                                                                    FILED
                                                               May 10 2017, 8:09 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                       Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Shelly M. Phipps,                                         May 10, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                28A05-1609-CR-2097
              v.                                                Appeal from the Greene Superior
                                                                Court
      State of Indiana,                                         The Honorable Dena A. Martin,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                28D01-1603-F6-42



      Mathias, Judge.


[1]   Shelly M. Phipps (“Phipps”) was convicted in Greene Superior Court of Level

      6 felony invasion of privacy. Phipps appeals and raises the following dispositive

      issue: whether the State proved that Phipps violated a protective order by

      communicating with the protected person.


      Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017                  Page 1 of 15
[2]   We reverse and remand for proceedings consistent with this opinion.


                                  Facts and Procedural History

[3]   Phipps was a member of a church in Solsberry, Indiana, and she and her

      husband were friends with K.G., the pastor of the church. In 2008, Phipps and

      her husband received marriage counseling from K.G, and K.G. disclosed

      information that he learned in their counseling sessions to the elders of the

      church. The church elders met with Phipps and her husband to discuss the

      information K.G. had disclosed to them. Phipps was also upset that K.G.

      hugged her twice, once during an individual counseling session and a second

      time on the day she was baptized.


[4]   Phipps sought an apology from K.G. for the alleged breach of confidentiality

      but did not receive one. She sent letters and emails to K.G. and the church

      elders demanding an apology.

[5]   K.G. obtained a protective order against Phipps in 2008. Phipps was prohibited

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

      communicating with” K.G. and she was ordered to stay away from his

      residence and the church. Ex. Vol, State’s Ex. 2. In 2009, she violated the

      protective order by speaking to K.G. at the church, and she pleaded guilty to

      Class A misdemeanor invasion of privacy. In 2010, Phipps violated the

      protective order again by sending a letter to K.G. She pleaded guilty to the

      offense in March 2011, and judgment was entered as a Class A misdemeanor.



      Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017   Page 2 of 15
[6]   On January 6, 2016, in case number 28D01-1201-PO-12, K.G. filed a petition

      to extend the protective order. On January 25, 2016, the court held a hearing on

      the petition and found that the “conditions which caused the original Order for

      Protection to be issued continue to exist.” Id. The court further concluded that

      Phipps “continues to represent a credible threat to the safety of the Petitioner or

      a member of the Petitioner’s household” and K.G. “has shown, by a

      preponderance of the evidence, the threat of stalking continues to exist

      sufficient to justify an extension of the original Order.” Id. Finally, the court

      found that Phipps is “sending letters to the Court and Church Members asking

      to have them forwarded to the Petitioner. She continues to harass and make

      threats to” K.G. Id. The Court extended the original protective order until

      February 6, 2018.


[7]   On February 28, 2016, Phipps sent an email to three church elders, which is

      reproduced in its entirety.


              I originally sent this to my dad and now I am forwarding it. I’m
              off work Tuesday. I will give [K.G.] until Tuesday evening to
              comply. I have emailed channel 13 about doing a story. If
              Tuesday evening passes by then I will have him arrested for
              battery.


              I went for my counseling session yesterday. I told my counselor
              that I can’t handle this thing between me and [K.G.] anymore. I
              am no longer angry, and I am beyond hurt, I think I am broken.
              It has ruined by life. That’s exactly what I told [K.G.] when I
              seen him in Court a month ago. I can’t handle the stress of it
              alone. After much consideration, I have now gone public with
              my story. I have talked with several high ranking officials this

      Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017     Page 3 of 15
        week about my case. Hopefully they can intervene. I told my
        counselor that I believe [K.G.] owes me an apology and here’s
        why: He broke my trust in two ways:


        1) the first small way is because I told him something I thought
        was confidential and he said ‘o.k. you can pray for us too.’ He
        then proceeded to plaster mine and my husband’s name all over
        the prayer list for the whole church to see. He stabbed me in the
        back. 2) The second big way he broke my trust is when I was in
        his office he came from around his desk and said “I love you
        Shelly,” and gave me a hug. It happened again the night I was
        baptized. He waited for me outside the front door and said “I
        love you Shelly.” That’s TWICE!!! That is sexual harassment.


        My concern is that I know he got in trouble in New Hampshire
        for the same type of behavior. Then he denied it, and then had
        death threats on him. The problem is they want to pick, pick,
        pick on other people’s marriages when they definitely have one
        of their own to work on. I reported this behavior to the Elders.
        One Elder brought the four of us together and said “Nobody say
        anything because it will hurt the church.” That wasn’t fair. I was
        not allowed to say what was bothering me. That’s when I started
        writing letters. Then that same Elder said “Shelly you need to be
        quiet because it makes it look like all you want is [K.G.] back. I
        don’t want [K.G.] If I had of wanted him I could have had him
        when I was in his office, but that’s not what I was there for. It is
        negligence! Needless to say it was not handled properly. The
        Elders need to step up and take control of this situation because it
        has spiraled out of control. Instead, they are sitting back and
        letting [K.G.] call the shots. They are his boss and they can tell
        him what to do. If he puts me in jail again I will just hold a news
        conference from my jail cell.


        [K.G.] has choices: He can resign, retire, apologize or go to jail
        for battery. I hope he makes the right decision soon. I am more
        than willing to apologize for my part in this. For now, my
Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017       Page 4 of 15
               counselor’s advising me to exercise to relieve some of the stress
               that’s on me.


       Ex. Vol., State’s Ex. 1.

[8]    A church elder forwarded the email to K.G. on the same day the elder received

       it, and K.G. contacted the police. Shortly thereafter, Phipps was charged with

       two counts of invasion of privacy, one as a Class A misdemeanor and one as a

       Level 6 felony because Phipps had two prior convictions for the same offense.


[9]    A jury found Phipps guilty of both offenses. The trial court merged the two

       verdicts and entered a judgment of conviction for the Level 6 felony invasion of

       privacy charge.

[10]   At the sentencing hearing, the trial court considered her prior invasion of

       privacy convictions and long-term harassment of K.G. as an aggravating

       circumstance. The court considered Phipps’s mental health as a mitigating

       circumstance and specifically noted that “she appears to be addressing [her

       mental health issues] at this time with medication and counseling.”1 Appellant’s

       App. p. 8. Phipps was ordered to serve a two-and-one-half year sentence, with a

       one-year placement in work release and the remainder of the sentence

       suspended to probation. Phipps now appeals.




       1
        At sentencing, Phipps explained that she has Bi-Polar Disorder and previously had been unable to
       consistently pay for her medications. She now has new medical insurance and is able to pay for her
       medications, which she takes regularly. Tr. p. 208.

       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017                         Page 5 of 15
                          Sufficient Evidence of Communication

[11]   Phipps argues that the State failed to present sufficient evidence to prove that

       she committed invasion of privacy.


               When we review a claim challenging the sufficiency of the
               evidence we neither reweigh the evidence nor assess the
               credibility of the witnesses. Instead, we consider only the
               evidence and reasonable inferences drawn therefrom that support
               the verdict. And we will affirm the conviction if there is probative
               evidence from which jury could have found the defendant guilty
               beyond a reasonable doubt.


       Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016) (citing Treadway v. State, 924

       N.E.2d 621, 639 (Ind. 2010)).

[12]   To convict Phipps of Level 6 felony invasion of privacy, the State was required

       to prove that Phipps knowingly or intentionally violated an ex parte protective

       order issued under Indiana Code chapter 34-26-5 and that Phipps had a prior

       unrelated conviction for invasion of privacy. Ind. Code § 35-46-1-15.1((2). The

       State specifically alleged that Phipps harassed, annoyed, telephoned, contacted,

       or directly or indirectly communicated with K.G. in violation of the protective

       order issued under case number 28D01-1201-PO-12. Appellant’s App. pp. 24-

       25.




       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017     Page 6 of 15
[13]   It is undisputed that Phipps was aware of the protective order.2 The issue is

       whether she indirectly contacted K.G. by sending the email to a church elder.

                Contact is defined as “establishing of communication with
                someone” or “to get in communication with.” Communication
                occurs when a person makes something known or transmits
                information to another. Further, communication may be either
                direct or indirect and is not limited by the means in which it is
                made known to another person.


       C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997) (internal citations

       omitted).

[14]   In Kelly v. State, 13 N.E.3d 902, 905 (Ind. Ct. App. 2014), this court concluded

       that the defendant’s text to the victim’s child, which stated, “if you see your

       mom tell her I said rattle, rattle, rattle” and was immediately shown to the

       victim, was sufficient evidence to prove that the defendant indirectly

       communicated with the victim.

[15]   Our court reached the opposite conclusion in Huber v. State, 805 N.E.2d 887

       (Ind. Ct. App. 2004). In that case, the defendant asked a domestic violence



       2
         Phipps’ argument that the protective order was void ab initio constitutes an impermissible attack on the
       order issued in 2008 and extended in 2016. Phipps argues that the protective order does not meet the
       requirements of Indiana Code section 34-26-5-9(b). Specifically, Phipps claims that, in that protective order
       proceeding, no evidence was presented from which a reasonable fact finder could conclude that Phipps
       harassed or stalked K.G.
       Phipps makes an evidentiary challenge to the protective order issued under a separate case number, an issue
       she could have raised if she had appealed the protective order. An order is void ab initio “if the trial court
       lacks the authority to provide the relief ordered under any set of circumstances.” In re Adoption of P.A.H., 992
       N.E.2d 774, 775 (Ind. Ct. App. 2013). Phipps does not argue that the Greene Superior Court lacked authority
       to issue and extend the protective order K.G. acquired against her.

       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017                             Page 7 of 15
       advocate to call the victim and speak to her on his behalf. The domestic

       violence advocate refused and told the defendant she could not do that.

       Therefore, we concluded that the defendant’s attempt to contact the victim was

       incomplete, and we reversed his invasion of privacy conviction. Id. at 892.


[16]   In C.W.W., the State alleged that the defendant violated a “no contact” order

       imposed as a condition of his probation by filing a lawsuit against the doctor he

       was convicted of intimidating and harassing. C.W.W. appealed the probation

       revocation, and we concluded that “his mere act of filing a lawsuit did not

       constitute contact in violation of his probation.” 688 N.E.2d at 226 (rejecting

       the State’s argument that C.W.W. contacted the doctor when the sheriff served

       him with a summons and complaint).

[17]   In this case, the State argues Phipps intended that her email would be

       communicated to K.G. because she sent the email “to the church elders

       demanding that K.G. take immediate action or face a criminal complaint.”

       Appellant’s Br. at 13. The email stated that Phipps would have K.G. arrested

       for battery if he did not resign from the church, retire, or apologize to her by

       “Tuesday evening.” Ex. Vol., State’s Ex. 1.

[18]   The email was initially sent to Phipps’ father. In the email, Phipps told her

       father why she believes that K.G. “broke [her] trust.” Id. After listing those

       reasons, Phipps explained what actions the church elders took after she

       complained that K.G. 1) discussed the content of confidential conversations

       with other members of the church and 2) told Phipps that he loved her and


       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017    Page 8 of 15
       hugged her. Phipps also explained that she wrote letters to the elders and

       members of the church because she was not allowed to discuss the situation.

[19]   Phipps then stated that “the Elders need to step up and take control of this

       situation because it has spiraled out of control.” Id. She complained that the

       church elders allow K.G. to control the church even though he is their

       employee. Phipps then stated that she would hold a news conference if K.G.

       put her in jail again.


[20]   Phipps’s email is a request to the church elders to take action for the alleged

       wrongful conduct of their employee, K.G. Upon receipt of Phipps’s email, the

       church elders had discretion to ignore her email or respond to her demands.

       Phipps did not ask the elders to share her email with K.G., and a church elder

       made an independent decision to forward the email to K.G. From this

       evidence, we conclude that Phipps’s intent in sending the email was not to

       contact K.G., but to ask the church elders to discipline or punish K.G. for his

       alleged wrongful conduct. In other words, the intended recipient of the email

       was the church’s decision-making body, not K.G. For this reason, we conclude

       that the State failed to prove that Phipps contacted K.G. by sending the email.

       We therefore reverse Phipps’s conviction for Level 6 felony invasion of privacy.


[21]   Reversed for proceedings consistent with this opinion.


       Baker, J., concurs.


       Pyle, J., dissents with opinion.

       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017    Page 9 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Shelly M. Phipps,                                         Court of Appeals Case No.
                                                                 28A05-1609-CR-2097
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Pyle, Judge dissenting.


[22]   I respectfully dissent from my colleagues’ decision to reverse Phipps’s

       conviction for invasion of privacy as a Level 6 felony. The majority argues that

       there was insufficient evidence for the jury to conclude that Phipps intended to

       indirectly communicate with K.G. My colleagues correctly point out that the

       State was required to prove that Phipps: (1) knowingly or intentionally; (2)

       violated an ex parte protective order; and (3) that she had a prior conviction for

       invasion of privacy. IND. CODE § 35-46-1-15.1. However, I believe there was

       sufficient evidence for the jury to conclude that Phipps intended her email to be

       communicated to K.G.

[23]   In this case, Phipps argues that the State failed to prove that she intended the

       email sent to the church elders to be communicated to K.G. I disagree. The

       protective order prohibits indirect communication with a protected person. In


       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017                Page 10 of 15
       this case, there is direct evidence of the existence of a valid protective order,

       that Phipps sent a communication, and that she has a prior conviction. The

       only outstanding issue is Phipps’s intent. It should be noted that intent can be

       proven by circumstantial evidence. McCaskill v. State, 3 N.E.3d 1047 (Ind. Ct.

       App. 2014). Further, intent can be inferred from a defendant’s conduct and the

       natural and usual sequence to which such conduct logically and reasonably

       points. Id. “We will not reverse a conviction that rests in whole or in part on

       circumstantial evidence unless we can state as a matter of law that reasonable

       persons could not form inferences with regard to each material element of the

       offense so as to ascertain a defendant’s guilt beyond a reasonable doubt.” Id. at

       1050.

[24]   During its cross examination of Phipps, the State sought to prove her intent

       regarding the email. The following colloquy took place:

               Q        Okay. You indicated that you just, the intention in writing
                        that was for you to come back to the church. Right?

               A        Right.

               Q        I didn’t see anything in there. [K.G.] didn’t see anything in
                        there where you asked to come back to the church. Is it in
                        there?

               A        I don’t believe it is in this one, no.

               Q        Well, that is the one we’re here to talk about today.

               A        Okay.

               Q        You also stated you didn’t wish [K.G.] any harm. Is that
                        right?


       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017      Page 11 of 15
        A        No, I have never wished him harm.

        Q        On the second page it says he can resign, retire,
                 apologize...

        A        That is not harming, that is not harming.

        Q        Wait a minute, I haven’t finished my question yet. Okay?
                 Hold on. On the second page it says, he can resign, retire,
                 apologize or go to jail for battery. Those seem like pretty
                 harmful things other than apologizing I guess but resigning
                 or retiring are financially harmful, going to jail is freedom
                 of liberty.

        A        I’m sure he has a great retirement there. They take great
                 care of him.

        Q        That is not my point. Those aren’t pleasant things for
                 people to go through. Those can be harmful. Wouldn’t
                 you agree?

        A        He’s been there 20 years. It’s time for him to retire. I mean
                 he is at that age.

        Q        So you don’t think that is harmful..

        A        Not at all.

        Q        To ask for someone to resign or retire.

        A        My dad is retired and he’s older than [K.G.].

        Q        It says in the first part that you will give [K.G.] until
                 Tuesday evening to comply.

        A        Okay, I’m not sure where you’re at but.

        Q        Okay, I can point it out to you.

        A        Okay.

        Q        I’m on the third line of the first paragraph, right there.

        A        Okay.

Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017        Page 12 of 15
        Q        You see that?

        A        I see that.

        Q        How were they supposed to let [K.G.] know your
                 demands if they didn’t communicate what was in your
                 email to him?

        A        I wanted the elders to take care of it. I never intended for
                 [K.G.] to get a copy of this. The elders are his boss.

        Q        It says here you’ll give him until Tuesday evening to
                 comply requiring him to do something. How are they
                 supposed to take it if it is up to him to comply? How are
                 the elders supposed to take care of something if it is up to
                 [K.G.] to comply?

        A        This was up to the elders. This was written to the elders.

        Q        Okay. Again, I’ll go back. It says he can resign, retire,
                 apologize or go to jail for battery. In order to avoid doing
                 that he has to comply with your demands by resigning,
                 retiring, apologizing, or going to jail.

        A        All I have ever wanted was those two little words, I’m
                 sorry, would have taken care of it.

        Q        How could they get him to apologize if they don’t
                 communicate your request or demands you have?

        A        It was communicated in the last hearing at the protective
                 order.

        Q        I understand that but...

        A        I stated exactly...

        Q        Listen, this email was sent February 28th with a very
                 specific demand on [K.G.]. Correct?

        A        That is not how I take it at all.

        Q        I will give [K.G.] until Tuesday evening to comply.


Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017          Page 13 of 15
        A        This was to Darrin Hamm.

        Q        Describe those words.

        A        Everett Chastain, Terry Keller, the elders of the church.

        Q        Did you write those words?

        A        Well, they’re in the email.

        Q        So did you write them?

        A        I did.

        Q        But yet they weren’t supposed to tell him.

        A        No, they are the, they call themselves the shepherds of the
                 church.

        Q        In order to get him to comply, they would have to talk to
                 him. Right?

        A        That is up to them if they talk to him.

        Q        Well, how can they get him to comply if they don’t talk to
                 him, if they don’t tell him what your demands are?

        A        I don’t know.

        Q        Well, I mean think about it. You see what I’m saying?

        A        I understand where you’re trying to go but that was not the
                 intent.

        Q        Well, I understand you’re saying that now but it’s the only
                 logical intent. It seems to me that you wanted them to talk
                 to him. Is that right or not?

        A        No, that is not right.

        Q        I have no other questions.

(Tr. Vol. II, 155-158).


Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017       Page 14 of 15
[25]   From the evidence in the record, it seems clear that the State sought to prove

       through the text of the email that Phipps intended to indirectly communicate

       with K.G. The jury believed that when a person sends an email to a supervising

       authority with an ultimatum directed at a third party, the natural and probable

       consequence is that the email will be communicated to the third party. Here,

       reasonable persons could infer from Phipps’s conduct (and the natural

       consequences to follow) that the State had proven her intent beyond a

       reasonable doubt. Because the jury was in the best position to disbelieve

       Phipps’s claim of lack of intent, I would affirm Phipps’s conviction. See Love v.

       State, 61 N.E.3d 290 (Ind. Ct. App. 2016) (Pyle, J., dissenting), trans. pending.




       Court of Appeals of Indiana | Opinion 28A05-1609-CR-2097 |May 10, 2017   Page 15 of 15
