Dennis Linderman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 13, 2016
• Docket: 49A05-1602-CR-398
• Status: Published

Opinion

MEMORANDUM DECISION FILED Oct 13 2016, 6:33 am

Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court

purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis Linderman, October 13, 2016

Appellant-Defendant, Court of Appeals Case No. 49A05-1602-CR-398 v. Appeal from the Marion Superior Court. The Honorable Patrick Murphy, State of Indiana, Magistrate. Appellee-Plaintiff. The Honorable Angela Dow Davis, Judge. Cause No. 49G16-1511-CM-38856

Shepard, Senior Judge

[1] Dennis Linderman appeals his conviction of invasion of privacy, a Class A

misdemeanor. Ind. Code § 35-46-1-15.1 (2014). We affirm.

Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-398 | October 13, 2016 Page 1 of 5 Facts and Procedural History [2] Linderman and his wife, Kelly Linderman, were estranged. She obtained a no

contact order against Linderman, which he signed in October 2015. Directly

above Linderman’s signature, the order stated: “I have read the above Order

and I understand it. A copy of this Order has been given to me.” State’s Ex. 1.

The order directed Linderman to avoid any contact with Kelly, whether in

person, by telephone, or through an intermediary, until “further order of the

court.” Id.

[3] On November 2, 2015, the police were dispatched to Kelly’s house to

investigate a domestic disturbance. An officer encountered Linderman on the

front porch. After speaking with Kelly, the officer determined that she had an

active no contact order against Linderman and arrested him.

[4] The State charged Linderman with invasion of privacy and several other

misdemeanors. A jury determined he was guilty of invasion of privacy and not

guilty of the other charges.

Issue [5] Linderman raises one issue: whether there is sufficient evidence to sustain his

conviction.

Discussion and Decision [6] Linderman claims the State failed to provide sufficient evidence to support his

conviction because he “mistakenly and honestly believed” that he was not

Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-398 | October 13, 2016 Page 2 of 5 violating the no contact order because Kelly invited him to the house. In

reviewing a sufficiency, we affirm unless no reasonable trier of fact could have

found each of the elements of a crime proven beyond a reasonable doubt. Smith

v. State, 8 N.E.3d 668 (Ind. 2014). We neither reweigh evidence nor assess the

credibility of witnesses. Id.

[7] To obtain a conviction for invasion of privacy as charged, the State was

required to prove beyond a reasonable doubt that Linderman (1) knowingly or

intentionally (2) violated a valid no contact order. Ind. Code § 35-46-1-15.1.

[8] It is undisputed that at all times relevant to this case, there was a valid no

contact order in place which prohibited Linderman from contacting Kelly.

[9] As for Linderman’s knowledge, Kelly testified that on October 31, 2015,

Linderman’s son from a prior relationship called her, asking her to call a phone

number. When she did, Linderman answered. He wanted Kelly to come pick

him up and talk. Kelly reminded Linderman of the no contact order. He said

he thought it was only for her children from a prior relationship, but she

pointed out that it was for her. Kelly was not at home at the time, but she said

he could go to the marital house to pick up some personal items. Kelly told

Linderman he could not stay at the house.

[10] When she returned to the house with her daughter and a cousin later on that

same day, Linderman was in the fenced-in yard. He was angry to see that Kelly

was not alone. Eventually, Kelly’s companions left. Kelly repeatedly asked

Linderman to gather his personal items and leave, but he refused. Instead, he

Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-398 | October 13, 2016 Page 3 of 5 stayed at the house until the police arrived on November 2, leaving only once

on November 1 to go get dinner with Kelly and his son. After returning home

from the dinner, Linderman drank heavily, yelled at Kelly, and repeatedly

prevented her from calling 911 until she finally succeeded.

[11] This is ample evidence from which the jury could have determined beyond a

reasonable doubt that Linderman knowingly or intentionally violated the no

contact order—first, by contacting her telephonically through an intermediary,

and second, by coming to the house and refusing to leave. See Dixon v. State,

869 N.E.2d 516 (Ind. Ct. App. 2007) (invasion of privacy conviction affirmed

where officer made defendant aware of a protective order against him, but

defendant later returned to the protected person’s residence).

[12] Linderman claims Kelly told him he could stay at the house and that he

thought the no contact order applied only to Kelly’s children. This argument is

a request to reweigh the evidence. Linderman further claims he believed in

good faith that he did not violate the protective order because Kelly allowed

him to come to the house. He thus raises a mistake of fact defense.

[13] Pursuant to statute, “it is a defense that the person who engaged in the

prohibited conduct was reasonably mistaken about a matter of fact, if the

mistake negates the culpability required for commission of the offense.” Ind.

Code § 35-41-3-7 (1977). When the State has made a prima facie case of guilt,

the burden shifts to the defendant to establish three elements: (1) the mistake is

honest and reasonable; (2) the mistake was about a matter of fact; and (3) the

Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-398 | October 13, 2016 Page 4 of 5 mistake negates the culpability required to commit the crime. Chavers v. State,

991 N.E.2d 148 (Ind. Ct. App. 2013), trans. denied. We look only to the

evidence and reasonable inferences supporting the judgment, and we will not

disturb the finder of fact’s credibility determinations. Id.

[14] Any mistake by Linderman was not honest or reasonable. He signed the

protective order and indicated that he had read it. It explicitly stated: “If so

ordered by the court, the respondent is forbidden to enter or stay at the

petitioner’s residence or residence of any child who is the subject of this order,

even if invited to do so by the petitioner or any other person.” State’s Ex. 1.

The order lists Kelly, not her children, as the subject of the no contact order.

Moreover, though Kelly allowed Linderman to come to the house to gather

personal items, she told him: (1) the no contact order was for her, not her

children; and (2) he would not be allowed to stay at the house. Based on the

plain language of the order and Linderman’s testimony, the jury appropriately

rejected his claim that he was mistaken as to the order’s terms.

Conclusion [15] For the reasons stated above, we affirm the judgment of the trial court.

[16] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-398 | October 13, 2016 Page 5 of 5