Raymond Carter v. State of Indiana ( 2013 )

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:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
Apr 29 2013, 9:19 am
IN THE
COURT OF APPEALS OF INDIANA
RAYMOND CARTER, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1210-CR-779
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-1112-CM-18349
April 29, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Raymond Carter appeals his conviction of invasion of privacy as a class A
misdemeanor. Carter raises one issue which we revise and restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
FACTS
Carter and Candice McLurkin had children together but were never married. On
April 7, 2010, Hamilton Superior Court 6 issued an Ex Parte Order for Protection which
provided that Carter was “prohibited from harassing, annoying, telephoning, contacting
or directly or indirectly communicating with [McLurkin].” State’s Exhibit 1. The
protective order indicated that it was effective until April 7, 2012. In June 2010, Carter
appeared in person at a protective order hearing, and the court ordered that the previously
issued protective order would remain in full force and effect until expiration or further
order of the court.
On January 24, 2011, the Cass County Circuit Court in Michigan entered an order
(the “Michigan Order”) concerning custody, parenting, time, and child support. The
Michigan Order provided that Carter and McLurkin would have joint legal custody of the
children, that McLurkin would have physical custody of the children, and that Carter
would have parenting time. The Michigan Order also stated:
IMPACT OF POSSIBLE PERSONAL PROTECTION ORDER
In the event a Personal Protection Order (PPO) exists between these parties,
those specific provisions which limit or prohibit contact between these
parties shall control the conduct of the parties during custody/parenting
times set forth in this Order.
However, this Order has priority over any PPO in the granting of
custody/parenting time, and the parties shall make alternative arrangements
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necessary to execute all Court-ordered custody/parenting time, so as not to
violate any PPO.
State’s Exhibit 2.
On December 9, 2011, Carter called McLurkin at her home in Noblesville,
Indiana, and left a message on her voicemail that indicated that he would be in the
Indianapolis area and wanted to know if he could see his children. McLurkin called the
police. Noblesville Police Officer James Aloisio responded to the call and listened to the
voicemail message. McLurkin did not advise Officer Aloisio of the Michigan Order.
COURSE OF PROCEEDINGS
On December 27, 2011, the State charged Carter with invasion of privacy as a
class A misdemeanor. At the bench trial, the State presented the testimony of McLurkin
and Officer Aloisio as well as the protective order and the Michigan Order. After the
State rested, Carter’s counsel moved for an acquittal, and the court denied the motion.
Carter testified that he was aware that the protective order was entered against him in
Hamilton County, but that he did not think that he was in violation of the order when he
called McLurkin. On cross-examination, Carter testified that he had read the part about
the personal protection order in the Michigan Order.
After Carter rested, the following exchange occurred:
[Carter’s Counsel]: [Carter] has to knowingly violate the protective order.
And I think with the issuance of the Michigan order
that the mens rea is not there as this gentleman
understood it. He’s testified he didn’t believe he was
violating the protective order by leaving a message
trying to arrange to see his children.
THE COURT: [Carter’s Counsel], knowingly is not based on what he
knew. It’s based on what a normal, ordinary person
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would know based upon normal understanding of legal
documents. Right?
[Carter’s Counsel]: Yes, Judge. And I don’t think a normal person –
THE COURT: His personal knowledge goes to the issue of culpability
for punishment purposes, not for guilt or not guilt.
Transcript at 58-59.
The court found Carter guilty as charged. Specifically, the court stated: “[Carter]
is in violation of the protective order which he knew about, which prohibits him from
having any telephone communication with . . . the prosecuting witness. The Michigan
order does not in any way, shape, or form impact the protective order, either legally or
practically.” Id. at 61-62. The court later stated:
You must follow the protective order. And, unfortunately, in your decision
you decided to commit a criminal offense. I’m sorry that you didn’t think
you were doing anything. And we’re going to take that into account by the
penalty that we give you. I’m going to take that into account, but it doesn’t
change the fact that you committed a criminal offense.
Id. at 74. The court’s order states:
The Court finds [Carter] guilty of Count 1: Invasion of Privacy, Class A
Misdemeanor. In this finding the Court specifically notes that the violation
although a violation is a technical violation. [Carter] raised a defense, not
sufficient legally but persuasive practically, that he was permitted to visit
with his children by order of a Michigan Court which the alleged victim
herein was in violation of at the time of the contact herein. The evidence at
trial clearly establishes, without question, that the contact at issue herein
was a telephone message left by [Carter] on the phone of the alleged victim
asking to see his children. The Court also notes that the parties are
currently involved in a contested custody/visitation action in this Court, and
they were engaged in that process at the time of the violation herein. Thus
while [Carter] violated the terms of the protective order herein, the
violation is explainable, and understandable.
Appellant’s Appendix at 28.
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ISSUE
The sole issue is whether the evidence is sufficient to sustain Carter’s conviction
for invasion of privacy as a class A misdemeanor. When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146
(Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We
consider conflicting evidence most favorably to the trial court’s ruling. Id. We 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)). It is not necessary that the evidence overcome every reasonable hypothesis
of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Id.ANALYSIS
The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1,
which provides: “A person who knowingly or intentionally violates . . . a protective order
to prevent domestic or family violence issued under IC 34-26-5 (or, if the order involved
a family or household member, under IC 34-26-2 or IC 34-4-5.1-5 before their repeal) . . .
commits invasion of privacy, a Class A misdemeanor.” “A person engages in conduct
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”
Ind. Code § 35-41-2-2(a). “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). Thus, to convict Carter of invasion of privacy as a class A misdemeanor,
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the State was required to prove that Carter knowingly or intentionally violated a
protective order to prevent domestic or family violence.
Carter argues the evidence is insufficient because he did not knowingly or
intentionally violate the protective order when he contacted McLurkin with the sole
intention of exercising parenting time in accordance with the Michigan Order. Carter
asserts that his actions were taken to effectuate the parenting time set out in the Michigan
Order. Carter also argues that the trial court misinterpreted the knowingly element when
it stated that “knowingly is not based on what [Carter] knew.” Appellant’s Brief at 6.
Carter contends that “[e]ven if [he] was mistaken as to the effect of the Michigan Order,
his subjective understanding of that effect shows that he lacked the mens rea necessary to
commit Class A misdemeanor Invasion of Privacy.” Id. at 7-8.
The State argues that the evidence is sufficient to sustain Carter’s conviction
because Carter was aware of the Hamilton County protective order and knowingly called
McLurkin. The State maintains that the offense of invasion of privacy “does not require
a specialized belief or level of mens rea” and that “Carter’s assertion that he was required
to subjectively believe that his act of calling McLurkin would violate the Hamilton
County protective order is contrary to law.” Appellee’s Brief at 5-6. In his reply brief,
Carter argues that the State’s approach would “read ‘knowingly or intentionally’ out of
the statute and would result in situations such as this where the defendant acted
reasonably in accordance with the Michigan order.” Appellant’s Reply Brief at 2.
Carter’s contention that he believed that he acted lawfully when he telephoned
McLurkin and did not knowingly violate the protective order is unavailing. As
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mentioned earlier, “[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).
Even assuming that Carter believed that he was not violating the protective order, it is
well-settled that ignorance of the law is no excuse for criminal behavior. See Scalpelli v.
State, 827 N.E.2d 1193, 1198 (Ind. Ct. App. 2005), trans. denied; Yoder v. State, 208 Ind.
50, 194 N.E. 645, 648 (1935) (“[E]very man is presumed to know the laws of the country
in which he dwells . . . [I]gnorance of the law excuses no man.”) (quoting Marmont v.
State, 48 Ind. 21, 31 (1874)). The relevant inquiry is whether Carter was aware of the
high probability that he telephoned or communicated with McLurkin who had a
protective order at the time he did so. The evidence reflects that Carter knowingly
telephoned or communicated with McLurkin. See Dewald v. State, 898 N.E.2d 488, 493
(Ind. Ct. App. 2008) (holding that defendant’s contention that he believed that he acted
lawfully when he stopped two individuals and that he therefore did not commit the crime
of confinement knowingly was unavailing, that ignorance of the law is no excuse, and
that the relevant inquiry was whether the defendant was aware of the high probability that
he substantially interfered with the liberty of the two individuals), trans. denied.
Carter cites Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011). At 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
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order.” Id. at 818. More specifically, “the evidence [was] insufficient that Tharp
received adequate notice of the protective order.” Id.
The circumstances here do not parallel those of Tharp. Carter personally appeared
at a June 2010 protective order hearing and was advised that the previously issued
protective order would remain in full force and effect until expiration or further order of
the court. He was subject to the Michigan Order that contemplated “alternative
arrangements necessary to execute all Court-ordered custody/parenting time, so as not to
violate any PPO.” State’s Exhibit 2. Carter’s purported misunderstanding that the
Michigan Order somehow “trumped” the Indiana protective order does not undercut the
fact-finder’s determination that Carter acted knowingly or intentionally when he picked
up the phone and placed a call in violation of the protective order he knew to exist.
CONCLUSION
For the foregoing reasons, we affirm Carter’s conviction for invasion of privacy as
a class A misdemeanor.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
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