Shelly M. Phipps v. State of Indiana

FILED
May 10 2017, 8:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shelly M. Phipps, May 10, 2017
Appellant-Defendant, Court of Appeals Case No.
28A05-1609-CR-2097
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena A. Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1603-F6-42
Mathias, Judge.
[1] Shelly M. Phipps (“Phipps”) was convicted in Greene Superior Court of Level
6 felony invasion of privacy. Phipps appeals and raises the following dispositive
issue: whether the State proved that Phipps violated a protective order by
communicating with the protected person.
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[2] We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] Phipps was a member of a church in Solsberry, Indiana, and she and her
husband were friends with K.G., the pastor of the church. In 2008, Phipps and
her husband received marriage counseling from K.G, and K.G. disclosed
information that he learned in their counseling sessions to the elders of the
church. The church elders met with Phipps and her husband to discuss the
information K.G. had disclosed to them. Phipps was also upset that K.G.
hugged her twice, once during an individual counseling session and a second
time on the day she was baptized.
[4] Phipps sought an apology from K.G. for the alleged breach of confidentiality
but did not receive one. She sent letters and emails to K.G. and the church
elders demanding an apology.
[5] K.G. obtained a protective order against Phipps in 2008. Phipps was prohibited
from “harassing, annoying, telephoning, contacting, or directly or indirectly
communicating with” K.G. and she was ordered to stay away from his
residence and the church. Ex. Vol, State’s Ex. 2. In 2009, she violated the
protective order by speaking to K.G. at the church, and she pleaded guilty to
Class A misdemeanor invasion of privacy. In 2010, Phipps violated the
protective order again by sending a letter to K.G. She pleaded guilty to the
offense in March 2011, and judgment was entered as a Class A misdemeanor.
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[6] On January 6, 2016, in case number 28D01-1201-PO-12, K.G. filed a petition
to extend the protective order. On January 25, 2016, the court held a hearing on
the petition and found that the “conditions which caused the original Order for
Protection to be issued continue to exist.” Id. The court further concluded that
Phipps “continues to represent a credible threat to the safety of the Petitioner or
a member of the Petitioner’s household” and K.G. “has shown, by a
preponderance of the evidence, the threat of stalking continues to exist
sufficient to justify an extension of the original Order.” Id. Finally, the court
found that Phipps is “sending letters to the Court and Church Members asking
to have them forwarded to the Petitioner. She continues to harass and make
threats to” K.G. Id. The Court extended the original protective order until
February 6, 2018.
[7] On February 28, 2016, Phipps sent an email to three church elders, which is
reproduced in its entirety.
I originally sent this to my dad and now I am forwarding it. I’m
off work Tuesday. I will give [K.G.] until Tuesday evening to
comply. I have emailed channel 13 about doing a story. If
Tuesday evening passes by then I will have him arrested for
battery.
I went for my counseling session yesterday. I told my counselor
that I can’t handle this thing between me and [K.G.] anymore. I
am no longer angry, and I am beyond hurt, I think I am broken.
It has ruined by life. That’s exactly what I told [K.G.] when I
seen him in Court a month ago. I can’t handle the stress of it
alone. After much consideration, I have now gone public with
my story. I have talked with several high ranking officials this
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week about my case. Hopefully they can intervene. I told my
counselor that I believe [K.G.] owes me an apology and here’s
why: He broke my trust in two ways:
1) the first small way is because I told him something I thought
was confidential and he said ‘o.k. you can pray for us too.’ He
then proceeded to plaster mine and my husband’s name all over
the prayer list for the whole church to see. He stabbed me in the
back. 2) The second big way he broke my trust is when I was in
his office he came from around his desk and said “I love you
Shelly,” and gave me a hug. It happened again the night I was
baptized. He waited for me outside the front door and said “I
love you Shelly.” That’s TWICE!!! That is sexual harassment.
My concern is that I know he got in trouble in New Hampshire
for the same type of behavior. Then he denied it, and then had
death threats on him. The problem is they want to pick, pick,
pick on other people’s marriages when they definitely have one
of their own to work on. I reported this behavior to the Elders.
One Elder brought the four of us together and said “Nobody say
anything because it will hurt the church.” That wasn’t fair. I was
not allowed to say what was bothering me. That’s when I started
writing letters. Then that same Elder said “Shelly you need to be
quiet because it makes it look like all you want is [K.G.] back. I
don’t want [K.G.] If I had of wanted him I could have had him
when I was in his office, but that’s not what I was there for. It is
negligence! Needless to say it was not handled properly. The
Elders need to step up and take control of this situation because it
has spiraled out of control. Instead, they are sitting back and
letting [K.G.] call the shots. They are his boss and they can tell
him what to do. If he puts me in jail again I will just hold a news
conference from my jail cell.
[K.G.] has choices: He can resign, retire, apologize or go to jail
for battery. I hope he makes the right decision soon. I am more
than willing to apologize for my part in this. For now, my
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counselor’s advising me to exercise to relieve some of the stress
that’s on me.
Ex. Vol., State’s Ex. 1.
[8] A church elder forwarded the email to K.G. on the same day the elder received
it, and K.G. contacted the police. Shortly thereafter, Phipps was charged with
two counts of invasion of privacy, one as a Class A misdemeanor and one as a
Level 6 felony because Phipps had two prior convictions for the same offense.
[9] A jury found Phipps guilty of both offenses. The trial court merged the two
verdicts and entered a judgment of conviction for the Level 6 felony invasion of
privacy charge.
[10] At the sentencing hearing, the trial court considered her prior invasion of
privacy convictions and long-term harassment of K.G. as an aggravating
circumstance. The court considered Phipps’s mental health as a mitigating
circumstance and specifically noted that “she appears to be addressing [her
mental health issues] at this time with medication and counseling.”1 Appellant’s
App. p. 8. Phipps was ordered to serve a two-and-one-half year sentence, with a
one-year placement in work release and the remainder of the sentence
suspended to probation. Phipps now appeals.
1
At sentencing, Phipps explained that she has Bi-Polar Disorder and previously had been unable to
consistently pay for her medications. She now has new medical insurance and is able to pay for her
medications, which she takes regularly. Tr. p. 208.
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Sufficient Evidence of Communication
[11] Phipps argues that the State failed to present sufficient evidence to prove that
she committed invasion of privacy.
When we review a claim challenging the sufficiency of the
evidence we neither reweigh the evidence nor assess the
credibility of the witnesses. Instead, we consider only the
evidence and reasonable inferences drawn therefrom that support
the verdict. And we will affirm the conviction if there is probative
evidence from which jury could have found the defendant guilty
beyond a reasonable doubt.
Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016) (citing Treadway v. State, 924
N.E.2d 621, 639 (Ind. 2010)).
[12] To convict Phipps of Level 6 felony invasion of privacy, the State was required
to prove that Phipps knowingly or intentionally violated an ex parte protective
order issued under Indiana Code chapter 34-26-5 and that Phipps had a prior
unrelated conviction for invasion of privacy. Ind. Code § 35-46-1-15.1((2). The
State specifically alleged that Phipps harassed, annoyed, telephoned, contacted,
or directly or indirectly communicated with K.G. in violation of the protective
order issued under case number 28D01-1201-PO-12. Appellant’s App. pp. 24-
25.
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[13] It is undisputed that Phipps was aware of the protective order.2 The issue is
whether she indirectly contacted K.G. by sending the email to a church elder.
Contact is defined as “establishing of communication with
someone” or “to get in communication with.” Communication
occurs when a person makes something known or transmits
information to another. Further, communication may be either
direct or indirect and is not limited by the means in which it is
made known to another person.
C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997) (internal citations
omitted).
[14] In Kelly v. State, 13 N.E.3d 902, 905 (Ind. Ct. App. 2014), this court concluded
that the defendant’s text to the victim’s child, which stated, “if you see your
mom tell her I said rattle, rattle, rattle” and was immediately shown to the
victim, was sufficient evidence to prove that the defendant indirectly
communicated with the victim.
[15] Our court reached the opposite conclusion in Huber v. State, 805 N.E.2d 887(Ind. Ct. App. 2004). In that case, the defendant asked a domestic violence
2
Phipps’ argument that the protective order was void ab initio constitutes an impermissible attack on the
order issued in 2008 and extended in 2016. Phipps argues that the protective order does not meet the
requirements of Indiana Code section 34-26-5-9(b). Specifically, Phipps claims that, in that protective order
proceeding, no evidence was presented from which a reasonable fact finder could conclude that Phipps
harassed or stalked K.G.
Phipps makes an evidentiary challenge to the protective order issued under a separate case number, an issue
she could have raised if she had appealed the protective order. An order is void ab initio “if the trial court
lacks the authority to provide the relief ordered under any set of circumstances.” In re Adoption of P.A.H., 992
N.E.2d 774, 775 (Ind. Ct. App. 2013). Phipps does not argue that the Greene Superior Court lacked authority
to issue and extend the protective order K.G. acquired against her.
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advocate to call the victim and speak to her on his behalf. The domestic
violence advocate refused and told the defendant she could not do that.
Therefore, we concluded that the defendant’s attempt to contact the victim was
incomplete, and we reversed his invasion of privacy conviction. Id. at 892.
[16] In C.W.W., the State alleged that the defendant violated a “no contact” order
imposed as a condition of his probation by filing a lawsuit against the doctor he
was convicted of intimidating and harassing. C.W.W. appealed the probation
revocation, and we concluded that “his mere act of filing a lawsuit did not
constitute contact in violation of his probation.” 688 N.E.2d at 226 (rejecting
the State’s argument that C.W.W. contacted the doctor when the sheriff served
him with a summons and complaint).
[17] In this case, the State argues Phipps intended that her email would be
communicated to K.G. because she sent the email “to the church elders
demanding that K.G. take immediate action or face a criminal complaint.”
Appellant’s Br. at 13. The email stated that Phipps would have K.G. arrested
for battery if he did not resign from the church, retire, or apologize to her by
“Tuesday evening.” Ex. Vol., State’s Ex. 1.
[18] The email was initially sent to Phipps’ father. In the email, Phipps told her
father why she believes that K.G. “broke [her] trust.” Id. After listing those
reasons, Phipps explained what actions the church elders took after she
complained that K.G. 1) discussed the content of confidential conversations
with other members of the church and 2) told Phipps that he loved her and
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hugged her. Phipps also explained that she wrote letters to the elders and
members of the church because she was not allowed to discuss the situation.
[19] Phipps then stated that “the Elders need to step up and take control of this
situation because it has spiraled out of control.” Id. She complained that the
church elders allow K.G. to control the church even though he is their
employee. Phipps then stated that she would hold a news conference if K.G.
put her in jail again.
[20] Phipps’s email is a request to the church elders to take action for the alleged
wrongful conduct of their employee, K.G. Upon receipt of Phipps’s email, the
church elders had discretion to ignore her email or respond to her demands.
Phipps did not ask the elders to share her email with K.G., and a church elder
made an independent decision to forward the email to K.G. From this
evidence, we conclude that Phipps’s intent in sending the email was not to
contact K.G., but to ask the church elders to discipline or punish K.G. for his
alleged wrongful conduct. In other words, the intended recipient of the email
was the church’s decision-making body, not K.G. For this reason, we conclude
that the State failed to prove that Phipps contacted K.G. by sending the email.
We therefore reverse Phipps’s conviction for Level 6 felony invasion of privacy.
[21] Reversed for proceedings consistent with this opinion.
Baker, J., concurs.
Pyle, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Shelly M. Phipps, Court of Appeals Case No.
28A05-1609-CR-2097
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Pyle, Judge dissenting.
[22] I respectfully dissent from my colleagues’ decision to reverse Phipps’s
conviction for invasion of privacy as a Level 6 felony. The majority argues that
there was insufficient evidence for the jury to conclude that Phipps intended to
indirectly communicate with K.G. My colleagues correctly point out that the
State was required to prove that Phipps: (1) knowingly or intentionally; (2)
violated an ex parte protective order; and (3) that she had a prior conviction for
invasion of privacy. IND. CODE § 35-46-1-15.1. However, I believe there was
sufficient evidence for the jury to conclude that Phipps intended her email to be
communicated to K.G.
[23] In this case, Phipps argues that the State failed to prove that she intended the
email sent to the church elders to be communicated to K.G. I disagree. The
protective order prohibits indirect communication with a protected person. In
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this case, there is direct evidence of the existence of a valid protective order,
that Phipps sent a communication, and that she has a prior conviction. The
only outstanding issue is Phipps’s intent. It should be noted that intent can be
proven by circumstantial evidence. McCaskill v. State, 3 N.E.3d 1047 (Ind. Ct.
App. 2014). Further, intent can be inferred from a defendant’s conduct and the
natural and usual sequence to which such conduct logically and reasonably
points. Id. “We will not reverse a conviction that rests in whole or in part on
circumstantial evidence unless we can state as a matter of law that reasonable
persons could not form inferences with regard to each material element of the
offense so as to ascertain a defendant’s guilt beyond a reasonable doubt.” Id. at
1050.
[24] During its cross examination of Phipps, the State sought to prove her intent
regarding the email. The following colloquy took place:
Q Okay. You indicated that you just, the intention in writing
that was for you to come back to the church. Right?
A Right.
Q I didn’t see anything in there. [K.G.] didn’t see anything in
there where you asked to come back to the church. Is it in
there?
A I don’t believe it is in this one, no.
Q Well, that is the one we’re here to talk about today.
A Okay.
Q You also stated you didn’t wish [K.G.] any harm. Is that
right?
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A No, I have never wished him harm.
Q On the second page it says he can resign, retire,
apologize...
A That is not harming, that is not harming.
Q Wait a minute, I haven’t finished my question yet. Okay?
Hold on. On the second page it says, he can resign, retire,
apologize or go to jail for battery. Those seem like pretty
harmful things other than apologizing I guess but resigning
or retiring are financially harmful, going to jail is freedom
of liberty.
A I’m sure he has a great retirement there. They take great
care of him.
Q That is not my point. Those aren’t pleasant things for
people to go through. Those can be harmful. Wouldn’t
you agree?
A He’s been there 20 years. It’s time for him to retire. I mean
he is at that age.
Q So you don’t think that is harmful..
A Not at all.
Q To ask for someone to resign or retire.
A My dad is retired and he’s older than [K.G.].
Q It says in the first part that you will give [K.G.] until
Tuesday evening to comply.
A Okay, I’m not sure where you’re at but.
Q Okay, I can point it out to you.
A Okay.
Q I’m on the third line of the first paragraph, right there.
A Okay.
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Q You see that?
A I see that.
Q How were they supposed to let [K.G.] know your
demands if they didn’t communicate what was in your
email to him?
A I wanted the elders to take care of it. I never intended for
[K.G.] to get a copy of this. The elders are his boss.
Q It says here you’ll give him until Tuesday evening to
comply requiring him to do something. How are they
supposed to take it if it is up to him to comply? How are
the elders supposed to take care of something if it is up to
[K.G.] to comply?
A This was up to the elders. This was written to the elders.
Q Okay. Again, I’ll go back. It says he can resign, retire,
apologize or go to jail for battery. In order to avoid doing
that he has to comply with your demands by resigning,
retiring, apologizing, or going to jail.
A All I have ever wanted was those two little words, I’m
sorry, would have taken care of it.
Q How could they get him to apologize if they don’t
communicate your request or demands you have?
A It was communicated in the last hearing at the protective
order.
Q I understand that but...
A I stated exactly...
Q Listen, this email was sent February 28th with a very
specific demand on [K.G.]. Correct?
A That is not how I take it at all.
Q I will give [K.G.] until Tuesday evening to comply.
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A This was to Darrin Hamm.
Q Describe those words.
A Everett Chastain, Terry Keller, the elders of the church.
Q Did you write those words?
A Well, they’re in the email.
Q So did you write them?
A I did.
Q But yet they weren’t supposed to tell him.
A No, they are the, they call themselves the shepherds of the
church.
Q In order to get him to comply, they would have to talk to
him. Right?
A That is up to them if they talk to him.
Q Well, how can they get him to comply if they don’t talk to
him, if they don’t tell him what your demands are?
A I don’t know.
Q Well, I mean think about it. You see what I’m saying?
A I understand where you’re trying to go but that was not the
intent.
Q Well, I understand you’re saying that now but it’s the only
logical intent. It seems to me that you wanted them to talk
to him. Is that right or not?
A No, that is not right.
Q I have no other questions.
(Tr. Vol. II, 155-158).
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[25] From the evidence in the record, it seems clear that the State sought to prove
through the text of the email that Phipps intended to indirectly communicate
with K.G. The jury believed that when a person sends an email to a supervising
authority with an ultimatum directed at a third party, the natural and probable
consequence is that the email will be communicated to the third party. Here,
reasonable persons could infer from Phipps’s conduct (and the natural
consequences to follow) that the State had proven her intent beyond a
reasonable doubt. Because the jury was in the best position to disbelieve
Phipps’s claim of lack of intent, I would affirm Phipps’s conviction. See Love v.
State, 61 N.E.3d 290 (Ind. Ct. App. 2016) (Pyle, J., dissenting), trans. pending.
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