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:                            ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                     GREGORY F. ZOELLER
Acklin Law Office, LLC                             Attorney General of Indiana
Westfield, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                 FILED
                                                                            Jan 30 2012, 9:19 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




JESSE C. E. RAYFORD,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 01A02-1106-CR-554
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE ADAMS CIRCUIT COURT
                         The Honorable Frederick A. Schurger, Judge
                              Cause No. 01C01-1103-CM-0003


                                        January 30, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          Jesse C.E. Rayford (“Rayford”) appeals his conviction for Invasion of Privacy, as a

Class A misdemeanor,1 following a bench trial. He raises the single restated issue of whether

sufficient evidence supports his conviction. We affirm his conviction but remand for

resentencing.

                                   Facts and Procedural History

          M.R. dated Rayford when she was fifteen years old. The relationship ended after

about a year, and in June 2010, M.R.’s father petitioned for a protective order on her behalf

against Rayford. Rayford had threatened to kill M.R. multiple times and she feared for her

life. A protective order was issued on June 3, 2010 with an expiration date of June 3, 2012.

It prohibited Rayford from certain activities, including “harassing, annoying, telephoning,

contacting or directly or indirectly communicating with the Petitioner.” Ex. 1. Rayford

attended the protective order hearing and agreed to the issuance of the order.

          M.R. and her friend, Rachel Lichtle (“Lichtle”), were shopping at Wal-Mart on

October 6, 2010, when they encountered Rayford and his friend, Kyle Osheskie

(“Osheskie”). As the two couples walked past each other in the store, Osheskie said hello to

Lichtle. Rayford looked at M.R., but said nothing. M.R. and Lichtle then proceeded to the

check-out area.

          While M.R. and Lichtle were waiting in line for the cashier, Rayford walked past their

aisle several times. Each time he walked by the aisle, he looked at M.R. On his last pass by


1
    Ind. Code § 35-46-1-15.1(1).
                                                2
the aisle, Rayford sprinted past it and headed to the exit.

          M.R. and Lichtle went into the restroom after paying for their purchases and M.R.

called her father because she knew that Rayford was subject to a protective order that forbade

him from having certain contact with her. M.R. was “really nervous and scared” at this point.

    Tr. 37. After M.R. spoke with her father, the two girls went outside and called the Decatur

Police Department. An officer responded, spoke with the girls, and took them to the police

station to file reports.

          On October 26, 2011, the State charged Rayford with Invasion of Privacy, as a Class

A misdemeanor. The trial court held a bench trial on June 3, 2011, and found Rayford guilty

as charged. Rayford was then sentenced as follows:

          The Court enters a judgment of conviction on Invasion of Privacy, a Class A
          Misdemeanor and sentences the Defendant to 365 days but suspends all but
          180 days to be served in the Adams County Law Enforcement Center. The
          Court will however allow the executed portion of the sentence served on
          electronic monitoring/home detention on the active GPS unit in the Adams
          County Community Correction Program if defendant qualifies.

          Said sentence shall run consecutively to the sentence in Cause No. 01C01-
          1103-FD-0003.2

          As a condition of the suspended portion of the sentence the Defendant shall be
          on formal probation to the Adams County Probation Department for a period
          of 365 days (to run consecutively with probation in Cause No. 01C01-1103-
          FD-003) and obey all rules and regulations of said departments and pay
          probation user’s fees…




2
 Rayford was on probation for a prior conviction for domestic battery and battery resulting in bodily injury
when he was arrested for Invasion of Privacy. As a result of his conviction in the instant matter, the trial court
determined that he had violated his probation and ordered that he serve the balance of his sentence, 275 days,
on home detention.
                                                        3
       The Court further orders as a term of the suspended portion of the Defendant’s
       sentence, the Defendant shall be placed on the electronic monitoring (home
       detention) for a period of 180 days…

App. 35.

       Rayford now appeals.

                                 Discussion and Decision

                                    Standard of Review

       When reviewing the sufficiency of the evidence, we will affirm “if there is substantial

evidence of probative value supporting each element of the crime from which a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt.” Wright v.

State, 828 N.E.2d 904, 906 (Ind. 2005) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind.

2004)). We do not reweigh the evidence or assess the credibility of the witnesses. Id. It is

the job of the trier of fact to determine whether the evidence sufficiently proves each element

of an offense, and we consider conflicting evidence most favorably to the trial court’s ruling.

Id.

                                     Invasion of Privacy

       In order to convict Rayford as charged, the State had to prove beyond a reasonable

doubt that he knowingly violated a protective order. I.C. § 35-46-1-15.1(1); App. 9. 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). The protective order in this case

prohibited Rayford from “harassing, annoying, telephoning, contacting or directly or

indirectly communicating with the Petitioner.” Ex. 1.

                                              4
       Rayford had notice of the protective order because he was present at the protective

order hearing and agreed to the order’s issuance. He knew that M.R. was in Wal-Mart on

October 6, 2010, because when he and Osheskie first encountered the girls, Rayford looked

at M.R. While M.R. was waiting in line for a cashier, Rayford passed her aisle several times.

He looked at her each time. He then sprinted past the aisle in the direction of the exit. By

the time M.R. reached the restroom, she was scared and frightened. Sufficient evidence

supports the conclusion that Rayford at the very least annoyed M.R., and thus violated the

protective order. Although Rayford argues that the events at Wal-Mart were but a chance

encounter, this is an invitation to reweigh the evidence, which we cannot do. See Wright,

828 N.E.2d at 906.

                                         Sentence

       We next address Rayford’s sentence. Although Rayford does not challenge his

sentence on appeal, a sentence that exceeds statutory authority constitutes fundamental error

and may be corrected at any time. Ben-Yisrayl v. State, 908 N.E.2d 1223, 1228 (Ind. Ct.

App. 2009), trans. denied. The trial court sentenced Rayford to 365 days and suspended all

of it except 180 days, which were to be executed in the Adams County Law Enforcement

Center or in Adams County Community Correction Program, if he qualified. The trial court

also ordered, “[a]s a condition of the suspended portion of his sentence”, that Rayford be on

formal probation for 365 days. App. 35. The order setting the conditions of probation states

that Rayford’s sentence is 365 days imprisonment with all but 180 days suspended and 365

days of probation. We interpret this to mean that Rayford is to serve 180 days, has 185

                                             5
suspended, and will also be on probation for 365, all for a Class A misdemeanor. Pursuant to

Indiana Code section 35-50-3-1(b), this sentence is illegal:

        Except as provided in subsection (c),3 whenever the court suspends in whole or
        in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place
        the person on probation under IC 35-38-2 for a fixed period of not more than
        one (1) year, notwithstanding the maximum term of imprisonment for the
        misdemeanor set forth in sections 2 through 4 of this chapter. However, the
        combined term of imprisonment and probation for a misdemeanor may not
        exceed one (1) year.

(emphasis supplied).

        It should also be noted that “term of imprisonment” includes both the executed portion

of the sentence and the suspended portion of a sentence. Jennings v. State, 956 N.E.2d 203,

208 (Ind. Ct. App. 2011), reh’g pending, trans. pending. “A suspended sentence is one

actually imposed but the execution of which is thereafter suspended.” Id. at 206 (quoting

Copeland v. State, 802 N.E.2d 969, 972 n.4 (Ind. Ct. App. 2004)). It “differs from an

executed sentence only in that the period of incarceration is delayed unless, and until, a court

orders the time served in prison.” Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005).

        We therefore affirm Rayford’s conviction but remand to the trial court so that it may

resentence Rayford in a manner such that his combined term of imprisonment and period of

probation does not exceed one year.

        Affirmed and remanded for resentencing.

BAKER, J., and DARDEN, J., concur.



3
 Subsection (c) refers to use or abuse of alcohol, drugs, or harmful substances, and there is no indication that
this is a factor here.
                                                       6
