Christopher Murray v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Jul 18 2017, 8:59 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Murray, July 18, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2485
v. Appeal from the Marion Superior
Court
State of Indiana The Honorable Angela Dow
Appellee-Plaintiff. Davis, Judge
Trial Court Cause No.
49G16-1605-CM-17251
Bradford, Judge.
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Case Summary
[1] On May 7, 2016, Officer James Perry of the Indianapolis Metropolitan Police
Department (“IMPD”) responded to a dispatch concerning an argument
between a male and a female at the Kroger and Hardee’s in Linwood Square
Mall in Marion County. Officer Perry arrived on the scene and learned from
the Hardee’s staff that an argument ensued between a male and a female in the
restaurant and that the male had begun to walk up 10th Street. Officer Perry
found the male in question, Appellant-Defendant Christopher Murray, and
began to question him. During their conversation, Officer Perry learned that
the female in question, Tina Murray, was his wife. Officer Perry then
conducted a warrant check during which he discovered that there was a
protective order against Christopher that had been issued earlier that same day.
Christopher was arrested for violating that protective order.
[2] Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged
Christopher with Count I, Invasion of Privacy. Christopher was found guilty as
charged on October 6, 2016, following a bench trial. Christopher was
sentenced to 180 days with 170 days suspended and was required to get mental
health treatment at Midtown during probation. Christopher asserts that the
State provided insufficient evidence that he knew about the protective order
before his argument with Tina. Because we disagree, we affirm.
Facts and Procedural History
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[3] On May 7, 2016, Tina was being harassed by Christopher at the Kroger in
Linwood Square Mall. After becoming very uncomfortable and nervous, Tina
began to bang on the doors of the Kroger to get the attention of the guards. She
asked for their assistance in getting her husband to leave her alone. When the
guards came to Tina’s aid, she went and hid in the pharmacy of the Kroger.
While hiding in the Kroger pharmacy, Kroger security called the police and
officers from the IMPD responded to the scene. At 1:07 pm, these officers
personally served Christopher with a Protective Order and ordered him off of
the Kroger lot.
[4] Later that same day, there was a dispatch concerning a disturbance between a
male and a female at the Kroger in Linwood Square. The dispatch
subsequently confirmed that the disturbance had moved to the Hardee’s in that
same strip mall. Officer Perry responded to the dispatch at approximately
“1413 hours” or 2:13 pm. Appellant’s App. Vol. II 15. Once on the scene, the
Hardee’s staff informed Officer Perry about the incident and that the male
started walking westbound on 10th Street. As Officer Perry walked up 10th
Street, he found Christopher at the bus stop on East 10th Street and North
Euclid Avenue. Officer Perry began to question Christopher about the incident
at Hardee’s and Christopher explained that he was only trying to talk to his wife
when an argument ensued. While speaking with Christopher, Officer Perry
completed a warrant check where he found that Christopher had been
personally served with a protective order earlier that same day. Officer Perry
then arrested Christopher for violating the protective order.
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[5] The State charged Christopher with Count I, Invasion of Privacy. After a
bench trial, the trial court found Christopher guilty on that charge. On October
6, 2016, Christopher was sentenced to 180 days with 170 days suspended.
Christopher was also required to go to Midtown for mental health treatment
during probation. On appeal, Christopher asserts that the State provided
insufficient evidence to prove that he was aware of the protective order before
the argument with his wife.
Discussion and Decision
[6] Christopher argues that the State did not provide sufficient evidence to support
the claim that he knowingly violated the protective order. In reviewing
questions of sufficiency of the evidence, we do not reweigh the evidence or
assess the credibility of witnesses. Fleck v. State, 508 N.E.2d 539, 540 (Ind.
1987). Furthermore, we “will affirm the conviction if evidence of probative
value exists from which a fact-finder could find the defendant guilty beyond a
reasonable doubt.” Atwood v. State, 905 N.E.2d 479, 484 (Ind. Ct. App. 2009)
(citing Scott v. State, 803 N.E.2d 1231, 1237 (Ind. Ct. App. 2004)). “The
evidence is sufficient if an inference may reasonably be drawn from it to support
the verdict.” Berry v. State, 4 N.E.3d 204, 206 (Ind. Ct. App. 2014) (citing
Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)). A person is guilty of
invasion of privacy when he knowingly or intentionally violates a protective
order put in place to prevent domestic or family violence or an issue involving a
family or household member. See Ind. Code § 35-46-1-15.1(1).
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[7] Christopher contends that the State did not adequately prove that the he
knowingly or intentionally violated the protective order as required under
Indiana Code § 35-46-1-15.1(1). Christopher also alleges that the protective
order was served to Christopher only after his second argument with Tina.
Regardless of these arguments, we agree with the trial court’s finding that there
was sufficient evidence to sustain Christopher’s conviction of Count I Invasion
of Privacy.
[8] Knowledge of a protective order must be proven beyond a reasonable doubt.
Tharp v. State, 942 N.E.2d 814, 815 (Ind. 2011). There must be substantial
evidence of “probative value from which a finder of fact could find beyond a
reasonable doubt” that Christopher violated the protective order. Id. At 818.
We believe that the State produced sufficient evidence to prove that Christopher
had knowledge about the protective order against him before his second
argument with Tina. According to State’s Exhibit 2, Christopher was
personally served with a protective order at the Kroger in Linwood Square at
1:07 pm. At trial, when asked whether he was personally served Christopher
initially said no. However, when asked whether a police officer spoke to him
the following day concerning a protective order, Christopher said, “Yes. It
seemed- I was saying, it sounded kind of strange, those words; don’t you gotta
go to court over that?” Tr. p. 19. While Christopher may have been unsure
about needing to go to court to have a protective order, his confusion as to
whether he was personally served does not discredit the fact that, per the record,
Christopher was served at 1:07 pm. “Not only must the fact-finder determine
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whom to believe, but also what portions of conflicting testimony to believe.”
Atwood, 905 N.E.2d at 484 (Ind. Ct. App. 2009) (citing In re J.L.T. v. State, 712
N.E.2d 7 (Ind. Ct. App. 1999)). The trial court believed that Christopher was
personally served at 1:07 pm at the Kroger in Linwood Square and that
approximately one hour later, Christopher was found again trying to contact his
wife at that same Kroger and later on at Hardee’s. We will not second guess
the trial court’s determination in this regard. See Fleck, 508 N.E.2d at 540.
While Christopher may not have understood the process of receiving a
protective order, such alleged lack of understanding does not change the fact
that he was personally served nor that he was made aware of the fact that he
was not supposed to be in contact with Tina.
[9] Furthermore, the State used sufficient evidence to prove that the second
argument that occurred between Christopher and Tina began after the
protective order was issued. The probable cause affidavit that was completed
by Officer Perry stated that he was dispatched to the Kroger at the Linwood
Square Mall and later to the Hardee’s in the same strip mall at about “1413
hours” or 2:13 pm. Appellant’s App. Vol. II 15. The time at which Officer
Perry was dispatched was a little over an hour after Christopher had initially
been served with the protective order. Also, after Officer Perry approached
Christopher and ran the warrant check he found the protective order. Had the
protective order been issued after Christopher’s second argument with Tina,
Officer Perry would not have been able to find the protective order during the
warrant check. Christopher points to Tina’s inability to recall what time the
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argument between her and Christopher occurred to discredit other evidence
touching on when the protective order was issued. However, despite her
confusion during her testimony, “the trier of fact is entitled to determine which
version of the incident to credit.” Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct.
App 2007) (citing Reyburn v. State, 737 N.E.2d 1169, 1171 (Ind. Ct. App. 2000)).
Therefore, we conclude that the State provided sufficient evidence to prove that
Christopher knew that there was a protective order against him and that said
warrant was issued prior to his second argument with Tina. The State provided
sufficient evidence to convict Christopher of Count I Invasion of Privacy. We
affirm the judgement of the trial court.
[10] The judgement of the trial court is affirmed.
Mathias, J., and Altice, J., concur.
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