FOR PUBLICATION                                                             Jul 16 2013, 7:04 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                              GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              KYLE HUNTER
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA


WILLIAM CHAVERS,                              )
                                              )
      Appellant-Defendant,                    )
                                              )
         vs.                                  )      No. 49A04-1211-CR-580
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )




                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Barbara Crawford, Judge
                          Cause No. 49G21-1209-CM-65656



                                    July 16, 2013

                             OPINION –FOR PUBLICATION

MATHIAS, Judge
       William Chavers (“Chavers”) appeals his conviction for Class A misdemeanor

invasion of privacy in Marion Superior Court. Chavers argues that the State’s evidence

was insufficient to support his conviction because there was a mistake of fact as to the

existence of the no contact order.

       We affirm.

                              Facts and Procedural History

       On July 16, 2012, Amber Cushenberry (“Cushenberry”) sought and received a

civil protection order against Chavers from Marion Superior Court 21 (“Court 21”). The

order was set to expire on September 10, 2012. On September 10, 2012, Court 21 held a

hearing to determine whether the protective order would be renewed. Cushenberry did

not appear at the renewal hearing. Court 21 dismissed the protective order due to her

failure to appear, and Chavers, who was in custody and present at the hearing, was made

aware of the order’s dismissal.

       Five days later, on September 17, 2012, Chavers entered a guilty plea for Class D

felony criminal confinement in Marion Superior Court 16 (“Court 16”). Cushenberry

was identified as the victim of this crime. Chavers was sentenced to 365 days, with 106

days executed and 259 days suspended to probation. As a condition of probation, Court

16 entered a no contact order protecting Cushenberry and two others, with instructions

that the order could be vacated at the victims’ request.

       On or about September 18 or 19, 2012, Cushenberry went to Court 21 and asked

that the protective order be removed. Cushenberry was given paperwork indicating that

the civil protective order had been dismissed at the September 10 hearing. Cushenberry


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did not go to Court 16 to request that the no contact order issued as a condition of

Chavers’s probation be vacated.

       A day or so later, on September 20, 2012, Chavers met with Andrew Kerr

(“Kerr”), a probation officer, and was oriented as to the terms of his probation. Kerr

reminded Chavers of all the conditions of his probation, including the no contact order

from Court 16.

       Later that same day, on September 20, Chavers had contact and conversations with

Cushenberry, who indicated to Chavers that she had the dismissal paper and that Chavers

could come to her home. Chavers was still on GPS monitoring, and the no contact order

issued by Court 16 was still in effect when he went to Cushenberry’s home that evening.

       At or around 10:30 p.m. on September 20, Indianapolis Metropolitan Police

Officer Tiffany Wren was called to Cushenberry’s residence to check on the welfare of

Cushenberry, pursuant to the Court 16 no contact order, because a GPS signal indicated

that Chavers was at the home. Although Cushenberry was not immediately cooperative

with police when asked where Chavers was, she did allow the officers into the home, and

the officers proceeded to look for Chavers. After announcing their presence loudly and

asking Chavers to come out with no success, they eventually located Chavers in the back

room of the home, seated in a chair. Despite his initial lack of cooperation, Chavers

complied with police questioning regarding the Court 16 no contact order. Chavers

indicated to the officers that he and Cushenberry had paperwork to confirm the dismissal

of the order. Cushenberry then produced the dismissal paperwork that she had obtained




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from Court 21 regarding the civil protection order that had expired on September 10,

2012.

        Upon seeing the dismissal papers, Officer Wren believed that the order for which

she had been called to the residence might no longer be in effect. Thus, she contacted her

control officer to determine whether the Court 16 order was still valid. The control

officer informed her that it was. Officer Wren also attempted to contact the number listed

on Court 21’s dismissal paper, to no avail. Officer Wren then arrested Chavers for

invasion of privacy.

        On September 26, 2012, Chavers was charged by Information with Class A

misdemeanor invasion of privacy for being found in Cushenberry’s home in violation of

Court 16’s no contact order. On October 24, 2012, Chavers was convicted of the offense

at the conclusion of a bench trial. Immediately following the trial court’s judgment, a

sentencing hearing was conducted. The trial court sentenced Chavers to 365 days, 183

days suspended to probation, 182 days to be served in home detention, with credit for two

days of confinement served prior to sentencing. Chavers now appeals.

                                Discussion and Decision

        In reviewing a trial court’s judgment for sufficiency of the evidence, this Court

will affirm the decision of the trial court if the probative evidence and reasonable

inferences drawn therefrom could allow a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

On appeal, we do not reweigh the evidence or judge the credibility of the witnesses.

Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997).       We look only to evidence and


	                                          4
reasonable inferences supporting the judgment to determine whether the trier of fact

could reasonably reach the conclusion. Id. If there is substantial evidence of probative

value supporting a conviction, this Court will not set the judgment aside. Id.

       Indiana Code section 35-46-1-15.1 codifies the offense of invasion of privacy. As

elements of the offense, the State must show that a defendant knowingly or intentionally

violated some form of protective order.          In this case, Chavers was convicted of

knowingly or intentionally violating a no contact order issued as a condition of release

and a no contact order as a condition of probation.

       Chavers argues, as he did at trial, that his violation of the Court 16 no contact

order was a mistake of fact, negating his culpability under the offense. Mistake of fact is

codified as a defense to the charge of invasion of privacy at Indiana Code section 35-41-

3-7, which states in relevant part, “It is a defense that the person who engaged in the

prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates

the culpability required for commission of the offense.” When the State has made a

prima facie case of guilt, the burden is on the defendant to establish an evidentiary

predicate of his mistaken belief of fact. Saunders v. State, 848 N.E.2d 1117, 1121 (Ind.

Ct. App. 2006) (citing Hoskins v. State, 563 N.E.2d 571, 575 (Ind. 1990)).           Upon

invoking mistake of fact as a defense, the burden shifts to the defendant to satisfy three

elements: “(1) that the mistake be honest and reasonable; (2) that the mistake be about a

matter of fact; and (3) that the mistake negate the culpability required to commit the

crime.” Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) (citing Smith v. State, 477

N.E.2d 857, 863 (Ind. 1985)).


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       The State, however, retains the ultimate burden of proving beyond a reasonable

doubt every element of the charged crime, including culpability or intent, which would in

turn entail proof that there was no reasonably held mistaken belief of fact. Saunders, 848

N.E.2d at 1121 (citing Hoskins, 563 N.E.2d at 575-76). “In other words, the State retains

the ultimate burden of disproving the defense beyond a reasonable doubt.” Id. (citing

Ringham v. State, 768 N.E.2d 893, 898 (Ind. 2002)). The State may meet its burden by

directly rebutting evidence, by affirmatively showing that the defendant made no such

mistake, or by simply relying upon evidence from its case-in-chief. Id. (citing Bergmann

v. State, 486 N.E.2d 653, 660 (Ind. Ct. App. 1985)).

       Chavers’s primary contention lies in his professed confusion regarding the validity

of the protective orders filed against him. He was present for the dismissal of the Court

21 order, and was thus made aware that it was no longer in effect. Chavers states that he

relied, in a manner he believed to be reasonable, on Cushenberry’s statement that she had

gone to court and that the order had been vacated at her request. He argues that he could

and did reasonably believe that the Court 16 order was vacated, and that his presence at

Cushenberry’s home was not a knowing violation of the no contact order, but rather a

mistaken belief that the order was no longer in effect.         He argues that this belief

constitutes a mistake of fact that negates the element of knowledge requisite for

commission of the offense of invasion of privacy.

       Officer Wren testified that she believed that Cushenberry and Chavers both

believed that the order had been lifted when she arrived at the home. However, she also

stated that their behavior in failing to initially cooperate with the officers was suspicious.


	                                            6
While she was inclined to believe that Chavers might have been honest in his professed

mistaken belief, she found it odd that someone who believed they were engaged in

innocent conduct would attempt to hide from police. There may be some evidence to

support Chavers’s assertion that his mistake was honest, but there is also evidence to

support that it was not. On appeal, we look only to the evidence and the reasonable

inferences supporting the judgment. McHenry, 820 N.E.2d at 126. Any conflict in the

evidence was for the trier of fact, the trial judge in this case, to resolve, and we will not

disturb the trial court’s credibility determinations on appeal. See id.

       Further, even if the mistake was honest, it is not clear that Chavers’s mistake was

reasonable. Cushenberry did not have paperwork or records to indicate that she had

asked Court 16 to vacate its no contact order. Rather, Cushenberry was only able to

produce the dismissal information regarding the Court 21 order when police arrived to

arrest Chavers. There was no evidence to suggest that Chavers had asked to see the

documentation that Cushenberry had obtained. And had he done so, he could have easily

noticed the difference in the dismissed civil case caption and active criminal case caption.

Instead, he relied only on Cushenberry’s assertion that the order had been vacated.

However, Chavers had been informed by Kerr at his probation appointment earlier on the

day of his arrest that the no contact order was still in effect, and Kerr believed there was

no confusion about the order when they met.             Therefore, Chavers had received

conflicting information regarding the validity of the no contact order. In the face of such

conflicting information, a reasonable person would attempt to verify the validity of the

order, by looking at the dismissal papers personally, or by contacting the clerk of the


	                                            7
issuing court. This is especially true of a man who had just been convicted and sentenced

for D felony criminal confinement. Chavers failed to take any such action.

        While Chavers’s reliance might have been reasonable absent other information,

we believe that a reasonable person would have been alerted to the likely continued

validity of the Court 16 no contact order after the probation appointment with

Kerr.   Further, even if Chavers’s reliance was reasonable when he arrived at

Cushenberry’s home, he had already been in contact with Cushenberry before she

indicated to him that the order was vacated, in violation of the order. As a matter of law,

the order was between Chavers and the State, not between Chavers and

Cushenberry. Until the order was formally vacated by Court 16, no statement or

assertion by Cushenberry could have been effective to render the order invalid.

        It is important to remember that cases involving protective orders do not occur in a

vacuum. In many, if not most, cases, the parties have a substantial history with law

enforcement and have been in and out of court because they cannot get along in any

meaningful fashion for any appreciable amount of time. Here, for example, the trial court

could rightfully recall Chavers's civil and criminal history with regard to the victim as it

made its determination as to his credibility. Specifically, it was for the court to determine

whether Chavers relied at all or rather, saw an opportunity to try and skirt the law; or, if

he did rely, whether his reliance was reasonable. In these cases, it is even more important

than usual to remember that on appeal, we do not reweigh the evidence, assess the

credibility of witnesses, or substitute our judgment for that of the trial court.




	                                             8
       For all these reasons, the trial court had sufficient evidence to convict Chavers.

Chavers failed to show that he made an honest and reasonable mistake of fact that would

have negated his culpability for this offense.

       Affirmed.

MAY, J., concur.

BAKER, J., dissents with opinion.




	                                               9
	  
	  


                               IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM CHAVERS,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A04-1211-CR-580
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )




BAKER, Judge, dissenting.

       Because I do not believe that Chavers possessed the requisite intent to support his

conviction for invasion of privacy, I am compelled to part ways with the majority. More

particularly, I cannot agree that the evidence shows that Chavers knowingly violated an

order of protection.

       Chavers was present at the September 10, 2010 hearing that resulted in the

dismissal of the civil protection order because Cushenberry failed to appear. Then, less

than one week later, Chavers appeared in a different superior court, Court 16, where as a

condition of his probation, he was to abide by a no contact order protecting Cushenberry

unless she vacated it. Cushenberry attempted to do so, but she went to the wrong court –

Court 21 – where she had obtained the first protection order. Cushenberry was given

	                                         10
paperwork indicating that the protective order had been dismissed at the September 10

hearing. However, she did not go to Court 16 to request that the no contact order that had

been imposed as a condition of Chavers’s probation be vacated.

       A day or so passed before the two of them finally decided to meet after

Cushenberry explained that she had dismissal papers.            Indeed, even Officer Wren

believed that the protective order for which she had been called to investigate might no

longer be in effect.

       Under these circumstances, I cannot conclude that there was sufficient evidence to

convict Chavers. He was not with Cushenberry when she tried to get the no contact order

vacated, and an average person could be easily mistaken regarding the exact superior

court number where he or she needed to go to get a no contact vacated, especially in a

county as large as Marion. As for Chavers’s unwillingness to cooperate with police, it is

apparent he is not exactly a law-abiding citizen. Nevertheless, I do not believe the

evidence was sufficient in this case. Accordingly, I dissent.




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