MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Dec 03 2015, 7:11 am
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
Glen E. Koch, II                                        Gregory F. Zoeller
Boren Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Keen,                                       December 3, 2015
Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        55A01-1412-CR-536
        v.                                              Appeal from the Morgan Superior
                                                        Court
State of Indiana,                                       The Honorable Jane S. Craney,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        55D03-1403-CM-318



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015       Page 1 of 9
                                             Case Summary
[1]   Christopher Keen appeals his conviction for Class A misdemeanor invasion of

      privacy. We reverse.


                                                     Issue
[2]   Keen raises two issues. The sole issue we need address is whether there is

      sufficient evidence to sustain Keen’s conviction.


                                                     Facts
[3]   In February 2014, Keen’s marriage to Emily Keen was dissolved. They have

      two children from the marriage, R.K. and D.K. In the dissolution decree,

      Emily was granted primary physical custody of the children, and Keen was

      granted standard visitation in accordance with the Indiana Parenting Time

      Guidelines. This meant the children stayed with Keen every other weekend,

      but Keen and Emily agreed that Keen could call and request to see the children

      at any time.


[4]   During the dissolution proceedings, a protective order was issued against Keen

      for Emily’s benefit. The order stated that Keen “was prohibited from harassing,

      annoying, telephoning, contacting or directly or indirectly communicating with

      [Emily], except: This order is not to interfere with visitation of children.” Ex.

      1, p. 3. The order was entered on August 21, 2013, and expired on August 15,

      2015.




      Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 2 of 9
[5]   On the afternoon of Tuesday, March 4, 2014, Keen drove with his sister to

      Emily’s house in Martinsville. Keen had parenting time with the children on

      the previous weekend but they had stayed with him on Monday as well on this

      occasion per the parties’ agreement, and Keen took them to school on Tuesday

      morning. Keen was at Emily’s house for two reasons. First, he wanted to

      make sure that the children arrived safely at the house after school, because he

      had not yet had contact with Emily regarding whether anyone would be home

      at that time to meet the children. Second, he wanted to deliver to Emily a pro

      se request for an “emergency” hearing regarding change of custody of D.K. and

      R.K.; both Keen and Emily were unrepresented by counsel at the time. Ex. A.

      When Keen arrived at the house, Emily’s mother went out to talk to him while

      Emily watched from inside the house. Keen asked Emily’s mother to give the

      motion to Emily.


[6]   Meanwhile, Emily contacted police to tell them that Keen was violating the

      protective order. After an officer arrived on the scene, Keen told him that he

      was seeking a change of custody because he believed Emily was using

      methamphetamine and that the children lacked adequate bedding and food in

      Emily’s house. The officer did not observe any signs that Emily was using

      methamphetamine and upon inspection believed there to be adequate bedding

      and food in the house.


[7]   The State charged Keen with Class A misdemeanor invasion of privacy. After

      a bench trial, Keen was convicted as charged. Keen now appeals.



      Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 3 of 9
                                                  Analysis
[8]   Keen challenges the sufficiency of the evidence supporting his conviction.

      When reviewing such a claim, we neither reweigh the evidence nor judge the

      credibility of the witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015).

      Also, we will consider only evidence supporting the conviction along with any

      reasonable inferences to be drawn from that evidence. Id. We will affirm if

      there is substantial evidence of probative value to prove every element of the

      offense such that a reasonable fact-finder could have found the defendant guilty

      beyond a reasonable doubt. Id.


[9]   In order to convict Keen of invasion of privacy as charged, the State was

      required to prove that he knowingly or intentionally violated a protective order

      to prevent domestic or family violence. See Ind. Code 35-46-1-15.1(1). Keen

      contends he did not violate the protective order because his contact with Emily

      was related to parenting time and child custody; i.e., he was making sure that

      they arrived safely at Emily’s house after school that day, and he was delivering

      a motion for change of custody to her. He notes that the protective order

      specifically provided that it was “not to interfere with visitation of children.”

      Ex. 1, p.3. Additionally, the statute governing the issuance of protective orders

      in domestic or family violence situations states, “An order for custody,

      parenting time, or possession or control of property issued under this chapter is

      superseded by an order issued from a court exercising dissolution, legal

      separation, paternity, or guardianship jurisdiction over the parties.” I.C. § 34-

      26-5-9(g). Keen asserts that this statute makes clear that child custody and

      Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 4 of 9
       parenting time orders issued by a dissolution court take precedence over a

       protective order.


[10]   We first address Keen’s claim that he was permitted to go to Emily’s house to

       ensure the children got home safely from school. We agree that such conduct

       did not violate the protective order. The protective order prohibited Keen from

       “harassing, annoying, telephoning, contacting or directly or indirectly

       communicating with [Emily].” It did not prohibit Keen from coming within a

       certain distance of Emily or her residence. There likewise is no evidence that

       this conduct of Keen was intended as any sort of “communication” with or

       “contacting” of Emily.


[11]   As for the possibility that being near Emily’s house could have been

       “harassing” or “annoying” to her, there is a complete absence of evidence that

       Emily found it to be so. She agreed that Keen was merely at the house to verify

       that the boys made it home safely after school and that she or someone was at

       home to meet them. In fact, she testified, “I think it’s normal for a good dad to

       drive by and . . . to make sure that there’s somebody there to get their kids.” Tr.

       p. 19. The State correctly argues that Emily could not consent to Keen

       violating the protective order. See Dixon v. State, 869 N.E.2d 516, 520-21 (Ind.

       Ct. App. 2007). Thus, it contends Emily’s not being troubled by Keen’s

       conduct is irrelevant. Dixon, however, concerned violation of a protective order

       prohibiting the defendant from going to the protected person’s residence, and

       the protected person having invited the defendant to the residence. Id. There



       Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 5 of 9
       was no question in that case that the defendant in fact violated the terms of the

       protective order by going to the residence.


[12]   Here, by contrast, Keen’s act of going to Emily’s residence did not by itself

       violate the terms of the protective order. In VanHorn v. State, 889 N.E.2d 908,

       912-13 (Ind. Ct. App. 2008), trans. denied, we held that parking on a public street

       outside a private residence does not constitute “harassment” within the

       meaning of the criminal stalking statute, Indiana Code Section 35-45-10-5.

       That is essentially what Keen is accused of doing here—he and his sister parked

       near the mailbox on the street outside Emily’s house. Similarly, the statutory

       definition of “harassment” for stalking purposes requires proof that the victim

       “actually” suffers emotional distress because of the defendant’s conduct. I.C. §

       35-45-10-2. Emily’s testimony directly conflicts with any notion that she was

       distressed by Keen’s conduct. Additionally, there is no evidence that Keen had

       ever before engaged in conduct such as this.


[13]   There is no definition of the word “annoying” anywhere in the Indiana Code.

       See Morgan v. State, 22 N.E.3d 570, 574 (Ind. 2014) (addressing lack of

       definition of word “annoys” as used in public intoxication statute). In any

       event, the language to be used in protective orders is not defined by statute.

       Still, we do not believe it is too much to ask that if a protective order prohibits

       “harassing” or “annoying” behavior, there must be some evidence that the

       protected person indeed was actually harassed or annoyed by the defendant

       before the defendant can be convicted of having violated the order. There is

       absolutely no such evidence here.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 6 of 9
[14]   We now address the State’s contention that Keen violated the protective order

       by serving a copy of his pro se request for an emergency change of custody

       upon Emily, or more specifically upon Emily’s mother for delivery to Emily.

       We decline to hold that Keen’s actions in this regard constituted criminal

       behavior.


[15]   First, Keen’s motion did not constitute “communication” with Emily. The

       motion was in the form of a letter addressed to the dissolution court judge and

       stated in its entirety, “I would like to set up a court date to establish emergency

       custody for [R.K.] and [D.K.].” Ex. A. The letter, which was file-stamped on

       March 4, 2014 by the dissolution court, was not addressed to Emily. However,

       Keen was required by Indiana Trial Rule 5(A) to serve a copy of the motion

       upon Emily. Moreover, because both Keen and Emily were unrepresented by

       counsel,1 service could not be conducted through an attorney under Trial Rule

       5(B). Rather, service had to be made upon Emily personally. See Moore v. Terre

       Haute First Nat’l Bank, 582 N.E.2d 474, 477 (Ind. Ct. App. 1991). And, Trial

       Rule 5(B) provides for service by personal delivery, by mail, or by fax or email

       if a party has consented to serve by fax or email. There is no evidence that

       service by fax or email had been consented to by Emily or that it was even a

       possibility in this case. As for service by regular mail versus personal delivery,




       1
           The dissolution decree states that Emily appeared pro se at the final hearing.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 7 of 9
       given the emergency request in Keen’s motion, it was not unreasonable for him

       to choose to deliver the motion personally than mail it.


[16]   It is possible that delivery of Keen’s motion to Emily’s house could be

       construed as “contacting” her. Regardless, we cannot conclude that Keen

       should be convicted of invasion of privacy for this conduct. Keen was entitled

       to seek modification of the dissolution decree’s child custody order pursuant to

       statute. See I.C. §§ 31-17-2-3, 31-17-2-21. There was no restriction upon his

       ability to do so in either the dissolution decree or protective order. Likewise,

       we re-emphasize that there was nothing in the protective order prohibiting Keen

       from going to Emily’s residence in order to deliver a copy of the motion, or for

       any other reason. He also has not been found to be an unfit parent, and so he

       had constitutional rights related to the upbringing of his children. See Sills v.

       Irelan, 663 N.E.2d 1210, 1213 (Ind. Ct. App. 1996) (“A parent’s interest in

       companionship, care, custody, and management of his or her children is a basic

       civil right protected by the Fourteenth Amendment.”) (citing Stanley v. Illinois,

       405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972)). Finally, Keen was

       mandated by Trial Rule 5, as described above, to serve the motion upon Emily.

       Given all of these considerations—Keen’s exercising of his statutory and

       constitutional rights in accordance with rules promulgated by the Indiana

       Supreme Court—we decline to hold that Keen knowingly or intentionally

       violated the protective order by personally delivering upon Emily a copy of his

       request for an emergency hearing regarding custody of his children. We also re-




       Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 8 of 9
       emphasize that there was no prohibition in the protective order against merely

       approaching Emily or her residence.


[17]   The State seems to assert that Keen’s motion for change of custody was

       frivolous because the police officer who responded to the scene did not believe

       Emily was abusing methamphetamine and thought there was adequate food

       and bedding in the house, contrary to Keen’s reasons for filing the motion as

       stated to the officer. Thus, the State claims the motion was a device by which

       Keen wanted to evade the protective order. We believe, however, that the

       validity of the motion must be addressed in the dissolution court after a proper

       hearing. If the motion is deemed to be frivolous after such a hearing, then

       appropriate action may be taken at that time.


                                                 Conclusion
[18]   We hold that the undisputed evidence regarding Keen’s conduct in this case

       fails to support his conviction for invasion of privacy. We reverse.


[19]   Reversed.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1412-CR-536 | December 3, 2015   Page 9 of 9
