Washawn Jones v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Mar 19 2015, 10:09 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 ATTORNEYS FOR APPELLEE
Deborah Markisohn Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
– Appellate Division
Indianapolis, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Washawn Jones, March 19, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1408-CR-580
v. Appeal from the Marion Superior
Court
The Honorable Gary Miller, Judge
State of Indiana, The Honorable Tiffany Vivo,
Appellee-Plaintiff Commissioner
Cause No. 49G21-1405-CM-24167
Bradford, Judge.
Case Summary
[1] On April 25, 2014, Appellant-Defendant Washawn Jones violated a protective
order that was issued pursuant to Indiana Code chapter 34-26-5 for the
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protection of his wife, M.U.-J. In light of Jones’s violation of the protective
order, Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged
Jones with Class A misdemeanor invasion of privacy. Following a bench trial,
Jones was found guilty as charged.
[2] On appeal, Jones contends that the evidence is insufficient to sustain his
conviction. Concluding otherwise, we affirm.
Facts and Procedural History
[3] On April 21, 2014, a protective order was issued to protect M.U.-J. from Jones.
On April 22, 2014, a sheriff’s deputy attempted to serve Jones with the
protective order at his step-father’s home. Jones’s step-father signed for the
order. Also on April 22, 2014, Jones texted M.U.-J. and indicated that he
wanted to talk, but M.U.-J. did not respond. He then called M.U.-J., but she
did not answer the telephone.
[4] Jones went to M.U.-J.’s home at approximately 2:00 a.m. on April 25, 2014,
and stood right outside her window. Later that day, Jones received a copy of
the protective order between 1:00 and 2:00 p.m. when he went to the post office
and signed for the copy of the order that had been mailed to him via certified
mail. Soon after receiving the copy of the order that had been sent to him via
certified mail, Jones returned to M.U.-J.’s residence.
[5] M.U.-J. contacted police after Jones came to her residence for the second time
that day. While police were at M.U.-J.’s residence, Jones texted M.U.-J.,
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stating “b[****] i couldve killed u last night when i seen u walking in ur house
with that b[****] i was in ur window b[****]” and “I see the police there b[****]
they cant save u ur dead b[****].” State’s Ex. 2. M.U.-J. knew that the text
messages were from Jones because he had previously called and texted her from
the same number, he had previously sent her similarly-phrased text messages,
and the text messages resembled the way that Jones communicated with her
outside of text messaging.
[6] On June 3, 2014, the State charged Jones with Class A misdemeanor invasion
of privacy. The trial court conducted a bench trial on July 28, 2014, after which
it found Jones guilty as charged. Also on July 28, 2014, the trial court imposed
a 365-day sentence, all of which was suspended to probation with GPS
monitoring. The trial court also ordered Jones to complete twenty-six domestic
violence counseling sessions and to have no contact with M.U.-J. for 365 days.
This appeal follows.
Discussion and Decision
[7] Jones contends that the evidence is insufficient to sustain his conviction for
Class A misdemeanor invasion of privacy.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative evidence
and reasonable inferences supporting the verdict. 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. To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it most
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favorably to the trial court’s ruling. Appellate courts affirm the
conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably
be drawn from it to support the [judgment of the fact-finder].
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). In essence, we assess only whether the judgment of the
fact-finder could be reached based on reasonable inferences that may be drawn
from the evidence presented. See Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012)
(emphasis in original). The uncorroborated testimony of a victim is sufficient
evidence to sustain a conviction. McCawley v. State, 274 Ind. 137, 138, 409
N.E.2d 594, 596 (1980). Upon review, appellate courts do not reweigh the
evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d
433, 435 (Ind. 2002).
[8] In charging Jones with Class A misdemeanor invasion of privacy, the State
alleged that:
On or about April 25, 2014, … Jones, did knowingly or intentionally
violate an order of protection, that is: A protective order issued to
prevent domestic or family violence issued under [Indiana Code
chapter] 34-26-5 … which was issued to protect [M.U.-J.], and
furthermore, did so by engaging in the following conduct[:] sending
[M.U.-J.] text messages and/or coming to [M.U.-J.]’s residence.
Appellant’s App. p. 12. During trial, the State presented evidence that M.U.-J.
obtained a protective order pursuant to Indiana Code chapter 34-26-5 on April
21, 2014, which prohibited Jones from “harassing, annoying, telephoning,
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contacting, or directly or indirectly communicating with” M.U.-J. State’s Ex.
1. The protective order further provided that Jones was “ordered to stay away
from the residence, school, and/or place of employment of” M.U.-J. State’s
Ex. 1.
[9] In order to convict Jones of invasion of privacy, the State was required to prove
that Jones knowingly or intentionally violated an order of protection that was
issued under Indiana Code chapter 34-26-5. See Ind. Code § 35-46-1-15.1. “A
person engages in conduct ‘intentionally’ if, when he engages in the conduct, it
is his conscious objective to do so.” Ind. Code § 34-41-2-2(a). “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.” Ind. Code § 35-41-2-2(b).
[10] Jones does not claim on appeal that he was not aware of the protective order
that was issued against him to protect M.U.-J. Without making a specific
reference to the “incredible dubiosity rule,” Jones challenges the sufficiency of
the evidence to sustain his conviction for invasion of privacy by arguing that
M.U.-J.’s testimony was contradictory.
Under the “incredible dubiosity rule,” a court will impinge upon the
jury’s responsibility to judge the credibility of the witnesses only when
it has confronted “‘inherently improbable’ testimony or coerced,
equivocal, wholly uncorroborated testimony of ‘incredible dubiosity.’”
Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). “Application of this
rule is limited to cases ... where a sole witness presents inherently
contradictory testimony which is equivocal or the result of coercion
and there is a complete lack of circumstantial evidence of the
appellant’s guilt.” Id.
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Arhelger v. State, 714 N.E.2d 659, 663 (Ind. Ct. App. 1999).
[11] Upon review, we disagree with Jones’s claim that M.U.-J.’s testimony was
contradictory. During trial, M.U.-J. testified that Jones came to her home at
approximately 2:00 a.m. on April 25, 2014, and stood right outside her
window. Jones returned to M.U.-J.’s residence later that day after receiving a
copy of the protective order. M.U.-J. contacted police after Jones came to her
residence for the second time that day. (Tr. 42) While police where at M.U.-
J.’s residence, Jones texted M.U.-J., stating “b[****] i couldve killed u last night
when i seen u walking in ur house with that b[****] i was in ur window
b[****]” and “I see the police there b[****] they cant save u ur dead b[****].”
State’s Ex. 2. M.U.-J. knew that the text messages were from Jones because he
had previously called and texted her from the same number, he had previously
sent her similarly-phrased text messages, and the text messages resembled the
way that Jones communicated with her outside of text messaging.
[12] Jones does not point to any specific testimony of M.U.-J. that contradicts with
the above-stated testimony. In addition, we observe that the State put
corroborating pictures of the text messages that M.U.-J. received from Jones
into evidence. We conclude that M.U.-J.’s testimony was not incredibly
dubious and that her testimony was sufficient to sustain Jones’s conviction for
Class A misdemeanor invasion of privacy. Jones’s claim to the contrary
effectively amounts to an invitation to reweigh the evidence, which we will not
do. See Stewart, 768 N.E.2d at 435.
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[13] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J., concur.
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