MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Feb 21 2020, 9:27 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick McCartney,                                       February 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1992
        v.                                               Appeal from the
                                                         Hendricks Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Stephenie Lemay-Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1904-F5-52



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020                  Page 1 of 6
                                          Case Summary
[1]   Patrick McCartney appeals his conviction for Level 6 felony invasion of

      privacy, arguing that it is not supported by sufficient evidence. We affirm.



                            Facts and Procedural History
[2]   McCartney married J.N. (“Mother”) in 2009. Their son, B.M. (“Son”), was

      born in March 2013. In November 2016, Mother filed for divorce and

      requested a protective order, alleging that McCartney had abused and

      threatened her. Mother was granted a two-year protective order that prohibited

      McCartney from, among other things, “directly or indirectly communicating

      with” Mother. Trial Ex. 18. After the divorce was finalized in November

      2017, the protective order was extended until December 2028.


[3]   The divorce court granted McCartney parenting time that included Facetime

      calls with Son. To enable Son to use Facetime on her iPad, Mother created an

      iCloud email address for Son, and the email address was provided to

      McCartney. Between March 13 and March 20, 2019, shortly after Son’s sixth

      birthday, McCartney sent numerous emails to Son’s email address, including

      the following:


              Good morning [Son]! Your always in my heart even though evil
              people keep u and I apart God will bless u and I and those who
              have done wrong will be dealt with God’s wrath! I love u little
              boy!!!!!




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020   Page 2 of 6
              Good morning son!!!!!!! Your father’s love for u is forever and
              know one can ever take that away! Not with their lyes and
              behind back talk and evil! I’m thinking of you and miss us so
              much!


              For the eyes of the Lord are over the righteous, and his ears are
              open unto their prayers: but the face of the Lord is against them
              that do evil. 1 Peter 3:12 KJV


              Good morning [Son]! I love you son! Our bond will always be
              with each other my boy, and one day soon we will be in each
              other’s arms and be as father and son with love for one and
              other. Always praying for you that God keeps you safe and that
              your surroundings are healthy and his love for you and I are
              abundant! Evil people will never prevail son! Love u always


      Trial Ex. 5. Mother saw the emails on her iPad, read them, and, believing that

      McCartney had violated the protective order, contacted law enforcement.


[4]   The State charged McCartney with Level 6 felony invasion of privacy (elevated

      from a Class A misdemeanor because he was convicted of the same offense in

      August 2017). See Ind. Code § 35-46-1-15.1(a). A jury trial was held, and

      Mother testified that she believed the emails were actually intended for her

      because Son did not know how to access the emails, let alone read them, “[t]he

      content was all of the same things that I had been hearing in the previous

      messages that I had received,” and “the words that were used regarding evil and

      wrath and God and the enemy, those are all words that I’ve heard before.” Tr.

      Vol. III pp. 20, 30. The State introduced printoffs of several such messages

      from McCartney to Mother as an exhibit. Trial Ex. 2. The jury found


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020   Page 3 of 6
      McCartney guilty of invasion of privacy, McCartney admitted that he has a

      prior conviction for the same offense, and the trial court sentenced him to two

      years in prison.


[5]   McCartney now appeals.



                                 Discussion and Decision
[6]   McCartney contends that the evidence is insufficient to support his conviction.

      In reviewing the sufficiency of the evidence supporting a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied.

      We do not reweigh the evidence or assess witness credibility. Id. We consider

      conflicting evidence most favorably to the verdict. Id. We will affirm the

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

      proven beyond a reasonable doubt. Id. It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. The evidence is

      sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id.


[7]   McCartney was charged under Indiana Code section 35-46-1-15.1(a)(1), which

      provides that a person who knowingly or intentionally violates “a protective

      order to prevent domestic or family violence or harassment issued under IC 34-

      26-5” commits invasion of privacy. As noted above, the protective order in this

      case prohibits McCartney from “directly or indirectly communicating with”


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020   Page 4 of 6
      Mother. McCartney concedes that he indirectly communicated with Mother,

      but he argues that the State failed to prove that he did so knowingly or

      intentionally. Specifically, he asserts that there is not enough evidence to

      support the jury’s conclusion that he “sent the emails to his son knowing or

      intending that [Mother] would receive them.” Appellant’s Br. p. 8. We

      disagree.


[8]   “A person engages in conduct ‘intentionally’ if, when he engages in the

      conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). “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.” Id. at (b). These elements may

      be proven by circumstantial evidence alone and may be inferred from the facts

      and circumstances of each case. McMiller v. State, 90 N.E.3d 672, 675 (Ind. Ct.

      App. 2017). Here, the State presented evidence that Mother set up Son’s email

      address solely to facilitate Facetime calls, that Son did not know how to access

      emails sent to the email address, and that even if he had known how to access

      the emails he would not have been able to read them. More importantly, the

      State presented evidence, both testimony and an exhibit, that some of the

      language used in the emails, such as “evil” and “wrath,” matched language

      McCartney used toward Mother in earlier messages to her. Taking all this

      evidence together, it was not unreasonable for the jury to conclude that it was

      McCartney’s “conscious objective” for the emails to be read by Mother or at

      least that he was “aware of a high probability” that Mother would read them.


[9]   Affirmed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020   Page 5 of 6
Najam, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020   Page 6 of 6
