Demarco Delray Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 28, 2020
• Docket: 20A-CR-1476
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 28 2020, 8:56 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General Brooklyn, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Demarco Delray Johnson, December 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1476 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Appellee-Plaintiff David D. Kiely, Judge The Honorable Gary J. Schutte, Magistrate Trial Court Cause No. 82C01-1908-F6-5333

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 1 of 4 Case Summary [1] DeMarco Delray Johnson was convicted of Class A misdemeanor invasion of

privacy for violating a no-contact order. He now appeals, arguing the evidence

is insufficient to support his conviction. We affirm.

Facts and Procedural History [2] On June 11, 2019, the State charged Johnson with Level 6 felony residential

entry for breaking and entering the Evansville home of Timothy and Merry

Patrick. An initial hearing was held the next day, June 12. Although the initial

hearing has not been transcribed, the CCS entry reflects the trial court ordered

Johnson to have “[n]o contact with Merr[y] Patrick or Timothy Patrick.” Ex. 4,

p. 12.

[3] Later that same day, Johnson asked his cellmate, Fitolay Demesmin, to write a

letter to the Patricks asking them to drop the case. Johnson explained the trial

court had issued a no-contact order prohibiting him from contacting the

Patricks and “he didn’t want to get in trouble for contacting” them himself. Tr.

p. 103. Johnson asked Demesmin to include in the letter he did not know

Demesmin was writing the letter “so that way if [the police] [found] out about

it,” “he could say he didn’t know.” Id. at 103, 104. Demesmin did as he was

asked and began his letter to the Patricks as follows: “I’m writing you on behalf

of a mutual friend. He doesn’t know that I’m writing you.” Ex. 2, p. 7. The

letter was dated June 12.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 2 of 4 [4] The next day, June 13, the trial court issued a written no-contact order, which

prohibited Johnson from “directly or indirectly” contacting the Patricks. Ex. 5,

p. 24. The Patricks received Demesmin’s letter on June 14 and contacted the

police. The State charged Johnson with Class A misdemeanor invasion of

privacy. A jury found him guilty, and the trial court sentenced him to one year

in jail.1

[5] Johnson now appeals.

Discussion and Decision [6] Johnson contends the evidence is insufficient to support his conviction. When

reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence

nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.

2015). We will only consider the evidence supporting the verdict and any

reasonable inferences that can be drawn from the evidence. Id. A conviction

will be affirmed if there is substantial evidence of probative value to support

each element of the offense such that a reasonable trier of fact could have found

the defendant guilty beyond a reasonable doubt. Id.

[7] To convict Johnson of Class A misdemeanor invasion of privacy as charged

here, the State had to prove beyond a reasonable doubt he knowingly violated

1 The trial court consolidated the residential-entry and invasion-of-privacy cause numbers, and a jury trial was held on both counts. The jury found Johnson not guilty of residential entry.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 3 of 4 the no-contact order, which prohibited him from directly or indirectly

contacting the Patricks. See Ind. Code § 35-46-1-15.1(a)(11); Appellant’s App.

Vol. II p. 16; Ex. 5, p. 24. Johnson argues the State failed to prove he knew he

was prohibited from indirectly contacting the Patricks. He notes the CCS entry

does not reflect indirect contact was specifically prohibited, the State did not

have the initial hearing transcribed—which would have shown exactly what the

trial court advised him, and the written no-contact order—which clarified

indirect contact was prohibited—was not issued until the day after the letter

was written.

[8] Even without the transcript from the initial hearing, the evidence shows

Johnson knew he was prohibited from indirectly contacting the Patricks. After

the initial hearing, Johnson returned to the jail and asked his cellmate to write a

letter to the Patricks asking them to drop the case. Johnson did not simply ask

Demesmin to write a letter to the Patricks on his behalf. Johnson also asked

Demesmin to pretend he did not know the letter was being written so he could

later claim he knew nothing about it. This was strong evidence from which the

jury could reasonably conclude Johnson knew he was prohibited from

indirectly contacting the Patricks. Accordingly, we affirm Johnson’s conviction

for invasion of privacy.

[9] Affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1476 | December 28, 2020 Page 4 of 4