MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 30 2016, 6:13 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brent A. Clemons, November 30, 2016 Appellant-Defendant, Court of Appeals Case No. 66A05-1604-CR-770 v. Appeal from the Pulaski Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Patrick Blankenship, Judge Trial Court Cause No. 66D01-1503-F5-19
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 1 of 15 [1] Brent A. Clemons (“Clemons”) was convicted after a jury trial of two counts of
stalking,1 each as a Level 5 felony, and three counts of invasion of privacy,2
each as a Class A misdemeanor and was sentenced to a four-year aggregate
sentence. He appeals and raises several issues, which we consolidate and
restate as:
I. Whether the trial court abused its discretion when it allowed State’s Exhibit J, the service history of the protective order, to be admitted into evidence; and
II. Whether the State presented sufficient evidence to support Clemons’s convictions.
[2] We affirm in part, reverse in part, and remand.
Facts and Procedural History [3] C.C. married Clemons in October 2013 and filed a petition for dissolution of
marriage in February 2015. During C.C.’s marriage to Clemons, her teenage
son, V.W., lived with her and Clemons for a time in 2014 in Starke County,
Indiana. In early 2014, there was an incident where Clemons battered both
C.C. and V.W. when V.W. attempted to protect his mother. Clemons moved
out of the house for a period of time, but moved back in October 2014. In
February 2015, Clemons put a knife to C.C.’s throat and threatened to kill her.
1 See Ind. Code § 35-45-10-5(a), (b)(2)(D). 2 See Ind. Code § 35-46-1-15.1(2).
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 2 of 15 C.C. tried to leave, and Clemons smashed the windows of her vehicle with a
baseball bat and took her keys and cell phone. Clemons hit C.C. in the face
with his fist, and she feared for her life. C.C. moved out of the home she had
shared with Clemons and moved in with her ex-husband and V.W. in Pulaski
County, Indiana.
[4] After this incident of battery, C.C. obtained an “Ex Parte Order for Protection”
(“the Protective Order”) against Clemons issued under Cause No. 75C01-1503-
PO-18. State’s Ex. D. The Protective Order was issued on March 3, 2015 and
was personally served on Clemons on March 4, 2015. Tr. at 190; State’s Exs. D,
J. The Protective Order prohibited Clemons from “harassing, annoying,
telephoning, contacting, or directly or indirectly communicating” with C.C.
and was valid for two years. State’s Ex. D. C.C. testified that she included
V.W. on the Protective Order “because [she] was afraid for him” and he had
been a victim of Clemons’s domestic violence. Tr. at 113.
[5] While C.C. was staying at the home of her ex-husband, which was in a town
approximately twenty minutes away from where Clemons lived, Clemons
drove by the home twice, once in March 2015 and once in April 2015.
Clemons had no legitimate reason for driving past as he did not live or work
nearby. One of the times he drove past, C.C. was outside, and a car in which
Clemons was a passenger drove by slowly, and Clemons stared at her, which
frightened C.C.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 3 of 15 [6] On March 9, 2015, at approximately 6:50 p.m., Clemons sent a text message to
V.W.’s phone that said, “there you go c[.c.], the same guy you told me was a
better love maker than me has your dog and you now have everything, thnx for
the humiliation and be proud.” State’s Ex. E; Tr. at 125. V.W. showed the text
message to C.C., and the police were called. Winamac Police Department
Officer Tyler Campbell (“Officer Campbell”) responded and saw the Protective
Order, which prevented Clemons “from having any direct or indirect contact
[with] either [V.W.] or [C.C.].” Tr. at 169. Officer Campbell contacted
dispatch to make sure that the Protective Order had been served on Clemons.
After viewing the text message, Officer Campbell called the number from which
the text message was sent and verified that it was Clemons’s number. Officer
Campbell left a voicemail for Clemons informing him of the Protective Order
and telling him “he needed to cease any further contact.” Id. at 172.
[7] Later on the night of March 9, at approximately 11:37 p.m., Clemons sent
another text message to V.W.’s phone that stated, “You are a piece of shot
who’re. Duck you for this. Duck you [C.C.].” State’s Ex. F; Tr. at 126-27.
V.W. again showed the message to C.C. Sometime after, another text message
was sent to V.W.’s phone by Clemons. This message consisted of a photo of
Clemons “flipping [them] off.” State’s Ex. G; Tr. at 127. On March 15, 2015, at
approximately 4:41 p.m., Clemons again sent a message to V.W.’s phone; this
message said, “[C.C.] . . . I tried to leave y’all alone but y’all want to play
games I got ur number game on puncks [sic].” State’s Ex. H; Tr. at 133-34.
Clemons also posted a message on C.C.’s Facebook page. As a result of this
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 4 of 15 contact by Clemons, both C.C. and V.W. were scared and fearful for their
safety.
[8] The State charged Clemons with two counts of stalking, one involving C.C.,
and the other involving V.W., which were enhanced to Level 5 felonies due to
the existence of the Protective Order. Clemons was also charged with three
counts of Class A misdemeanor invasion of privacy, two counts alleging
violations on March 9 involving C.C. and V.W. respectively, and one count
alleging a violation on March 15 involving C.C.3 A jury trial was held, at
which Clemons failed to appear, and he was tried in absentia. At trial,
Clemons’s counsel objected to the admission of State’s Exhibit J, which was a
printout of the service history of the Protective Order, and alleged an
insufficient foundation was provided to qualify the exhibit as a business record.
The trial court overruled the objection, and State’s Exhibit J was admitted into
evidence. At the conclusion of the trial, Clemons was convicted of two counts
of Level 5 felony stalking and three counts of Class A misdemeanor invasion of
privacy. He was sentenced to four years on each stalking conviction and one
year on each invasion of privacy conviction, with all of the sentences to be
served concurrent with each other for an aggregate sentence of four years
executed. Clemons now appeals.
3 The State also charged Clemons with a fourth count of Class A misdemeanor invasion of privacy alleging a violation on March 15 involving V.W., but that count was later dismissed.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 5 of 15 Discussion and Decision
I. Admission of Evidence [9] Generally, we review the trial court’s ruling on the admission of evidence for an
abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013)
(citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. We
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances. Id. Even if the trial court’s decision was an abuse of
discretion, we will not reverse if the admission constituted harmless error. Id.
“It is well-settled that ‘[t]he Court of Appeals may affirm the trial court’s ruling
[on the admissibility of evidence] if it is sustainable on any legal basis in the
record, even though it was not the reason enunciated by the trial court.’” Reeves
v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011) (quoting Scott v. State, 883
N.E.2d 147, 152 (Ind. Ct. App. 2008)), trans. denied.
[10] Clemons argues that the trial court abused its discretion when it allowed the
service history of the Protective Order, State’s Exhibit J, to be admitted into
evidence at trial. He claims that State’s Exhibit J was hearsay and that the State
failed to lay a proper foundation for the exhibit to be admitted under the
business records exception to the hearsay rule. Specifically, Clemons contends
that the witness who testified about State’s Exhibit J was not the keeper or the
custodian of the records and that there was no testimony to establish that the
information contained in State’s Exhibit J was imputed on a regular basis or
regularly made as is required by Indiana Evidence Rule 803(6). Clemons,
therefore, asserts that State’s Exhibit J was not properly admitted into evidence. Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 6 of 15 [11] We need not address Clemons’s hearsay argument because the service
information in State’s Exhibit J is cumulative of other evidence presented at
trial that established that Clemons was served or notified of the Protective
Order. The admission of evidence is harmless and is not grounds for reversal
where the evidence is merely cumulative of other evidence properly admitted.
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). Here, testimony was
presented of Pulaski County Sheriff’s Deputy Nicholas Bowyer (“Deputy
Bowyer”), who responded to C.C.’s residence on March 15, 2015 regarding a
text message sent by Clemons on that date. Deputy Bowyer testified that he
took the police report on that date and confirmed that the Protective Order was
valid and that it had previously been served on Clemons on March 4, 2015. Tr.
at 193-94. Additionally, Officer Campbell testified that he called Clemons on
March 9, 2015, personally notified Clemons of the Protective Order, and
advised Clemons to “cease any further contact with [C.C.] or possible criminal
prosecution could ensue.” Id. at 171-72. Indiana Courts have held that proper
service of an ex parte order is not required to prove that a respondent has
knowledge of the order. See Joslyn v. State, 942 N.E.2d 809, 811-12 (Ind. 2011)
(“[T]he statutes defining the crimes of stalking and invasion of privacy do not
require actual service of a protective order for a conviction.”). We, therefore,
conclude that any error in admitting State’s Exhibit J was harmless because
ample other evidence was presented that demonstrated that Clemons was given
notice of the Protective Order.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 7 of 15 II. Sufficient Evidence [12] The deferential standard of review for sufficiency claims is well settled. When
we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,
928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We also consider conflicting evidence in the light most
favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.
App. 2013), trans. denied. We will not disturb the jury’s verdict if there is
substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.
We will affirm unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.
2012). As the reviewing court, we respect “the jury’s exclusive province to
weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
[13] Clemons argues that the State failed to present sufficient evidence to support his
convictions for two counts of Level 5 felony stalking and three counts of Class
A misdemeanor invasion of privacy. In order to convict Clemons of stalking as
a Level 5 felony, the State was required to prove beyond a reasonable doubt
that he stalked another person, that a protective order to prevent domestic or
family violence under Indiana Code chapter 34-26-5 or Indiana Code chapter
34-4-5.1 had been issued to protect the same victim from Clemons, and that
Clemons had been given actual notice of the protective order. Ind. Code § 35-
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 8 of 15 45-10-5(a), (b)(2)(D). Stalk is defined as “a knowing or an intentional course of
conduct involving repeated or continuing harassment of another person that
would cause a reasonable person to feel terrorized, frightened, intimidated, or
threatened and that actually causes the victim to feel terrorized, frightened,
intimidated, or threatened.” Ind. Code § 35-45-10-1. In order to convict
Clemons of invasion of privacy as a Class A misdemeanor, the State was
required to prove beyond a reasonable doubt that he knowingly or intentionally
violated an ex parte protective order issued under Indiana Code chapter 34-26-
5. Ind. Code § 35-46-1-15.1(2).
[14] Clemons first challenges his convictions for stalking by claiming that he “was
charged with violating ‘a’ protective order that . . . never was introduced into
evidence.” Appellant’s Br. at 21. Because this was the basis of enhancing his
two stalking convictions to Level 5 felonies, Clemons asserts that the evidence
was insufficient to support his convictions for stalking as Level 5 felonies.
[15] In the present case, C.C. testified that she obtained the Protective Order against
Clemons after an incident of domestic abuse because she was afraid of Clemons
and for her life. Tr. at 109, 111-14. Officer Campbell testified that he saw the
Protective Order on the night of March 9, 2015 after responding to the dispatch
of the text messages. Id. at 169. Deputy Bowyer also testified that, on March
15, 2015, when he responded to C.C.’s residence, he confirmed the Protective
Order was valid and that it had been served on Clemons on March 4, 2015. Id.
at 194. Further, contrary to Clemons’s claim, the Protective Order itself was
admitted into evidence as State’s Exhibit D. Id. at 114; State’s Ex. D. The
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 9 of 15 Protective Order was an Ex Parte Order for Protection issued under the
authority of Indiana Code section 34-26-5-9(b) against Clemons on March 3,
2015. State’s Ex. D. The Protective Order was issued because C.C. had shown
that domestic violence had occurred, that Clemons represented a credible threat
to C.C.’s safety, and that the Protective Order was necessary to bring about the
cessation of the violence or threat of violence. Id. Although Clemons alleges
that C.C.’s testimony discussed two different protective orders, the evidence
presented at trial established that State’s Exhibit D was the only protective
order at issue in this case and the order on which the charges were based. We
conclude that sufficient evidence was presented to support the existence of a
protective order to enhance stalking to a Level 5 felony.
[16] Clemons next argues that insufficient evidence was presented to support the
enhancement of Count 2 stalking to a Level 5 felony and to support Count 4
invasion of privacy because the evidence did not establish that Clemons knew
or was notified that the Protective Order named V.W. as a protected individual.
Clemons asserts that V.W.’s name does not appear anywhere on the Protective
Order and that V.W. was not mentioned as a protected person in State’s Exhibit
D. Clemons contends that pursuant to Indiana Code section 34-26-5-9(b),
under which the Protective Order was issued, a “court may grant the following
relief without notice and hearing in an ex parte order for protection . . .: (1)
Enjoin a respondent from threatening to commit or committing acts of
domestic or family violence against a petitioner and each designated family or
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 10 of 15 household member,” and because V.W. was not designated in the Protective
Order, insufficient evidence was presented. We agree.
[17] In the present case, State’s Exhibit D was the Protective Order at issue, the
violation of which was the subject of the charges against Clemons. On the face
of State’s Exhibit D, C.C. is clearly listed as the Petitioner, and Clemons is
clearly prohibited from having contact with C.C. State’s Ex. D. However,
nowhere in State’s Exhibit D does V.W.’s name appear. Id. Under the heading
Findings, it states, “This order does/does not protect an intimate partner or
child”; however, neither “does” nor “does not” is circled. Id. Under the
heading Order, paragraph 1 is checked and provides, “The Respondent is
hereby enjoined from threatening to commit or committing acts of domestic or
family violence, stalking, or a sex offense against the Petitioner and the
following designated family or household members, if any”; the lines following
are blank and do not contain V.W.’s or any other name. Id.
[18] Under Indiana Code subsections 35-45-10-5(a), (b)(2)(D), in order for the crime
of stalking to be elevated to a Level 5 felony, the State is required to prove
beyond a reasonable doubt that a protective order to prevent domestic or family
violence under Indiana Code chapter 34-26-5 or Indiana Code chapter 34-4-5.1
had been issued to protect the victim from the defendant and that the defendant
had been given actual notice of the protective order. Under Indiana Code section
35-46-1-15.1(2), in order to convict a defendant of invasion of privacy as a Class
A misdemeanor, the State is required to prove beyond a reasonable doubt that
the defendant knowingly or intentionally violated an ex parte protective order
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 11 of 15 issued under Indiana Code chapter 34-26-5. Here, although evidence was
presented that Clemons was served with the Protective Order, because the
Protective Order did not contain V.W.’s name as a protected person, the State
did not present evidence that Clemons was given actual notice of the Protective
Order as it related to V.W. or that Clemons knowingly or intentionally violated
the Protective Order as to V.W.
[19] The State contends that testimony by C.C. and Officer Campbell established
that V.W. was included in the Protective Order, tr. at 113, 169, and was
sufficient to support Clemons’s convictions. However, we conclude that this
testimony did not establish that Clemons was given actual notice of the
Protective Order and any prohibition of contact with V.W. or that Clemons
knowingly or intentionally violated the Protective Order regarding V.W. We,
therefore, vacate the enhancement of Count 2 to Level 5 felony stalking,
reducing it to Level 6 felony stalking, and we reverse Clemons’s conviction for
Count 4, Class A misdemeanor invasion of privacy.
[20] Lastly, Clemons argues that the evidence was insufficient to support his
convictions for stalking.4 He contends that the evidence that he drove past
C.C.’s residence was not sufficient to support his conviction because he was
4 Although Clemons concludes his argument section with the statement, “The evidence was not sufficient to support judgment of conviction on any count, Appellant’s Br. at 28, the text of his argument does not make any reference to his invasion of privacy convictions and only addresses his stalking convictions. We, therefore, find that he has waived any contention that his remaining invasion of privacy convictions, Counts 3 and 5, were not supported by sufficient evidence for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 12 of 15 engaged in constitutionally protected activity as he was traveling on a public
road and had no control of the vehicle as he was the passenger in the car.
Clemons also claims that all of the text messages were sent to V.W.’s phone,
and because V.W. was not included on the Protective Order, this evidence did
not support his convictions for stalking. Clemons further asserts that it was not
clear on what date he posted the message to C.C.’s Facebook page, so it was
not proven to be made after the Protective Order was issued.
[21] The definition of stalk is stated as, “a knowing or an intentional course of
conduct involving repeated or continuing harassment of another person that
would cause a reasonable person to feel terrorized, frightened, intimidated, or
threatened and that actually causes the victim to feel terrorized, frightened,
intimidated, or threatened.” Ind. Code § 35-45-10-1. The definition of stalk
does not include statutorily or constitutionally protected activity. Id. Here, the
evidence presented at trial showed that although C.C. lived in a different town
that was approximately twenty minutes away from where Clemons lived,
Clemons drove by the home twice, once in March 2015 and once in April 2015.
Clemons had no legitimate reason for driving past as he did not live or work
nearby, and one of the times he drove past, C.C. observed a car in which
Clemons was a passenger drive by slowly, and Clemons stared at C.C.,
frightening her. Clemons’s reliance on VanHorn v. State, 889 N.E.2d 908 (Ind.
Ct. App. 2008), trans. denied, to support that his actions of driving on a public
road are constitutionally protected is misplaced. In VanHorn, no protective
order had been issued so the defendant had no notice of the impermissibility of
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 13 of 15 his conduct in a public place where he parked near the complainants’ house and
looked at their house on several occasions. Id. at 911-13. Here, a protective
order had been issued, and Clemons had notice that he was prohibited from
contacting C.C.
[22] The Protective Order prohibited Clemons from “harassing, annoying,
telephoning, contacting, or directly or indirectly communicating” with C.C.
State’s Ex. D. The evidence presented at trial showed that, on different days,
Clemons sent multiple harassing text messages that were directed to C.C. to
V.W.’s phone. Although the messages were sent to V.W.’s phone, they were
clearly directed to C.C., Clemons had been explicitly prohibited from
contacting C.C. both directly and indirectly. Based on this evidence, the jury
could reasonably infer that Clemons was attempting to contact C.C. when he
sent the text messages and, therefore, violating the Protective Order. As a result
of receiving these messages and of Clemons’s other behavior, both C.C. and
V.W. testified that they felt threatened by and frightened of Clemons. Tr. at
135, 155. We conclude that sufficient evidence was presented from which a
reasonable jury could find that Clemons knowingly or intentionally harassed
both C.C. and V.W. in a way that would cause a reasonable person to feel
terrorized, frightened, intimidated, or threatened and that actually caused them
to feel terrorized, frightened, intimidated, or threatened. See Ind. Code § 35-45-
10-1. Sufficient evidence was presented to support Clemons’s convictions for
Level 5 felony stalking relating to C.C. and Level 6 felony stalking relating to
V.W.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 14 of 15 [23] In conclusion, we find that even if there was an error in the admission of State’s
Exhibit J, it was harmless because the exhibit was merely cumulative of other
evidence that was properly admitted. We conclude that sufficient evidence was
presented to support the existence of a protective order to enhance the stalking
of C.C. to a Level 5 felony as to Count 1; however, we find that the State
presented insufficient evidence to prove that Clemons was given actual notice of
the Protective Order as it related to V.W. or that Clemons knowingly or
intentionally violated the Protective Order as to V.W. Further, based on the
evidence presented at trial, we conclude that sufficient evidence was presented
to prove that Clemons stalked both C.C. and V.W. Based on these conclusions,
we vacate the enhancement of Count 2 and reduce Clemons’s Level 5 felony
stalking conviction to Level 6 felony stalking, and we reverse Clemons’s
conviction for Count 4, Class A misdemeanor invasion of privacy. We affirm
all of Clemons’s other convictions and remand with instructions to enter
judgment consistent with this decision.
[24] Affirmed in part, reversed in part, and remanded.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 66A05-1604-CR-770 | November 30, 2016 Page 15 of 15