MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Aug 23 2018, 10:41 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew R. Falk                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan L. Williams,                                       August 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-739
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff                                       Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1710-CM-1428



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018                     Page 1 of 6
[1]   Bryan Williams appeals his conviction for Class A misdemeanor invasion of

      privacy. He contends that the State failed to sufficiently rebut his mistake-of-

      fact defense.


[2]   We affirm.


                                          Discussion & Decision


[3]   Despite being divorced for several years, Lisa Wuerdeman and Williams lived

      together in 2017. Their relationship was marred by domestic violence. On or

      about October 17, 2017, Wuerdeman hurriedly departed the residence because

      she was scared of Williams, leaving a significant amount of property at the

      home. She obtained an ex parte order of protection (the Protective Order)

      against Williams that same afternoon.


[4]   In the meantime, Williams sent a few text messages to Wuerdeman around

      9:00 p.m. regarding the property she left behind. He noted that he could not

      believe all that she had left and indicated that he would give to Goodwill

      whatever he did not want. Wuerdeman did not respond to the messages.


[5]   Williams was personally served with the Protective Order at 11:00 p.m., which

      prohibited him from, among other things, directly or indirectly communicating

      with Wuerdeman. The deputies serving the Protective Order gave Williams

      thirty minutes to gather his things and leave the home. Williams then drove to

      his mother’s residence and slept in his vehicle with his dog.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018   Page 2 of 6
[6]   At 5:35 a.m., Williams sent a text message to Wuerdeman. He stated, “You

      need go [sic] get your stuff”. Exhibits at State’s Exhibit 3. Wuerdeman

      contacted the Hendricks County Sheriff’s Department to report the

      unauthorized contact. Deputy Andrew Thomas spoke with Williams later that

      day. Williams was verbally aggressive with the deputy but acknowledged being

      served with the Protective Order the previous night. Williams then indicated

      that he had mistakenly sent the text message to Wuerdeman when he was

      actually attempting to send a Facebook message to a friend. Deputy Thomas

      questioned him about how he could mix up both the names and apps involved,

      and Williams could not give him an answer.


[7]   On October 23, 2017, the State charged Williams with Class A misdemeanor

      invasion of privacy. At his bench trial on February 20, 2018, Williams

      acknowledged that he sent a text message to Wuerdeman, but he claimed that it

      was sent to her by mistake. Williams testified that he intended to send the

      message to Ralph, who had a trailer in Williams’s backyard. Williams blamed

      the mistake on not wearing his “cheaters” (i.e., glasses) when sending the

      message. Transcript at 17. He then emphasized, “I know to leave her alone.”

      Id. at 18. In rebuttal, Wuerdeman testified that Williams sent her another text

      message on October 21, 2017, asking her to call him. This message was entered

      into evidence as State’s Exhibit 4, as she still had it on her phone. Williams

      denied sending this second message.


[8]   At the conclusion of the bench trial, the trial court found Williams guilty as

      charged and sentenced him to thirty days in jail. The court specifically stated,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018   Page 3 of 6
       “I do not believe you …contacted … Wuerdeman by mistake, I believe you did

       it intentionally.” Id. at 27. Williams now appeals, arguing that the State failed

       to sufficiently rebut his mistake-of-fact defense.


                                           Discussion & Decision


[9]    When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the conviction. Id. We will affirm if there is

       probative evidence from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[10]   The State was required to prove beyond a reasonable doubt that Williams

       knowingly or intentionally violated the protective order. See Ind. Code § 35-46-

       1-15.1. Williams acknowledges that the State presented sufficient evidence in

       its case in chief that he committed invasion of privacy. He argues, however,

       that the State failed to overcome his testimony regarding mistake of fact.


[11]   Ind. Code § 35-41-3-17 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.” When

       the State has made a prima facie case of guilt, the burden shifts to the defendant

       to establish an evidentiary predicate of his mistaken belief of fact. Chavers v.

       State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013), trans. denied. “The State,

       however, retains the ultimate burden of proving beyond a reasonable doubt

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018   Page 4 of 6
       every element of the charged crime, including culpability or intent, which

       would in turn entail proof that there was no reasonably held mistaken belief of

       fact.” Id. at 151-52. “The State may meet its burden by 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.


[12]   Williams’s mistake-of-fact defense is based on his own self-serving claim that he

       intended to send the message to his friend, not Wuerdeman. Of course, the trial

       court was not required to believe him. See id. (“Any conflict in the evidence

       was for the trier of fact, the trial judge in this case, to resolve, and we will not

       disturb the trial court’s credibility determinations on appeal.”). In addition to

       the trial court’s express disbelief of Williams’s story, we observe that a review of

       the record reveals that the text message in question was a natural continuation

       of the messages Wuerdeman sent his ex-wife the previous evening before

       receiving notice of the Protective Order. Further, the State presented rebuttal

       evidence that Williams contacted Wuerdeman again via text message three

       days later, asking her to call him.1 This evidence was submitted to impeach

       Williams’s claim that he only texted Wuerdeman once by accident.




       1
         Embedded within his sufficiency argument, Williams asserts that admission of this second message into
       evidence amounted to fundamental error. Then, without setting out the stringent fundamental error
       standard, he discusses a newly-alleged discovery violation regarding this impeachment evidence and a case
       having nothing to do with fundamental error. Williams has wholly failed to establish fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018                  Page 5 of 6
[13]   We reject Williams’s invitation to judge his credibility and reweigh the

       evidence. The State presented ample evidence in support of the conviction.


[14]   Judgment affirmed.


[15]   Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-739 | August 23, 2018   Page 6 of 6
