FOR PUBLICATION
                                                   Jul 17 2014, 10:12 am




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

KURT A. YOUNG                                  GREGORY F. ZOELLER
Nashville, Indiana                             Attorney General of Indiana

                                               LYUBOV GORE
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

TODD DEWAYNE KELLY,                            )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )        No. 41A01-1311-CR-519
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                   APPEAL FROM THE JOHNSON SUPERIOR COURT
                      The Honorable Judith A. Stewart, Special Judge
                            Cause No. 41D02-1204-CM-775



                                     July 17, 2014


                             OPINION - FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

        Appellant-Defendant Todd Dewayne Kelly was previously married to S.B. Kelly and

S.B. are the parents of L.K. On October 4, 2011, the Johnson Circuit Court issued an ex

parte order of protection which prohibited Kelly from having direct or indirect contact with

S.B. On or about March 5, 2012, Kelly sent a text message to L.K. requesting that L.K. give

a message to S.B. L.K. showed the text that she received from Kelly to S.B. S.B. took the

message to be an attempt to threaten or intimidate her and reported the contact to the Franklin

Police Department.

        Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Kelly with

Class A misdemeanor invasion of privacy. Following a bench trial, the trial court found

Kelly guilty as charged. The trial court subsequently sentenced Kelly to a one-year term of

imprisonment in the Johnson County Jail, with 180 days executed and the remainder

suspended, provided that Kelly refrained from contacting S.B. On appeal, Kelly contends

that the State did not present sufficient evidence to sustain his conviction for Class A

misdemeanor invasion of privacy. We affirm.

                        FACTS AND PROCEDURAL HISTORY

        Kelly and S.B. are divorced and have a daughter, L.K. S.B. has remarried and has two

children with her new husband. On October 4, 2011, the Johnson Circuit Court issued an ex

parte order for protection prohibiting Kelly from having direct or indirect contact with S.B.,

her husband, and their two children. The protective order was set to expire on October 4,

2013.

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       On or about March 5, 2012, Kelly was attempting to communicate with L.K. In the

months leading up to March 5, 2012, Kelly had been leaving L.K. voicemails and text

messages at all times of the day and night. Some of these messages were threatening, scary,

and “crazy off the wall stuff.” Oct. 8, 2013 Tr. p. 44. One of these messages stated,

“contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.” Oct. 8,

2013 Tr. p. 44. L.K. knew that because of the protective order, Kelly was not supposed to

have any contact with S.B. L.K. immediately showed the text messages to S.B. and her step-

father. S.B. did not know exactly what the text message meant, but she believed it to be an

attempt to threaten or intimidate her because Kelly had used the phrase “rattle, rattle, rattle”

as a way of intimidating S.B. when she and Kelly were still married. Oct. 8, 2013 Tr. p. 30.

The comment made S.B. feel anxious, nervous, and worried.

       S.B. contacted the Franklin Police Department. Soon thereafter, Officer Shawn

Henson was dispatched to S.B.’s home. Officer Henson spoke to S.B. and noted that she was

upset, concerned, and worried. L.K. showed Officer Henson the text messages that she

received from Kelly. S.B. also notified Officer Henson of the protective order.

       After speaking with S.B., Officer Henson called Kelly to talk to him about the

message. Kelly indicated that he did not want to talk to Officer Henson or answer his

questions. Kelly did not deny anything and told Officer Henson, “if you’re going to arrest me

come and arrest me.” Oct. 8, 2013 Tr. p. 21. Officer Henson forwarded the case to the

Johnson County Prosecutor’s Office for review.

       On April 24, 2012, the State charged Kelly with Class A misdemeanor invasion of

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privacy. At some point before trial, Kelly again communicated the phrase “rattle, rattle,

rattle” to S.B. via Facebook. Oct. 8, 2013 Tr. p. 29. Following a two-day bench trial that

was conducted on October 8, 2013 and October 28, 2013, the trial court found Kelly guilty as

charged.1 The trial court subsequently sentenced Kelly to a term of one year in the Johnson

County Jail, with 180 days executed and the remainder suspended, provided that Kelly

refrained from contacting S.B. This appeal follows.

                                DISCUSSION AND DECISION

       Kelly 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 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 verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not


       1
         During the two-day bench trial, Kelly was simultaneously tried for offenses charged under Cause
Numbers 41D02-1204-CM-775, 41D02-1209-CM-1647, and 41D02-1204-CM-609. Kelly does not challenge
                                                   4
reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

        The offense of invasion of privacy is governed by Indiana Code section 35-46-1-15.1,

which provides, in relevant part, that “A person who knowingly or intentionally violates: …

(2) an ex parte protective order issued under IC 34-26-5 … commits invasion of privacy, a

Class A misdemeanor. “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). “A

person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

conscious objective to do so.” Ind. Code § 35-41-2-2(a).

        It is undisputed that at all times relevant to this appeal, there was a valid ex parte

protective order in place which prohibited Kelly from “harassing, annoying, telephoning,

contacting, or directly or indirectly communicating with [S.B.].” State’s Ex. A. It is also

undisputed that Kelly was aware of the ex parte protective order. “Communication occurs

when a person makes something known or transmits information to another.” Wright v.

State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997) (citing Ajabu v. State, 677 N.E.2d 1035,

1042 (Ind. Ct. App. 1997), trans. denied).

        In challenging the sufficiency of the evidence to sustain his conviction, Kelly argues

that the State failed to prove that he directly or indirectly communicated with S.B. Kelly

cites to this court’s opinion in Huber v. State, 805 N.E.2d 887 (Ind. Ct. App. 2004), in

support of his challenge to the sufficiency of the evidence to sustain his conviction. In


any issue relating to these additional cases in the instant appeal.
                                                       5
Huber, the evidence demonstrated that the defendant asked a domestic violence advocate to

contact the victim, who had secured protective orders against him. 805 N.E.2d at 892. The

domestic violence advocate, however, told the defendant that she could not contact the victim

on his behalf. Id. Because the domestic violence advocate specifically told the defendant

that she could not convey his message to the victim, this court concluded that the record

failed to demonstrate that the defendant had directly or indirectly contacted the victim. Id.

       In the instant matter, the State presented clear evidence that Kelly indirectly

communicated with S.B. During trial, the trial court heard evidence that Kelly texted L.K.

stating, “contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.”

Oct. 8, 2013 Tr. p. 44. Unlike the third party in Huber, L.K. did not tell Kelly that she would

not give the message to S.B. Instead, L.K. immediately showed the text to S.B., with whom

she lived. S.B. read the message and believed it was threatening and meant to intimidate her

because Kelly had used the phrase “rattle, rattle, rattle” as a way of intimidating S.B. when

she and Kelly were still married. Oct. 8, 2013 Tr. p. 30. Further, at some point before trial,

Kelly again communicated “rattle, rattle, rattle” to S.B. via Facebook. Oct. 8, 2013 Tr. p. 29.

The above-stated evidence is sufficient to sustain Kelly’s conviction. Kelly’s claim to the

contrary effectively amounts to an invitation for this court to reweigh the evidence, which we

will not do. See Stewart, 768 N.E.2d at 435.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.



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