Rodrick Hughes v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Mar 04 2015, 8:57 am
Pursuant to Ind. Appellate Rule 65(D), this
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 ATTORNEY FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Kenneth Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodrick Hughes, March 4, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1408-CR-562
v. Appeal from the Marion County
Superior Court
The Honorable Tiffany Vivo,
State of Indiana, Commissioner
Appellee-Plaintiff Cause No. 49G21-1405-CM-023264
Bailey, Judge.
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Case Summary
[1] Rodrick Hughes (“Hughes”) appeals his conviction for Invasion of Privacy, as a
Class A misdemeanor.1 He challenges his conviction based on the sufficiency
of the evidence. We affirm.
Facts and Procedural History
[2] On October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte
order of protection under Indiana Code section 34-26-5-9(b), which, inter alia,
ordered Hughes “to stay away from the residence” of R.G. (State’s Exhibit 1 at
3.) On October 22, 2013, Indianapolis Metropolitan Police Department
(“IMPD”) Officer David Labanauskas (“Officer Labanauskas”) served Hughes
with the protective order, and Hughes testified that he was aware of it. The
order was set to expire on October 9, 2014.
[3] In the early morning of May 4, 2014, IMPD Officer Joshua Kemmerling
(“Officer Kemmerling”) was dispatched to R.G.’s residence in response to a
report of a “suspicious person” or “trouble with a person.” (Tr. 7.) R.G.’s
residence was located in a residential neighborhood in southeast Marion
County. Upon arrival at R.G.’s address, Officer Kemmerling located Hughes
walking around the north side of R.G.’s residence. The officer testified that
Hughes’s behavior was “suspicious” (Tr. 8) because Hughes was walking
1
Ind. Code § 35-46-1-15.1(1). We refer to the version of the statute in effect at the time of Hughes’s offense.
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“between the houses in the dark in an area that no pedestrian or person other
than a resident would be walking[.]” (Tr. 9.)
[4] Hughes identified himself to Officer Kemmerling, who searched a computer
database and discovered there was a protective order in place directing Hughes
to stay away from R.G.’s residence. IMPD Officer Terrance Cress arrived on
the scene and interviewed R.G., who was at home. Based on the officers’
investigation, Hughes was placed under arrest for invasion of privacy.
[5] On July 21, 2014, a bench trial was held, at the conclusion of which Hughes
was found guilty. He now appeals.
Discussion and Decision
[6] Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
the credibility of witnesses or reweigh evidence. Id. We will affirm the
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens
v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[7] Under Indiana Code section 35-46-1-15.1(1), a person who knowingly or
intentionally violates a protective order to prevent domestic or family violence
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issued under Indiana Code chapter 34-26-5 commits invasion of privacy. On
October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte
order of protection under Indiana Code section 34-26-5-9(b) ordering Hughes
“to stay away from the residence” of R.G. (State’s Exhibit 1 at 3.)
[8] The State charged that on or about May 4, 2014, Hughes “did knowingly
violate an order of protection, that is: A protective order issued to prevent
domestic or family violence issued under IC 4-26-5 . . . which was issued to
protect [R.G.], and furthermore, did so by engaging in the following conduct[:]
being at the residence and/or property of [R.G.].” (App. 14.)
[9] Hughes argues that the evidence is insufficient to support his conviction
because “[w]hile he may have been near [R.G.’s] home on [May 4, 2014], he
was not at her property.” (Appellant’s Br. 7.) The evidence shows that a
protective order was in effect on May 4, 2014, when police were called to
R.G.’s address. After arriving at that address, Officer Kemmerling testified
that he saw Hughes “walking around the north side of the home adjacent to the
residence - - the address that we were sent to.” (Tr. 8.) Officer Kemmerling’s
testimony that Hughes was walking along the outside of R.G.’s home is
sufficient to establish that Hughes failed “to stay away from” R.G.’s residence
in violation of the protective order (State’s Exhibit 1 at 3) and that Hughes was
“at the residence and/or property of [R.G.]” as charged. (App. 14.) The
evidence was thus sufficient to support Hughes’s conviction for invasion of
privacy.
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[10] Hughes also argues that the State did not present sufficient evidence that he
“knowingly” committed invasion of privacy because Hughes “believed the
protective order had been dismissed.” (Appellant’s Br. 6.) Hughes testified at
trial that he thought the protective order was no longer in effect because a no-
contact order issued by a different court in a separate case also involving R.G.
had been dismissed.
[11] A person engages in conduct “knowingly” if, when he engages in the conduct,
he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b). Here,
Officer Labanauskas’s testimony that he served Hughes with the protective
order coupled with Hughes’s acknowledgement of the order is sufficient to
show Hughes knowingly violated the order. See Dixon v. State, 869 N.E.2d 516,
520 (Ind. Ct. App. 2007) (holding that there was sufficient evidence to affirm
defendant’s conviction for invasion of privacy for knowingly or intentionally
violating a protective order after a police officer gave defendant oral notice of
the order and defendant returned later that day). Although Hughes testified
that he believed the order had been dismissed, in cases involving protective
orders, “it is even more important than usual to remember that on appeal, we
do not reweigh the evidence, assess the credibility of witnesses, or substitute our
judgment for that of the trial court.” Chavers v. State, 991 N.E.2d 148, 153 (Ind.
Ct. App. 2013), trans. denied. Despite Hughes’s self-serving testimony that he
believed the protective order was dismissed, there was sufficient evidence to
support Hughes’s conviction for knowingly committing invasion of privacy. See
id. (affirming defendant’s conviction for knowingly committing invasion of
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privacy where defendant mistakenly believed the no-contact order that formed
the basis of the conviction was dismissed when, in fact, a separate protective
order issued by a different court had been dismissed, the no-contact order was
still valid, and the defendant’s mistaken belief was not reasonable).
Conclusion
[12] There was sufficient evidence to convict Hughes of invasion of privacy.
[13] Affirmed.
Robb, J., and Brown, J., concur.
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