James D. Benge v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 17 2015, 10:43 am
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
Joel C. Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James D. Benge, April 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
67A01-1409-CR-393
v. Appeal from the Putnam Superior
Court
Cause Nos. 67D01-1304-CM-166,
State of Indiana, 67D01-1304-CM-170
Appellee-Plaintiff.
The Honorable Thomas Milligan,
Senior Judge
Barnes, Judge.
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Case Summary
[1] James Benge appeals his conviction for Class A misdemeanor invasion of
privacy. We affirm.
Issue
Benge raises one issue, which we restate as whether there is sufficient evidence
to support his conviction.
Facts
[2] In the March 2013, Benge and his wife, Melissa Benge, were separated, and she
had filed for divorce. The couple had one daughter and exchanged custody at
the Greencastle Police Department. At a March 19, 2013 hearing related to the
dissolution, an order of protection was issued prohibiting Benge “from
harassing, annoying, telephoning, contacting or directly or indirectly
communicating with” Melissa. Cause No. 166 Ex. 1. The child was not
removed from the protective order to allow for parenting time.
[3] During a custody exchange on March 24, 2013, Melissa arrived at the police
station before Benge. When Benge arrived, he left their child in his car and
walked over to Melissa’s car. Melissa described Benge as “irritated” about the
protective order and pending criminal charges. Tr. p. 67. Benge asked Melissa
about Kevin Strezlic and wanted to know who Strezlic was and how Melissa
knew Strezlic because he had become Facebook friends with Melissa. Benge
also told Melissa he wanted to meet Strezlic. Melissa told Benge it was none of
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his business, and the conversation lasted for ten to fifteen minutes. The
conversation did not relate to the couples’ child.
[4] On April 4, 2013, the State charged Benge with two counts of Class A
misdemeanor invasion of privacy.1 A bench trial was held, and the trial court
found Benge guilty as charged. In doing so, the trial court stated:
the Court believes that Mr. Benge initiated the conversation about Mr.
Strezlic . . . and wanted to know about him and that that’s a
communication that’s not about the child. . . . I think that it’s beyond
the exception that’s allowed by the Protective Order.
Tr. pp. 92-93. Benge now appeals.
Analysis
[5] Benge argues that there is insufficient evidence to support his conviction for
Class A misdemeanor invasion of privacy. When reviewing a challenge to the
sufficiency of the evidence, we neither reweigh the evidence nor assess the
credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We
view the evidence—even if conflicting—and all reasonable inferences drawn
from it in a light most favorable to the conviction and affirm if there is
substantial evidence of probative value supporting each element of the crime
1
On March 31, 2013, another incident occurred during a custody exchange, and Benge was charged with a
second count of Class A misdemeanor invasion of privacy. Benge does not challenge that conviction. He
was also charged in a separate information with a third count of Class A misdemeanor invasion of privacy,
which arose out of an April 3, 2013 incident. Information relating to that charge and the transcript of that
trial is included in the record on appeal. Because Benge only challenges the March 24, 2013 incident, we
limit the facts and our analysis to that incident. In this regard, Benge’s reference to the trial court’s finding
about the April 3, 2013 incident is not relevant to our analysis. See Tr. pp. 58-59.
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from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Id.
[6] A person who knowingly or intentionally violates a protective order to prevent
domestic or family violence commits invasion of privacy, a Class A
misdemeanor. Ind. Code § 35-46-1-15.1(1). Benge argues that his
communication with Melissa on March 24, 2013 was not beyond the bounds of
innocent communications accompanying a typical child exchange and was not
harassing or annoying.
[7] We disagree. The protective order specifically prohibited Benge “from
harassing, annoying, telephoning, contacting or directly or indirectly
communicating with” Melissa. Cause No. 166 Ex. 1. Benge was irritated
when he spoke with Melissa while the child remained in his car. During the ten
to fifteen minute conversation, Benge questioned Melissa about her relationship
with another man and asked to meet him. Melissa specifically testified that the
conversation did not relate to the couple’s child. The trial court was able to
assess Melissa’s and Benge’s credibility when they testified at trial and found
that the conversation was not a communication about the child and went
beyond the exception for supervised parenting time. There is sufficient
evidence to establish that Benge knowingly or intentionally contacted and/or
communicated with Melissa in violation of the protective order.
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Conclusion
[8] There is sufficient evidence to support Benge’s conviction for Class A
misdemeanor invasion of privacy. We affirm.
[9] Affirmed.
May, J., and Pyle, J., concur.
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