MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                       Feb 22 2018, 8:45 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
Megan Shipley                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommy Mitchell,                                          February 22, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1707-CR-1566
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1611-F6-45335



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018            Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tommy Mitchell (Mitchell), appeals his convictions for

      domestic battery, a Level 6 felony, Ind. Code § 35-42-2-1.3(a)(1),(b)(2); and six

      Counts of invasion of privacy, Level 6 felonies, I.C. § 35-46-1-15.1(2),(11).


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


                                                   ISSUES
[3]   Mitchell raises three issues on appeal, which we restate as:

      (1) Whether Mitchell’s multiple convictions for invasion of privacy violate

      double jeopardy prohibitions;

      (2) Whether there is insufficient evidence to support one of Mitchell’s

      convictions for invasion of privacy in light of a fatal variance between the

      charging Information and the evidence presented at trial; and

      (3) Whether the trial court abused its discretion by imposing a pre-trial services

      fee.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mitchell and Precious Croom (Croom) have known each other for more than

      seven years and were previously involved in a romantic relationship. On

      December 7, 2015, Croom petitioned for and received an ex parte order for

      protection against Mitchell under Cause Number 49G16-1512-PO-040070 (PO-

      040070), pursuant to Indiana Code section 34-26-5-9(b). This protective order

      enjoined Mitchell “from threatening to commit or committing acts of domestic

      or family violence against [Croom]”, as well as “harassing, annoying,
      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 2 of 16
      telephoning, contacting, or directly or indirectly communicating with

      [Croom].” (State’s Exh. 1). The protective order was set to expire on

      December 7, 2017.


[5]   After midnight on March 12, 2016, the Indianapolis Metropolitan Police

      Department responded to a report of suspicious people being present at the

      Beechwood Apartments in Indianapolis, Marion County, Indiana. Specifically,

      the officers were dispatched to Croom’s apartment. While police officers were

      speaking with Croom, Mitchell appeared at her apartment and informed one of

      the officers that he had called for the police assistance. Mitchell’s explanation

      to the police seemed questionable, so they ran his information and discovered

      the active protective order prohibiting him from contacting Croom.


[6]   Mitchell was subsequently arrested and charged with criminal trespass as a

      Class A misdemeanor under Cause Number 49C01-1603-CM-009691 (CM-

      009691). As a condition of his release from custody pending trial, the trial court

      issued a no-contact order pursuant to Indiana Code section 35-33-8-3.2. The

      no-contact order directed that Mitchell have no contact with Croom “in person,

      by telephone or letter, through an intermediary, or in any other way, directly or

      indirectly, except through an attorney of record,” including but not limited to

      “acts of harassment, stalking, intimidation, threats, and physical force of any

      kind.” (State’s Exh. 6). Mitchell was further ordered not to visit any location




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 3 of 16
      where he “knows [Croom] to be located.” (State’s Exh. 6). This no-contact

      order remained in effect until May 2, 2017. 1


[7]   Despite the protective order under PO-040070 and the no-contact order under

      CM-009691, in addition to his pending criminal trespass charge, Mitchell

      continued to call Croom. Croom even told him that “[y]ou know you don’t

      supposed to be [sic] contactin’ [sic] me. You need to leave me alone. I have a

      protection order against you.” (Tr. Vol. II, p. 21). Nevertheless, on the

      morning of October 7, 2016, Croom awoke to the sound of banging on her front

      door. At the time, Croom’s three minor children were asleep and also awoke to

      the sound. When Croom opened the door, Mitchell “was standing there yelling

      and screaming at [her].” (Tr. Vol. II, p. 24). Mitchell’s tirade was largely

      centered on his belief that Croom was “f-ing somebody.” (Tr. Vol. II, p. 24).

      The commotion at the door caused one of Croom’s children to come

      downstairs, and Croom told Mitchell that he needed “to get away from here.”

      (Tr. Vol. II, p. 25). “That’s when [Mitchell] grabbed the door as if he was

      gonna [sic] come in, but all he did was hit me with my own screen door and it

      hit me in my face and my arm and he walked off still yelling and screaming.”

      (Tr. Vol. II, p. 25). Croom stated that being hit with the door caused pain and

      bruising.




      1
          On May 2, 2017, the State dismissed Mitchell’s charge for criminal trespass under CM-009691.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018           Page 4 of 16
[8]   A few days later, in the early morning, Croom was awakened by the sound of a

      blaring horn. She looked out her window and observed Mitchell “sitting in his

      truck” in front of her apartment. (Tr. Vol. II, p. 29). After he succeeded in

      acquiring Croom’s attention, Mitchell “drove off really . . . strong on [the] gas.”

      (Tr. Vol. II, p. 29). Thereafter, Mitchell maintained “an ongoing cycle” of

      calling and texting Croom “all day to where [her] phone loses its battery and

      goes dead.” (Tr. Vol. II, pp. 28, 31).


[9]   On November 23, 2016, the State filed an Information, charging Mitchell with

      Count I, domestic battery, a Level 6 felony, I.C. § 35-42-2-1.3(a)(1),(b)(2);

      Count II, invasion of privacy (violating protective order under PO-040070), a

      Level 6 felony, I.C. § 35-46-1-15.1(2); Count III, invasion of privacy (violating

      no-contact order under CM-009691), a Level 6 felony, I.C. § 35-46-1-15.1(11);

      Count IV, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a)(1);

      Count V, invasion of privacy (violating protective order under PO-040070), a

      Level 6 felony, I.C. § 35-46-1-15.1(2); Count VI, invasion of privacy (violating

      no-contact order under CM-009691), a Level 6 felony, I.C. § 35-46-1-15.1(11);

      Count VII, invasion of privacy (violating protective order under PO-040070), a

      Level 6 felony, I.C. § 35-46-1-15.1(2); and Count VIII, invasion of privacy

      (violating no-contact order under CM-009691), Level 6 felony, I.C. § 35-46-1-

      15.1(11). Counts I through IV were alleged to have occurred on or about

      October 7, 2016; Counts V and VI were alleged to have occurred on or about

      October 9, 2016; and Counts VII and VIII were alleged to have occurred on or

      about October 10, 2016.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 5 of 16
[10]   On May 10, 2017, the trial court conducted a bench trial. At the beginning of

       the trial, the trial court permitted the State, over Mitchell’s objection, to amend

       the charging Information by adding Count IX, battery resulting in bodily injury,

       a Class A misdemeanor, I.C. § 35-42-2-1(c)(1). Following the State’s

       presentation of evidence, Mitchell moved to dismiss Counts III, V, VI, VII, and

       VIII (i.e., all but one of the charges for invasion of privacy) pursuant to Indiana

       Trial Rule 41(B). Mitchell argued that with the exception of the incident on

       October 7, 2016, the State had failed to present evidence that Mitchell violated

       a protective/no-contact order on the other dates alleged in the charging

       Information. The trial court denied Mitchell’s motion. During Mitchell’s case-

       in-chief, he admitted to regular contact with Croom because of their ongoing

       relationship, but he denied slamming a door in her face. Mitchell testified that

       he was unaware of the existence of a protective order. At the close of the

       evidence, the trial court found Mitchell guilty of all nine Counts.


[11]   On June 21, 2017, the trial court held a sentencing hearing. Based on double

       jeopardy concerns, the trial court vacated Counts IV and IX—i.e., the lower-

       level battery charges. As to the seven remaining Level 6 felonies—one for

       domestic battery and six for invasion of privacy—the trial court sentenced

       Mitchell to concurrent terms of 910 days, entirely suspended to probation (less

       the four days served in jail with four days of credit time). The sentence was

       ordered to run consecutively to Mitchell’s home detention sentence in another

       case. The trial court additionally ordered Mitchell to complete a twelve-week

       anger management course and have no contact with Croom.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 6 of 16
[12]   Mitchell now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION
                                                   I. Double Jeopardy

[13]   Mitchell claims that his convictions for six Counts of invasion of privacy as

       Level 6 felonies violate the prohibitions against double jeopardy. A conviction

       for two or more offenses violates the double jeopardy clause of the Indiana

       Constitution “if, with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to convict, the essential elements of one

       challenged offense also establish the essential elements of another challenged

       offense.” Calvert v. State, 930 N.E.2d 633, 641 (Ind. Ct. App. 2010) (quoting

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Along with constitutional

       double jeopardy prohibitions, “other categories of double jeopardy based on

       statutory construction and common law prohibit multiple convictions or

       punishments for the same crime.” Id. at 642. Thus, “[c]onviction and

       punishment for a crime which consists of the very same act as another crime for

       which the defendant has been convicted and punished” cannot stand. Id. 2

       Whether convictions violate double jeopardy is a pure question of law, which

       we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012),

       trans. denied.




       2
           Mitchell has not raised a federal double jeopardy claim.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 7 of 16
[14]   Here, Mitchell argues that he was


               convicted of two [C]ounts of felony invasion of privacy for
               October 7[, 2016] (Counts II and III), two [C]ounts of felony
               invasion of privacy for October 9[, 2016] (Counts V and VI), and
               two [C]ounts of felony invasion of privacy for October 10[, 2016]
               (Counts VII and VIII). For each date, Mitchell was convicted of
               both violating the protective order [under PO-040070] and
               violating the no[-]contact order [under CM-009691]. These
               double convictions for each date are convictions for the “very
               same act.”


       (Appellant’s Br. p. 15) (internal citation omitted).


[15]   “A person who knowingly or intentionally violates . . . an ex parte protective

       order issued under [Indiana Code chapter] 34-26-5” or a no-contact order issued

       as a condition of pretrial release under Indiana Code section 35-33-8-3.2

       “commits invasion of privacy,” which is a Level 6 felony “if the person has a

       prior unrelated conviction” for the same offense. I.C. § 35-46-1-15.1(2),(11).

       Thus, a violation of either the protective order or the no-contact order

       constitutes a commission of the same crime. Our court has previously

       determined that it is a violation of the “actual evidence” test under the double

       jeopardy clause of the Indiana Constitution to rely on the same evidence to

       prove the violation of both a no-contact order and a protective order. Hatchett v.

       State, 33 N.E.3d 1125, 1130 (Ind. Ct. App. 2015). Here, Mitchell points out

       that for both Counts II and III, the State relied on proof that Mitchell showed

       up at Croom’s home and yelled at her; for Counts V and VI, the State

       established that Mitchell parked outside Croom’s home and blared his horn; for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 8 of 16
       Counts VII and VIII, the State provided evidence that Mitchell communicated

       with Croom by calling or texting her. Accordingly, Mitchell argues that he was

       twice-convicted for each instance of prohibited contact with Croom—once as a

       violation of the protective order and once as a violation of the no-contact

       order—contrary to double jeopardy. The State agrees with Mitchell, and so do

       we. We therefore reverse three of Mitchell’s convictions for Level 6 felony

       invasion of privacy and hereby vacate Counts II, V, and VII for violations of the

       protective order issued under PO-040070. We remand to the trial court with

       instructions to reflect the vacation of these convictions in the judgment of

       conviction and sentencing order.


                                    II. Variance in Charging Information

[16]   Mitchell also challenges his convictions for invasion of privacy because there

       was a fatal variance between the charging Information and the evidence

       introduced at the bench trial. “A variance is an essential difference between

       proof and pleading.” Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008).

       However, not all variances require reversal; rather, “a variance is deemed fatal

       if the defendant is misled by the charge in the ‘preparation and maintenance of

       his defense, [and if he was] harmed or prejudiced thereby.’” Id. (alterations in

       original). The “failure to make a specific objection at trial waives any material

       variance issue.” Id.


[17]   “We resolve a claim of fatal variance under our sufficiency [of evidence]

       standard because the defendant’s essential argument is the evidence produced at

       trial so differed from the charging information that it was insufficient to convict

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 9 of 16
       him as charged.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014). As such, our

       court does not reweigh evidence or assess the credibility of witnesses. Id. We

       will “consider and draw reasonable inferences from the evidence that supports

       the verdict.” Id. We “will affirm a conviction unless no reasonable trier of fact

       could find every element proved beyond a reasonable doubt.” Id.


[18]   Having determined that three of the six Counts of invasion of privacy must be

       vacated on double jeopardy grounds, we are left with three instances of Mitchell

       having violated the no-contact order issued under CM-009691. According to

       the Information, Count III was based on conduct that occurred on or about

       October 7, 2016; Count VI was based on conduct that occurred on or about

       October 9, 2016; and Count VIII was based on conduct that occurred on or

       about October 10, 2016. Mitchell concedes that, in violation of his no-contact

       order, the State “did prove two instances of communication: the incident in

       which Mitchell came to Croom’s apartment on October 7, 2016, and the

       incident in which Mitchell honked his horn outside Croom’s house a ‘few days’

       later.” (Appellant’s Br. p. 11) (footnotes omitted). However, as to the third

       instance of contact with Croom, the State alleged in the Information that

       Mitchell had called and texted Croom on or about October 10, 2016, but

       Mitchell argues that


               Croom had difficulty stating a specific date or date range for
               when the calls and texts were made. She testified she could not
               remember the events of October 9 and 10, 2016. When the [trial
               court] asked Croom questions in an attempt to clarify the
               timeline, Croom testified she had no “specific recollection” of the
               days following October 7, 2016. When Croom described the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 10 of 16
               calls and texts, she used the present tense: “It’s all day to where
               my phone loses its battery and goes dead.” She also testified,
               “He continues to call to this day; he just text [sic] me last night.”
               Thus, the only specific date on which the State proved Mitchell
               texted Croom was May 9, 2017, the day before trial.


       (Appellant’s Br. p. 13) (citations omitted). Mitchell insists that “there was a

       variance between the charging information (which alleged communication on

       October 9 or 10, 2016) and the evidence presented at trial (that Mitchell called

       and texted Croom at some indeterminate times, including the day before trial).”

       (Appellant’s Br. p. 13). Mitchell argues that such a variance is fatal because it

       leaves him “vulnerable to future prosecution under the same evidence”—i.e., he

       “could be charged with invasion of privacy for making calls or sending texts at

       any point in 2016 or in the spring of 2017, and there would be no way to

       determine from the charging information in this case or the evidence presented

       at trial whether he had previously been prosecuted for the same act.”

       (Appellant’s Br. p. 14).


[19]   At the outset, the State has argued that Mitchell waived any claim regarding a

       fatal variance by failing to object during the bench trial. Mitchell, however,

       argues that he properly objected by seeking dismissal under Trial Rule 41(B)

       following the State’s case-in-chief, arguing that the State “has not presented

       evidence as to . . . the incident they allege on October 10th.” (Tr. Vol. II, p. 33).

       Assuming without deciding whether Mitchell’s motion for dismissal was

       enough to preserve the issue of fatal variance for our review, we find no error.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 11 of 16
[20]   Pursuant to Indiana Code section 35-34-1-2(a)(5), a charging information must

       “stat[e] the date of the offense with sufficient particularity to show that the

       offense was committed within the period of limitations applicable to that

       offense.” Accordingly, our courts have previously determined that “when time

       is not an element of a crime, or ‘of the essence of the offense,’ the State is only

       required to prove that the offense occurred any time within the statutory period

       of limitations; the State is not required to prove the offense occurred on the

       precise date alleged in an information.” Neff v. State, 915 N.E.2d 1026, 1032

       (Ind. Ct. App. 2009), trans. denied. Furthermore, “[w]hen an information

       alleges that an offense occurred ‘on or about’ a certain date, the State is not

       limited to presenting evidence of events that occurred on that particular date

       when time is not an element of the offense.” Id.


[21]   In the present case, for Count VIII, the State alleged that “[o]n or about October

       10, 2016, . . . Mitchell did knowingly violate” his no-contact order.

       (Appellant’s Conf. App. Vol. II, p. 24) (emphasis added). In the accompanying

       probable cause affidavit, the investigating detective averred that Croom had

       reported that “Mitchell repeatedly called her phone” on October 9-10, 2016.

       (Appellant’s Conf. App. Vol. II, p. 20). See Woods v. State, 980 N.E.2d 439, 443

       (Ind. Ct. App. 2012) (noting that the probable cause affidavit may be considered

       as supplementing the details of the charging information in considering whether

       a defendant was properly apprised of the charges against him). Then, at trial,

       Croom testified that while she did not have a specific recollection of the days

       following the October 7, 2016 incident in which Mitchell appeared at her home


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 12 of 16
       and slammed the door in her face, Mitchell’s contact with her was “an ongoing

       cycle.” (Tr. Vol. II, p. 31). When asked how, in the days following October 7th,

       Mitchell had contacted her, Croom replied that “[h]e has been stalking my

       home. He has came [sic] to the door, also called and texts.” (Tr. Vol. II, p. 28).

       Croom stated that she could not “keep count” of the number of Mitchell’s

       attempted contacts because it occurs “all day to where my phone loses its

       battery and goes dead.” (Tr. Vol. II, p. 28). She further indicated that

       Mitchell’s calls and texts had been a run-of-the-mill event even after the no-

       contact order was instituted.


[22]   Time is not an element of the invasion of privacy offense. Thus, the State was

       not restricted to proving that Mitchell’s calls occurred on the precise date

       alleged. Here, there is sufficient evidence to establish that Mitchell called

       and/or texted in violation of the protective order in close proximity to the date

       alleged in the charging Information. In fact, from Croom’s testimony, it is clear

       that Mitchell attempted to contact her on an ongoing basis throughout the life

       of the no-contact order and specifically did so in the days following the October

       7, 2016 incident at Croom’s apartment. Therefore, we find no fatal variance

       between the charging Information (specifically, Count VIII), and the evidence

       adduced at trial.


                                               III. Pre-Trial Fees

[23]   Finally, Mitchell challenges the trial court’s imposition of a $100.00 fee for pre-

       trial services. A trial court’s decision to impose fees is generally a matter of trial

       court discretion. Bex v. State, 952 N.E.2d 347, 354 (Ind. Ct. App. 2011), trans.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 13 of 16
       denied. As long as the trial court’s imposition of fees is within statutory limits,

       there is no abuse of discretion. Id. “A defendant’s indigency does not shield

       him from all costs or fees related to his conviction.” Id.


[24]   At a pre-trial conference on February 9, 2017, the trial court released Mitchell

       on his own recognizance and instructed him “to report to the probation

       department to get setup with pretrial services which will include drug and

       alcohol monitoring.” (Supp. Tr. p. 13). There was no discussion of any fees

       associated with the pre-trial release at this hearing. On March 21, 2017, a

       notice of pre-trial release violation was filed based on Mitchell’s failure to

       submit to two drug screens. According to the probation department’s notice of

       violation, Mitchell had a $100.00 obligation, of which he had paid nothing.

       Mitchell reported that he did not have the money to submit to the drug screens.

       On March 23, 2017, the trial court found Mitchell “indigent to all future drug

       tests.” (Appellant’s Conf. App. Vol. II, p. 73). Nevertheless, in the trial court’s

       sentencing order, it assessed a pre-trial services fee in the amount of $100.00

       against Mitchell pursuant to “Indiana Code[] Sections 33-37-4-1, -4 and 33-37-

       5-19,” with $50.00 designated for the adult probation share and $50.00 for the

       public defender share. (Appellant’s Conf. App. Vol. II, p. 19).


[25]   The parties agree that Indiana Code section 35-33-8-3.3(b) governs the

       imposition of pre-trial services fees in this case. This statute provides:


               If a defendant who has a prior unrelated conviction for any
               offense is charged with a new offense and placed under the
               supervision of a probation officer or pretrial services agency, the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 14 of 16
               court may order the defendant to pay the pretrial services fee . . .
               if:

               (1) the defendant has the financial ability to pay the fee; and

               (2) the court finds by clear and convincing evidence that
               supervision by a probation officer or pretrial services agency is
               necessary to ensure the:

               (A) defendant’s appearance in court; or

               (B) physical safety of the community or of another person.


       The initial pre-trial services fee may not exceed $100.00. I.C. § 35-33-8-3.3(e).

       “[F]ifty percent 50% of the money” must be deposited “into the county

       supplemental adult probation services fund and fifty percent (50%) of the

       money into the county supplemental public defender services fund.” I.C. § 35-

       33-8-3.3(f).


[26]   Mitchell now argues, and the State concurs, that the trial court failed to assess

       Mitchell’s ability to pay the initial pre-trial services fee before ordering such.

       We agree that the record is devoid of any inquiry into Mitchell’s ability to pay

       as plainly required by statute. Therefore, we remand to the trial court with

       instructions to inquire into Mitchell’s ability to pay a pre-trial services fee.


                                             CONCLUSION
[27]   Based on the foregoing, we conclude that three of Mitchell’s convictions for

       invasion of privacy run afoul of double jeopardy, and we therefore vacate

       Counts II, V, and VII and remand for an adjustment to the judgment of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 15 of 16
       conviction and sentencing order. We further conclude that there was no fatal

       variance between Count VIII (invasion of privacy on or about October 10,

       2016) and the evidence presented at trial. Finally, we conclude that the trial

       court failed to determine Mitchell’s ability to pay prior to imposing pre-trial

       services fees and remand for reconsideration.


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


[29]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1566 | Feburary 22, 2018   Page 16 of 16
