MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Jul 16 2019, 9:21 am

regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren Bedwell                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Henry A. Flores, Jr.
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Bartley,                                           July 16, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1977
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Patrick Murphy,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G16-1803-CM-8503




Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019                    Page 1 of 8
                                             Case Summary

[1]   Joshua Bartley appeals his conviction by a jury of class A misdemeanor

      invasion of privacy. We address two issues raised by Bartley and the State:

      whether the State presented sufficient evidence to support a finding of guilt and

      whether this case is moot. We affirm.


                                  Facts and Procedural History
[2]   The facts favorable to the conviction are that Joshua Bartley and Patricia

      (“Tricia”) Bartley had been married for some years and had three children

      together, ages twenty-three, seventeen, and thirteen. On January 17, 2018, after

      the two had become estranged, Tricia filed a petition for and obtained an ex

      parte protective order against Bartley. The order was issued after the trial court

      found, inter alia, that Tricia had shown sufficient evidence that domestic or

      family violence, stalking, or a sex offense had occurred which justified a

      protective order and that Bartley represented a credible threat to Tricia’s safety.

      The order prohibited Bartley from “harassing, annoying, telephoning,

      contacting, or directly or indirectly communicating with” Tricia. State’s Ex. 1.

      Tricia temporarily moved in with her oldest child, B.R., and her husband in late

      January 2018.


[3]   On January 21, 2018, Indianapolis Metropolitan Police Department Officer

      Brian Linares made contact with Bartley. While running a check on Bartley’s

      name, Officer Linares discovered that a protective order had been issued against

      Bartley. Officer Linares served Bartley with that order. Bartley acknowledged

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 2 of 8
      his receipt of the order and that it had been served. During a five- to ten-minute

      conversation, Officer Linares told Bartley that he was not to have contact with

      Tricia.


[4]   Before the protective order was issued, Tricia often used B.R.’s phone to

      communicate with Bartley. She ceased contact with Bartley in any form after

      the order was obtained. On January 28, 2018, Bartley sent the following series

      of text messages to B.R.’s cell phone:


              Y’all may want to look at this I was never served. have kids call
              me which is in my rights.


              Look at restraining order things checked contradict what was
              written.


              Just got a paper from papaw stating he never saw hands put on
              her the order falling apart and I have pics date stamps of gioia
              [sic] when I didn’t have her eatin alive by fleas.


              Have kids call me.


              Look up a parent and ppl helping cutting off all access to other
              parent contact to children it is felony.


      State’s Ex. 3-5.


[5]   On February 7, 2018, Tricia and Bartley appeared in court for a hearing on her

      original petition for a protective order. Subsequently, the trial court entered a

      second protective order. Although the second order was titled, “EX PARTE


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 3 of 8
      ORDER FOR PROTECTION,” it was, in fact, inter party. State’s Ex. 2. The

      second order protected designated family and household members, including

      Bartley’s children, and allowed Bartley to contact or communicate with Tricia

      only for the third-party exchange for visitation of children.


[6]   On February 24, 2018, Tricia was shopping at a local Walmart with her mother

      and younger daughter, A.B. Tricia told A.B. it was time to go, calling her by

      her nickname, “Sissy.” Tr. Vol. 2 at 50. Tricia heard a voice call out from an

      adjacent aisle, “Sissy?” and immediately recognized it as Bartley’s. Id. Tricia

      and A.B. became afraid upon hearing Bartley’s voice, and when he appeared in

      front of them, they locked arms. Bartley headed directly toward A.B., brushing

      his arm against Tricia as he went to hug his daughter. Tricia admonished

      Bartley that he was not supposed to be near her. Bartley responded, “I can’t

      help if I see you in a public place.” Id. at 52. Tricia again told Bartley that he

      should walk the other way and not initiate contact, and he repeated his previous

      remark. Tricia notified the store manager, then left the store. She called police

      and met with an officer to make a report.


[7]   The State charged Bartley with one count of class A misdemeanor invasion of

      privacy based on violations of both protective orders. A jury found Bartley

      guilty as charged and made two specific findings: (1) that Bartley violated the

      first protective order by sending texts to a protected person, i.e., Tricia, on

      January 28; and (2) that Bartley violated the second protective order by

      initiating contact with a protected person, i.e., Tricia, at a Walmart on February

      24. At sentencing, the trial court found Bartley to be indigent and directed that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 4 of 8
      he not be charged public defender fees. The trial court sentenced Bartley to one

      year with three hundred fifty-nine days suspended, a psychological evaluation,

      and eighty hours of community service. Despite the finding of the trial court,

      Bartley was still assessed a $50 public defender fee.


[8]   Bartley filed a timely appeal with this Court. After an extension of time was

      granted, Bartley filed an appellant’s brief raising a single issue regarding the $50

      public defender fee. The State filed a motion to dismiss the appeal and remand

      the case to the trial court for further proceedings on the public defender fee.

      This Court issued an order holding the appeal in abeyance and remanding the

      case to the trial court for clarification of the sentencing order. Bartley was

      further directed to give this Court notice as to whether he wished to proceed

      with an appeal following the trial court’s order on remand. The trial court

      entered an amended sentencing order crediting Bartley for the public defender

      fee. Bartley gave notice that he wished to proceed with the appeal and raise an

      additional issue in an amended brief. This Court granted Bartley’s motion to

      file an amended brief and appendix, and set a due date for the State’s brief. 1

      Bartley submitted an amended appendix and an amended brief, in which he

      challenged only the sufficiency of the evidence supporting his conviction.




      1
        This Court’s order granting Bartley’s Verified Motion to File Amended Brief for Good Cause also states
      that “The Clerk of this Court is directed to mark as obsolete in the Odyssey Case Management system the
      version of Appellant’s Brief and Appendix that was filed on December 10, 2018.” Consequently, the only
      Appellant’s Brief available to this Court and either party is the current version that was submitted to this
      Court on March 26, 2019.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019                       Page 5 of 8
                                      Discussion and Decision

                             Section 1 – This appeal is not moot.
[9]    We first address the State’s argument that because the claim Bartley raised in

       his original brief was remedied by the trial court, “his appeal at this juncture is

       moot.” Appellee’s Br. at 8-9 n.1. We disagree. Indiana Appellate Rule 47

       permits this Court to grant leave for a party to file an amended brief where good

       cause has been shown. This Court elected to grant Bartley leave to amend his

       brief and proceed with the appeal after the trial court entered an amended

       sentencing order. We now address the merits of Bartley’s argument.


           Section 2 – The evidence is sufficient to support Bartley’s
                                 conviction.
[10]   Bartley argues that the evidence was insufficient to sustain his conviction for

       invasion of privacy. Our standard of review is well settled.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support the conviction. . . . Appellate courts
               affirm the conviction unless no reasonable fact-finder could find
               the elements of the crime proven beyond a reasonable doubt. It is
               therefore not necessary that the evidence overcome every
               reasonable hypothesis of innocence. The evidence is sufficient if
               an inference may reasonably be drawn from it to support the
               verdict.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 6 of 8
       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, internal

       quotations, and emphasis omitted).


[11]   To sustain a conviction for class A misdemeanor invasion of privacy under

       Indiana Code Section 35-46-1-15.1(a)(1), the State had to prove that Bartley

       knowingly violated a protective order to prevent domestic or family violence.

       “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.” Ind. Code § 35-41-2-2(b).


[12]   Bartley first argues that he was not properly served with the first protective

       order and that he was not sufficiently advised of its specific terms. 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, e.g., Joslyn v. State, 942

       N.E.2d 809, 812 (Ind. 2011) (“It would run contrary to [the statutory purpose

       for issuing protective orders] if we were to embrace Joslyn’s contention that a

       defendant does not violate the criminal code because of some defect in civil

       process even where the court had in fact issued a protective order and the

       defendant in fact knew it had done so.”); Hendricks v. State, 649 N.E.2d 1050,

       1052 (Ind. Ct. App. 1995) (holding that an officer informing a defendant about

       a protective order and its parameters was sufficient to uphold a conviction);

       Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App. 2007) (holding that regardless

       of whether an officer served the defendant a physical copy of the protective

       order, explicit oral notice of the order was enough to show the defendant

       knowingly violated a protective order). Officer Linares testified that he served



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 7 of 8
       the first protective order on Bartley and had a five- to ten-minute conversation

       in which he advised Bartley that he could not contact Tricia.


[13]   Bartley sent messages clearly meant for Tricia to B.R.’s phone. The subject of

       those messages further indicate that Bartley had in fact seen a copy of the

       protective order. We conclude that the State presented substantial evidence of

       probative value from which the jury could infer that Bartley had knowledge of

       the first protective order and its terms, and that he violated that order on

       January 28, 2018.


[14]   Next, Bartley argues that while the second protective order barred him from

       any contact with Tricia, he was permitted to “make arrangements for visitation

       with [A.B.] and his other children.” Appellant’s Br. at 14. Bartley, who was in

       court when the second order was issued, knew that he was not to make contact

       with Tricia for any reason, except for arranging the third-party exchange for

       visitation of the children. That is not what happened during the encounter at

       Walmart, and no reasonable inference can be made to that end based on these

       facts. Therefore, we affirm.


[15]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1977 | July 16, 2019   Page 8 of 8
