Eddie Long v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 19, 2015
• Docket: 49A02-1406-CR-419
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 19 2015, 10:12 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana Graham T. Youngs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eddie Long, February 19, 2015

Appellant-Defendant, Court of Appeals Cause No. 49A02-1406-CR-419 v. Appeal from the Marion Superior Court. State of Indiana, The Honorable Gary Miller, Judge. Cause No. 49G21-1312-CM-76912 Appellee-Plaintiff

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion [ 49A02-1406-CR-419 | February 19, 2015 Page 1 of 5 STATEMENT OF THE CASE

Appellant-Defendant, Eddie Long (Long), appeals his conviction for invasion

of privacy, a Class A misdemeanor, Ind. Code § 35-46-1-15.1(1) (2013).

We affirm.

ISSUE

Long raises one issues on appeal which we restate as: Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain Long’s

conviction.

FACTS AND PROCEDURAL HISTORY

In October of 2012, a fifteen-year relationship between Long and his live-in

girlfriend Coleen McKinley (McKinley) ended, and McKinley moved out of

their home. McKinley left a letter addressed to Long stating her reasons for

moving out. In addition, because McKinley owed Long some money, she left

two years’ worth of postdated checks each in the amount of $850, all to be

cashed monthly.

On March 28, 2013, the Shelby Circuit Court issued an ex parte protective order

which ordered Long to have no contact with McKinley for a period of two

years. On November 18, 2013, McKinley received a phone call from an

unknown number. When she picked up, McKinley recognized Long’s voice on

the other end. When McKinley threatened to hang up and call the police, Long

Court of Appeals of Indiana | Memorandum Opinion [ 49A02-1406-CR-419 | February 19, 2015 Page 2 of 5 answered back by saying, “I love you [] I don’t want to hurt you financially.”

(Transcript p. 40).

On December 3, 2013, the State filed an Information charging Long with

invasion of privacy, a Class A misdemeanor, I.C. § 35-46-1-15.1. A bench trial

was conducted on May 21, 2014. During the trial, Long admitted that he was

aware of the protective order and that he did make a phone call to McKinley.

However, Long stated that he only contacted McKinley in an effort to collect a

debt. Long argued that 15 U.S.C. § 1692(c) of the Fair Debt Collection

Practices Act (FDCPA) authorized him to contact McKinley for the purposes

of collecting the debt she owed. At the close of the evidence, the trial court

found that there was no exception to the protective order statute, even for the

collection of a debt. The trial court then sentenced Long to 365 days in Marion

County Jail with credit for 4 days served, and the balance of 361 days to be

suspended upon successful completion of probation.

Long now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Long claims that there is insufficient evidence to sustain his conviction of

invasion of privacy. Our standard of review for sufficiency claims is well settled.

We neither reweigh the evidence nor judge the credibility of the witnesses.

Perrey v. State, 824 N.E.2d 372, 373 (Ind. Ct. App. 2005), trans. denied. We only

consider the evidence most favorable to the judgment and the reasonable

Court of Appeals of Indiana | Memorandum Opinion [ 49A02-1406-CR-419 | February 19, 2015 Page 3 of 5 inferences to be drawn therefrom. Id. Where there is substantial evidence of

probative value to support the judgment, it will not be set aside. Id.

To convict Long of invasion of privacy, the State had to prove that Long

knowingly or intentionally violated a protective order. See I.C. § 35-46-1-15.1.

Long’s leading argument is that “his intent was not to harass or annoy []

McKinley but to attempt to collect on a debt.” (Appellant’s Br. p. 6). At trial,

Long introduced evidence that the checks McKinley wrote to him bounced,

that McKinley had closed her bank account, and that FDCPA authorized him

contact McKinley to collect his debt. We reject Long’s arguments for two

reasons. First, we note that Congress created the FDCPA to prohibit debt

collectors from using unfair, deceptive, or abusive practices when collecting

consumer debts. The FDCPA places numerous restrictions on what debt

collectors are allowed to do when collecting debts and provides consumers with

certain rights and remedies against those who violate any of its provisions. As

such, Long cannot use the act to collect his debt because the FDCPA principal

purposes is to prohibit debt collectors from using unfair practices to collect

debts. Secondly, we note that the statute generally applies to third party debt

collectors, and not to individual creditors. For the foregoing reasons, Long

cannot use the act evade the order of protection.

In the instant case, the ex parte protective order prohibited Long from

1 . . . . committing acts of domestic violence or family violence, stalking . . . 2. . . . harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [McKinley] except:_____ Court of Appeals of Indiana | Memorandum Opinion [ 49A02-1406-CR-419 | February 19, 2015 Page 4 of 5 (State’s Exh. 1). Thus, Long was barred from contacting McKinley under any

setting. During trial, Long testified that he knew the ex parte order was still in

effect when he called McKinley in November of 2013. At trial, McKinley

testified that Long’s contact was unwelcomed, disturbing, and upsetting.

Because the trial court did not specifically permit Long to contact McKinley

under any conditions, Long’s phone call in an attempt to collect his debt

violated the ex parte protective order and constituted invasion of privacy.

CONCLUSION

Based on the foregoing, we find that there is sufficient evidence to support

Long’s conviction of invasion of privacy.

Affirmed

Vaidik, C.J. and Baker, J. concur

Court of Appeals of Indiana | Memorandum Opinion [ 49A02-1406-CR-419 | February 19, 2015 Page 5 of 5