MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Oct 31 2016, 6:43 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erica Lupkin,                                            October 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1605-CR-1050
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1510-F6-972



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016         Page 1 of 8
                                             Case Summary
[1]   Erica Lupkin appeals her conviction for Level 6 felony invasion of privacy. We

      affirm.


                                                     Issue
[2]   The sole issue is whether there is sufficient evidence to rebut Lupkin’s defense

      of mistake of fact and to support her conviction.


                                                     Facts
[3]   The evidence most favorable to the conviction is that Lupkin has been in a

      long-term relationship with Owen Higgins; the couple have three children

      together. On January 9, 2015, Lupkin pled guilty to Class A misdemeanor

      invasion of privacy by violating a protective order in favor of Higgins. Lupkin

      was sentenced to a term of 365 days suspended to probation. On that same

      date, a no contact order was issued as a condition of Lupkin’s probation,

      prohibiting her from having any contact with Higgins. The no contact order,

      which Lupkin signed, stated that it was effective until January 8, 2016.


[4]   On October 8, 2015, Fort Wayne Police Officer Charles Volz pulled over a

      moped being driven by Higgins because he was carrying a passenger, and the

      license plate for the moped indicated that he could not carry any passengers.

      Lupkin was the passenger. However, Lupkin initially told Officer Volz that her

      name was Casey Lupkin, which is Lupkin’s sister. After looking up Casey

      Lupkin’s information, Officer Volz noticed that the picture for Casey did not

      seem to match Lupkin. He then learned Lupkin’s true identity and discovered
      Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 2 of 8
      the no contact order against her. Officer Volz discussed the no contact order

      with Higgins, who acknowledged that “he was not supposed to be with her” but

      that he did not want the no contact order to be in place any longer. Tr. p. 94.


[5]   The State charged Lupkin with Level 6 felony invasion of privacy; it also

      sought to revoke her probation for the previous Class A misdemeanor invasion

      of privacy conviction. On October 23, 2015, Lupkin admitted to violating

      probation, and it was revoked. The no contact order also was dismissed on that

      date.


[6]   A jury trial was held on the felony charge on March 22, 2016. During her

      testimony, Lupkin asserted that she thought the no contact order was no longer

      in effect on October 8, 2015. She testified that she returned to court sometime

      in February or March 2015 to pay fees associated with her case and was

      informed the no contract order would be dismissed. She also testified that she

      was given a pink paper to that effect, signed by a judge, but that paper was not

      introduced into evidence. The jury found Lupkin guilty as charged, and the

      trial court entered judgment of conviction accordingly. She now appeals.


                                                  Analysis
[7]   Lupkin’s sole claim on appeal is that there is insufficient evidence to support

      her conviction—specifically, that the State failed to rebut her mistake of fact

      defense. When reviewing the sufficiency of the evidence to support a

      conviction, we must consider only the probative evidence and reasonable

      inferences therefrom that support the verdict. Sallee v. State, 51 N.E.3d 130, 133

      Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 3 of 8
      (Ind. 2016). We may not assess witness credibility or weigh the evidence, as

      those are roles exclusively for the fact-finder. Id. The evidence need not

      overcome every reasonable hypothesis of innocence, so long as an inference

      may reasonably be drawn from the evidence that supports the verdict. Id.


[8]   A person who knowingly or intentionally violates a no contact order issued as a

      condition of probation and who has a prior conviction for invasion of privacy

      commits Level 6 invasion of privacy. Ind. Code § 35-46-1-15.1(6). Mistake of

      fact as to the existence of a no contact order is recognized as a defense to a

      charge of invasion of privacy. Chavers v. State, 991 N.E.2d 148, 151 (Ind. Ct.

      App. 2013), trans. denied. The mistake of fact defense is codified by Indiana

      Code Section 35-41-3-7, which provides, “It is a defense that the person who

      engaged in the prohibited conduct was reasonably mistaken about a matter of

      fact, if the mistake negates the culpability required for commission of the

      offense.”


[9]   When the State has made a prima facie case of guilt, the defendant bears the

      burden of establishing an evidentiary predicate of his or her mistaken belief of

      fact. Chavers, 991 N.E.2d at 151. The defendant must satisfy three elements in

      order to be successful on a claim of mistake of fact: “‘(1) that the mistake be

      honest and reasonable; (2) that the mistake be about a matter of fact; and (3)

      that the mistake negate the culpability required to commit the crime.’” Id.

      (quoting Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997)). The State,

      however, bears the ultimate burden of disproving beyond a reasonable doubt a

      defense of mistake of fact. Id. at 151-52. “The State may meet its burden by

      Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 4 of 8
       directly rebutting evidence, by affirmatively showing that the defendant made

       no such mistake, or by simply relying upon evidence from its case-in-chief.” Id.

       at 152.


[10]   Here, the evidence established that Lupkin signed and thus knew of the no

       contact order, which had a clearly-stated expiration date of January 8, 2016.

       Although Lupkin claimed that she thought the no contact order had been

       dissolved sometime in February or March 2013, she presented no documentary

       evidence to that effect. The CCS for the underlying case in which the order was

       issued, which was introduced into evidence at trial, does not include any

       notation that the order was dissolved until October 23, 2015, when Lupkin’s

       probation for the conviction was revoked. Although Lupkin claimed she was

       given a pink piece of paper signed by a judge stating that the order had been

       dissolved and that she had given that paper to her attorneys, that alleged paper

       was not introduced into evidence. When Officer Volz spoke to Higgins about

       the no contact order, he acknowledged its existence and that he was not

       supposed to have contact with Lupkin, though he wanted the order dissolved.1

       Finally, and perhaps most crucially, Lupkin initially tried to pass herself off as

       her sister Casey to Officer Volz. Providing a false name to law enforcement is

       “evidence of consciousness of guilt.” Bennett v. State, 883 N.E.2d 888, 892 (Ind.

       Ct. App. 2008), trans. denied. It would have been reasonable for the jury to infer



       1
        Higgins’s apparent consent to Lupkin’s violation of the no contact order is irrelevant for purposes of
       determining her guilt for invasion of privacy. See Dixon v. State, 869 N.E.2d 516, 520–21 (Ind. Ct. App.
       2007).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016            Page 5 of 8
       that Lupkin was attempting to evade detection by Officer Volz because she

       knew of the valid existence of the no contact order. Lupkin essentially is

       arguing that the jury was required to accept her self-serving testimony about the

       dismissal of the no contact order at face value, with no documentation to back

       up that testimony. The law is clear, however, that a jury “is not required to

       believe every part of a defendant’s testimony.” Edgecomb v. State, 673 N.E.2d

       1185, 1194 (Ind. 1996).


[11]   Both Lupkin and the State direct us to this court’s opinion in Chavers as

       supporting either reversal or affirmance of Lupkin’s conviction. In that case,

       there was first a civil protective order issued against the defendant, and

       subsequently a no contact order was issued against him in a different court as a

       condition of probation for a confinement conviction. The probationary no

       contact order stated that it could be dissolved at the victim’s request. The

       victim did in fact request that the civil protective order be dismissed, and it was,

       but the separate no contact order from the other court was not dismissed. The

       defendant was advised by his probation officer during a meeting that the no

       contact order was still in effect, but the defendant later that same day went to

       the victim’s home in reliance upon the victim’s statement that he was now

       allowed to come to her house. The defendant was convicted of invasion of

       privacy for violating the no contact order, and this court affirmed, rejecting the

       defendant’s claim that he had proven his mistake of fact defense and lacked the

       requisite intent to commit invasion of privacy. See Chavers, 991 N.E.2d at 153-

       54.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 6 of 8
[12]   Lupkin notes that there was a dissent in Chavers and that there was evidence in

       that case that the defendant was told by a probation officer on the day of the

       offense that the no contact order was still in effect, while there was no evidence

       of such a contemporaneous communication to Lupkin. However, we believe

       the facts here overall are much more conclusive in favor of affirming Lupkin’s

       conviction. It was undisputed in Chavers that there could have been some

       confusion over the fact that there were two separate protective or no contact

       orders, that the victim was permitted to seek dismissal of the no contact order,

       that the victim did in fact obtain dismissal of the civil protective order, and that

       she told the defendant it was permissible for him to visit her. See id. at 153.

       Here, by contrast, there is no evidence of overlapping protective or no contact

       orders and, consequently, no evidence of possible confusion over one of them

       being dismissed but not the other. The no contact order did not contain a

       provision allowing for Higgins to seek its dismissal, unlike in Chavers. And, the

       evidence most favorable to the conviction is that, although Higgins consented

       to having contact with Lupkin, he was aware of the no contact order’s

       continuing validity. In sum, we conclude there is sufficient evidence from

       which the jury could have found that Lupkin did not make an honest and

       reasonable mistake of fact about the no contact order’s existence when she

       interacted with Higgins.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 7 of 8
                                                 Conclusion
[13]   There is sufficient evidence to sustain Lupkin’s conviction for Level 6 felony

       invasion of privacy and for the jury to have rejected her mistake of fact defense.

       We affirm.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1605-CR-1050 | October 31, 2016   Page 8 of 8
