MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     May 25 2016, 8:39 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
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
Kimberly A. Jackson                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James A. Love,                                          May 25, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        11A05-1507-CR-965
        v.                                              Appeal from the Clay Superior
                                                        Court
State of Indiana,                                       The Honorable J. Blaine Akers,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        11D01-1408-CM-579
                                                        11D01-1501-CM-26



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016                  Page 1 of 19
[1]   James A. Love appeals his convictions in two causes. Under cause number

      11D01-1408-CM-579 (“Cause 579”) the trial court convicted Love of Class A

      misdemeanor invasion of privacy. 1 Under cause number 11D01-1501-CM-26

      (“Cause 26”), the trial court convicted Love of Class A misdemeanor invasion

      of privacy and Class A misdemeanor intimidation. 2 He presents three issues for

      our review, which we restate as:


                 1. Whether the trial court abused its discretion when it allowed
                 the State to amend the information against Love after its cause-
                 in-chief in Cause 579;


                 2. Whether the State presented sufficient evidence Love
                 committed the offenses of which he was convicted; and


                 3. Whether Love’s convictions of Class A misdemeanor invasion
                 of privacy and Class A misdemeanor intimidation in Cause 26
                 subjected him to double jeopardy.


[2]   We affirm.



                                Facts and Procedural History
[3]   On September 10, 2013, the trial court issued an ex parte protective order (“2013

      Order”) prohibiting Love from “harassing, annoying, telephoning, contacting

      or directly or indirectly communicating with [M.L.], except: making



      1
          Ind. Code § 35-46-1-15.1 (2010).
      2
          Ind. Code § 35-45-2-1 (2013).


      Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 2 of 19
      arrangements through a 3rd party for parenting time.” (Ex. Vol. at 8.) On July

      21, 2014, police served Love a copy of the 2013 Order and the petition filed by

      M.L. that the court considered in granting the 2013 Order.


[4]   On July 27, 2014, Love called M.L. at her home, where she resided with the

      couple’s daughter, and told M.L. “that no matter what he wasn’t going to leave

      [M.L.] alone. That he was goin’ [sic] get [M.L.].” (Tr. at 14.) M.L. ended the

      call without responding to Love. The State charged Love with Class A

      misdemeanor invasion of privacy under Cause 579 for violating the 2013 Order.

      The information alleged the crime occurred “on or about August 13, 2014.”

      (App. at 73.) On October 13, 2014, the trial court issued a no contact order

      (“2014 Order”) as part of Cause 579, ordering Love, in relevant part,

              to have no contact with [M.L.] in person, by telephone or letter,
              through an intermediary, or in any other way, directly or
              indirectly, except through attorney of record, while released from
              custody pending trial. This includes, but is not limited to, acts of
              harassment, stalking, intimidation, threats, and physical force of
              any kind.


      (Ex. Vol. at 11.)


[5]   On July 9, 2015, while the 2014 Order from Cause 579 was in effect, Love and

      M.L. appeared in court for their divorce hearing. During the hearing, M.L.

      testified about incidents of domestic violence Love had committed against her.

      After the hearing “[M.L.] was sitting there with [her] attorney, and [Love] came

      up to the table and he scowled at [M.L.] and he looked at [M.L.’s attorney] and

      he looked at [M.L.], and told [M.L.], he said, [sic] ‘It’s not over yet, I’m not
      Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 3 of 19
      done with you yet.’” (Tr. at 27.) This exchange occurred after “the Judge had

      left the room.” (Id. at 32.) M.L. took Love’s words to be a threat


               [b]ecause, he has been driving up and down the streets, uh, the
               other phone call, uh that you mentioned, he did call and say he
               wanted to talk to the grandchildren. 3 You know, he’s [sic] will
               not leave me alone, he’s [sic] has been threatening my friends,
               he’s threatened my daughter, he’s threatened my boyfriend, uh,
               he’s came, [sic] he’s called Wal-Mart and tried to get me fired
               from my position. Um, it went all the way up to the (inaudible)
               office and they called back down and my uh store manager had
               to talk to him, and she called me in and told me that you know
               that he was still harassing me and everything and trying to get me
               fired. And you know it didn’t work, but you know that she had
               to talk to him and she talked to him for quite a while and then he
               hung up on her. . . . And he has beat me up and put me in the
               hospital.


      (Id. at 27-8) (footnote added). Based thereon, the State charged Love under

      Cause 26 with Class A misdemeanor intimidation and Class A misdemeanor

      invasion of privacy for violating the 2014 Order.


[6]   On April 8, 2015, the trial court held bench trials on Cause 579 and Cause 26.

      At the end of the State’s presentation of evidence in Cause 579, the State moved

      to amend the charging information against Love to indicate the date of the

      alleged phone call was July 27, 2014, rather than “on or about August 13,

      2014,” (App. at 73), as charged in the original information. The trial court




      3
       It is unclear from the record to whom M.L. is referring - she indicated in her earlier testimony she lived with
      her daughter, who was subject to parenting time guidelines, but did not mention grandchildren.

      Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016                 Page 4 of 19
      granted the State’s request over Love’s objection. Love then moved for a

      directed verdict, alleging the 2013 Order was invalid, but the court denied that

      motion. The trial court found Love guilty of Class A misdemeanor invasion of

      privacy in Cause 579 for violating the 2013 Order.


[7]   During the bench trial regarding Cause 26, Love again moved for a directed

      verdict. He argued the 2014 Order, which the court put into place as part of

      Cause 579, was void because Cause 579 should not have been filed based on the

      2013 Order, which Love insisted was void. The trial court denied Love’s

      motion for a directed verdict and found Love guilty in Cause 26 of Class A

      misdemeanor invasion of privacy and Class A misdemeanor intimidation. The

      trial court sentenced Love to an aggregate sentence of one and one-half years.



                                Discussion and Decision
                        I. Amendment to Charging Information
[8]   We review a decision to allow the State to amend an information for an abuse

      of discretion. Ramon v. State, 888 N.E.2d 244, 253 (Ind. Ct. App. 2008). The

      trial court permitted the State to amend the charging information for Cause 579

      to change the date of the alleged phone call that violated the 2013 Order from

      “on or about August 13, 2014,” (App. at 73), to July 27, 2014, to match M.L.’s

      testimony. Love argues the trial court abused its discretion because his right to

      present a defense was substantially prejudiced.




      Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 5 of 19
[9]    Indiana Code § 35-34-1-5 governs amendments to charges and states in relevant

       part:

               (a) An indictment or information which [sic] charges the
               commission of an offense may not be dismissed but may be
               amended on motion by the prosecuting attorney at any time
               because of any immaterial defect, including:


                                                    *****


                       (7) the failure to state the time or place at which the
                       offense was committed where the time or place is not of
                       the essence of the offense;


                                                    *****


               (c) Upon motion of the prosecuting attorney, the court may, at
               any time before, during or after the trial, permit an amendment
               to the indictment or information in respect to any defect,
               imperfection, or omission in form which [sic] does not prejudice
               the substantial rights of the defendant.


[10]   An amendment to a charging information is one of form


               if both (a) a defense under the original information would be
               equally available after the amendment, and (b) the accused’s
               evidence would apply equally to the information in either form.
               And an amendment is one of substance only if it is essential to
               making a valid charge of the crime.


       Fields v. State, 888 N.E.2d 304, 310 (Ind. Ct. App. 2008). “Whether an

       amendment is a matter of substance or form is a question of law, which we


       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 6 of 19
       review de novo.” Id. The substantial rights implicated by Indiana Code § 35-34-

       1-5

               include a right to sufficient notice and an opportunity to be heard
               regarding the charge; and, if the amendment does not affect any
               particular defense or change the positions of either of the parties,
               it does not violate these rights. Ultimately, the question is
               whether the defendant had a reasonable opportunity to prepare
               for and defend against the charges.


       Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (citations and internal

       quotations omitted), trans. denied.


[11]   To prove Love committed Class A misdemeanor invasion of privacy, the State

       had to prove he violated a protective order. See Ind. Code § 35-46-1-15.1 (2014)

       (elements of offense). Love asserts the change in dates of his alleged offense

               misled and prejudiced Love because he knew the State could not
               prove any telephone calls from him to [M.L.] in August 2014.
               Love did not know the charge actually was based on an alleged
               telephone call in July 2014 until the State sought to amend the
               Information at the end of its cause-in-chief. . . . [H]e had no
               reason to collect evidence, such as telephone records or the
               testimony of his daughter, to prove he did not call [M.L.] in July
               2014 or that he did not knowingly communicate with [M.L.]
               directly or indirectly in July 2014.


       (Br. of Appellant at 16.) Love contends time is an element of invasion of

       privacy because “[p]rotective orders have a specific expiration date. . . . Thus,

       the date of the alleged Invasion of Privacy is critical to determining whether

       Invasion of Privacy has been committed.” (Id. at 13.) We disagree.

       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 7 of 19
[12]   The State argues time was not an element of the crime and therefore the change

       in date was not a change in substance and did not prejudice Love’s defense.

       Because time was not an element of the crime, the State contends, it was

       required to prove only that Love violated the 2013 Order within the statutory

       period of limitations and was not required to prove Love did so on any

       particular date. See Poe v. State, 775 N.E.2d 681, 686 (Ind. Ct. App. 2002)

       (“When time is not an element of the crime charged, or ‘of the essence of the

       offense,’ the State is only required to prove that the offense occurred at any time

       within the statutory period of limitations,” and not necessarily on the precise

       date alleged.), trans. denied.


[13]   Generally, “time is not of the essence in proving a criminal offense.” Aikens v.

       State, 289 N.E.2d 152, 154, 154 Ind. App. 36, 40 (1972), reh’g denied. In similar

       causes involving the amendment of a charging information, Indiana courts have

       determined time is not an element of many crimes, including murder, child

       molesting, criminal mischief, and burglary. See Johnson v. State, 734 N.E.2d

       530, 532 (Ind. 2000) (murder); Ricketts v. State, 498 N.E.2d 1222, 1224 (Ind.

       1986) (child molesting); R.L.H. v. State, 738 N.E.2d 312, 317 (Ind. Ct. App.

       2000) (criminal mischief); and Sangsland v. State, 715 N.E.2d 875, 880 (Ind. Ct.

       App. 1999) (burglary), trans. denied. We have not addressed time as an element

       of invasion of privacy.


[14]   We hold the expiration date of a protective order is analogous to the

       requirement in a child molesting cause that the State prove the crime against a

       child was committed when the child was a certain age. In Ricketts, the

       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 8 of 19
       defendant was charged with Class C felony child molesting, which required the

       victim to be twelve years or younger when the molestation occurred. See Ind.

       Code § 35-42-4-3(b) (1981) (elements of the crime). The State alleged the

       molestation occurred on or about a specific date, but at trial the victim testified

       the molestation occurred on a different date. The court granted, over Ricketts’

       objection, the State’s motion to amend the charging information. On appeal,

       our Indiana Supreme Court held time was not an element of Class C felony

       child molesting. Ricketts, 498 N.E.2d at 1224. The Court held the State had to

       prove only that the victim was the proper age when the crime occurred.


[15]   The same is true for invasion of privacy. Time is not of the essence as to the

       specific date that the invasion occurred; the State must prove only that a

       protective order was in effect on the day the contact occurred. 4 Thus, the

       amendment of the date in the charging information against Love was one of

       form, not substance. His substantial rights were not violated, and the trial court

       did not abuse its discretion by allowing the State to amend the charges.




       4
         As a point of clarification, time is “of the essence” for an offense when the act “becomes criminal only
       when done at a particular time.” State v. Slentz, 61 N.E. 793, 794, 27 Ind. App. 557, 560 (1901). In Slentz, the
       alleged offense involved the improper screening of rooms where “intoxicating liquors” were kept on a
       Sunday, when sales of liquor were prohibited by law. Burns Ind. Code Ann. Supp. § 7283d (1897). The
       affidavit alleged Slentz committed the offense “on or about the 25th day of March, 1900, * * * said day being
       the first day of the week, commonly called ‘Sunday.’” Slentz, 61 N.E. at 794, 27 Ind. App. at 560. We
       affirmed the trial court’s decision to quash the affidavit because “the time, which was an essential ingredient
       of the offense, was not stated with sufficient accuracy.” Id. The affidavit contained the words “on or about,”
       id., but the improper screen was a crime that could occur only on a Sunday.

       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016                 Page 9 of 19
                                    II. Sufficiency of Evidence
[16]   When reviewing sufficiency of evidence to support a conviction, we consider

       only the probative evidence and reasonable inferences supporting the trial

       court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

       finder’s role, and not ours, to assess witness credibility and weigh the evidence

       to determine whether it is sufficient to support a conviction. Id. To preserve

       this structure, when we are confronted with conflicting evidence, we consider it

       most favorably to the trial court’s ruling. Id. We affirm a conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. It is therefore not necessary that the evidence overcome

       every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference reasonably may be drawn from it to support the trial court’s decision.

       Id. at 147.


                                     A. Validity of Protective Orders

[17]   One of the ways invasion of privacy occurs is when a person violates the

       restrictions set forth in a protective order. See Ind. Code § 35-46-1-15.1 (2014)

       (elements of offense). Love argues his convictions of the two counts of Class A

       misdemeanor invasion of privacy cannot stand because the protective orders he

       is alleged to have violated are void. He contends, “the Invasion of Privacy

       count in [Cause 579] rested on an alleged violation of the [2013 Order] and the

       Invasion of Privacy count in [Cause 26] rested on an alleged violation of the

       [2014 Order]. Neither protective order was valid.” (Br. of Appellant at 23.)



       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 10 of 19
       Love’s argument is an impermissible collateral attack on the 2013 Order and,

       thus, his argument fails.


[18]   A collateral attack occurs when a litigant uses one court to question the validity

       of the judgment of another court of competent jurisdiction. In re Adoption of

       A.N.S., 741 N.E.2d 780, 786 (Ind. Ct. App. 2001). Our Indiana Supreme Court

       explained in State ex rel. Meade v. Marshall Superior Court II:


               When an action is pending before a court of competent
               jurisdiction, other courts must defer to that court’s extant
               authority over the cause. Courts observe this deference in the
               interests of fairness to litigants, comity between and among the
               courts of this state, and judicial efficiency. This principle is
               implemented by Trial Rule 12(B)(2), which allows a party to
               move for dismissal on the grounds that the same action is
               pending in another Indiana court. This rule applies where the
               parties, subject matter, and remedies of the competing actions are
               precisely the same, and it also applies when they are only
               substantially the same.


       644 N.E.2d 87, 88-9 (Ind. 1994).


[19]   While Indiana has not extended this rule to include collateral attacks on the

       validity of protective orders, the Seventh Circuit Court of Appeals held a

       defendant could not collaterally attack the protective order on which his

       conviction was based in United States v. Westcott, 576 F.3d 347, 352 (7th Cir.

       2009), cert. denied 559 U.S. 940 (2010). A trial court convicted Westcott of

       unlawful possession of a firearm based on a protective order that prohibited him

       from possessing firearms. Westcott argued the evidence was insufficient to


       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 11 of 19
       convict him of the charge because the protective order was “void as a matter of

       law.” Id. at 351. The Seventh Circuit held as long as the protective order

       comported with procedural requirements, “[a]ny internal inconsistencies in the

       Order [of Protection] are irrelevant to the fact of the Order[.]” Id. at 353.


[20]   Westcott relied, in part, on Lewis v. United States, 445 U.S. 55 (1980), in which

       the Court held Lewis, who was on trial for possessing a firearm after being

       convicted of a felony in state court, could not collaterally attack the conviction

       of breaking and entering that was the basis for the firearm charges against him.

       The Court noted Lewis “must challenge the validity of a prior conviction, or

       otherwise remove the firearms disability, before obtaining a firearm.” Id. at 67

       (emphasis in original).


[21]   We adopt the Westcott reasoning. The 2013 Order was granted under the

       provisions of Ind. Code § 34-26-5-9(b), which allows the trial court to enter an

       ex parte protective order without notice and hearing. The 2013 Order was based

       on M.L.’s petition to renew a protective order put in place in 2011, 5 which was

       set to expire on September 13, 2013. Ind. Code § 34-26-5-9(f) states a

                  finding that domestic or family violence has occurred sufficient to
                  justify the issuance of an order under this section means that a
                  respondent represents a credible threat to the safety of a
                  petitioner or a member of a petitioner’s household. Upon a
                  showing of domestic or family violence by a preponderance of




       5
           The 2011 protective order is not contained in the record.


       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 12 of 19
               the evidence, the court shall grant relief necessary to bring about
               a cessation of the violence or the threat of violence.


[22]   The trial court made these findings:

               a. The Petitioner has shown, by a preponderance of the
               evidence, that ***OFFENSE OPTION WAS NOT
               SELECTED*** has occurred sufficient to justify the issuance of
               this Order.


               b. This order does . . . protect an intimate partner or child.


               c. The Respondent represents a credible threat to the safety of
               the Petitioner or a member of the Petitioner’s household.


               d. The following relief is necessary to bring about a cessation of
               the violence or threat of violence.


       (Ex. Vol. at 7.)


[23]   Love asserts the 2013 Order is void because, based on the language in the 2013

       order indicating “***OFFENSE OPTION WAS NOT SELECTED***,” (id.),

       “the [2013 Order] reflects no finding that domestic or family violence has

       occurred.” (Br. of Appellant at 25.) However, like in Westcott, Love alleges

       inconsistencies that do not affect the fact the order existed at the time he

       committed his crime. See Westcott, 576 F.3d at 353 (arguments regarding

       alleged inconsistences in protective order findings are impermissible collateral

       attack and do not address the existence of the order).




       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 13 of 19
[24]   Love’s challenges to the validity of the 2013 Order and the 2014 Order are

       impermissible collateral attacks because his arguments are based on the findings

       of a different court that had jurisdiction over the 2013 Order. Because the State

       presented evidence the protective orders existed and were in effect when Love

       violated their terms, the State presented sufficient evidence regarding that

       element of the invasion of privacy charges.


                                               B. Acts Committed

                                     1. Invasion of Privacy in Cause 579

[25]   To prove Love committed Class A misdemeanor invasion of privacy in Cause

       579, the State was required to prove Love violated the 2013 Order. See Ind.

       Code § 35-46-1-15.1 (2014) (elements of offense). The State presented evidence

       Love called M.L. and said, “no matter what he wasn’t going to leave [her]

       alone. That he was goin’ [sic] to get [her].” (Tr. at 14.) The State presented

       evidence the phone call took place while the 2013 Order was in effect. Love’s

       alternate version of the facts suggesting he called to speak to his daughter,

       which he alleges was not prohibited by the 2013 Order, 6 is an invitation for us

       to reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court cannot reweigh evidence or judge credibility of witnesses).




       6
         The terms of the 2013 Order did not name the couple’s daughter as a “designated family member”
       protected as part of the order and permitted Love to make “arrangements through a 3rd party for parenting
       time.” (Ex. Vol. at 8.)

       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016             Page 14 of 19
                                    2. Invasion of Privacy in Cause 26

[26]   To prove Love committed Class A misdemeanor invasion of privacy in Cause

       26, the State was required to prove Love violated the 2014 Order. See Ind.

       Code § 35-46-1-15.1 (2014) (elements of offense). The State presented evidence

       Love approached M.L. following a hearing regarding their divorce and after

       “the Judge had left the room.” (Tr. at 32.) Love argues his conviction in Cause

       26 should be reversed because the more appropriate way to address the act was

       to find Love in contempt of court.


[27]   In Thomas v. State, 936 N.E.2d 339 (Ind. Ct. App. 2010), trans. denied, we

       reversed Thomas’ conviction of invasion of privacy and instead directed the

       trial court to conduct contempt proceedings. Thomas’ conviction was based on

       her comment to the victim “at the end of the hearing [on the protective order]

       and in the court’s presence.” Id. at 339. We held


               in the context of this cause, there is a more appropriate
               mechanism to address Thomas’s statement to Smith in the
               courtroom. Indiana courts have inherent power to punish
               summarily acts of direct contempt without formal charges or an
               evidentiary hearing. The purpose of this power is to enable the
               court to protect itself against gross violations of decency and
               decorum. Direct contempt includes those actions occurring in or
               near the court, interfering with the business of the court, of which
               the judge has personal knowledge.


               Under the circumstances set forth in the record, the institution of
               direct contempt proceedings was the more appropriate action in
               response to Thomas’s statement to Smith in the courtroom.



       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 15 of 19
       Id. at 340-41 (internal quotes and citations omitted).


[28]   The State presented evidence Love approached M.L. at her counsel table after

       the divorce hearing and after the judge left the room. Thus, his actions did not

       “interfer[e] with the business of the court.” Id. at 341. Nor was it an act “of

       which the judge has personal knowledge.” Id. Thomas does not control, and a

       contempt finding would not be an appropriate resolution to this cause.


                                        3. Intimidation in Cause 26

[29]   To prove Love committed Class A misdemeanor intimidation, the State had to

       prove Love communicated a threat to M.L. with the intent to place her in “fear

       of retaliation for a prior lawful act.” Ind. Code § 35-45-21-1(a)(2) (2013). The

       State presented evidence Love approached M.L. after their divorce hearing,

       during which she testified to multiple instances of domestic violence, and said

       to M.L., “It’s not over yet, I’m not done with you yet.” (Tr. at 27.) M.L.

       testified she understood Love’s statement to be a threat. She clarified on cross-

       examination that Love was “looking at [her],” (id. at 29), when he issued the

       threat. Love’s alternate version of the facts, including his contentions he

       directed the statement at M.L.’s attorney and he did not intend to put M.L. in

       fear, are invitations for us to reweigh the evidence, which we cannot do. See

       Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge

       credibility of witnesses).




       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 16 of 19
                                        III. Double Jeopardy
[30]   Article 1, Section 14 of the Indiana Constitution provides that “no person shall

       be put in jeopardy twice for the same offense.” Double jeopardy may be proven

       when there is a “reasonable probability that the evidentiary facts used by the

       fact finder to establish the essential elements of one offense may also have been

       used to establish the essential elements of the second offense.” Richardson v.

       State, 717 N.E.2d 32, 53 (Ind. 1999). To demonstrate two offenses are the

       same, the appellant must show a reasonable possibility that the facts used by the

       jury to establish the essential elements of one offense were also used to establish

       the essential elements of the second offense. Bruce v. State, 749 N.E.2d 587, 590

       (Ind. Ct. App. 2001), trans. denied. The appellant must show more than a

       remote or speculative possibility that the same facts were used. Id. To

       determine what facts were used, we consider the evidence, charging

       information, final jury instructions, and arguments of counsel. Id.


[31]   Love contends his convictions in Cause 26 of both invasion of privacy and

       intimidation subjected him to double jeopardy because the “evidence at trial

       showed both counts were based on an alleged brief contact by Love with [M.L.]

       at a table in the courtroom at the end of a court hearing in their dissolution of

       marriage proceeding.” (Br. of Appellant at 29.) However, that “brief contact”

       included two separate acts, each of which supported a different conviction, such

       that Love was not subjected to double jeopardy.




       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 17 of 19
[32]   The State presented evidence Love approached M.L. at her counsel’s table

       after their divorce hearing and after the Judge had left the courtroom, in

       violation of the 2014 Order prohibiting him from having contact with her. The

       State presented separate evidence Love threatened M.L. by saying, “It’s not

       over yet, I’m not done with you yet.” (Tr. at 27.) Because separate facts

       supported a finding Love was guilty of each offense, there was no reasonable

       probability the judge relied upon the same facts to establish Love’s convictions.

       See, e.g., Goldsberry v. State, 821 N.E.2d 447, 460 (Ind. Ct. App. 2005) (no

       double jeopardy when separate evidence presented to support elements of each

       crime).



                                               Conclusion
[33]   The trial court did not abuse its discretion when it permitted the State to amend

       the charging information to reflect the date Love called M.L. because time is

       not an element or “of the essence” of invasion of privacy. As Love may not

       collaterally attack the validity of the 2013 Order and the 2014 Order, the State

       presented sufficient evidence they were in effect when Love violated them. The

       State presented sufficient evidence Love committed Class A misdemeanor

       invasion of privacy in Cause 529. The State also presented evidence Love

       committed Class A misdemeanor invasion of privacy and one count of Class A

       misdemeanor intimidation in Cause 26. Finally, Love’s convictions in Cause

       26 of Class A misdemeanor invasion of privacy and Class A misdemeanor

       intimidation did not subject him to double jeopardy because the State presented


       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 18 of 19
       independent evidence to prove each offense. Accordingly, we affirm Love’s

       convictions.


[34]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A05-1507-CR-965 | May 25, 2016   Page 19 of 19
