                                                                              FILED
                                                                          Jun 06 2019, 8:21 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Rory Gallagher                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Marjorie Lawyer-Smith
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher Allen Peacock,                                 June 6, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2654
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable David Hooper,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           49G12-1707-CM-27237



Darden, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019                                  Page 1 of 11
                                          Statement of the Case
[1]   Christopher Peacock appeals his conviction by jury of harassment, a Class B
                           1
      misdemeanor. We affirm.


                                                      Issues
[2]   Peacock raises three issues, which we restate as:


                 I.       Whether the State presented sufficient evidence to prove
                          that Indiana had jurisdiction over the case.


                 II.      Whether the State presented sufficient evidence to prove
                          that Marion County, Indiana, was the proper venue.


                 III.     Whether the trial court committed fundamental error
                          while instructing the jury.


                                   Facts and Procedural History
[3]   The Indiana Department of Child Services (DCS) opened a case in Marion

      County involving Peacock and children in his care. Peacock lived in Marion

      County. DCS assigned Case Manager Narea Okpala to the case in February

      2016. Okpala lived in Marion County, and in addition she worked at the DCS

      Marion County office.




      1
          Ind. Code § 35-45-2-2 (1996).


      Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019               Page 2 of 11
[4]   The first time Okpala met with Peacock after being assigned to the case, he gave

      her two telephone numbers. He informed her that the first number was for his

      mobile phone, and the second number was for his girlfriend’s mobile phone.

      Okpala saved those telephone numbers in her work mobile phone. In addition,

      Okpala gave her work mobile phone number to Peacock.


[5]   At a second meeting between Okpala and Peacock, he requested that she

      contact him using only his girlfriend’s mobile phone because he was not using

      his personal phone any more. Subsequently, Okpala and Peacock

      communicated several times, via his girlfriend’s mobile phone.


[6]   On the morning of July 5, 2017, a hearing was held in the CHINS case, and the

      CHINS court judge issued a ruling that displeased Peacock. Okpala was not at

      the hearing.


[7]   Next, Peacock texted Okpala at around 4 p.m. using his girlfriend’s mobile

      phone. He complained about the outcome of the CHINS hearing and accused

      her of “playing god.” Tr. Ex. Vol., State’s Ex. 1. Peacock then texted to

      Okpala the names of her mother, sister, and brother, stating to her that they

      were “under [his] surveillance” because he knew their “addresses and

      schedules.” Id. He also texted to Okpala that he knew where she lived and that

      he “had a tracking device on [her] car.” Id. In subsequent texts sent within

      minutes of the prior texts, Peacock repeatedly referred to Okpala in a

      derogatory manner, followed by the use of a racist slur directed at her, and

      stated to her that he might go to Terre Haute to “hang” her mother and sister.


      Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019         Page 3 of 11
       Tr. Ex. Vol., State’s Ex. 3. He next texted that he had Okpala’s family “on [his]

       gps” and that she should remember that while “playing god.” Tr. Ex. Vol.,

       State’s Ex. 4. Peacock then texted Okpala, “I can’t wait to hang your family,”

       followed by a long string of additional racial slurs. Tr. Ex. Vol., State’s Ex. 5.


[8]    Immediately after sending the text messages on July 5, 2017, Peacock left a

       voicemail on Okpala’s work mobile phone. In the voicemail, he accused her of

       “abusing her power” and again repeatedly referred to her using racial slurs. Tr.

       Ex. Vol., State’s Ex. 7. Peacock further stated in the voicemail that he hated

       Okpala and would kill her.


[9]    Okpala later testified that she received the messages “while [she] was living in

       Marion County” and was still “working in Marion County” at DCS. Tr. Vol.

       II, p. 22. She was so terrified that she immediately reported Peacock’s

       communications to law enforcement in Marion County, as well as to her

       supervisors.


[10]   The next day, on July 6, 2017, Peacock met with social worker Shelby Harris at

       his home. He admitted to Harris that he had sent threatening text messages to

       Okpala because he “wanted her to lose sleep” and hoped that his threats

       “would always be on her mind.” Id. at 29. He voluntarily showed the text

       messages to Harris. During this discussion, Peacock laughed and appeared to

       brag about the messages he had sent to Okpala.


[11]   Soon thereafter, Peacock’s case was transferred to another case manager;

       however, Okpala remained frightened. As a result of Peacock’s threats and

       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019           Page 4 of 11
       lingering fear experienced by Okpala, she quit her job at DCS and moved out of

       Marion County. In addition, Okpala advised her family members to be

       constantly watchful and on guard.


[12]   The State charged Peacock with harassment, a Class B misdemeanor, alleging

       that “all events occurred in Indianapolis, Marion County, Indiana.”

       Appellant’s App. Vol. II, p. 12. Peacock requested trial by jury. A jury trial

       was held on September 13, 2018. Prior to and during the trial, Peacock never

       raised the issues of jurisdiction and venue or questioned whether the alleged

       crime occurred in Marion County, Indiana. The jury found Peacock guilty as

       charged. The trial court imposed a sentence, and this appeal followed.


                                     Discussion and Decision
                                                I. Jurisdiction
[13]   Peacock argues that territorial jurisdiction is a constitutionally claimed right,

       and the State failed to prove that he committed his offense in Indiana; and,

       therefore, he concludes that his conviction must be reversed in the absence of

       proof of territorial jurisdiction beyond a reasonable doubt.


[14]   Before we turn to the merits of Peacock’s argument, we note that the State, in

       response, argues that Peacock has waived this issue for appellate review because

       he did not challenge territorial jurisdiction at trial in a motion for directed

       verdict. We acknowledge that some constitutional claims may be procedurally

       defaulted for appeal purposes if not raised in the trial court. See Butler v. State,



       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019             Page 5 of 11
       724 N.E.2d 600, 604 (Ind. 2000) (Indiana Constitutional claim related to jury

       instructions was waived for failure to present claim at trial).


[15]   In response, Peacock argues that jurisdiction in Indiana cannot be waived, and

       the issue can virtually be raised at any time. We agree with Peacock that as we

       stated in McKinney v. State, 553 N.E.2d 860, 863 (Ind. Ct. App. 1990), trans.

       denied, territorial jurisdiction is a fact that the State must prove beyond a

       reasonable doubt because jurisdiction “may not be waived or conferred by

       consent.” As a result, on appeal Peacock may present a claim that the State

       failed to provide sufficient evidence to prove territorial jurisdiction.


[16]   In reviewing a claim of insufficient evidence, we neither reweigh the evidence

       nor judge the credibility of witnesses. Ortiz v. State, 766 N.E.2d 370, 374 (Ind.

       2002). Rather, we consider only that evidence which supports the verdict and

       all reasonable inferences drawn therefrom. Id. We will uphold a conviction if

       there is substantial evidence of probative value from which a jury could have

       found the defendant guilty beyond a reasonable doubt. Id. Circumstantial

       evidence need not overcome every reasonable hypothesis of innocence; the

       evidence is sufficient if an inference may reasonably be drawn from it to support

       the verdict. Gaerte v. State, 808 N.E.2d 164, 166 (Ind. Ct. App. 2004), trans.

       denied.


[17]   The territorial jurisdiction of Indiana includes the area within the

       constitutionally-designated boundaries of the state, as well as portions of the

       Ohio and Wabash rivers where Indiana exercises concurrent jurisdiction with


       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019           Page 6 of 11
       bordering states. Ind. Code § 35-41-1-1 (2009). “A person may be convicted

       under Indiana law of an offense if . . . either the conduct that is an element of

       the offense, the result that is an element, or both, occur in Indiana . . . .” Id.


[18]   At the time Peacock committed this offense on July 5, 2017, it is undisputed

       that both he and Okpala lived in Marion County, Indiana. In addition, Okpala

       worked for DCS in Marion County. Peacock sent the text messages and the

       voice mail message to Okpala on the same day that the CHINS court had

       issued a ruling that apparently was adverse to and displeased him. Within a

       few hours after the hearing, Peacock began sending the threatening text

       messages to Okpala’s work mobile phone at around 4 p.m., a time during

       which she reasonably would have been at work. She received all of the

       messages “while [she] was living in Marion County” and was “working in

       Marion County.” Tr. Vol. II, p. 22. Almost immediately upon receiving

       Peacock’s threatening messages, Okpala reported them to Marion County law

       enforcement. Peacock met with a social worker the following day at his house

       in Marion County.


[19]   We find that there is sufficient circumstantial evidence from which the jury

       could have determined, beyond a reasonable doubt, that Peacock sent the

       messages while in Indiana, and, further, that Okpala received the messages

       while in Indiana. See Ortiz, 766 N.E.2d at 374 (State presented sufficient

       circumstantial evidence, in the form of the victim’s testimony, that the offense

       occurred in Indiana). Peacock’s arguments are a request for this Court to

       reweigh the evidence, in contravention of our standard of review.

       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019            Page 7 of 11
                                                    II. Venue
[20]   Peacock next argues that the State failed to present sufficient evidence to

       establish that venue was proper in Marion County, which is where the State

       alleged in the charging information that the crime occurred, and is also where

       he was tried and convicted.


[21]   The State argues Peacock has waived this claim for appellate review, and we

       agree. “A defendant waives error relating to venue when he fails to make an

       objection at the appropriate time in the trial court.” Harkrader v. State, 553

       N.E.2d 1231, 1234 (Ind. Ct. App. 1990), trans. denied. In Peacock’s case, he did

       not challenge venue at trial, such as by filing a motion for directed verdict. His

       venue claim is waived. See id. (Harkrader’s claim of insufficient evidence of

       venue was waived on appeal due to his failure to raise it in trial court).


[22]   Waiver notwithstanding, the parties agree that Peacock had a constitutional

       and statutory right to be tried in the county where the offense was committed.

       See IND. CONST. Art. I, § 13 (“In all criminal prosecutions, the accused shall

       have the right to a public trial, by an impartial jury, in the county in which the

       offense shall have been committed . . . .”); Ind. Code § 35-32-2-1(a) (2005)

       (“Criminal actions shall be tried in the county where the offense was

       committed, except as otherwise provided by law”).


[23]   The State is required to prove venue, although it is not an element of an offense.

       Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). As a result, the State may

       prove venue by a preponderance of the evidence rather than by proof beyond a

       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019             Page 8 of 11
       reasonable doubt. Id. Circumstantial evidence may be sufficient to establish

       proper venue. Evans v. State, 571 N.E.2d 1231, 1233 (Ind. 1991). We neither

       weigh the evidence nor resolve questions of credibility, but look to the evidence

       and reasonable inferences drawn therefrom that support the conclusion of

       requisite venue. Eberle v. State, 942 N.E.2d 848, 855 (Ind. Ct. App. 2011), trans.

       denied.


[24]   The circumstantial evidence that we have discussed above is sufficient to

       establish by a preponderance of the evidence that Peacock committed the

       offense in Marion County. As a result, we find that the State proved venue in

       this case. See Eberle, 942 N.E.2d at 855-56 (State presented sufficient

       circumstantial evidence of venue to sustain convictions of stalking, harassment

       and intimidation via telephone calls).


                      III. Jury Instructions and Fundamental Error
[25]   Lastly, Peacock argues that the trial court erred in failing to instruct the jury on

       territorial jurisdiction and venue. He concedes that he did not present this issue

       to the trial court during the court’s hearings on jury instructions or at any other

       time during the trial.


[26]   To avoid waiver, Peacock now asserts that the trial court’s failure to give and

       explain jurisdiction and venue in the jury instructions constituted fundamental

       error. The doctrine of fundamental error is an exception to the general rule

       requiring a contemporaneous objection to a trial court ruling. Pattison v. State,

       54 N.E.3d 361, 365 (Ind. 2016). Fundamental error is a substantial, blatant

       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019           Page 9 of 11
       violation of due process. Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002).

       To qualify as fundamental error, an error must be so prejudicial to the rights of

       the defendant as to make a fair trial impossible. Id. The fundamental error

       exception applies only in egregious circumstances. Pattison, 54 N.E.3d at 365

       (quotation omitted). When we consider a claim of fundamental error with

       respect to jury instructions, we look to the instructions as a whole to determine

       whether they were adequate. Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App.

       2010).


[27]   “[I]f there is no serious evidentiary dispute that the trial court has territorial

       jurisdiction, then a special instruction on territorial instruction need not be

       given to the jury.” Ortiz, 766 N.E.2d at 376. Similarly, “[e]ven when venue

       turns on issues of fact, . . . a trial judge may refuse to instruct the jury on venue

       if it presents no genuine issue.” Cutter v. State, 725 N.E.2d 401, 409 (Ind. 2000).


[28]   Without objection, as noted herein, the State’s charging information clearly

       placed Peacock on notice that the criminal offense with which he was charged,

       was alleged to have been committed in the venue of Marion County, Indiana.

       During the trial, the State presented sufficient evidence, through witness

       testimony, that the harassment was committed in Marion County, Indiana. By

       contrast, Peacock did not raise or contest jurisdiction or venue before or during

       trial. There was not a scintilla of evidence presented that the offense could have

       been committed in a different county or state. Under the facts of this case, a

       failure to instruct the jury on jurisdiction and venue was not a substantial,



       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019            Page 10 of 11
       blatant violation of Peacock’s right to due process and did not render a fair trial

       impossible. He has failed to establish fundamental error.


                                                  Conclusion
[29]   For the reasons stated above, we affirm the judgment of the trial court.


[30]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2654 | June 6, 2019         Page 11 of 11
