MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Mar 11 2019, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          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
Daniel Hageman                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Austin Stevens,                                          March 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1246
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                      Judge Pro-Tempore
                                                         Trial Court Cause No.
                                                         49G10-1801-CM-2344
                                                         49G10-1802-CM-4538



Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                    Page 1 of 12
                                              Case Summary
[1]   In this consolidated appeal, Austin Stevens appeals his convictions, following

      separate bench trials, for two counts of invasion of privacy, as Class A

      misdemeanors. We affirm in part and reverse in part.


                                                       Issue
[2]   The sole issue on appeal is whether sufficient evidence supports Stevens’

      convictions.


                                                       Facts
[3]   Stevens and A.H. began dating in May 2017. On July 10, 2017, Stevens and

      A.H. were involved in a domestic battery incident in Speedway, Indiana.

      Stevens was subsequently charged with various offenses stemming from the

      incident.


[4]   On August 2, 2017, A.H. filed a petition for an order of protection in which

      A.H. described Stevens’ acts of violence against her. 1 See Cause 2344 Exhibits

      Vol. III pp. 6-7. Stevens committed two of the three violent acts at his residence

      which is located at 928 River Ave, Indianapolis, Indiana. On August 3, 2017, a

      magistrate judge entered an ex parte order of protection (“August 2017

      protective order”), which was to remain in effect through August 3, 2019.




      1
       A.H. reported that Stevens broke into her apartment and damaged her television; choked her and left
      bruises on her arms; and pulled a gun on her and threatened to shoot her.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                 Page 2 of 12
      Pursuant to the August 2017 protective order, Stevens was prohibited from

      “annoying, contacting directly or indirectly, [or] communicating with” A.H.

      Cause 2344 Tr. Vol. II p. 24. The protective order was issued without notice to

      Stevens and, accordingly, Stevens was not present when the magistrate judge

      issued the August 2017 Protective Order.


[5]   On August 8, 2017, a sheriff’s deputy of the Marion County Sheriff’s

      Department left a copy of the August 2017 Protective Order at Stevens’ known

      address, 928 River Ave #B, Indianapolis, IN 46221, as identified by A.H. The

      “Marion County Sheriff’s Department[’s] Return of Service” bears “X”

      notations indicating that: (1) a copy of the August 2017 Protective Order was

      left at 928 River Ave #B, Indianapolis, Indiana, by a Marion County sheriff’s

      deputy; and (2) a copy of the August 2017 Protective Order was also mailed to

      the same address. See Cause 2344, Exhibits Vol. III p. 17. The return of

      service does not indicate that service was made upon Stevens in person;

      however, the State contends otherwise.


[6]   Pursuant to a plea agreement, Stevens was convicted of domestic battery, a

      Level 6 felony, in Cause Number 49G16-1708-F6-28164 for certain acts alleged

      within A.H.’s petition for protective order. On October 12, 2017, Stevens was

      sentenced to ninety days in jail. 2 That same day, a judge entered a no contact




      2
       See Cause 4538 Tr. Vol. II p. 21 (providing that Stevens was sentenced to “one [hundred] eighty (180) do
      ninety (90) in jail”). Stevens received jail time credit for fifty-seven days and was required to serve an
      additional thirty-three days to complete his ninety-day executed sentence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                   Page 3 of 12
      order (“DB Order”) that barred Stevens from contacting A.H. while Stevens

      was on probation and/or during the time that Stevens was serving his executed

      sentence. Stevens was incarcerated until November 11, 2017. 3 See Cause 4538

      Tr. Vol. II p. 28.


[7]   On November 29, 2017, Stevens contacted A.H. on Facebook and stated: “Just

      thought I’d let you know I apologize again about everything and hope things

      are good with you [for real for real] . . . . take it easy gorgeous.” Cause 2344

      Tr. Vol. II p. 7; see Cause 2344 Exhibits Vol. III p. 22. A.H. was “[s]cared” to

      hear from Stevens; she captured cell phone images or screenshots of Stevens’

      message(s) and notified the Speedway Police Department. Cause 2344 Tr. Vol.

      II p. 13.


[8]   On December 9, 2017, Detective Lauren Roemke interviewed A.H. A.H. told

      Detective Roemke that the August 2017 Protective Order was in effect 4 and she

      showed Detective Roemke the screenshots of Stevens’ messages. On December

      20, 2017, Stevens sent a Facebook “friend request” to A.H. Cause 2344 Tr.

      Vol. II p. 8. That same day, Detective Roemke interviewed Stevens, who was

      incarcerated in a community corrections facility. Stevens admitted that he had

      contacted A.H. and stated that he believed that the only protective order in

      force was the DB Order, which had become invalid once Stevens completed his




      3
       The State did not present evidence as to whether Stevens returned to and/or continued to reside in the 928
      River Avenue #B, Indianapolis, Indiana address after he was released from jail.
      4
          A.H. did not present Detective Roemke with documentation of the August 2017 Protective Order.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                  Page 4 of 12
       sentence for domestic battery on November 11, 2017. Id. at 17. Detective

       Roemke advised Stevens not to contact A.H. Detective Roemke later located

       documentation of the August 2017 Protective Order after she spoke to Stevens.


[9]    On January 19, 2018, Stevens “messaged [A.H.] a bunch of times on Facebook

       [ ] and just wanted to talk.” Cause 4538 Tr. Vol. II p. 4. A.H. again captured

       screenshots of most of Stevens’ eight messages; however, because Stevens sent

       the messages using Facebook’s “secret message” feature, “after [A.H.] open[ed]

       [some] message[s] and read [them], [they] disappear[ed] after ten (10) seconds”;

       and “[s]o the first couple of messages [Stevens] sent [A.H.], [A.H.] did not get

       to save[.]” Cause 4538 Tr. Vol. II p. 7. A.H. contacted Detective Roemke and

       shared the new screenshots. Detective Roemke confirmed that the August 2017

       protective order was still in effect after speaking with Stevens. A.H. did not

       want or solicit Stevens’ contact.


[10]   Stevens’ January 19, 2018 messages included the following: (1) “What’s up

       gorgeous wish you weren’t so spiteful so I could talk to you for a sec”; (2) “If so

       call me if not ain’t trippin seen ya W ya boy at Applebees”; (3) two messages

       that provided “a cell phone number [Stevens] wanted [A.H.] to contact him

       on”; and (4) “Tryin hard girl guess you ain’t [f****** with me] take it easy




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019   Page 5 of 12
       lol[.]” Cause 4538 Tr. Vol. II pp. 8, 11; State’s Exhibits 6, 7. 5 Seven of the

       eight messages were sent within a fifteen-minute span.


[11]   On January 22, 2018, the State charged Stevens with invasion of privacy in

       Cause 49G10-1801-CM-2344 (“Cause 2344”) for violating the protective order

       by contacting A.H. on November 29 and December 20, 2017. On February 7,

       2018, the State charged Stevens with invasion of privacy in Cause 49G10-1802-

       CM-4538 (“Cause 4538”) regarding Stevens’ further contact with A.H. on

       January 19, 2018. The trial court conducted separate bench trials on May 4,

       2018.


[12]   At Stevens’ trial in Cause 2344, A.H. and Detective Roemke testified to the

       foregoing facts relating to Stevens’ Facebook contact with A.H. on November

       29 and December 20, 2017. Detective Roemke also testified that she did not

       find the August 2017 protective order until after she spoke with Stevens, due to

       a clerical error, but that she had advised Stevens not to contact A.H. The trial

       court found Stevens guilty of invasion of privacy, a Class A misdemeanor.


[13]   In the trial for Cause 4538, the trial court granted the State’s request to

       incorporate the witnesses’ testimony from Cause 2344. A.H. and Detective

       Roemke testified to the foregoing facts stemming from Stevens’ contact with

       A.H. on January 19, 2018. Additionally, Detective Roemke testified that her




       5
        The State introduced images of the captured Facebook messages or time and date data for the Facebook
       messages that disappeared.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019               Page 6 of 12
       “recollection” was that a sheriff’s deputy left the August 2017 protective order

       with Stevens in person at his known residence. Cause 4538 Tr. Vol. II p. 18.

       The sheriff’s return of service, however, does not reflect in-person service upon

       Stevens.


[14]   Stevens testified that he did not reside at “928 River Ave #B, Indianapolis, IN

       46221” when the copy of the August 2017 protective order was left there on

       August 8, 2017 because he was incarcerated at a community corrections facility

       when the August 2017 protective order was entered. See Cause 4538 Tr. Vol. II

       p. 21. Stevens testified that, to his knowledge, the only protective order that

       was in effect when he contacted A.H. was the DB Order, which “ceased to

       exist” after he served his executed sentence. Id. Stevens also testified that

       Detective Roemke told him, “I would advise you not to reach out to [A.H.].

       But I have to check and find out . . . if there’s [sic] any no contact orders still in

       place[.]” Id. at 23.


[15]   At the close of the evidence in Cause 4538, the trial court found Stevens guilty.

       That same day, the court sentenced Stevens as follows: Cause 2344 – ninety

       days in jail; and Cause 4538 – 180 days in jail. The trial court ordered the

       sentences to be served consecutively. Stevens now appeals.


                                                   Analysis
[16]   Stevens argues that the evidence is insufficient to support his convictions.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019   Page 7 of 12
       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead,

       “we ‘consider only that evidence most favorable to the judgment together with

       all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d

       at 84). “We will affirm the judgment if it is supported by ‘substantial evidence

       of probative value even if there is some conflict in that evidence.’” Id.; see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

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

       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[17]   Stevens argues that he did not knowingly violate the protective order because he

       was incarcerated when copies of the protective order were left at and mailed to

       his last known address. 6 To convict Stevens of each count of invasion of

       privacy, a Class A misdemeanor, the State had to prove, beyond a reasonable

       doubt, that: (1) on November 29 and December 20, 2017, and (2) on January

       20, 2018, Stevens knowingly or intentionally violated a protective order to

       prevent domestic or family violence issued under Indiana Code Chapter 34-26-

       5. Ind. Code § 35-46-1-15.1(2). A person engages in conduct “knowingly” if,




       6
         Stevens also asserts that service was defective because service was made at “928 River Ave #B,
       Indianapolis, IN 46221” -- and not “928 River Ave, Indianapolis, IN 46221” -- as the protective order
       provided. As the State counters, however, Stevens conceded at trial that 928 River Avenue was his address
       or usual place of abode when he contended that he did not reside there on the date of service because he was
       incarcerated. We do not address this aspect of his claim further.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                  Page 8 of 12
       when he engages in the conduct, he is aware of a high probability that he is

       doing so. I.C. § 35-41-2-2(a).


[18]   The State is not required to prove that a respondent was actually served with a

       protective order. See Joslyn v. State, 942 N.E.2d 809, 811-12 (Ind. 2011) (holding

       that proper service of an ex parte order is not required to prove that a

       respondent has knowledge of the order). It is sufficient for the State to prove

       that the respondent had knowledge of the protective order and adequate

       indication of its terms. Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011).


[19]   Here, Stevens testified that he was incarcerated in a community corrections

       facility when the August 2017 Protective Order was entered on August 2, 2017,

       and when copies were left at and mailed to his address on August 8, 2017.

       Although Detective Roemke testified that a sheriff’s deputy served the August

       2017 Protective Order upon Stevens in person on August 8, 2017, the sheriff’s

       return of service indicates only that a copy of the protective order was left at

       Stevens’ address. The designated signature line for the “recipient” is blank. See

       Cause 2344, State’s Exhibit 1 p. 17.


[20]   As to Cause 2344, considering only the evidence most favorable to the

       judgment and all reasonable inferences therefrom, we cannot say that no

       reasonable factfinder could find the elements of the crime proven beyond a

       reasonable doubt. Although there is no dispute that service was properly made

       pursuant to Indiana Trial Rule 4.1(A)(3)(B), we elect to give Stevens the benefit

       of the doubt here. We decline to impute to Stevens knowledge of the August


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019   Page 9 of 12
       2017 protective order and adequate indication of its terms where Stevens asserts

       and the evidence indicates—and the State does not dispute—that Stevens was

       incarcerated when service was made at his residence. Under the unique

       circumstances before us, we cannot agree with the State’s contention that “such

       [Indiana Trial Rule 4.1(A)(3)(B) 7] service allows the reasonable inference that

       [Stevens] had knowledge of the protective order and its prohibition[s].” See

       Appellee’s Br. p. 9.


[21]   Because we find that the State failed to prove, beyond a reasonable doubt, that

       Stevens had knowledge of the August 2017 protective order and adequate

       indication of its terms, we conclude that there is insufficient evidence to prove

       that Stevens knowingly and intentionally violated the August 2017 protective

       order when he contacted A.H. on November 29, 2017, and December 20, 2017.

       Accordingly, as to Cause 2344, we reverse the trial court’s order of conviction

       and remand with instructions to vacate the judgment.


[22]   As to Cause 4538, we initially note that we cannot judge the credibility of the

       witnesses from a cold record. Having heard the testimony and observed the

       demeanor of the witnesses, the trial court here concluded that Stevens had




       7
         Pursuant to Indiana Trial Rule 4.1(A)(3)(B), service may be made upon an individual by leaving a copy of
       the document at the individual’s dwelling house or usual place of abode and by mailing a copy to the
       individual’s last known address.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019                Page 10 of 12
       knowingly and intentionally violated the August 2017 protective order when

       Stevens contacted A.H. on January 19, 2018.


[23]   At trial, the State presented evidence that Detective Roemke: (1) interviewed

       Stevens on December 20, 2017; (2) told Stevens that A.H. had reported Stevens’

       unwelcome attempts to contact A.H.; (3) told Stevens that A.H. claimed that

       Stevens had violated a protective order by contacting her; and (4) warned

       Stevens against contacting A.H. At a minimum, Detective Roemke’s

       December 20, 2017, visit put Stevens on notice regarding the protective order.

       Despite being cautioned by Detective Roemke, Stevens sent eight Facebook

       messages – including seven messages within a fifteen-minute span – to A.H. on

       January 19, 2018.


[24]   Based on the foregoing, and considering only the evidence most favorable to the

       judgment and all reasonable inferences therefrom, we find that Stevens

       knowingly and intentionally violated the August 2017 protective order and had

       adequate indication of its terms when he contacted A.H. on January 19, 2018.

       See Tharp, 942 N.E.2d at 818.


                                                 Conclusion
[25]   We find that sufficient evidence exists to support Stevens’ convictions for one

       count of invasion of privacy, a Class A misdemeanor, in Cause 4388; however,

       the evidence was insufficient to convict him of the same offense in Cause 2344.

       Accordingly, we reverse and vacate Stevens’ conviction and sentence in Cause

       2344. Our ruling does not affect the August 2017 Protective Order, which

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019   Page 11 of 12
       remains in effect through August 3, 2019, and of which Stevens is now

       undeniably aware. We affirm in part and reverse in part.


[26]   Affirmed in part and reversed in part.


[27]   Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1246 | March 11, 2019   Page 12 of 12
