Jeremy Arthur v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jun 15 2016, 7:31 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
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
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General
Indianapolis, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Arthur, June 15, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1510-CR-1755
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1508-CM-29975
Vaidik, Chief Judge.
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Case Summary
[1] Less than two hours after Jeremy Arthur was served with a protective order that
prohibited him from “harassing, annoying, telephoning, contacting, or directly
or indirectly communicating with” his daughter and another child, he twice
drove “crazy” past a house—where he knew the children would be—when the
children were outside. The State charged Arthur with invasion of privacy as a
Class A misdemeanor, and the trial court found him guilty. Arthur appeals,
challenging the sufficiency of the evidence. Because the evidence shows that
Arthur indirectly communicated with the children, we affirm his conviction for
invasion of privacy.
Facts and Procedural History
[2] On Friday, August 21, 2015, Arthur was served with an ex parte protective
order that prohibited him from “harassing, annoying, telephoning, contacting,
or directly or indirectly communicating” with his daughter, R.S., and another
child, S.H. Arthur knew that R.S. and S.H. had been going to Arthur’s
grandfather’s house on Friday afternoons. Less than two hours after Arthur
was served with the protective order, Arthur’s grandmother (who was divorced
from Arthur’s grandfather) went to Arthur’s grandfather’s house and waited in
the driveway to pick up R.S. and S.H. As S.H. came out of the house, Arthur’s
grandmother heard “crazy driving” behind her. Tr. p. 15. She looked up and
saw her ex-husband directing R.S. back into the house. She then saw Arthur
driving down the street. After Arthur drove past, Arthur’s grandmother
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brought R.S. to her car. Arthur then drove by a second time, “squeaking down
the street again.” Id.
[3] The State charged Arthur with invasion of privacy as a Class A misdemeanor
for violating the ex parte protective order. See Ind. Code § 35-46-1-15.1.
Following a bench trial, the trial court found Arthur guilty and sentenced him
to 365 days with 351 days suspended.1
[4] Arthur now appeals.
Discussion and Decision
[5] Arthur contends that the evidence is insufficient to support his conviction.
When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
inferences supporting the conviction. Sallee v. State, No. 03S00-1504-LW-
00237, 2016 WL 1051588, at *3 (Ind. Mar. 16, 2016). It is the fact-finder’s role,
not that of appellate courts, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction. Id. It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence. Id. Evidence is sufficient if an inference may reasonably be drawn
from it to support the conviction. Id.
1
Arthur was also convicted of driving with a suspended license, but he does not challenge that conviction on
appeal.
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[6] A person who (1) knowingly or intentionally (2) violates an ex parte protective
order commits invasion of privacy as a Class A misdemeanor. See Ind. Code §
35-46-1-15.1(2). Here, it is undisputed that a valid protective order was in place
for the children and that Arthur was aware of it. The only issue is whether
Arthur violated the protective order by “harassing, annoying, telephoning,
contacting, or directly or indirectly communicating with” R.S. or S.H.
[7] The record shows that Arthur knew S.H. and R.S. would be at his grandfather’s
house. Less than two hours after being served with the protective order, Arthur
drove “crazy” by the house when S.H. and R.S. were outside, causing Arthur’s
grandfather to direct R.S. back inside. Then, after Arthur’s grandmother loaded
R.S. into her car, Arthur drove by a second time, “squeaking down” the street.
The reasonable inference from the evidence is that Arthur indirectly
communicated with the children.
[8] This case is different from those cases where the defendant asked a third person
to convey a letter or message to a protected person, but the letter or message
was never delivered. See, e.g., McElfresh v. State, 40 N.E.3d 1259, 1263 (Ind. Ct.
App. 2015), issue summarily aff’d by No. 32S01-1511-CR-00667, 2016 WL
830921, at *1 (Ind. Mar. 3, 2016) (finding that the evidence supported only
attempted invasion of privacy because the communication was not completed).
In contrast, here Arthur personally went to the place where he knew the
children would be and made noise as he drove by the house—not once but
twice—when they were outside. Because the State presented sufficient evidence
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that Arthur violated the protective order, we affirm his conviction for invasion
of privacy as a Class A misdemeanor.
[9] Affirmed.
Barnes, J., and Mathias, J., concur.
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