E. The card read, “When we pray
for what is God’s will, we can be confident that God will hear our prayers. My
prayers are with you daily.” (Ex. 5.)
[7] When the envelope arrived at Mother and H.E.’s home, Mother opened the
envelope. She did not give the card to H.E. Mother did, however, tell H.E.
that the card had come and who had sent it. H.E. “had no interest in seeing it.”
(Tr. at 9.)
[8] On January 15, 2014, the State charged Lewis with Invasion of Privacy. A
bench trial was conducted on August 21, 2014, at the conclusion of which the
court found Lewis guilty as charged, entered a judgment of conviction against
him, and sentenced him to one year imprisonment to run consecutively to the
sentence in Cause 6367.
[9] This appeal ensued.
Discussion and Decision
[10] In his appeal, Lewis contends that there was not sufficient evidence to sustain
his conviction for Invasion of Privacy, as charged. Our standard of review in
such cases is well settled. We consider only the probative evidence and
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reasonable inferences supporting the bench trial. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh
evidence. Id. We will affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.
2001)).
[11] To convict Lewis of Invasion of Privacy, as a Class A misdemeanor, the State
was required to prove beyond a reasonable doubt that Lewis knowingly violated
a no-contact order issued under Indiana Code section 35-38-1-30, which order
prohibited him from direct or indirect contact with H.E. during his
imprisonment.1 See I.C. § 35-46-1-15.1(13); App’x at 8.
[12] In his appeal, Lewis concedes that as a condition of his executed sentence, he
was subject to a no-contact order as to H.E., which order was issued under
Indiana Code section 35-38-1-30. Lewis also concedes that he mailed the two
cards to H.E. and Mother. Lewis’s sole contention is that the evidence
1
Indiana Code section 35-38-1-30 provides that a court may, as a condition of an executed sentence, require
a person to refrain from direct or indirect contact with an individual.
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presented at trial was insufficient to sustain his conviction because the
testimony presented at trial was that Mother received the cards, told H.E. about
the card Lewis had addressed to “Pooh,” but did not give H.E. the card. This,
Lewis contends, amounts to a failure of proof that he contacted H.E. either
directly or indirectly.
[13] In support of his position, Lewis directs our attention to this Court’s prior
decision in Huber v. State, 805 N.E.2d 887 (Ind. Ct. App 2004). In that case,
Huber was convicted after a jury trial of Invasion of Privacy as to his ex-wife,
who had obtained a protective order precluding him from contacting her either
directly or indirectly. Id. at 891-92. Huber had repeatedly contacted a domestic
violence advocate with whom Huber’s ex-wife had been working, and on many
of these occasions demanded that the advocate convey questions and messages
to his ex-wife on his behalf. The advocate did not convey any of Huber’s
communications, and repeatedly told Huber that she could not and would not
do so. Id. at 892. Based upon this evidence, the Huber Court reversed Huber’s
conviction for Invasion of Privacy, but affirmed a conviction for Intimidation as
to the victim advocate. Id.[14] The present case is readily distinguished from Huber. Lewis argues that he “did
not even request that the Christmas card be given to [H.E.]” and that because
the card was not given to H.E., “any attempt to contact [her] indirectly … was
incomplete.” (Appellant’s Br. at 9-10.) Yet Mother testified that Lewis’s card
was made known to H.E. And, contrary to Lewis’s insistence that he did not
request the card be given to H.E., Lewis’s envelope was addressed to both
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Mother and H.E. Unlike in Huber, an indirect form of contact was addressed to
H.E. and was achieved. Thus, we cannot conclude there was insufficient
evidence to sustain the trial court’s judgment.
[15] We note here that the State did not present as an exhibit at trial the no-contact
order issued as a condition of Lewis’s executed sentence. Rather, the State
introduced into evidence the no-contact order issued as a condition of Lewis’s
probation. Lewis’s probation had not yet fully commenced because at the time
of the instant offense, Lewis was incarcerated and sent the envelope to H.E.
from prison. The existence of a no-contact order related to Lewis’s executed
sentence precludes reversal of the judgment in this case.
[16] There are two statutes that afford authority to the trial courts to impose no-
contact orders as to victims of criminal offense. The statute at issue in this case
authorizes such orders during the executed prison sentences of defendants, see
I.C. § 35-38-1-30, but the State introduced documents related to the terms of
Lewis’s probation imposed under Section 35-38-2-2.3. Thus, as Judge Robb
observed in a concurrence in another case before this court, there may be
distinctions between executed and probationary periods and the applicability of
no-contact orders during those periods that bear upon the outcomes of future
cases. Howe v. State, No. 12A02-1405-CR-320, slip op. at 14-17 (Ind. Ct. App.
Jan. 30, 2015) (Robb, J., concurring in result). We mention this matter to
remind the State that while there was no effect upon Lewis’s conviction, such
may not be the case in other appeals.
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[17] Because we conclude there was sufficient evidence to sustain Lewis’s
conviction, we accordingly affirm the judgment against him.
[18] Affirmed.
Robb, J., concurs.
Brown, J., concurs in result.
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