Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before

                                                              FILED
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the                     Sep 28 2012, 9:31 am
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                              GREGORY F. ZOELLER
Oldenburg, Indiana                              Attorney General of Indiana

                                                GEORGE P. SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

PAUL PLUMMER,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 49A05-1203-CR-106
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara Crawford, Judge
                           Cause No. 49G21-1109-CM-68509


                                    September 28, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Paul Plummer appeals his conviction for Class A misdemeanor invasion of

privacy. We reverse.

                                          Issue

       Plummer raises one issue, which we restate as whether there is sufficient evidence

to support his conviction.

                                          Facts

       On August 22, 2011, an ex parte order for protection was issued. The protective

order generally restrained Plummer “from any contact with” Jared Rutan and more

specifically prohibited Plummer “from harassing, annoying, telephoning, contacting or

directly or indirectly communicating with” Rutan. Ex. 1. Plummer was also ordered to

stay away from Rutan’s residence and place of employment, but he was not ordered to

stay away from any other places.

       Rutan and Plummer belonged to the same gym. Although Rutan did not usually

go the gym on Sundays, he was there on the afternoon of September 25, 2011. Plummer,

who saw a car similar to Rutan’s in the parking lot earlier in the afternoon, assumed the

car belonged to a gym employee when it was still there three to four hours later.

       While Rutan was working out, he saw Plummer enter the gym and talk to people

at the front desk for a while. Plummer and another person then walked directly from the

front desk to the locker room while engaged in conversation. To get to the locker room,

Plummer had to walk past the area where Rutan was working out. As Plummer passed

Rutan, they made eye contact, and Plummer continued walking to the locker room.

                                            2
Rutan described the interaction with Plummer as “very brief” eye contact that lasted “a

couple of seconds.” Tr. p. 17. Plummer did not gesture at or speak to Rutan. Rutan then

called the police.

       Plummer was arrested, and the State charged him with Class A misdemeanor

invasion of privacy. Following a bench trial, Plummer was found guilty as charged. He

now appeals.

                                         Analysis

       Plummer argues there is insufficient evidence to support his conviction.       In

reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses, and we respect a fact-finder’s exclusive province to weigh

conflicting evidence. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We consider

only the probative evidence and reasonable inferences supporting the verdict and will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

       A person who knowingly or intentionally violates an ex parte protective order

commits Class A misdemeanor invasion of privacy.           Ind. Code § 35-46-1-15.1(2).

Plummer argues that he did not violate the terms of the protective order because he did

not engage in any prohibited conduct. The State asserts that Plummer knowingly or

intentionally made visual contact with Rutan in violation of the protective order.

       We agree with Plummer. The protective order generally restrained Plummer

“from any contact with” Rutan and more specifically prohibited Plummer “from

                                             3
harassing, annoying, telephoning, contacting or directly or indirectly communicating

with” Rutan. Ex. 1. By Rutan’s own testimony, Plummer only made “very brief” eye

contact with Rutan as Plummer passed him while walking directly to the locker room and

talking to someone else. Tr. pp. 17, 29. Plummer did not say anything to Rutan.

Plummer did not gesture to Rutan.        Nothing in the record indicates that Plummer

acknowledged Rutan in any way. Under these facts, the evidence is insufficient to

establish that Plummer contacted Rutan so as to violate the protective order.

                                       Conclusion

       The evidence is insufficient to establish that Plummer violated the protective

order. We reverse.

       Reversed.

VAIDIK, J., and MATHIAS, J., concur.




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