MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Oct 17 2016, 9:09 am
regarded as precedent or cited before any                            CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark T. Hager,                                           October 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A04-1604-CR-759
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Bob A. Witham,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C03-1509-F6-246



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016   Page 1 of 5
[1]   Mark T. Hager appeals his conviction for invasion of privacy as a level 6 felony.

      Hager raises one issue which we revise and restate as whether the evidence is

      sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On June 8, 2015, the court entered an ex parte order for protection which stated

      in part that Hager was “prohibited from harassing, annoying, telephoning,

      contacting, or directly or indirectly communicating with” Brittany Toth. State’s

      Exhibit 1 at 2. The order indicated that it would expire on June 8, 2017. On

      June 9, 2015, Henry County Sheriff’s Special Deputy Bobby Hightower served

      the protective order to Hager.


[3]   On September 8, 2015, while Toth was transferring buses in the area of the New

      Castle Henry County Public Library, Hager yelled “Red” or “redhead” at her

      from the top of the steps at the library. Transcript at 25. Bobbi Strange, a

      library assistant, was taking a break outside the library and heard Hager

      “hollering for Brittany.” Id. at 38. Toth went to the bus driver, asked her what

      she should do, and told her that there was a protective order in place, and the

      bus driver told her to call the police and said “we’ll wait on you.” Id. at 26.

      Toth then called the police.


[4]   New Castle Police Officer Ty Terrell arrived at the scene and observed that

      Toth was “visibly shaken” and “appeared to be upset.” Id. at 44. Toth told

      Officer Terrell what happened. Shortly after her break, Officer Terrell asked




      Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016   Page 2 of 5
      Strange about the incident, and Strange told him what she saw and identified

      Hager as the person she saw yelling.


[5]   The State charged Hager with invasion of privacy as a class A misdemeanor,

      enhanced to a level 6 felony. On February 10, 2016, the court held a jury trial.

      Toth, Strange, Deputy Hightower, and Officer Terrell testified. After the State

      rested, Hager moved for a directed verdict, and the court denied the motion.

      Hager testified that he had known Toth for four years, that he was at the library

      on September 8, 2015, caught a glimpse of Toth, and turned and walked right

      back in the library without saying anything.


[6]   The jury found Hager guilty of invasion of privacy as a class A misdemeanor.

      Hager then waived a jury trial on the State’s request for enhancement, and the

      court found him guilty on the enhancement.


                                                  Discussion

[7]   The issue is whether the evidence is sufficient to sustain Hager’s conviction for

      invasion of privacy. When reviewing claims of insufficiency of the evidence,

      we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.

      State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the

      evidence and the reasonable inferences therefrom that support the verdict. Id.

      We will affirm the conviction if there exists evidence of probative value from

      which a reasonable trier of fact could find the defendant guilty beyond a

      reasonable doubt. Id.




      Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016   Page 3 of 5
[8]    The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1

       which at the time of the offense provided in part that “[a] person who

       knowingly or intentionally violates . . . an ex parte protective order issued under

       IC 34-26-5 . . . commits invasion of privacy, a Class A misdemeanor.” 1

       “However, the offense is a Level 6 felony if the person has a prior unrelated

       conviction for an offense under this section.” Ind. Code § 35-46-1-15.1.


[9]    Hager argues that the evidence is insufficient because the contact with Toth was

       incomplete. He argues that Toth testified that she heard Hager yelling Red or

       Redhead at her, but he did nothing else before she called the police, and that

       there is no evidence that he ever actually spoke to her or in any way transmitted

       information to her. The State argues that the evidence is sufficient as it

       establishes that Hager deliberately and intentionally yelled at Toth with the

       intent that she hear him and that she heard him yell at her, became fearful, and

       called the police.


[10]   The record reveals that Toth testified that Hager yelled “Red” or “redhead” at

       her from the top of the steps at the library while she was transferring buses in

       the area of the library and that she called the police. Transcript at 25. Strange

       testified that Hager was “hollering for Brittany.” Id. at 38. On cross-

       examination, Strange testified that she was “[v]ery sure” that Hager said

       “Brittany.” Id. at 41. Based upon the record, we conclude that evidence of




       1
           Subsequently amended by Pub. L. No. 65-2016, § 37 (eff. July 1, 2016).


       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016   Page 4 of 5
       probative value was presented from which the jury could find beyond a

       reasonable doubt that Hager committed the offense of invasion of privacy.


[11]   To the extent Hager relies upon Huber v. State, 805 N.E.2d 887 (Ind. Ct. App.

       2004), we find that case distinguishable. In Huber, Terry Huber and his wife

       Julie were in the middle of a divorce, and Julie obtained three protective orders

       against Huber. 805 N.E.2d at 889. The protective orders were issued to

       restrain Huber from abusing, harassing, or disturbing the peace of Julie, either

       by direct or indirect contact. Id. Huber asked Suzie Ginn, a domestic violence

       advocate for Putnam County Family Support Services, to call Julie for him to

       ask why she was doing this to him. Id. Ginn told Huber she could not do that.

       Id. On appeal from a conviction for invasion of privacy, we observed that Ginn

       specifically told Huber that she could not convey the message to Julie. Id. at

       892. We held that Huber’s attempt to contact Julie indirectly through Ginn was

       incomplete and reversed Huber’s conviction for invasion of privacy. Id. Unlike

       in Huber, Hager communicated directly to Toth and she heard him and called

       the police.


                                                   Conclusion

[12]   For the foregoing reasons, we affirm Hager’s conviction.


[13]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016   Page 5 of 5
