MEMORANDUM DECISION
                                                                  Mar 24 2015, 9:15 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
Gary L. Griner                                           Gregory F. Zoeller
Mishawaka, Indiana                                       Indiana Attorney General

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Mark A. Hensley,                                         March 24, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1411-CR-388
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
                                                         The Honorable Elizabeth Hurley,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Cause No. 71D08-1404-FD-290




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015     Page 1 of 7
[1]   Mark A. Hensley appeals his conviction of Invasion of Privacy,1 a class D

      felony, challenging the sufficiency of the evidence supporting the conviction as

      the sole issue on appeal.

[2]   We affirm.

[3]   The facts favorable to the conviction are on April 19, 2013, Hensley was

      convicted of domestic battery as a class A misdemeanor (CM 1718), as a result

      of which a no-contact order was issued forbidding Hensley to have contact with

      Jacqueline J. Hensley (the victim), who was his wife. On June 8, 2013, Hensley

      called his probation officer, Tamra Eddy, and informed her that he had been

      advised that the victim was in the hospital and that he was going to see her

      regardless of the no-contact order in CM 1718. On September 30, 2013,

      Hensley pleaded guilty to invasion of privacy as a class A misdemeanor (CM

      4696). Based upon this conviction, a petition to revoke his probation in CM

      1718 was filed on or about October 30, 2013. When Hensley failed to appear

      for hearing on the petition to revoke, a warrant was issued for his arrest.

[4]   On April 23, 2014, Mishawaka police were dispatched to the victim’s house

      with a report of a possible domestic dispute between Hensley and the victim.




      1
        The version of the governing statute, i.e., Ind. Code Ann. § 35-46-1-15.1 (West, Westlaw 2013) in effect at
      the time this offense was committed classified it as a class D felony. This statute has since been revised and
      in its current form reclassifies this as a Level 6 felony. See I.C. § 35-46-1-15.1 (West, Westlaw current with
      legislation of the 2015 First Regular Session of the 119th General Assembly effective through February 23,
      2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id.
      Because this offense was committed before then, it retains the former classification.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 March 24, 2015                  Page 2 of 7
      When they knocked on the door, the victim responded and informed the

      officers that Hensley was intoxicated inside the house. She then allowed the

      officers to enter the house. Upon entering, Corporals Roberts and Porter

      observed Hensley lying on a stairway in an intoxicated condition. The officers

      obtained identification information and confirmed with the dispatcher that

      there was an outstanding warrant for Hensley’s arrest in conjunction with CM

      1718. Based upon this warrant, they placed Hensley under arrest, handcuffed

      him, and transported him to the hospital because of his intoxicated condition.

      Because there was still an active protective order in place forbidding Hensley

      from having any contact with the victim, the State charged Hensley with

      invasion of privacy as a class D felony. After a bench trial, Hensley was found

      guilty as charged and sentenced to two years’ incarceration at the Department

      of Correction.

[5]   Hensley contends the evidence was not sufficient to support his conviction.

      When reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh evidence nor judge witness credibility. Thang v.

      State, 10 N.E.3d 1256 (Ind. 2014). We consider only “the evidence supporting

      the judgment and any reasonable inferences that can be drawn from such

      evidence.” Id. at 1258 (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.

      2008)). We will affirm a conviction “if there is substantial evidence of probative

      value supporting each element of the offense such that a reasonable trier of fact

      could have found the defendant guilty beyond a reasonable doubt.” Id. A

      finding of guilt may be based upon an inference that is reasonably drawn from


      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015   Page 3 of 7
      the evidence. All inferences are viewed in a light most favorable to the

      conviction. Bailey v. State, 979 N.E.2d 133 (Ind. 2012).


[6]   Hensley contends that the 353-day probation that he was alleged to have

      violated in CM 1718 had expired at the time he was found in the victim’s house

      on April 23, 2014. Perhaps more to the point, that is what he claims he

      believed. He further claims this is supported by the fact that “he was living with

      the protected party, … who also was not aware of the no contact order, as she

      became extremely upset when the police arrested her husband after she called

      911 seeking medical assistance for him.” Appellant’s Brief at 5. Finally, he cites

      in support of his contention the fact that he ceased communicating with Eddy

      in October 2013 and through her was never informed that the no contact order

      had been extended beyond the original 353 days. Accordingly, he contends, he

      lacked the requisite mens rea to commit the offense of invasion of privacy

      because he did not realize that the no-contact order was still active on the day of

      the offense.

[7]   To convict Hensley of invasion of privacy as a class D felony under the

      controlling version of I.C. § 35–46–1–15.1(2), the State was required to prove,

      among other things, that he knowingly or intentionally violated a protective

      order. In support of his argument that the evidence did not show that he knew

      of the existence of the present no-contact order, Hensley cites Tharp v. State, 942

      N.E.2d 814 (Ind. 2011). In Tharp, our Supreme Court articulated the test of

      whether the State met its burden of proof with respect to the mens rea element

      of this offense as follows: “[W]as there substantial evidence of probative value

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015   Page 4 of 7
      from which a finder of fact could find beyond a reasonable doubt that [the

      defendant] knowingly violated a protective order?” Id. at 818. Our Supreme

      Court reversed the conviction for invasion of privacy in Tharp upon finding that

      the defendant was aware of the existence of a protective order only because the

      protected person told him about it, but the protected person also told the

      defendant at the same time that she “thought that [she] had went and had it

      uplifted.” Id. at 817. The Supreme Court concluded “that the mixed messages

      from [the protected person] are oral notice of the type that is insufficient for

      conviction.” Id. at 818. We do not find the facts of this case sufficiently

      analogous to those in Tharp for that case to control the outcome here.


[8]   In Tharp, the protected person was the defendant’s only source of information

      with regard to the existence of the protective order. That is not the case here.

      Eddy testified that on June 8, 2013, Hensley “called [her] from the hospital

      stating his wife was in the hospital and we could arrest him if we wanted to but

      he was going to see her regardless.” Transcript at 20. This certainly evinced

      knowledge on Hensley’s part that he was the subject of a no-contact order at the

      time. Eddy further testified that a predecessor of hers who had initially worked

      with Hensley reviewed the terms of Hensley’s probation with him. This

      presumably included the existence of the no-contact order. She testified that

      she also reviewed the terms of the no-contact order with Hensley early in her

      dealings with him. Thus, there is ample evidence to establish that Hensley was

      aware from the outset that on or about April 19, 2013, he was subject of a no-

      contact order with respect to the victim.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015   Page 5 of 7
[9]    Hensley contends that the State nonetheless did not prove the requisite mens

       rea because the order entered on April 19, 2013 was to last 353 days, and he

       was convicted for violating it on April 23, 2014, which was more than 353 days

       later. He does not argue that the protective order had, in fact, expired at the

       time he was found in the victim’s home, i.e., April 23, 2014. Rather, he argues

       that he was not aware that it was still in force on the day in question. As he

       frames it, “there is no evidence that Mark Hensley was ever informed that the

       no contact order had been extended beyond 353 days.” Appellant’s Brief at 6.

       He notes in support that Eddy acknowledged she did not have any contact with

       him after October 2013, which he claims indicated, or at least indicated to him,

       that his probation was no longer active.

[10]   Although it is true that Eddy had no contact with Hensley after October 2013,

       this was not because she or the Probation Department viewed his probation as

       completed. When asked whether Hensley continued reporting to probation and

       working on a required Batterer’s Intervention Program after she sent a

       probation violation report to the prosecutor’s office on October 4, 2013, Eddy

       replied:

               No. He never completed Batter’s [sic] Intervention Program. And
               actually in the case I had prior to that he also did not complete Batter’s
               [sic] Intervention Program and the case was closed on [sic]
               unsatisfactorily because of that. And there was eventually a bench
               warrant ordered for this case for failure to appear on the PTR, the
               petition to revoke.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015   Page 6 of 7
       Transcript at 23-24. Thus, Eddy’s lack of contact with Hensley after October

       2013 was attributable to Hensley’s failure to report and to complete a required

       program under the terms of his probation.

[11]   In any event, the no-contact order stated on its face that it remained in effect

       until probation was terminated. Hensley pled guilty to a separate invasion of

       privacy in September 2013 (CM 4696), which was the basis upon which Eddy

       notified the prosecutor’s office on October 4, 2013 that Hensley violated his

       probation. Thereafter, Hensley apparently ceased all contact with Eddy, and

       this would have been months before the original 353-day term of probation

       would expire. Could he reasonably have believed after pleading guilty to a

       separate charge of invasion of privacy during the probationary period that his

       term of probation would be deemed successfully completed six months hence,

       especially after he ceased communicating with Eddy and failed to complete a

       required program? We think not. Under these circumstances, Hensley’s

       knowledge that the running of the 353-day term was suspended may reasonably

       be inferred. In other words, the State presented sufficient evidence to prove that

       Hensley knew that the protective order was still in place while the petition to

       revoke probation was pending. That petition was still pending on April 23,

       2014, when the present offense was committed. Therefore, the evidence was

       sufficient to prove the mens rea element of this offense.

[12]   Judgment affirmed.

       Baker, J., and Najam, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-338 | March 24, 2015   Page 7 of 7
