Corey Coleman v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 04 2014, 8:47 am
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 of Indiana
Indianapolis, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COREY COLEMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-594
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G21-1305-CM-34861
April 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Corey Coleman appeals his conviction for Class A misdemeanor invasion of
privacy, arguing that there is a variance between the charging information and the proof at
trial. Although there is a variance, we find that the variance is not fatal because Coleman
was not misled in his defense and did not suffer prejudice as a result of the variance. We
therefore affirm.
Facts and Procedural History
The facts most favorable to the judgment follow. Coleman and Erica Motley are
the parents of D.M. Coleman was convicted of residential entry and placed on probation.
As a condition of his probation, the trial court issued a no-contact order prohibiting him
from having direct or indirect contact with Motley and D.M.1 State’s Ex. 1.
Both Coleman and Motley appeared for a hearing in Marion Superior Court 17 on
May 28, 2013. Motley brought her friend, Micah Caldwell, to watch D.M. while she
attended the hearing. Motley, D.M, and Caldwell were in the waiting room of Court 17
when Coleman walked in and did a “double-take.” Tr. p. 8. Motley was holding D.M. at
the time. Coleman walked up and “tapped [D.M.] on her arm.” Id. at 9. Motley told
Coleman no, because he was not allowed to touch D.M. Coleman looked at Motley and
walked away.
Motley immediately handed D.M. to Caldwell and went downstairs in the City-
County Building to the Marion County Sheriff’s Office. Motley told Deputy Corey Thtiggs
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The no-contact order provided that Coleman was to have no contact with Motley and D.M. “in
person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except
through an attorney of record, while on probation. This includes, but is not limited to, acts of harassment,
stalking, intimidation, threats, and physical force of any kind.” Ex. 1.
2
that Coleman had touched D.M.’s arm in violation of a no-contact order. Deputy Thtiggs
went to Court 17 to speak with Coleman. After asking Coleman some preliminary
questions, Coleman said, “I didn’t touch her.” Id. at 21. Deputy Thtiggs responded that
he had not said anything about a touching. Deputy Thtiggs handcuffed Coleman and took
him downstairs, where he verified that the no-contact order was active.
Deputy Thtiggs prepared a probable-cause affidavit, which provided that Coleman
walked up to Caldwell, who was holding D.M. at the time, and touched Caldwell’s arm in
an attempt to touch D.M. Appellant’s App. p. 12. The State then charged Coleman with
Class A misdemeanor invasion of privacy. The State alleged that Coleman knowingly
violated a no-contact order issued as a condition of pretrial release—as opposed to
probation. Id. at 13. The State also alleged that Coleman “attempted to touch [D.M.]
and/or was in the presence of [D.M.].” Id.
A bench trial was held. Before the State called its first witness, the State moved to
amend the charging information by interlineation to read that Coleman violated the no-
contact order issued as a condition of probation instead of as a condition of pretrial release.
Tr. p. 3. The trial court granted the State’s motion over Coleman’s objection. Both Motley
and Caldwell testified that Coleman touched D.M. as Motley was holding her. Deputy
Thtiggs testified that based on his conversation with Motley on May 28, Coleman touched
Caldwell’s arm in an attempt to touch D.M. Motley, however, denied making this
statement to Deputy Thtiggs. Coleman testified in his defense that when he walked in
Court 17’s waiting room, D.M. gestured toward him, like she wanted him to pick her up.
Although he thought about it, Coleman said he did not pick D.M. up or touch her because
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of the no-contact order. Rather, he proceeded to the courtroom. Id. at 33. The trial court
found Coleman guilty, not for being in the presence of D.M., but rather because “we’re
dealing with more here, an allegation of touching.” Id. at 43.
Coleman now appeals his conviction.
Discussion and Decision
Coleman contends that there was a variance between the charging information and
the proof at trial. A charging information must be a plain, concise, and definite written
statement of the essential facts constituting the offense charged and must be sufficiently
specific to apprise the defendant of the charged crime and to enable him to prepare a
defense. Parahams v. State, 908 N.E.2d 689, 691-92 (Ind. Ct. App. 2009). A variance is
an essential difference between the pleading and the proof. Mitchem v. State, 685 N.E.2d
671, 677 (Ind. 1997). A variance between the charging information and the proof at trial
does not necessarily require reversal. Gaines v. State, 999 N.E.2d 999, 1002 (Ind. Ct. App.
2013). The test to determine whether a variance is fatal is:
(1) was the defendant misled by the variance in the evidence from the
allegations and specifications in the charge in the preparation and
maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future criminal proceeding covering
the same event, facts, and evidence against double jeopardy?
Id. “Put another way, if the variance either misleads the defendant in the preparation of his
defense resulting in prejudice or leaves the defendant vulnerable to double jeopardy in a
future criminal proceeding covering the same event and evidence, then the variance is
fatal.” Id. (quotation omitted).
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The variance in this case is that the State charged Coleman with invasion of privacy
for attempting to touch D.M.2 However, at trial, the State proved more than that—it
presented evidence that an actual touching occurred. Both Motley and Caldwell testified
that Coleman touched D.M. while Motley held her. Nevertheless, Coleman does not
demonstrate how he was misled in his defense or suffered prejudice as a result of this
variance. Coleman’s defense was that he did not touch D.M. or even try to. His defense
was the same regardless of whether the State’s theory was that Coleman touched D.M. or
tried to touch D.M.3 If the trial court would have found Coleman’s testimony credible—
that he thought about touching his daughter but walked into the courtroom instead—his
defense would have worked for either the attempt or the completed crime. See Broude v.
2
The State also alleged that Coleman violated the no-contact order because he was in the presence
of D.M., but the trial court rejected this ground. See Tr. p. 43 (“I think that in the event that we were here
and it was just a matter of being in the presence of[,] then I would have no problem finding a defendant not
guilty . . . .”). Therefore, we do not rely on this ground either.
To the extent Coleman argues that Thomas v. State, 936 N.E.2d 339 (Ind. Ct. App. 2010), trans.
denied, controls this case, we find that it is readily distinguishable. In Thomas, the parties were in court
before the judge when the defendant made a derogatory comment to the victim that was arguably in
violation of a protective order. This Court held that the conduct was more appropriately addressed by direct
contempt proceedings than an invasion-of-privacy charge because some terms of protective orders need to
be suspended when parties appear in court for hearings. Id. at 340-41. Here, however, the parties were not
in court before the judge when the events occurred.
3
Coleman cites Huber v. State, 805 N.E.2d 887 (Ind. Ct. App. 2004), for the proposition that
attempting to contact or touch someone who is the subject of a protective order is not invasion of privacy.
We do not read Huber so broadly. In Huber, a husband asked a domestic-violence advocate to contact his
wife on his behalf. The wife, however, had obtained three protective orders against him. The advocate
refused to contact the wife on the husband’s behalf. This Court reversed the husband’s invasion-of-privacy
conviction, reasoning:
[T]he State failed to carry its burden on the material element of [the husband] violating a
Protective Order by contacting [the wife], either directly or indirectly. [The advocate]
specifically told [the husband] that she could not convey the message; therefore, [the
husband’s] attempt to contact [the wife] indirectly through [the advocate] was incomplete.
Id. at 892. The facts here are much different, as Coleman was in the presence of his daughter in a waiting
room outside a courtroom.
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State, 956 N.E.2d 130, 136 (Ind. Ct. App. 2011) (“Here, Broude’s defense was that nothing
that could even remotely be construed as sexual touching had occurred between him and
A.M. This defense would have been the same no matter what the factual nature of the child
molesting allegations had been. Thus, the variance in the charging information does not
necessitate reversal under the first prong.” (citation omitted)), trans. denied.
Moreover, Coleman is adequately protected against double jeopardy in a future
criminal proceeding covering the same event, acts, and evidence. The charging
information references a particular day—May 28, 2013—when Coleman was on probation.
The parties all testified about a specific incident that occurred in Court 17’s waiting room
when they appeared for a hearing. Double-jeopardy principles therefore preclude another
trial and conviction based on the same evidence presented in Coleman’s first trial. We
therefore affirm Coleman’s conviction for Class A misdemeanor invasion of privacy.
Affirmed.
MAY, J., concurs.
RILEY, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
COREY COLEMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-594
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
RILEY, Judge, dissenting
I respectfully dissent from the majority’s decision to affirm Coleman’s conviction
for Class A misdemeanor invasion of privacy. The State charged Coleman with invasion
of privacy by violating a no-contact order when he “attempted to touch D.M. and/or was
in the presence of D.M.” (Appellant’s App. p. 13). At trial, the State presented evidence
of an actual touching. At the close of the evidence, the trial court remarked that because
Coleman was required to wait in the waiting room, he could not be prosecuted for “being
in the presence of D.M.” (Transcript p. 43). Accordingly, in order to convict Coleman of
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invasion of privacy, the State was required to establish that Coleman “attempted to touch”
his child. (Appellant’s App. p. 13).
An attempted offense is an inherently included offense of the completed crime. I.C.
§ 35-31.5-2-168(2). For an attempt to occur, the defendant must act with the culpability
required for the commission of the crime and engage in conduct that constitutes a
substantial step toward the commission of the crime. I.C. § 35-41-5-1(a). When
determining whether the defendant has taken a substantial step toward a crime, the focus
is on what has been completed, not on what remains to be done. Hughes v. State, 600
N.E.2d 130, 132 (Ind. Ct. App. 1992).
In Huber v. State, 805 N.E.2d 887, 889 (Ind. Ct. App. 2004), Huber requested a
domestic violence advocate to contact his wife on his behalf. Because Huber’s wife had
three protective orders against him, the advocate refused to contact her. Id. This court
reversed Huber’s conviction for invasion of privacy, holding that
[t]he State failed to carry its burden on the material element of Huber
violating a Protective Order by contacting [his wife], either directly or
indirectly. [The advocate] specifically told Huber that she could not convey
the message; therefore, Huber’s attempt to contact [his wife] indirectly
through [the advocate] was incomplete. Accordingly, we must reverse
Huber’s conviction for invasion of privacy[.]
Id. at 892 (emphasis added). Consequently, if an attempt needs to be complete in order to
convict, a fortiori no attempt exists but rather only the completed crime of invasion of
privacy remains. As such, we agree with Coleman that a defendant must either violate a
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protective order or not. Thus charging Coleman with an ‘attempted’ touching cannot result
in a conviction of the completed crime of invasion of privacy. I would reverse Coleman’s
conviction.
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