MEMORANDUM DECISION
                                                                Mar 04 2015, 8:57 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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                                   ATTORNEY FOR APPELLEE
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Kenneth Biggins
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Rodrick Hughes,                                         March 4, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1408-CR-562
        v.                                              Appeal from the Marion County
                                                        Superior Court
                                                        The Honorable Tiffany Vivo,
State of Indiana,                                       Commissioner
Appellee-Plaintiff                                      Cause No. 49G21-1405-CM-023264




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015     Page 1 of 6
                                                Case Summary
[1]   Rodrick Hughes (“Hughes”) appeals his conviction for Invasion of Privacy, as a

      Class A misdemeanor.1 He challenges his conviction based on the sufficiency

      of the evidence. We affirm.



                                 Facts and Procedural History
[2]   On October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte

      order of protection under Indiana Code section 34-26-5-9(b), which, inter alia,

      ordered Hughes “to stay away from the residence” of R.G. (State’s Exhibit 1 at

      3.) On October 22, 2013, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer David Labanauskas (“Officer Labanauskas”) served Hughes

      with the protective order, and Hughes testified that he was aware of it. The

      order was set to expire on October 9, 2014.


[3]   In the early morning of May 4, 2014, IMPD Officer Joshua Kemmerling

      (“Officer Kemmerling”) was dispatched to R.G.’s residence in response to a

      report of a “suspicious person” or “trouble with a person.” (Tr. 7.) R.G.’s

      residence was located in a residential neighborhood in southeast Marion

      County. Upon arrival at R.G.’s address, Officer Kemmerling located Hughes

      walking around the north side of R.G.’s residence. The officer testified that

      Hughes’s behavior was “suspicious” (Tr. 8) because Hughes was walking




      1
          Ind. Code § 35-46-1-15.1(1). We refer to the version of the statute in effect at the time of Hughes’s offense.


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      “between the houses in the dark in an area that no pedestrian or person other

      than a resident would be walking[.]” (Tr. 9.)


[4]   Hughes identified himself to Officer Kemmerling, who searched a computer

      database and discovered there was a protective order in place directing Hughes

      to stay away from R.G.’s residence. IMPD Officer Terrance Cress arrived on

      the scene and interviewed R.G., who was at home. Based on the officers’

      investigation, Hughes was placed under arrest for invasion of privacy.


[5]   On July 21, 2014, a bench trial was held, at the conclusion of which Hughes

      was found guilty. He now appeals.



                                Discussion and Decision
[6]   Our standard of review for sufficiency of the evidence claims is well settled.

      We consider only the probative evidence and reasonable inferences supporting

      the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

      the credibility of witnesses or reweigh evidence. Id. We will affirm the

      conviction unless “no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

      N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

      reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

      v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[7]   Under Indiana Code section 35-46-1-15.1(1), a person who knowingly or

      intentionally violates a protective order to prevent domestic or family violence

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015   Page 3 of 6
      issued under Indiana Code chapter 34-26-5 commits invasion of privacy. On

      October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte

      order of protection under Indiana Code section 34-26-5-9(b) ordering Hughes

      “to stay away from the residence” of R.G. (State’s Exhibit 1 at 3.)


[8]   The State charged that on or about May 4, 2014, Hughes “did knowingly

      violate an order of protection, that is: A protective order issued to prevent

      domestic or family violence issued under IC 4-26-5 . . . which was issued to

      protect [R.G.], and furthermore, did so by engaging in the following conduct[:]

      being at the residence and/or property of [R.G.].” (App. 14.)


[9]   Hughes argues that the evidence is insufficient to support his conviction

      because “[w]hile he may have been near [R.G.’s] home on [May 4, 2014], he

      was not at her property.” (Appellant’s Br. 7.) The evidence shows that a

      protective order was in effect on May 4, 2014, when police were called to

      R.G.’s address. After arriving at that address, Officer Kemmerling testified

      that he saw Hughes “walking around the north side of the home adjacent to the

      residence - - the address that we were sent to.” (Tr. 8.) Officer Kemmerling’s

      testimony that Hughes was walking along the outside of R.G.’s home is

      sufficient to establish that Hughes failed “to stay away from” R.G.’s residence

      in violation of the protective order (State’s Exhibit 1 at 3) and that Hughes was

      “at the residence and/or property of [R.G.]” as charged. (App. 14.) The

      evidence was thus sufficient to support Hughes’s conviction for invasion of

      privacy.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015   Page 4 of 6
[10]   Hughes also argues that the State did not present sufficient evidence that he

       “knowingly” committed invasion of privacy because Hughes “believed the

       protective order had been dismissed.” (Appellant’s Br. 6.) Hughes testified at

       trial that he thought the protective order was no longer in effect because a no-

       contact order issued by a different court in a separate case also involving R.G.

       had been dismissed.


[11]   A person engages in conduct “knowingly” if, when he engages in the conduct,

       he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b). Here,

       Officer Labanauskas’s testimony that he served Hughes with the protective

       order coupled with Hughes’s acknowledgement of the order is sufficient to

       show Hughes knowingly violated the order. See Dixon v. State, 869 N.E.2d 516,

       520 (Ind. Ct. App. 2007) (holding that there was sufficient evidence to affirm

       defendant’s conviction for invasion of privacy for knowingly or intentionally

       violating a protective order after a police officer gave defendant oral notice of

       the order and defendant returned later that day). Although Hughes testified

       that he believed the order had been dismissed, in cases involving protective

       orders, “it is even more important than usual to remember that on appeal, we

       do not reweigh the evidence, assess the credibility of witnesses, or substitute our

       judgment for that of the trial court.” Chavers v. State, 991 N.E.2d 148, 153 (Ind.

       Ct. App. 2013), trans. denied. Despite Hughes’s self-serving testimony that he

       believed the protective order was dismissed, there was sufficient evidence to

       support Hughes’s conviction for knowingly committing invasion of privacy. See

       id. (affirming defendant’s conviction for knowingly committing invasion of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015   Page 5 of 6
       privacy where defendant mistakenly believed the no-contact order that formed

       the basis of the conviction was dismissed when, in fact, a separate protective

       order issued by a different court had been dismissed, the no-contact order was

       still valid, and the defendant’s mistaken belief was not reasonable).



                                               Conclusion
[12]   There was sufficient evidence to convict Hughes of invasion of privacy.


[13]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015   Page 6 of 6
