MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Nov 30 2016, 6:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Small                                              Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent A. Clemons,                                       November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        66A05-1604-CR-770
        v.                                              Appeal from the
                                                        Pulaski Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Patrick Blankenship, Judge
                                                        Trial Court Cause No.
                                                        66D01-1503-F5-19



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 1 of 15
[1]   Brent A. Clemons (“Clemons”) was convicted after a jury trial of two counts of

      stalking,1 each as a Level 5 felony, and three counts of invasion of privacy,2

      each as a Class A misdemeanor and was sentenced to a four-year aggregate

      sentence. He appeals and raises several issues, which we consolidate and

      restate as:


                 I. Whether the trial court abused its discretion when it allowed
                 State’s Exhibit J, the service history of the protective order, to be
                 admitted into evidence; and


                 II. Whether the State presented sufficient evidence to support
                 Clemons’s convictions.


[2]   We affirm in part, reverse in part, and remand.


                                      Facts and Procedural History
[3]   C.C. married Clemons in October 2013 and filed a petition for dissolution of

      marriage in February 2015. During C.C.’s marriage to Clemons, her teenage

      son, V.W., lived with her and Clemons for a time in 2014 in Starke County,

      Indiana. In early 2014, there was an incident where Clemons battered both

      C.C. and V.W. when V.W. attempted to protect his mother. Clemons moved

      out of the house for a period of time, but moved back in October 2014. In

      February 2015, Clemons put a knife to C.C.’s throat and threatened to kill her.




      1
          See Ind. Code § 35-45-10-5(a), (b)(2)(D).
      2
          See Ind. Code § 35-46-1-15.1(2).


      Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 2 of 15
      C.C. tried to leave, and Clemons smashed the windows of her vehicle with a

      baseball bat and took her keys and cell phone. Clemons hit C.C. in the face

      with his fist, and she feared for her life. C.C. moved out of the home she had

      shared with Clemons and moved in with her ex-husband and V.W. in Pulaski

      County, Indiana.


[4]   After this incident of battery, C.C. obtained an “Ex Parte Order for Protection”

      (“the Protective Order”) against Clemons issued under Cause No. 75C01-1503-

      PO-18. State’s Ex. D. The Protective Order was issued on March 3, 2015 and

      was personally served on Clemons on March 4, 2015. Tr. at 190; State’s Exs. D,

      J. The Protective Order prohibited Clemons from “harassing, annoying,

      telephoning, contacting, or directly or indirectly communicating” with C.C.

      and was valid for two years. State’s Ex. D. C.C. testified that she included

      V.W. on the Protective Order “because [she] was afraid for him” and he had

      been a victim of Clemons’s domestic violence. Tr. at 113.


[5]   While C.C. was staying at the home of her ex-husband, which was in a town

      approximately twenty minutes away from where Clemons lived, Clemons

      drove by the home twice, once in March 2015 and once in April 2015.

      Clemons had no legitimate reason for driving past as he did not live or work

      nearby. One of the times he drove past, C.C. was outside, and a car in which

      Clemons was a passenger drove by slowly, and Clemons stared at her, which

      frightened C.C.




      Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 3 of 15
[6]   On March 9, 2015, at approximately 6:50 p.m., Clemons sent a text message to

      V.W.’s phone that said, “there you go c[.c.], the same guy you told me was a

      better love maker than me has your dog and you now have everything, thnx for

      the humiliation and be proud.” State’s Ex. E; Tr. at 125. V.W. showed the text

      message to C.C., and the police were called. Winamac Police Department

      Officer Tyler Campbell (“Officer Campbell”) responded and saw the Protective

      Order, which prevented Clemons “from having any direct or indirect contact

      [with] either [V.W.] or [C.C.].” Tr. at 169. Officer Campbell contacted

      dispatch to make sure that the Protective Order had been served on Clemons.

      After viewing the text message, Officer Campbell called the number from which

      the text message was sent and verified that it was Clemons’s number. Officer

      Campbell left a voicemail for Clemons informing him of the Protective Order

      and telling him “he needed to cease any further contact.” Id. at 172.


[7]   Later on the night of March 9, at approximately 11:37 p.m., Clemons sent

      another text message to V.W.’s phone that stated, “You are a piece of shot

      who’re. Duck you for this. Duck you [C.C.].” State’s Ex. F; Tr. at 126-27.

      V.W. again showed the message to C.C. Sometime after, another text message

      was sent to V.W.’s phone by Clemons. This message consisted of a photo of

      Clemons “flipping [them] off.” State’s Ex. G; Tr. at 127. On March 15, 2015, at

      approximately 4:41 p.m., Clemons again sent a message to V.W.’s phone; this

      message said, “[C.C.] . . . I tried to leave y’all alone but y’all want to play

      games I got ur number game on puncks [sic].” State’s Ex. H; Tr. at 133-34.

      Clemons also posted a message on C.C.’s Facebook page. As a result of this


      Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 4 of 15
      contact by Clemons, both C.C. and V.W. were scared and fearful for their

      safety.


[8]   The State charged Clemons with two counts of stalking, one involving C.C.,

      and the other involving V.W., which were enhanced to Level 5 felonies due to

      the existence of the Protective Order. Clemons was also charged with three

      counts of Class A misdemeanor invasion of privacy, two counts alleging

      violations on March 9 involving C.C. and V.W. respectively, and one count

      alleging a violation on March 15 involving C.C.3 A jury trial was held, at

      which Clemons failed to appear, and he was tried in absentia. At trial,

      Clemons’s counsel objected to the admission of State’s Exhibit J, which was a

      printout of the service history of the Protective Order, and alleged an

      insufficient foundation was provided to qualify the exhibit as a business record.

      The trial court overruled the objection, and State’s Exhibit J was admitted into

      evidence. At the conclusion of the trial, Clemons was convicted of two counts

      of Level 5 felony stalking and three counts of Class A misdemeanor invasion of

      privacy. He was sentenced to four years on each stalking conviction and one

      year on each invasion of privacy conviction, with all of the sentences to be

      served concurrent with each other for an aggregate sentence of four years

      executed. Clemons now appeals.




      3
       The State also charged Clemons with a fourth count of Class A misdemeanor invasion of privacy alleging a
      violation on March 15 involving V.W., but that count was later dismissed.

      Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016       Page 5 of 15
                                      Discussion and Decision

                                     I. Admission of Evidence
[9]    Generally, we review the trial court’s ruling on the admission of evidence for an

       abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013)

       (citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. We

       reverse only where the decision is clearly against the logic and effect of the facts

       and circumstances. Id. Even if the trial court’s decision was an abuse of

       discretion, we will not reverse if the admission constituted harmless error. Id.

       “It is well-settled that ‘[t]he Court of Appeals may affirm the trial court’s ruling

       [on the admissibility of evidence] if it is sustainable on any legal basis in the

       record, even though it was not the reason enunciated by the trial court.’” Reeves

       v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011) (quoting Scott v. State, 883

       N.E.2d 147, 152 (Ind. Ct. App. 2008)), trans. denied.


[10]   Clemons argues that the trial court abused its discretion when it allowed the

       service history of the Protective Order, State’s Exhibit J, to be admitted into

       evidence at trial. He claims that State’s Exhibit J was hearsay and that the State

       failed to lay a proper foundation for the exhibit to be admitted under the

       business records exception to the hearsay rule. Specifically, Clemons contends

       that the witness who testified about State’s Exhibit J was not the keeper or the

       custodian of the records and that there was no testimony to establish that the

       information contained in State’s Exhibit J was imputed on a regular basis or

       regularly made as is required by Indiana Evidence Rule 803(6). Clemons,

       therefore, asserts that State’s Exhibit J was not properly admitted into evidence.
       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 6 of 15
[11]   We need not address Clemons’s hearsay argument because the service

       information in State’s Exhibit J is cumulative of other evidence presented at

       trial that established that Clemons was served or notified of the Protective

       Order. The admission of evidence is harmless and is not grounds for reversal

       where the evidence is merely cumulative of other evidence properly admitted.

       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). Here, testimony was

       presented of Pulaski County Sheriff’s Deputy Nicholas Bowyer (“Deputy

       Bowyer”), who responded to C.C.’s residence on March 15, 2015 regarding a

       text message sent by Clemons on that date. Deputy Bowyer testified that he

       took the police report on that date and confirmed that the Protective Order was

       valid and that it had previously been served on Clemons on March 4, 2015. Tr.

       at 193-94. Additionally, Officer Campbell testified that he called Clemons on

       March 9, 2015, personally notified Clemons of the Protective Order, and

       advised Clemons to “cease any further contact with [C.C.] or possible criminal

       prosecution could ensue.” Id. at 171-72. Indiana Courts have held that proper

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

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

       (“[T]he statutes defining the crimes of stalking and invasion of privacy do not

       require actual service of a protective order for a conviction.”). We, therefore,

       conclude that any error in admitting State’s Exhibit J was harmless because

       ample other evidence was presented that demonstrated that Clemons was given

       notice of the Protective Order.




       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 7 of 15
                                       II. Sufficient Evidence
[12]   The deferential standard of review for sufficiency claims is well settled. When

       we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We also consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

       App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

       substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

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

       crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

       2012). As the reviewing court, we respect “the jury’s exclusive province to

       weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).


[13]   Clemons argues that the State failed to present sufficient evidence to support his

       convictions for two counts of Level 5 felony stalking and three counts of Class

       A misdemeanor invasion of privacy. In order to convict Clemons of stalking as

       a Level 5 felony, the State was required to prove beyond a reasonable doubt

       that he stalked another person, that a protective order to prevent domestic or

       family violence under Indiana Code chapter 34-26-5 or Indiana Code chapter

       34-4-5.1 had been issued to protect the same victim from Clemons, and that

       Clemons had been given actual notice of the protective order. Ind. Code § 35-

       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 8 of 15
       45-10-5(a), (b)(2)(D). Stalk is defined as “a knowing or an intentional course of

       conduct involving repeated or continuing harassment of another person that

       would cause a reasonable person to feel terrorized, frightened, intimidated, or

       threatened and that actually causes the victim to feel terrorized, frightened,

       intimidated, or threatened.” Ind. Code § 35-45-10-1. In order to convict

       Clemons of invasion of privacy as a Class A misdemeanor, the State was

       required to prove beyond a reasonable doubt that he knowingly or intentionally

       violated an ex parte protective order issued under Indiana Code chapter 34-26-

       5. Ind. Code § 35-46-1-15.1(2).


[14]   Clemons first challenges his convictions for stalking by claiming that he “was

       charged with violating ‘a’ protective order that . . . never was introduced into

       evidence.” Appellant’s Br. at 21. Because this was the basis of enhancing his

       two stalking convictions to Level 5 felonies, Clemons asserts that the evidence

       was insufficient to support his convictions for stalking as Level 5 felonies.


[15]   In the present case, C.C. testified that she obtained the Protective Order against

       Clemons after an incident of domestic abuse because she was afraid of Clemons

       and for her life. Tr. at 109, 111-14. Officer Campbell testified that he saw the

       Protective Order on the night of March 9, 2015 after responding to the dispatch

       of the text messages. Id. at 169. Deputy Bowyer also testified that, on March

       15, 2015, when he responded to C.C.’s residence, he confirmed the Protective

       Order was valid and that it had been served on Clemons on March 4, 2015. Id.

       at 194. Further, contrary to Clemons’s claim, the Protective Order itself was

       admitted into evidence as State’s Exhibit D. Id. at 114; State’s Ex. D. The

       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 9 of 15
       Protective Order was an Ex Parte Order for Protection issued under the

       authority of Indiana Code section 34-26-5-9(b) against Clemons on March 3,

       2015. State’s Ex. D. The Protective Order was issued because C.C. had shown

       that domestic violence had occurred, that Clemons represented a credible threat

       to C.C.’s safety, and that the Protective Order was necessary to bring about the

       cessation of the violence or threat of violence. Id. Although Clemons alleges

       that C.C.’s testimony discussed two different protective orders, the evidence

       presented at trial established that State’s Exhibit D was the only protective

       order at issue in this case and the order on which the charges were based. We

       conclude that sufficient evidence was presented to support the existence of a

       protective order to enhance stalking to a Level 5 felony.


[16]   Clemons next argues that insufficient evidence was presented to support the

       enhancement of Count 2 stalking to a Level 5 felony and to support Count 4

       invasion of privacy because the evidence did not establish that Clemons knew

       or was notified that the Protective Order named V.W. as a protected individual.

       Clemons asserts that V.W.’s name does not appear anywhere on the Protective

       Order and that V.W. was not mentioned as a protected person in State’s Exhibit

       D. Clemons contends that pursuant to Indiana Code section 34-26-5-9(b),

       under which the Protective Order was issued, a “court may grant the following

       relief without notice and hearing in an ex parte order for protection . . .: (1)

       Enjoin a respondent from threatening to commit or committing acts of

       domestic or family violence against a petitioner and each designated family or




       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 10 of 15
       household member,” and because V.W. was not designated in the Protective

       Order, insufficient evidence was presented. We agree.


[17]   In the present case, State’s Exhibit D was the Protective Order at issue, the

       violation of which was the subject of the charges against Clemons. On the face

       of State’s Exhibit D, C.C. is clearly listed as the Petitioner, and Clemons is

       clearly prohibited from having contact with C.C. State’s Ex. D. However,

       nowhere in State’s Exhibit D does V.W.’s name appear. Id. Under the heading

       Findings, it states, “This order does/does not protect an intimate partner or

       child”; however, neither “does” nor “does not” is circled. Id. Under the

       heading Order, paragraph 1 is checked and provides, “The Respondent is

       hereby enjoined from threatening to commit or committing acts of domestic or

       family violence, stalking, or a sex offense against the Petitioner and the

       following designated family or household members, if any”; the lines following

       are blank and do not contain V.W.’s or any other name. Id.


[18]   Under Indiana Code subsections 35-45-10-5(a), (b)(2)(D), in order for the crime

       of stalking to be elevated to a Level 5 felony, the State is required to prove

       beyond a reasonable doubt that a protective order to prevent domestic or family

       violence under Indiana Code chapter 34-26-5 or Indiana Code chapter 34-4-5.1

       had been issued to protect the victim from the defendant and that the defendant

       had been given actual notice of the protective order. Under Indiana Code section

       35-46-1-15.1(2), in order to convict a defendant of invasion of privacy as a Class

       A misdemeanor, the State is required to prove beyond a reasonable doubt that

       the defendant knowingly or intentionally violated an ex parte protective order

       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 11 of 15
       issued under Indiana Code chapter 34-26-5. Here, although evidence was

       presented that Clemons was served with the Protective Order, because the

       Protective Order did not contain V.W.’s name as a protected person, the State

       did not present evidence that Clemons was given actual notice of the Protective

       Order as it related to V.W. or that Clemons knowingly or intentionally violated

       the Protective Order as to V.W.


[19]   The State contends that testimony by C.C. and Officer Campbell established

       that V.W. was included in the Protective Order, tr. at 113, 169, and was

       sufficient to support Clemons’s convictions. However, we conclude that this

       testimony did not establish that Clemons was given actual notice of the

       Protective Order and any prohibition of contact with V.W. or that Clemons

       knowingly or intentionally violated the Protective Order regarding V.W. We,

       therefore, vacate the enhancement of Count 2 to Level 5 felony stalking,

       reducing it to Level 6 felony stalking, and we reverse Clemons’s conviction for

       Count 4, Class A misdemeanor invasion of privacy.


[20]   Lastly, Clemons argues that the evidence was insufficient to support his

       convictions for stalking.4 He contends that the evidence that he drove past

       C.C.’s residence was not sufficient to support his conviction because he was




       4
         Although Clemons concludes his argument section with the statement, “The evidence was not sufficient to
       support judgment of conviction on any count, Appellant’s Br. at 28, the text of his argument does not make
       any reference to his invasion of privacy convictions and only addresses his stalking convictions. We,
       therefore, find that he has waived any contention that his remaining invasion of privacy convictions, Counts
       3 and 5, were not supported by sufficient evidence for failure to make a cogent argument. See Ind. Appellate
       Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016        Page 12 of 15
       engaged in constitutionally protected activity as he was traveling on a public

       road and had no control of the vehicle as he was the passenger in the car.

       Clemons also claims that all of the text messages were sent to V.W.’s phone,

       and because V.W. was not included on the Protective Order, this evidence did

       not support his convictions for stalking. Clemons further asserts that it was not

       clear on what date he posted the message to C.C.’s Facebook page, so it was

       not proven to be made after the Protective Order was issued.


[21]   The definition of stalk is stated as, “a knowing or an intentional course of

       conduct involving repeated or continuing harassment of another person that

       would cause a reasonable person to feel terrorized, frightened, intimidated, or

       threatened and that actually causes the victim to feel terrorized, frightened,

       intimidated, or threatened.” Ind. Code § 35-45-10-1. The definition of stalk

       does not include statutorily or constitutionally protected activity. Id. Here, the

       evidence presented at trial showed that although C.C. lived in a different town

       that was approximately twenty minutes away from where Clemons lived,

       Clemons drove by the home twice, once in March 2015 and once in April 2015.

       Clemons had no legitimate reason for driving past as he did not live or work

       nearby, and one of the times he drove past, C.C. observed a car in which

       Clemons was a passenger drive by slowly, and Clemons stared at C.C.,

       frightening her. Clemons’s reliance on VanHorn v. State, 889 N.E.2d 908 (Ind.

       Ct. App. 2008), trans. denied, to support that his actions of driving on a public

       road are constitutionally protected is misplaced. In VanHorn, no protective

       order had been issued so the defendant had no notice of the impermissibility of


       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 13 of 15
       his conduct in a public place where he parked near the complainants’ house and

       looked at their house on several occasions. Id. at 911-13. Here, a protective

       order had been issued, and Clemons had notice that he was prohibited from

       contacting C.C.


[22]   The Protective Order prohibited Clemons from “harassing, annoying,

       telephoning, contacting, or directly or indirectly communicating” with C.C.

       State’s Ex. D. The evidence presented at trial showed that, on different days,

       Clemons sent multiple harassing text messages that were directed to C.C. to

       V.W.’s phone. Although the messages were sent to V.W.’s phone, they were

       clearly directed to C.C., Clemons had been explicitly prohibited from

       contacting C.C. both directly and indirectly. Based on this evidence, the jury

       could reasonably infer that Clemons was attempting to contact C.C. when he

       sent the text messages and, therefore, violating the Protective Order. As a result

       of receiving these messages and of Clemons’s other behavior, both C.C. and

       V.W. testified that they felt threatened by and frightened of Clemons. Tr. at

       135, 155. We conclude that sufficient evidence was presented from which a

       reasonable jury could find that Clemons knowingly or intentionally harassed

       both C.C. and V.W. in a way that would cause a reasonable person to feel

       terrorized, frightened, intimidated, or threatened and that actually caused them

       to feel terrorized, frightened, intimidated, or threatened. See Ind. Code § 35-45-

       10-1. Sufficient evidence was presented to support Clemons’s convictions for

       Level 5 felony stalking relating to C.C. and Level 6 felony stalking relating to

       V.W.


       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 14 of 15
[23]   In conclusion, we find that even if there was an error in the admission of State’s

       Exhibit J, it was harmless because the exhibit was merely cumulative of other

       evidence that was properly admitted. We conclude that sufficient evidence was

       presented to support the existence of a protective order to enhance the stalking

       of C.C. to a Level 5 felony as to Count 1; however, we find that the State

       presented insufficient evidence to prove that Clemons was given actual notice of

       the Protective Order as it related to V.W. or that Clemons knowingly or

       intentionally violated the Protective Order as to V.W. Further, based on the

       evidence presented at trial, we conclude that sufficient evidence was presented

       to prove that Clemons stalked both C.C. and V.W. Based on these conclusions,

       we vacate the enhancement of Count 2 and reduce Clemons’s Level 5 felony

       stalking conviction to Level 6 felony stalking, and we reverse Clemons’s

       conviction for Count 4, Class A misdemeanor invasion of privacy. We affirm

       all of Clemons’s other convictions and remand with instructions to enter

       judgment consistent with this decision.


[24]   Affirmed in part, reversed in part, and remanded.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016   Page 15 of 15
