FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

JEFFREY W. ELFTMAN                          GREGORY F. ZOELLER
Deputy Public Defender                      Attorney General of Indiana
Kokomo, Indiana
                                            IAN MCLEAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                          FILED
                                                                      Dec 14 2012, 9:20 am


                            IN THE                                            CLERK
                                                                            of the supreme court,
                                                                            court of appeals and

                  COURT OF APPEALS OF INDIANA                                      tax court




MELISSA PATTERSON,                          )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )        No. 34A02-1203-CR-235
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE HOWARD SUPERIOR COURT
                      The Honorable William C. Menges, Judge
                          Cause No. 34D01-1110-CM-936
                          Cause No. 34D01-1111-CM-1026


                                 December 14, 2012


                            OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
         Melissa Patterson was charged with two counts of aiding, inducing, or causing

invasion of privacy as a class A misdemeanor, an offense set out in Ind. Code Ann. § 35-46-

1-15.1(5) (West, Westlaw current through 2012 2nd Reg. Sess.). Upon interlocutory appeal,

Patterson appeals from an order denying her motion to dismiss those charges, presenting the

following restated issue for review: Can a protected person who is the subject of a no-contact

order be criminally liable for aiding, inducing, or causing another person to violate that

order?

         We reverse and remand.

         The relevant facts are that in August 2010, Patterson obtained a no-contact order

against her fiancé, Gregory Darden, after an incident in which she was the victim of domestic

battery at Darden’s hands. This no-contact order was in effect at all times relevant to this

appeal. On October 26, 2011, after hearing that Patterson was then living with Darden,

Howard County Sheriff’s Deputy Justin Markley went to Darden’s residence to serve a

subpoena on Patterson and her daughter. As he walked up to Darden’s residence, Deputy

Markley encountered Darden, who was leaving. Markley could see Patterson seated on a

couch inside Darden’s residence. With Darden’s permission, Deputy Markley entered

Darden’s residence and informed Patterson about the subpoena. While he was there, he

asked dispatch to check for possible warrants. He was then advised by the dispatcher about

the no-contact order. Patterson told Deputy Markley that “she was just visiting” Darden and

that she lived at a different address. Appellant’s Appendix at 11. When Deputy Markley

advised Darden and Patterson about the no-contact order, they claimed they thought the order

                                              2
had been dismissed. Deputy Markley arrested Darden for violating the no-contact order, and

arrested Patterson for aiding in violating the order. In connection with this incident,

Patterson was charged with aiding a violation of the no-contact order under Cause Number

34D01-1101-CM-936 (CM-936).

        On November 18, 2011, officers went to Darden’s residence to execute arrest warrants

on him. When there was no response to their knock at the front door, officers went to the

back door. When they did so, they encountered Patterson attempting to sneak out the back

door. Patterson insisted that no one was inside, but the officers saw Darden and several

children inside the residence. Patterson attempted to leave, ignoring commands to stop, and

eventually struggled with officers as they tried to restrain her. Officers entered the residence

and arrested Darden. Patterson was also arrested and later charged with another count of

aiding a violation of the no-contact order, false informing, and resisting arrest in Cause

Number 34D01-1111-CM-1026 (CM-1026). 1

        On December 28, 2011, Patterson’s trial counsel filed a motion to dismiss the charges

of aiding, inducing, or causing invasion of privacy under both CM-936 and CM-1026.

Following a hearing, the trial court denied Patterson’s motion to dismiss. Patterson’s counsel

filed a motion requesting certification of the ruling on the motion to dismiss for interlocutory


1
 We note that under both cause numbers, the State charged that the trial court had issued the no-contact
order pursuant to Ind. Code Ann. § 35-33-8-3.6 (West, Westlaw current through 2012 2nd Reg. Sess.). In
fact, the trial court issued the no-contact order under I.C. § 35-33-8-3.2 (West, Westlaw current through
2012 2nd Reg. Sess.). In any event, Patterson does not assert that the charging informations were not
“sufficiently specific” to apprise her of the crimes for which she was charged. See Jones v. State, 938
N.E.2d 1248, 1252 (Ind. Ct. App. 2010).


                                                    3
appeal. The trial court granted Patterson’s request for certification and this Court accepted

jurisdiction of Patterson’s interlocutory appeal, consolidating both lower court cause numbers

into the present appeal.

       Patterson contends the trial court erred in denying her motion to dismiss the charges of

aiding, inducing, or causing invasion of privacy. Her motion is premised upon the argument

that the Indiana General Assembly did not intend for I.C. § 35-46-1-15.1 to criminalize the

conduct of a protected person under the no-contact order in question. Thus, we must

examine whether the prohibitions expressed in I.C. § 35-46-1-15.1 extend to a protected

person under a no-contact order. When the denial of a motion to dismiss rests upon the trial

court’s interpretation of a statute, we review the decision de novo as a question of law. Bei

Bei Shuai v. State, 966 N.E.2d 619 (Ind. Ct. App. 2012) trans. denied. In conducting our

review, we accept as true the facts stated in the charging information. Id.

       I.C. § 35-46-1-15.1(5), under which Patterson was charged in both CM-936 and CM-

1026, states, in pertinent part: “A person who knowingly or intentionally violates … a no

contact order issued as a condition of pretrial release, including release on bail or personal

recognizance, or pretrial diversion, and including a no contact order issued under IC 35-33-8-

3.6 … commits invasion of privacy, a Class A misdemeanor[.]” The trial court concluded

that Patterson, although a protected person under the no-contact order, could be adjudged

criminally complicit in Darden’s violation of that order. We conclude otherwise.

       Although this is a question of first impression in Indiana, the Supreme Court of Ohio

has addressed the matter in State v. Lucas, 795 N.E.2d 642 (Ohio 2003 ). The facts there

                                              4
were substantially similar to those here. After a protective order had been entered against

Betty Lucas’s ex-husband, she invited him to her home to attend a birthday party for one of

the couple’s children. A physical altercation ensued during which Lucas and her ex-husband

sustained physical injuries. Lucas was eventually charged with, among other things,

complicity to violate a protection order. She was convicted of that offense and appealed to

the Ohio Court of Appeals, which affirmed. The Ohio Supreme Court, however, reversed the

conviction. The court first noted that Ohio’s “protection-order statutes fail to criminalize a

protected party’s activities in inviting or acquiescing in a violation of the statutes.” Id. at

646. Moreover, the court noted, the Ohio General Assembly signaled its awareness that in

some cases where the violation of a protective order occurred, the protected party invited the

violation. In holding that a protected person may not be charged with complicity with respect

to the violation of the order, the court summarized its reasoning as follows:

       The General Assembly both recognizes and addresses the potential problem of
       a protected party’s acquiescence in the violation of a protection order. The
       General Assembly demonstrates its cognizance of the volatile and mercurial
       nature of certain interpersonal relationships and insulates protection orders
       from the heat and chill of shifting emotions. It removes the excuse of an
       invitation, a perceived invitation, or a concocted invitation from affecting the
       power of a protection order. The General Assembly has made the issue of an
       invitation entirely irrelevant as to the culpability of a respondent’s violation of
       a protection order.

Id. We find the situation in the present case strikingly similar to that addressed in Lucas, the

applicable statutes sufficiently similar, and the Lucas court’s reasoning persuasive.

       In the present case, as in Lucas, the defendant, Patterson, was a protected person under

the protective order she is charged with violating. The Ohio statutory scheme evinces an

                                               5
awareness that protected persons might sometimes issue invitations, the acceptance of which

would constitute a violation of the protective order in question. Yet, the relevant Ohio

protection-order statutory scheme does not criminalize a protected person’s actions that invite

or acquiesce in the violation. Neither does Indiana’s. The Ohio General Assembly explicitly

clarified that such would not excuse the respondent from punishment for violating the order.

Indiana’s General Assembly has also provided such clarification: “If a respondent is

excluded from the residence of a petitioner or ordered to stay away from a petitioner, an

invitation by the petitioner to do so does not waive or nullify an order for protection.” Ind.

Code Ann. § 34-26-5-11 (West, Westlaw current through 2012 2nd Reg. Sess.). The Indiana

General Assembly has underscored this point by directing that the following language must

be “printed in boldface type or in capital letters on an order for protection, a no contact order,

a workplace violence restraining order, or a child protective order”:

       VIOLATION OF THIS ORDER IS PUNISHABLE BY CONFINEMENT
       IN JAIL, PRISON, AND/OR A FINE.

       IF SO ORDERED BY THE COURT, THE RESPONDENT IS
       FORBIDDEN TO ENTER OR STAY AT THE PETITIONER’S
       RESIDENCE OR RESIDENCE OF ANY CHILD WHO IS THE SUBJECT
       OF THE ORDER, EVEN IF INVITED TO DO SO BY THE PETITIONER
       OR ANY OTHER PERSON. IN NO EVENT IS THE ORDER FOR
       PROTECTION VOIDED.

I.C. § 34-26-5-3 (West, Westlaw current through 2012 2nd Reg. Sess.) (emphasis supplied).

       The bottom line is that our General Assembly has made it abundantly clear that it

recognized the possibility that orders intended to protect persons from domestic violence are

issued in settings in which the protected person might invite the subject of the order to enter

                                                6
the forbidden zone and thus violate the order. Its failure to criminalize activity that, in two

separate instances, it recognized might invite a violation of the order, must be viewed not as

an omission, but as a determination that such should not be criminalized.

         Finally, as a matter of public policy, we agree with the Ohio Supreme Court that “[i]f

petitioners for protection orders were liable for criminal prosecution, a violator of a

protection order could create a real chill on the reporting of the violation by simply

threatening to claim that an illegal visit was the result of an illegal invitation.” State v.

Lucas, 795 N.E.2d at 647.

         In summary, our General Assembly has determined that where a protected person

invites the subject of a protective order to violate the terms of the order, such is irrelevant to

the subject’s guilt. As the Ohio court aptly noted, “Protection orders are about the behavior

of the respondent and nothing else. How or why a respondent finds himself at the

petitioner’s doorstep is irrelevant. To find appellant guilty of complicity would be to

criminalize an irrelevancy.” Id. at 648. We agree and conclude that the General Assembly

did not intend that the prohibitions in I.C. § 35-46-1-15.1 should be applied to a protected

person under a no-contact order. The statute’s prohibitions are explicitly addressed only to

the actions of the restrained party. Therefore, Patterson cannot be convicted of aiding,

inducing, or causing an invasion of privacy as alleged in CM-936 and CM-1026 and the trial

court erred in denying her motion to dismiss those charges. We remand with instructions to

do so.

         Judgment reversed and remanded.

                                                7
BROWN, J., concurs.

PYLE, J., dissents with separate opinion.




                                            8
                             IN THE
                   COURT OF APPEALS OF INDIANA

MELISSA PATTERSON,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
         vs.                                       )      No. 34A02-1203-CR-235
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


PYLE, Judge, dissenting


       The majority holds that a protected person under a no-contact order issued pursuant to

Indiana Code § 35-46-1-15.1 cannot be convicted of aiding, inducing, or causing another to

violate that order. The opinion ably outlines the policy supporting this view. However, I

believe that the plain language of the statutory regime used by our General Assembly permits

the prosecution of a protected person who deliberately seeks to aid another to disobey a court

order for protection. While the majority’s policy position may, in fact, be consonant with the

General Assembly’s intent, I believe it should be left for the legislative branch to explicitly

exclude the prosecution of protected persons. As a result, I would affirm the trial court’s

judgment.




                                              9
