Willie J. Herman, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 30 2015, 8:30 am
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
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie J. Herman, Jr., October 30, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1504-CR-145
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D06-1409-F6-243
May, Judge.
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[1] Willie J. Herman appeals his conviction of Level 6 felony invasion of privacy. 1
As the parties stipulated there was a valid no-contact order in place against
Herman, we affirm.
Facts and Procedural History
[2] In July 2014, Herman was convicted of invading Mendy Rothgeb’s privacy. He
was sentenced to a year of unsupervised probation and he was ordered to have
no contact with Rothgeb while he was on probation. The State moved in
August 2014 to revoke Herman’s suspended sentence, after he was arrested and
charged with invasion of privacy in another case. On September 9, 2014, the
trial court ordered Herman’s sentence modified to sixty days executed with
credit for time served.
[3] On September 21, 2014, Fort Wayne police responded to a 911 call and found
Herman at Rothgeb’s residence. She told police Herman had hit her. Herman
was charged with domestic battery and invasion of privacy. A jury found him
not guilty of the former but guilty of the latter.
[4] At the trial on the present offense, the parties agreed the judge would instruct
the jury “a no-contact order was issued by the Court on behalf of Mendy
Rothgeb on July 15th, 2014, and was lawfully in place on September 21st,
1
Ind. Code § 35-46-1-15.1. Herman was found not guilty of domestic battery.
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2015.” 2 (Tr. at 222.) The jury found Herman guilty of Level 6 felony invasion
of privacy.
Discussion and Decision
[5] A person who knowingly or intentionally violates a no contact order issued as a
condition of probation commits invasion of privacy. Ind. Code § 35-46-1-15.1.
That offense is a Class A misdemeanor, but becomes a Level 6 felony if the
person has a prior unrelated conviction of invasion of privacy. Id. Herman did.
[6] On a challenge to the sufficiency of evidence to support a conviction, we do not
reweigh evidence or judge the credibility of witnesses, and we respect the jury’s
exclusive province to weigh conflicting evidence. McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005). We consider only the probative evidence and reasonable
inferences supporting the verdict. Id. We affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. Id.[7] Herman notes the no-contact order applied while he was on probation, and
argues the State did not prove he was on probation and the no-contact order
was still valid after the sentence modification of September 9, 2014. He notes
2
The trial court presumably meant September 21, 2014, the date of the charged offense. The record does not
reflect whether the trial court stated the date correctly when instructing the jury.
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the September 9 entry is silent as to the no-contact order or whether Herman
was still on probation.
[8] We cannot find reversible error. The parties stipulated the jury would be told
the no-contact order was lawfully in place on the date of Herman’s offense.
Once a stipulation is entered into between the parties, the facts so stipulated are
conclusive on both the parties and the tribunal. Coonan v. State, 269 Ind. 578,
583, 382 N.E.2d 157, 162 (1978), cert. denied sub nom. Coonan v. Indiana, 440
U.S. 984 (1979). In light of that stipulation, we affirm Herman’s conviction.
[9] Affirmed.
Crone, J., and Bradford, J., concur.
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