Demarco Delray Johnson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 28 2020, 8:56 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demarco Delray Johnson, December 28, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1476
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff David D. Kiely, Judge
The Honorable
Gary J. Schutte, Magistrate
Trial Court Cause No.
82C01-1908-F6-5333
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 1 of 4
Case Summary
[1] DeMarco Delray Johnson was convicted of Class A misdemeanor invasion of
privacy for violating a no-contact order. He now appeals, arguing the evidence
is insufficient to support his conviction. We affirm.
Facts and Procedural History
[2] On June 11, 2019, the State charged Johnson with Level 6 felony residential
entry for breaking and entering the Evansville home of Timothy and Merry
Patrick. An initial hearing was held the next day, June 12. Although the initial
hearing has not been transcribed, the CCS entry reflects the trial court ordered
Johnson to have “[n]o contact with Merr[y] Patrick or Timothy Patrick.” Ex. 4,
p. 12.
[3] Later that same day, Johnson asked his cellmate, Fitolay Demesmin, to write a
letter to the Patricks asking them to drop the case. Johnson explained the trial
court had issued a no-contact order prohibiting him from contacting the
Patricks and “he didn’t want to get in trouble for contacting” them himself. Tr.
p. 103. Johnson asked Demesmin to include in the letter he did not know
Demesmin was writing the letter “so that way if [the police] [found] out about
it,” “he could say he didn’t know.” Id. at 103, 104. Demesmin did as he was
asked and began his letter to the Patricks as follows: “I’m writing you on behalf
of a mutual friend. He doesn’t know that I’m writing you.” Ex. 2, p. 7. The
letter was dated June 12.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 2 of 4
[4] The next day, June 13, the trial court issued a written no-contact order, which
prohibited Johnson from “directly or indirectly” contacting the Patricks. Ex. 5,
p. 24. The Patricks received Demesmin’s letter on June 14 and contacted the
police. The State charged Johnson with Class A misdemeanor invasion of
privacy. A jury found him guilty, and the trial court sentenced him to one year
in jail.1
[5] Johnson now appeals.
Discussion and Decision
[6] Johnson contends the evidence is insufficient to support his conviction. When
reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence
nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.
2015). We will only consider the evidence supporting the verdict and any
reasonable inferences that can be drawn from the evidence. Id. A conviction
will be affirmed if there is substantial evidence of probative value to support
each element of the offense such that a reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt. Id.[7] To convict Johnson of Class A misdemeanor invasion of privacy as charged
here, the State had to prove beyond a reasonable doubt he knowingly violated
1
The trial court consolidated the residential-entry and invasion-of-privacy cause numbers, and a jury trial
was held on both counts. The jury found Johnson not guilty of residential entry.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 3 of 4
the no-contact order, which prohibited him from directly or indirectly
contacting the Patricks. See Ind. Code § 35-46-1-15.1(a)(11); Appellant’s App.
Vol. II p. 16; Ex. 5, p. 24. Johnson argues the State failed to prove he knew he
was prohibited from indirectly contacting the Patricks. He notes the CCS entry
does not reflect indirect contact was specifically prohibited, the State did not
have the initial hearing transcribed—which would have shown exactly what the
trial court advised him, and the written no-contact order—which clarified
indirect contact was prohibited—was not issued until the day after the letter
was written.
[8] Even without the transcript from the initial hearing, the evidence shows
Johnson knew he was prohibited from indirectly contacting the Patricks. After
the initial hearing, Johnson returned to the jail and asked his cellmate to write a
letter to the Patricks asking them to drop the case. Johnson did not simply ask
Demesmin to write a letter to the Patricks on his behalf. Johnson also asked
Demesmin to pretend he did not know the letter was being written so he could
later claim he knew nothing about it. This was strong evidence from which the
jury could reasonably conclude Johnson knew he was prohibited from
indirectly contacting the Patricks. Accordingly, we affirm Johnson’s conviction
for invasion of privacy.
[9] Affirmed.
Brown, J., and Pyle, J., concur.
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