MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                        FILED
court except for the purpose of establishing                       Mar 08 2017, 8:16 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Margie Rene Mayhill,                                     March 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1610-CR-2340
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable Dan E. Marshall,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         30D02-1512-CM-1926



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017        Page 1 of 8
                                             Case Summary
[1]   Margie Rene Mayhill appeals her conviction, following a jury trial, for class A

      misdemeanor invasion of privacy. She asserts that the State presented

      insufficient evidence to support her conviction and that the trial court

      committed fundamental error in failing to administer an oath to one of the

      witnesses who testified at trial. Finding the evidence sufficient and no

      fundamental error, we affirm.


                                 Facts and Procedural History
[2]   On November 5, 2015, the Hancock Superior Court issued an ex parte order for

      protection prohibiting Mayhill from “threatening to commit or committing acts

      of domestic or family violence, stalking or a sex offense against petitioner

      [H.A.]” State’s Ex. 2. The order also prohibited Mayhill from “harassing,

      annoying, telephoning, contacting, or directly or indirectly communicating with

      [H.A.]” Id. The sheriff served Mayhill with the protection order on November

      12, 2015.


[3]   On November 18, 2015, Mayhill drove a borrowed vehicle to the residence of

      Bruce Townsend, Sr. (“Senior”), to pick up Bruce Townsend, Jr. (“Junior”),

      because Junior had previously told Mayhill that he would fix her broken vehicle

      if she came to pick him up. When Mayhill arrived at the residence, H.A.’s

      truck was parked in the driveway, and H.A. and Junior were sitting inside the

      truck. Junior works for H.A., and H.A. was there to pick up Junior for work.

      Senior was standing on the front porch of the residence when he observed


      Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017   Page 2 of 8
      Mayhill communicating with H.A. Specifically, she had exited her vehicle and

      was “raising all kinds of heck, this and that, cussing [at H.A.], hitting and

      pulled his beard and so on.” Tr. at 41. Senior called 911 and informed the

      dispatcher that Mayhill was on his property and refusing to leave, and that she

      was fighting with and screaming at H.A. Senior stated that Mayhill was driving

      a green Ford Ranger.


[4]   Hancock County Sheriff’s Deputy Russell Silver was dispatched to Senior’s

      home. However, he passed a green Ford Ranger driving away from the home,

      so he performed a traffic stop of the vehicle. Deputy Silver spoke with Mayhill,

      who acknowledged the existence of the order of protection regarding H.A., but

      stated that she immediately backed out of Senior’s driveway and left when she

      saw H.A.’s vehicle. Deputy Silver then went to Senior’s residence to

      investigate. H.A. was no longer at the residence, but Senior reported that

      Mayhill did not immediately leave his residence after she arrived, and that he

      witnessed Mayhill yelling at and arguing with H.A.


[5]   Thereafter, the State charged Mayhill with class A misdemeanor invasion of

      privacy. Following a jury trial, Mayhill was found guilty as charged. The trial

      court sentenced Mayhill to 365 days suspended to probation. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017   Page 3 of 8
                                       Discussion and Decision

          Section 1 – The State presented sufficient evidence to support
                              Mayhill’s conviction.
[6]   Mayhill contends that the State presented insufficient evidence to support her

      conviction. When reviewing a claim of insufficient evidence, we neither

      reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

      499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

      therefrom that support the conviction, and will affirm if there is probative

      evidence from which a reasonable factfinder could have found the defendant

      guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

      trier of fact is enough to support the conviction, then the reviewing court will

      not disturb it. Id. at 500.


[7]   To convict Mayhill of invasion of privacy, the State was required to prove that

      Mayhill knowingly or intentionally violated an ex parte protection order issued

      under Indiana Code Chapter 34-26-5. See Ind. Code § 35-46-1-15.1(2).1 A

      person engages in conduct “knowingly” if, when she engages in the conduct,

      she is aware of a high probability that she is doing so. Ind. Code § 35-41-2-2(a).

      Mayhill contends that there is insufficient evidence that she knowingly violated

      the protection order because she was unaware that H.A. would be at Senior’s

      house when she traveled there, and that any contact she had with him was




      1
       Mayhill concedes that the evidence establishes that a valid ex parte protection order was issued and that she
      was aware of that order.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017               Page 4 of 8
      merely “incidental” because she “immediately backed her vehicle up out of the

      driveway and drove away” when she saw H.A.’s car. Appellant’s Br. at 8;

      Reply Br. at 5; Tr. at 98.


[8]   Contrary to Mayhill’s claim, Senior testified that Mayhill did not immediately

      leave the residence and that he witnessed Mayhill communicate and have direct

      contact with H.A. when she argued with him, cursed at him, and touched him.

      Mayhill maintains that Senior was not truthful, and urges us to give more credit

      to her self-serving testimony as well as other evidence in the record that she

      claims supports her version of events. However, it was the jury’s prerogative to

      assess the evidence, and Mayhill’s argument is simply an invitation for this

      Court to reweigh that evidence and reassess witness credibility, which we

      cannot do. The evidence most favorable to the jury’s verdict supports a

      reasonable inference that Mayhill knowingly violated the protection order. The

      State presented sufficient evidence to support Mayhill’s conviction.


         Section 2 – Mayhill has not established fundamental error.
[9]   Mayhill next asserts that reversible error occurred because the trial court failed

      to administer an oath to Deputy Silver before he testified at trial. Indiana

      Evidence Rule 603 provides that “[b]efore testifying, a witness must give an

      oath or affirmation to testify truthfully. It must be in a form designed to

      impress that duty on the witness’s conscience.” Similarly, Indiana Code Section

      34-45-1-2 provides: “Before testifying, every witness shall be sworn to testify the

      truth, the whole truth, and nothing but the truth. The mode of administering an


      Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017   Page 5 of 8
       oath must be the most consistent with and binding upon the conscience of the

       person to whom the oath may be administered.”


[10]   Because Mayhill failed to object to this claimed error at trial, she asserts that the

       trial court committed fundamental error.2 See Treadway v. State, 924 N.E.2d

       621, 633 (Ind. 2010) (failure to object at trial waives the issue for review unless

       fundamental error occurred). The fundamental error doctrine is extremely

       narrow and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process. Mathews v. State, 849 N.E.2d

       578, 587 (Ind. 2006). “To qualify as fundamental error, an error must be so

       prejudicial to the rights of the defendant to make a fair trial impossible.” Brown

       v. State, 799 N.E.2d 1064, 1067 (Ind. 2003) (citation and quotation marks

       omitted).


[11]   We observe that the transcript says “Russell Silver[:] Not having been sworn to

       testify to the truth, the whole truth and nothing but the truth was examined and

       testified as follows.” Tr. at 66. Because we presume that the transcript as

       presented accurately reflects the proceedings, we must conclude that the trial

       court in fact failed to administer an oath to Deputy Silver.3 Nevertheless, we




       2
        We note that twice in her reply brief, Mayhill states that “the trial court did not commit fundamental error.”
       Reply Br. at 2, 6 (emphasis added). Because the crux of her claim is that the court did commit fundamental
       error, we assume that these were simply misstatements.
       3
        While the State questions the accuracy of the transcript, the State acknowledges that Indiana Appellate
       Rule 32(A) provides that a party may move the trial court to resolve a disagreement as to whether the

       Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017                Page 6 of 8
       cannot say that such error was so prejudicial to Mayhill’s rights as to make a

       fair trial impossible.


[12]   Significantly, during Deputy Silver’s testimony, Mayhill’s counsel questioned

       him about his probable cause affidavit in this case and noted that “it’s under

       oath” and Deputy Silver responded, “Yes.” Id. at 78. Then counsel specifically

       inquired, “Same as what you’re under oath here today[?]” and Deputy Silver

       again responded, “Yes.” Id. Hence, it is clear that Deputy Silver subjectively

       believed that he was under oath when he testified and that the duty to testify

       truthfully was impressed upon his conscience. Moreover, much of Deputy

       Silver’s testimony regarding Mayhill’s commission of the crime was merely

       cumulative of Senior’s testimony which was given under proper oath.

       Accordingly, the trial court’s failure to administer an oath and any error in the

       admission of Deputy Silver’s testimony would not rise to level of fundamental

       error. See Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (erroneous

       admission of evidence does not justify reversal if evidence is cumulative of other

       evidence presented at trial).


[13]   Mayhill’s sole assertion of prejudice is that the trial court’s failure to administer

       an oath to Deputy Silver effectively deprived her of her constitutional right to

       confrontation.4 This assertion is not supported by the record. Mayhill’s counsel




       transcript “accurately discloses what occurred in the trial court.” The State has chosen not to invoke this
       procedure.
       4
        Mayhill’s argument in this regard is very poorly developed and could have been deemed waived on appeal.
       See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (a party waives an issue where she fails to

       Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017                 Page 7 of 8
       engaged in a lengthy and thorough cross-examination of Deputy Silver, during

       which counsel was able to point out alleged inconsistencies between the

       probable cause affidavit and Deputy Silver’s trial testimony. In addition,

       Mayhill’s counsel utilized Deputy Silver’s testimony to identify and admit

       several defense photographic exhibits. Id. at 77. Under the circumstances,

       Mayhill was not deprived of her right to confrontation, and she has failed to

       demonstrate that prejudicial error occurred such that a fair trial was impossible.

       Mayhill’s conviction is affirmed.


[14]   Affirmed.


       Riley, J., and Altice, J., concur.




       develop a cogent argument or provide adequate citation to authority or portions of the record). However, we
       choose to briefly address and dispose of it.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017            Page 8 of 8
