Eddie Long v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 19 2015, 10:12 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
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Graham T. Youngs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eddie Long, February 19, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1406-CR-419
v. Appeal from the Marion Superior
Court.
State of Indiana, The Honorable Gary Miller, Judge.
Cause No. 49G21-1312-CM-76912
Appellee-Plaintiff
Riley, Judge.
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STATEMENT OF THE CASE
Appellant-Defendant, Eddie Long (Long), appeals his conviction for invasion
of privacy, a Class A misdemeanor, Ind. Code § 35-46-1-15.1(1) (2013).
We affirm.
ISSUE
Long raises one issues on appeal which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain Long’s
conviction.
FACTS AND PROCEDURAL HISTORY
In October of 2012, a fifteen-year relationship between Long and his live-in
girlfriend Coleen McKinley (McKinley) ended, and McKinley moved out of
their home. McKinley left a letter addressed to Long stating her reasons for
moving out. In addition, because McKinley owed Long some money, she left
two years’ worth of postdated checks each in the amount of $850, all to be
cashed monthly.
On March 28, 2013, the Shelby Circuit Court issued an ex parte protective order
which ordered Long to have no contact with McKinley for a period of two
years. On November 18, 2013, McKinley received a phone call from an
unknown number. When she picked up, McKinley recognized Long’s voice on
the other end. When McKinley threatened to hang up and call the police, Long
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answered back by saying, “I love you [] I don’t want to hurt you financially.”
(Transcript p. 40).
On December 3, 2013, the State filed an Information charging Long with
invasion of privacy, a Class A misdemeanor, I.C. § 35-46-1-15.1. A bench trial
was conducted on May 21, 2014. During the trial, Long admitted that he was
aware of the protective order and that he did make a phone call to McKinley.
However, Long stated that he only contacted McKinley in an effort to collect a
debt. Long argued that 15 U.S.C. § 1692(c) of the Fair Debt Collection
Practices Act (FDCPA) authorized him to contact McKinley for the purposes
of collecting the debt she owed. At the close of the evidence, the trial court
found that there was no exception to the protective order statute, even for the
collection of a debt. The trial court then sentenced Long to 365 days in Marion
County Jail with credit for 4 days served, and the balance of 361 days to be
suspended upon successful completion of probation.
Long now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Long claims that there is insufficient evidence to sustain his conviction of
invasion of privacy. Our standard of review for sufficiency claims is well settled.
We neither reweigh the evidence nor judge the credibility of the witnesses.
Perrey v. State, 824 N.E.2d 372, 373 (Ind. Ct. App. 2005), trans. denied. We only
consider the evidence most favorable to the judgment and the reasonable
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inferences to be drawn therefrom. Id. Where there is substantial evidence of
probative value to support the judgment, it will not be set aside. Id.
To convict Long of invasion of privacy, the State had to prove that Long
knowingly or intentionally violated a protective order. See I.C. § 35-46-1-15.1.
Long’s leading argument is that “his intent was not to harass or annoy []
McKinley but to attempt to collect on a debt.” (Appellant’s Br. p. 6). At trial,
Long introduced evidence that the checks McKinley wrote to him bounced,
that McKinley had closed her bank account, and that FDCPA authorized him
contact McKinley to collect his debt. We reject Long’s arguments for two
reasons. First, we note that Congress created the FDCPA to prohibit debt
collectors from using unfair, deceptive, or abusive practices when collecting
consumer debts. The FDCPA places numerous restrictions on what debt
collectors are allowed to do when collecting debts and provides consumers with
certain rights and remedies against those who violate any of its provisions. As
such, Long cannot use the act to collect his debt because the FDCPA principal
purposes is to prohibit debt collectors from using unfair practices to collect
debts. Secondly, we note that the statute generally applies to third party debt
collectors, and not to individual creditors. For the foregoing reasons, Long
cannot use the act evade the order of protection.
In the instant case, the ex parte protective order prohibited Long from
1 . . . . committing acts of domestic violence or family violence,
stalking . . .
2. . . . harassing, annoying, telephoning, contacting, or directly or
indirectly communicating with [McKinley] except:_____
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(State’s Exh. 1). Thus, Long was barred from contacting McKinley under any
setting. During trial, Long testified that he knew the ex parte order was still in
effect when he called McKinley in November of 2013. At trial, McKinley
testified that Long’s contact was unwelcomed, disturbing, and upsetting.
Because the trial court did not specifically permit Long to contact McKinley
under any conditions, Long’s phone call in an attempt to collect his debt
violated the ex parte protective order and constituted invasion of privacy.
CONCLUSION
Based on the foregoing, we find that there is sufficient evidence to support
Long’s conviction of invasion of privacy.
Affirmed
Vaidik, C.J. and Baker, J. concur
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