MEMORANDUM DECISION                                                Jul 22 2015, 9:49 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender’s Office                    Attorney General of Indiana
Indianapolis, Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Evelyn Butcher,                                          July 22, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1412-CR-831
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        Lower Court Cause No.
                                                         49G21-1408-CM-38640
Appellee-Plaintiff.
                                                         The Honorable Tiffany Vivo,
                                                         Commissioner




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015       Page 1 of 9
                                         Statement of the Case
[1]   Appellant/Defendant, Evelyn Butcher (“Evelyn”), appeals her conviction for

      Class A misdemeanor invasion of privacy,1 which was based on an incident

      when she called and visited the residence of her former husband, who had a

      protective order against her. On appeal, she argues that there was insufficient

      evidence to support her conviction because there was no indication that she

      knew the terms of the protective order and, therefore, knew that she could not

      visit her former husband’s residence or call him. She also argues that her

      conviction was contrary to the purpose and intent behind the Civil Protection

      Order Act (“CPOA”) because she had formerly been a victim of her husband’s

      domestic abuse. We conclude that, because Evelyn’s husband told her about

      the protective order and told her she could not come around anymore, there

      was sufficient evidence that Evelyn knew the protective order’s terms. We also

      conclude that Evelyn waived her CPOA claim by failing to raise it below.


      We affirm.


                                                     Issues
                 1. Whether there was sufficient evidence to support Evelyn’s
                    conviction for Class A misdemeanor invasion of privacy.

                 2. Whether Evelyn’s conviction is contrary to the purpose and
                    intent behind the CPOA.




      1
          IND. CODE § 35-46-1-15.1(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 2 of 9
                                                     Facts
[2]   Prior to 2014, Evelyn was married to Darrell Butcher (“Darrell”). In February

      2013, Darrell was arrested for domestic battery against Evelyn, but she did not

      cooperate in the prosecution. (Tr. 53). Later, in December of that same year,

      Darrell was again arrested for domestic battery of Evelyn. This time, he was

      convicted of the charge and placed on probation. After the conviction, Evelyn

      filed for divorce and began dating one of Darrell’s long time family friends,

      Bobby McIntosh (“McIntosh”).


[3]   Thereafter, on July 7, 2014, Darrell filed an ex parte petition with the trial court

      requesting a protective order against Evelyn. He claimed that she had been

      stalking him and physically abusive towards him. The trial court granted the

      petition and issued an ex parte protective order, which provided that Evelyn

      was prohibited from “harassing, annoying, telephoning, contacting, or directly

      or indirectly communicating with [Darrell].” (State’s Ex. 22 at 21). The order

      also required Evelyn to “stay away from” Darrell’s residence, school, and place

      of employment. (State’s Ex. 22 at 21). The trial court then issued an order

      setting the matter for a hearing on August 5, 2014.


[4]   The Indiana Protection Order Registry, which the State presented as evidence

      at trial, documents that one or both of the trial court’s orders—the ex parte

      protective order and the order setting the matter for a hearing—were served on

      Evelyn at Darrell’s place of residence, the residence they had previously shared.

      An individual from the Marion County Sheriff’s Department left notice of one

      or both of the orders at the front door of the residence at that address on July 9,
      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 3 of 9
      2014, and the Sheriff Department mailed notice of one or both of the orders to

      the same address on July 10, 2014. Evelyn was not living at that residence at

      the time because she was, instead, living with McIntosh. However, Evelyn was

      also served with one or both of the orders in court on July 12, 2014. The

      Registry does not document which of the trial court’s orders were served on

      which dates.


[5]   Two days later, on July 14, 2014, Darrell saw Evelyn leave the backyard of his

      residence. He went to investigate and discovered that she had drained his

      swimming pool. Later that day, she called him and left him a voicemail stating

      that “the other cap’s coming off, too, today.” (State’s Ex. 1). In another

      voicemail the same day, she said, “You got a restraining order on me. You are

      not allowed to call me. Why are you calling my phone? Why are you calling

      my family? . . . You can have it all.” (State’s Ex. 1).


[6]   On August 8, 2014, the State charged Evelyn with Class A misdemeanor

      invasion of privacy, alleging that she had violated the protective order either by

      visiting Darrell’s residence or by telephoning him. On September 19, 2014, the

      State amended the charging information to add a second charge of Class B

      misdemeanor criminal mischief, alleging that Evelyn had recklessly damaged or

      defaced Darrell’s pool.


[7]   On October 6, 2014 and November 5, 2014, the trial court held a bench trial on

      the charges. At trial, Darrell admitted that, prior to receiving Evelyn’s

      voicemail messages on July 14, 2014, he had contacted her family members to


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 4 of 9
       ask them to get her possessions out of the house. He also admitted to leaving a

       note at McIntosh’s house stating “You’re hit.” (Tr. 25). However, he denied

       having had any contact with Evelyn.


[8]    Next, Evelyn’s boyfriend, McIntosh, testified and said that, since he had started

       dating Evelyn, he had experienced several incidents of property vandalism,

       including having his car tires slashed, his “grills” flipped over, and his backyard

       torn up. (Tr. 42). He reported that, prior to dating Evelyn, he had not

       experienced any property vandalism in the four years he had lived on his

       property. In addition, McIntosh also testified that he had been required to

       undergo a drug test at work because someone, whom he believed to be Darrell,

       had called his work and left an anonymous tip stating that he was on drugs.


[9]    Finally, Evelyn testified. She admitted that she had called Darrell on July 14,

       2014, but testified that she had done so because he “kept calling [her] . . . over

       and over and over,” and had also called her sister. (Tr. 57).


[10]   At the conclusion of the evidence, the trial court found Evelyn not guilty of her

       criminal mischief charge but guilty of invasion of privacy. The court sentenced

       her to 180 days, suspended to probation. Evelyn now appeals.


                                                   Decision
[11]   On appeal, Evelyn argues that: (1) there was insufficient evidence to support

       her conviction for invasion of privacy; and (2) that her conviction was contrary

       to the purpose and intent behind the CPOA. We will address each of these

       arguments in turn.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 5 of 9
       1. Sufficiency

[12]   The standard of review for a sufficiency of the evidence claim is that this Court

       should only reverse a conviction when reasonable persons would not be able to

       form inferences as to each material element of the offense. Perez v. State, 872

       N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh

       evidence or judge the credibility of witnesses. Id. at 213. In addition, we only

       consider the evidence most favorable to the judgment and the reasonable

       inferences stemming from that evidence. Id.


[13]   In order to convict Evelyn of invasion of privacy, the State had to prove that

       she knowingly or intentionally violated a protective order. I.C. § 35-46-1-

       15.1(1). On appeal, Evelyn asserts that there was no evidence that she had

       received the order or knew of its terms and, therefore, she could not have

       “knowingly” violated it. See id. In support of this argument, she notes that the

       order was served at Darrell’s residence, but she was not living there. She also

       points to the fact that Darrell wrote in his petition requesting the protective

       order that he was the sole owner of the residence. She claims that this

       admission was evidence that she could not have received the order served at

       that address. With respect to the in-court service of the trial court’s order on

       July 12, 2014, Evelyn argues that the Indiana Protection Order Registry does

       not specify which trial court order was served that day. Finally, she

       acknowledges that Darrell told her about the protective order, but she contends

       that this evidence was not sufficient to prove that she knew of its terms.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 6 of 9
[14]   We have previously noted that the legislature’s intent behind the Indiana Code

       provisions regarding protective orders was that they be interpreted in a way that

       will “‘promote the: protection and safety of all victims of domestic or family

       violence in a fair, prompt, and effective manner; and [] prevent[] future

       domestic and family violence.’” Joslyn v. State, 942 N.E.2d 809, 813 (Ind. 2011)

       (quoting I.C. § 34-26-5-1).


[15]   Even assuming that Evelyn was not properly served with notice of the ex parte

       order on any of the dates listed in the Indiana Protection Order Registry,

       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, 942

       N.E.2d at 811-12 (“the statutes defining the crimes of stalking and invasion of

       privacy do not require actual service of a protective order for a conviction.”)

       Oral notice may be sufficient if it includes “adequate indication of the order’s

       terms.” Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2015). Further, the notice

       does not have to include notice of every specific action prohibited by the

       protective order. Smith v. State, 999 N.E.2d 914, 916 (Ind. Ct. App. 2013), trans.

       denied. In Joslyn, our supreme court discussed Hendrix v. State, 649 N.E.2d 1050

       (Ind. Ct. App. 1995), and noted that “a single notification of the protective

       order and its prohibition on contact would have been sufficient[.]” Id.

       (interpreting Joslyn, 942 N.E.2d at 813). In Smith, there was sufficient evidence

       of Smith’s knowledge and violation of a protective order where he was orally

       informed that he could not make any contact with the subject of the protective

       order and then he broke into the subject’s home and confronted her. Id. at 916.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 7 of 9
[16]   Here, Evelyn’s knowledge of the terms of Darrell’s protective order was similar

       to Smith’s knowledge in Smith. Even if we assumed that she never received

       actual notice of the order, Darrell testified that the day he received the

       protective order he “told [Evelyn] [he] had a restraining order against her and

       not to come around.” (Tr. 30). Evelyn argues that she interpreted this

       statement to mean that she was not supposed to have in-person contact with

       Darrell, but we find that another logical interpretation of the phrase “not to

       come around” is that Evelyn could not come to Darrell’s residence. (Tr. 30).

       Therefore, when we interpret the evidence in the light favorable to the trial

       court’s judgment, Evelyn (1) had knowledge that she could not visit Darrell’s

       home; and (2) “knowingly” violated the protective order when she visited the

       home on July 14, 2014.


[17]   Further, as the trial court found, Evelyn’s voicemail messages to Darrell

       indicate that she had knowledge of the restraining order. She stated in the

       messages, “You got a restraining order on me. You are not allowed to call me.

       Why are you calling my phone?” (State’s Ex. 1). While this statement

       indicates Evelyn’s mistaken belief that Darrell was prohibited from contacting

       her as a result of the protective order, it also demonstrates that she knew that

       telephone contact was a type of contact prohibited under a protective order.

       Thus, there was evidence that she knew she was violating the protective order

       when she called Darrell and left voicemail messages. In light of the above

       factors, we conclude that there was sufficient evidence of Evelyn’s knowledge

       of the protective order to support her conviction.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 8 of 9
       2. Civil Protection Order Act

[18]   Next, Evelyn argues that her conviction was contrary to the purpose and intent

       behind the CPOA. In INDIANA CODE § 34-26-5-1, the legislature stated that its

       purpose for enacting the Act was “to promote the: (1) protection and safety of

       all victims of domestic or family violence in a fair, prompt, and effective

       manner; and (2) prevention of future domestic and family violence.” Evelyn

       asserts that her conviction is contrary to this intent because Darrell has a history

       of domestic violence against her, and, according to her, was using the protective

       order as a sword rather than a shield to vandalize McIntosh’s property.


[19]   However, we need not address this argument because Evelyn did not argue it

       below and has therefore waived it. See Griffin v. State, 16 N.E.3d 997, 1006 (Ind.

       Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342

       (Ind. Ct. App. 2009), trans. denied) (“[S]ubstantive questions independent in

       character and not within the issues or not presented to the trial court shall not

       be first made upon appeal. . . . The rule of waiver in part protects the integrity

       of the trial court; it cannot be found to have erred as to an issue or argument

       that it never had an opportunity to consider.”) (emphasis omitted).


       Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-831 | July 22, 2015   Page 9 of 9
