Anthony Nelson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2017
• Docket: 49A04-1706-CR-1417
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Dec 12 2017, 8:50 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Nelson, December 12, 2017

Appellant-Defendant, Court of Appeals Case No. 49A04-1706-CR-1417 v. Appeal from the Marion County Superior Court. The Honorable Christina R. State of Indiana, Klineman, Judge. Appellee-Plaintiff. Trial Court Cause No. 49G17-1704-CM-12399

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 1 of 6 [1] Following a bench trial, Anthony Nelson was convicted of invasion of privacy 1 as a Class A misdemeanor. The sole issue Nelson raises is whether sufficient

evidence was presented to sustain his conviction. We affirm.

[2] The facts most favorable to the judgment establish that Nelson is the father of

K.N., who was twelve years old at the time the offense was committed. In May

of 2016, K.N.’s maternal grandmother, Nelson’s former mother-in-law

(hereinafter, “Grandmother”), filed a petition for guardianship of K.N. The

guardianship hearing occurred in November of 2016, and the matter was taken 2 under advisement.

[3] Also in November of 2016, Grandmother sought and received a protective

order for K.N., and against Nelson, because of allegations that Nelson

physically abused K.N. The protective order was served on Nelson by copy

service on November 10, 2016, and by certified mail on November 19, 2016.

The protective order (among other things) prohibited Nelson from “harassing,

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

[K.N.].” State’s Exhibit 4. Nelson, however, left voicemail messages on

Grandmother’s phone, expressing his displeasure regarding the protective

order.

1 Ind. Code § 35-46-1-15.1(1) (2016). 2 Grandmother’s petition for guardianship of K.N. was granted on December 22, 2016.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 2 of 6 [4] On November 28, 2016, after the protective order was issued and served,

Grandmother called the police because Nelson had been texting her and calling

her. On December 16, 2016, she called the police because Nelson had been at

her mailbox. On December 27, 2016, Grandmother called the police because

Nelson had again been texting and calling her.

[5] On the night of December 31, 2016, K.N. was on her phone in her bedroom at 3 Grandmother’s house when she heard a tapping sound on her window. When

she looked out of her window, she observed a hand holding a cellphone that

showed a picture of her father’s mother on the cellphone screen. K.N. surmised

that the person holding the cellphone must be her father. She immediately told

her Grandmother about the incident.

[6] On April 4, 2017, the State charged Nelson with Class A misdemeanor invasion

of privacy. Following a bench trial held on June 7, 2017, the trial court found

Nelson guilty as charged and sentenced Nelson to time served. Nelson now

appeals.

[7] Nelson argues the State failed to present sufficient evidence to prove he

committed invasion of privacy. According to Nelson, his conviction was based

upon circumstantial evidence, “as there was no evidence that anyone saw him

at [Grandmother’s] house on December 31, 2016,” and the circumstantial

3 The record is unclear as to when K.N. began living with Grandmother but the record does establish that K.N. was living with Grandmother on December 31, 2016.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 3 of 6 evidence was “that of extreme bias demonstrated by [Grandmother].”

Appellant’s Br. p. 7. The State maintains that Nelson’s argument on appeal is

merely a request for this Court to reweigh the evidence and judge the credibility

of the witnesses. We agree and find sufficient evidence to support Nelson’s

conviction.

[8] When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

quotations omitted). “In essence, we assess only whether the verdict could be

reached based on reasonable inferences that may be drawn from the evidence

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012). Upon review,

appellate courts do not reweigh the evidence or assess the credibility of the

witnesses. Stewart v. State, 768 N.E.2d 433 (Ind. 2002). A conviction may be

supported by the uncorroborated testimony of a single witness or

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 4 of 6 by circumstantial evidence alone. McCarthy v. State, 749 N.E.2d 528 (Ind.

2001).

[9] To convict Nelson of Class A misdemeanor invasion of privacy, the State was

required to prove beyond a reasonable doubt that he knowingly or intentionally

violated a protective order. Ind. Code § 35-46-1-15.1(1) (2016). In the charging

information, the State specifically alleged that Nelson knowingly violated the

protective order “by going to [K.N.’s] residence and/or looking [into] the

window to contact her.” Appellant’s App. p. 14.

[10] Nelson does not dispute that he had knowledge of the protective order.

Grandmother testified at the bench trial that Nelson left voicemail messages on

her phone in which he expressed his displeasure regarding the protective order,

specifically: “[y]ou tryin’ [sic] to keep me away from my daughter,” and “[y]ou

got a restraining order against me.” Tr. p. 7. On one occasion, Nelson was

observed near Grandmother’s mailbox.

[11] K.N. testified that on December 31, 2016, while the protective order was in

place and while she was in the bedroom in the house where she lived, she heard

a tapping sound on her bedroom window. When she looked out of the

window, she saw a hand holding a cellphone. The screen on the cellphone

displayed a picture of Nelson’s mother, K.N.’s paternal grandmother.

Although K.N. could not see the individual who held the cellphone, she

testified that she thought it was her father holding the phone because she

“[didn’t] know who else would have the picture [of Nelson’s mother] on [the

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 5 of 6 cellphone],” and “[w]ho else would come to the window like that.” Tr. pp. 31,

33.

[12] From the testimony presented at trial, the trial court could have reasonably

inferred that Nelson was the individual holding the cellphone to K.N.’s window

and, thus, was in violation of the protective order. Nelson’s argument to the

contrary effectively amounts to an invitation for this court to reweigh the

evidence and judge the credibility of the witnesses, which we will not

do. See Stewart, 768 N.E.2d at 435. The evidence was sufficient to prove that

Nelson contacted K.N. in violation of the protective order.

[13] For the reasons stated above, we affirm Nelson’s conviction of invasion of

privacy.

[14] Affirmed.

Baker, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 6 of 6