                                                                   May 28 2015, 8:45 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David Becsey                                               Gregory F. Zoeller
Zeigler Cohen & Koch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tony Hatchett,                                            May 28, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1408-CR-561
        v.                                                Appeal from the Marion Superior
                                                          Court

State of Indiana,                                         Lower Court Cause No.
                                                          49F18-1404-FD-22193
Appellee-Plaintiff.
                                                          The Honorable William Nelson,
                                                          Judge




Pyle, Judge.




Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015                    Page 1 of 11
                                    Statement of the Case
Appellant/Defendant, Tony Hatchett (“Hatchett”), appeals his two convictions

of Class D felony invasion of privacy1 which were based on his violation of a

protective order and a no-contact order. He objected to one of the trial court’s

final jury instructions at trial, arguing that it misled the jury on the law

regarding invasion of privacy. The trial court tendered the instruction over

Hatchett’s objection, and now on appeal he argues that the trial court

improperly instructed the jury. We conclude that the trial court did not

improperly instruct the jury and that, regardless, any potential error did not

prejudice Hatchett’s substantial rights because there was sufficient evidence to

support his conviction. However, sua sponte, we conclude that Hatchett’s two

convictions, both based on the same telephone call, violate the actual evidence

test for double jeopardy under the Indiana Constitution. We reverse and

remand to the trial court with instructions to vacate one of Hatchett’s

convictions for Class A misdemeanor invasion of privacy as well as its

enhancement to a Class D felony.


We affirm in part, reverse in part, and remand.




1
  IND. CODE § 35-46-1-15.1(1)(2)(3)(5)(6). Effective July 1, 2014, the Indiana Legislature amended the
invasion of privacy statute, and a Class D felony would now be considered a Level 6 felony. However,
because Hatchett committed his offense in March 2014, we will apply the version of the statute in effect at
that time.

Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015                            Page 2 of 11
                                                      Issue
              Whether the trial court abused its discretion when it instructed the
              jury on the law regarding invasion of privacy.

                                                      Facts
[1]   On March 22, 2014, Hatchett was prohibited from contacting Janetta

      Buckhalter (“Buckhalter”), the mother of his child, as a result of a no-contact

      order and a protective order that were in effect. The orders prohibited contact

      “by telephone, letter, or any other way, either directly or indirectly.” (Tr. 12-

      13). Detective Donna Hayes (“Detective Hayes”) of the Indianapolis

      Metropolitan Police Department had served Hatchett with the protective order

      and knew that Hatchett was aware of and had notice of both orders.

      Nevertheless, that same day, on March 22, 2014, a man called Buckhalter from

      the Marion County Jail and spoke with her and her daughter. Although the

      man used another inmate’s identification number, Buckhalter recognized

      Hatchett’s voice, and the call was placed from Hatchett’s cell block at the jail.


[2]   Subsequently, on April 30, 2014, the State charged Hatchett with two counts of

      Class A misdemeanor invasion of privacy for the telephone call and also

      charged that the two counts should be enhanced to Class D felonies because

      Hatchett had a prior unrelated conviction for invasion of privacy. The trial

      court held a jury trial on the charges on July 10, 2014.


[3]   At trial, Sergeant Wanda Placencia (“Sergeant Placencia”), a Marion County

      Sheriff’s Office detective in charge of monitoring inmate phone calls at the

      Marion County Jail, testified to the procedure that inmates must follow in order

      Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015    Page 3 of 11
      to make phone calls while incarcerated. She said that an inmate who is making

      a call must use his individual booking number and unique pin number and must

      enter the telephone number he is calling in order to connect. The inmate must

      also say his name so that the person on the other end of the connection knows

      who is calling. She clarified that all of the phone calls from the jail are

      monitored and recorded and that the jail can identify the time, location, and

      length of a phone call. However, she also acknowledged that, in practice,

      inmates are able to use each other’s unique identification numbers to place

      calls, even though they are not allowed to do so.


[4]   Detective Hayes also testified at trial and said that she had listened to the

      recording of the phone call between the inmate who was allegedly Hatchett and

      Buckhalter on March 22 and recognized Hatchett’s voice. She had engaged in

      a forty to fifty minute conversation with Hatchett when she served his

      protective order and was therefore familiar with his voice.


[5]   At the conclusion of the trial, the State tendered a proposed jury instruction that

      became Final Jury Instruction Number 15. It provided:

              When determining whether a party committed the act of invasion
              of privacy, we do not consider whether Ms. Buckhalter
              knowingly ignored the protective order but, rather, whether the
              defendant knowing[ly] violated the protective order.


      (App. 68-A). Hatchett objected to the phrase “we do not consider whether

      Buckhalter knowingly ignored the protective order” and argued that it was an

      incorrect statement of the law as applied to his case because he had never

      Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015        Page 4 of 11
      contended that Buckhalter had consented to the contact. (App. 68-A). He

      asserted that, because consent was not an issue, the instruction could confuse

      the jury. In response, the State noted that the issue of consent was brought up

      “by several different potential jurors” during jury selection and was “something

      that was on people’s minds[.]” (Tr. 63). Thus, the State asserted that the

      instruction was necessary so that the jury would understand that Hatchett’s

      mere contact with Buckhalter was sufficient to prove a violation of the

      protective and no contact orders, regardless of whether Buckhalter consented to

      the contact.


[6]   The trial court accepted the State’s tendered jury instruction over Hatchett’s

      objections, noting that:

              I’m going to go ahead and allow this instruction . . . because the
              confusion, based on the voir dire, the confusion seems to be
              somehow relevant when it is not. This makes it clear that that is
              not relevant. Two, I believe as to the issue of consent, certainly
              anyone with any kind of intelligence can imply that there was
              consent simply by the fact that she didn’t hang up.


      (Tr. 64). The trial court further found that the instruction was not overly

      prejudicial to Hatchett.


[7]   The jury found Hatchett guilty of both counts as Class A misdemeanors.

      Hatchett waived a jury trial on the enhancements for his convictions, and the

      trial court enhanced both convictions to Class D felonies as a result of his prior

      unrelated conviction for invasion of privacy. The Court sentenced Hatchett to


      Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015       Page 5 of 11
      730 days for each count and ordered the sentences to be served concurrently.

      Hatchett now appeals.


                                                   Decision
[8]   On appeal, Hatchett argues that the trial court abused its discretion when it

      instructed the jury because, according to Hatchett, the instruction misapplied

      the law applicable to his case and confused the jury. We afford trial courts

      broad discretion in the manner of instructing a jury, and we review such

      decisions only for an abuse of that discretion. Hayden v. State, 19 N.E.3d 831,

      838 (Ind. Ct. App. 2014), reh’g denied. When reviewing jury instructions on

      appeal, we look to: (1) whether the tendered instructions correctly state the

      law; (2) whether there is evidence in the record to support giving the

      instruction; and (3) whether the substance of the proffered instruction is covered

      by other instructions. Id. We will reverse a conviction only where the appellant

      demonstrates that an error in the jury instructions prejudiced his substantial

      rights. Id. “‘[W]here a conviction is clearly sustained by the evidence and the

      jury could not properly have found otherwise,’” we will not reverse the

      conviction. Id. (quoting Johnson v. State, 959 N.E.2d 334, 338 (Ind. Ct. App.

      2011)).


[9]   Hatchett acknowledges that Final Jury Instruction Number 15 was an accurate

      statement of the law, but he argues that part of the instruction—“we do not

      consider whether Buckhalter knowingly ignored the protective order”—was

      inapplicable to him because he did not argue that Buckhalter had consented to


      Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015    Page 6 of 11
       his telephone call. (App. 68-A). He notes that the trial court justified its

       decision to tender the instruction based on the State’s argument that potential

       jurors had been confused by the issue of consent during voir dire and on its

       belief that “anyone with any kind of intelligence can imply that there was

       consent simply by the fact that she didn’t hang up.” (Appellant’s Br. 4). He

       argues that these justifications for granting the instruction were subjective and

       had nothing to do with the evidence he presented. In support of these

       contentions, he notes that he did not say anything about the issue of consent at

       trial, so the jurors should not have believed that he was raising a defense that

       Buckhalter had consented to the contact.


[10]   We disagree that Hatchett did not imply that Buckhalter had consented to his

       contact. During his cross-examination of Buckhalter at trial, the following

       exchange occurred between Hatchett’s counsel and Buckhalter:

                  [DEFENSE COUNSEL:] [Buckhalter], you said that the number that
                  that phone call was made [to] was [xxx-xxxx]2, correct?
                  [BUCKHALTER:] Yes.
                  [DEFENSE COUNSEL:] And is that a different phone number than
                  you had when you and [Hatchett] were together?
                  [BUCKHALTER:] Yeah.


       (Tr. 57). The implication of this line of questioning—and these were the only

       two questions that Hatchett’s defense counsel asked Buckhalter—was that




       2
           We have redacted this phone number to maintain confidentiality.


       Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015    Page 7 of 11
       Buckhalter had given Hatchett her new number and therefore consented to his

       contact.3 Thus, because Hatchett himself implied that Buckhalter had

       consented to the contact, we conclude that the jury instruction was a proper

       clarification of the law with respect to the evidence in this case.


[11]   Likewise, as the trial court concluded, the jurors could have been confused by

       the issue of consent during voir dire. Hatchett argues that the trial court’s

       conclusion that the jurors were confused is subjective because the trial court did

       not know whether the potential jurors who were confused during voir dire

       became jury members during the trial. However, because Hatchett has not

       provided us with a transcript of the voir dire process, we cannot assess his

       argument. A criminal defendant has a duty to provide a proper record to

       facilitate intelligent review of an appellate issue, and the failure to do so has

       been found to be grounds for waiver of any alleged error based upon the absent

       material. Cox v. State, 475 N.E.2d 664, 667 (Ind. 1985). Accordingly, we

       conclude that Hatchett has waived his argument regarding voir dire by failing to

       provide a complete transcript.


[12]   In addition, even if we were to conclude that the trial court abused its discretion

       when it instructed the jury, the error is not reversible on appeal because it did

       not prejudice Hatchett’s substantial rights. Hayden, 19 N.E.3d at 838




       3
        On re-direct, the State clarified that other members of Hatchett’s family had Buckhalter’s new phone
       number and could have given it to him.

       Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015                          Page 8 of 11
       (“‘[W]here a conviction is clearly sustained by the evidence and the jury could

       not properly have found otherwise,’” we will not reverse the conviction). There

       was sufficient evidence that Hatchett contacted Buckhalter, and the jury could

       not have found otherwise.


[13]   A person commits invasion of privacy if that person: “knowingly or

       intentionally violates: (1) a protective order to prevent domestic or family

       violence issued under [I.C. § 34-26-5] (or, if the order involved a family or

       household member, under [I.C. § 34-26-2 or I.C. § 34-4-5.1-5] before their

       repeal” or “(5) 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 [I.C. § 35-33-8-3-6].” I.C. § 35-46-1-

       15.1-1.


[14]   Here, the State and Hatchett stipulated to the existence of the no-contact and

       protective orders and to the fact that Hatchett knew about and had notice of the

       orders. In addition, Detective Hayes and Buckhalter both testified that they

       recognized Hatchett’s voice on the telephone call to Buckhalter on March 22,

       and the call was placed from Buckhalter’s cell block at the jail. In light of this

       evidence, we conclude that any potential error in the trial court’s Final Jury

       Instruction Number 15 did not prejudice Hatchett’s substantial rights, and we

       will not reverse Hatchett’s convictions. See Hayden, 19 N.E.3d at 838.


[15]   However, sua sponte, we do note that the same evidence—Hatchett’s March 22

       telephone call to Buckhalter—was used to prove Hatchett’s violation of both the


       Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015     Page 9 of 11
       no-contact order and the protective order. This violates the “actual evidence”

       test for the Double Jeopardy Clause of the Indiana Constitution, which

       prohibits using the same evidentiary facts to establish the essential elements of

       two different offenses. Hines v. State, No. 52S05-1408-CR-563, *6 (Ind. May 19,

       2015). In determining the facts used by the fact-finder, “‘it is appropriate to

       consider the charging information, jury instructions, [] arguments of counsel’

       and other factors that may have guided the jury’s determination.” Id. at *7

       (citations omitted). If there is a reasonable possibility that the jury used

       Hatchett’s March 22 phone call to Buckhalter to establish the essential elements

       of both counts of invasion of privacy, then Indiana’s Double Jeopardy Clause is

       violated.


[16]   In this case, the elements of both counts of invasion of privacy are established

       by showing that Hatchett knowingly or intentionally violated (1) a protective

       order to prevent domestic or family violence, or (2) a no contact order issued as

       a condition of pretrial release. I.C. § 35-46-1-15.1(1), (5). In its charging

       information, the State alleged that Hatchett’s March 22 telephone call from the

       jail was the sole piece of evidence violating both counts of invasion of privacy.

       Likewise, the jury instructions given by the trial court inform the jury that

       Hatchett’s March 22 telephone call was the only piece of evidence to be

       considered in determining whether the protective order or no contact order

       were violated. As a result, the jury used the same evidence to establish the

       essential elements of both offenses. Accordingly, we reverse and remand to the

       trial court with instructions to vacate one of Hatchett’s convictions for Class A


       Court of Appeals of Indiana | Opinion 49A02-1408-CR-561 | May 28, 2015    Page 10 of 11
misdemeanor invasion of privacy, as well as the merged count enhancing it to a

Class D felony.


Affirmed.


Crone, J., and Brown, J., concur.




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