James D. Benge v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 17, 2015
• Docket: 67A01-1409-CR-393
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 17 2015, 10:43 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 Joel C. Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Kenneth E. Biggins Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James D. Benge, April 17, 2015

Appellant-Defendant, Court of Appeals Cause No. 67A01-1409-CR-393 v. Appeal from the Putnam Superior Court Cause Nos. 67D01-1304-CM-166, State of Indiana, 67D01-1304-CM-170 Appellee-Plaintiff. The Honorable Thomas Milligan, Senior Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 67A01-1409-CR-393 | April 17, 2015 Page 1 of 5 Case Summary [1] James Benge appeals his conviction for Class A misdemeanor invasion of

privacy. We affirm.

Issue Benge raises one issue, which we restate as whether there is sufficient evidence

to support his conviction.

Facts [2] In the March 2013, Benge and his wife, Melissa Benge, were separated, and she

had filed for divorce. The couple had one daughter and exchanged custody at

the Greencastle Police Department. At a March 19, 2013 hearing related to the

dissolution, an order of protection was issued prohibiting Benge “from

harassing, annoying, telephoning, contacting or directly or indirectly

communicating with” Melissa. Cause No. 166 Ex. 1. The child was not

removed from the protective order to allow for parenting time.

[3] During a custody exchange on March 24, 2013, Melissa arrived at the police

station before Benge. When Benge arrived, he left their child in his car and

walked over to Melissa’s car. Melissa described Benge as “irritated” about the

protective order and pending criminal charges. Tr. p. 67. Benge asked Melissa

about Kevin Strezlic and wanted to know who Strezlic was and how Melissa

knew Strezlic because he had become Facebook friends with Melissa. Benge

also told Melissa he wanted to meet Strezlic. Melissa told Benge it was none of

Court of Appeals of Indiana | Memorandum Decision 67A01-1409-CR-393 | April 17, 2015 Page 2 of 5 his business, and the conversation lasted for ten to fifteen minutes. The

conversation did not relate to the couples’ child.

[4] On April 4, 2013, the State charged Benge with two counts of Class A

misdemeanor invasion of privacy.1 A bench trial was held, and the trial court

found Benge guilty as charged. In doing so, the trial court stated:

the Court believes that Mr. Benge initiated the conversation about Mr. Strezlic . . . and wanted to know about him and that that’s a communication that’s not about the child. . . . I think that it’s beyond the exception that’s allowed by the Protective Order. Tr. pp. 92-93. Benge now appeals.

Analysis [5] Benge argues that there is insufficient evidence to support his conviction for

Class A misdemeanor invasion of privacy. When reviewing a challenge to the

sufficiency of the evidence, we neither reweigh the evidence nor assess the

credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We

view the evidence—even if conflicting—and all reasonable inferences drawn

from it in a light most favorable to the conviction and affirm if there is

substantial evidence of probative value supporting each element of the crime

1 On March 31, 2013, another incident occurred during a custody exchange, and Benge was charged with a second count of Class A misdemeanor invasion of privacy. Benge does not challenge that conviction. He was also charged in a separate information with a third count of Class A misdemeanor invasion of privacy, which arose out of an April 3, 2013 incident. Information relating to that charge and the transcript of that trial is included in the record on appeal. Because Benge only challenges the March 24, 2013 incident, we limit the facts and our analysis to that incident. In this regard, Benge’s reference to the trial court’s finding about the April 3, 2013 incident is not relevant to our analysis. See Tr. pp. 58-59.

Court of Appeals of Indiana | Memorandum Decision 67A01-1409-CR-393 | April 17, 2015 Page 3 of 5 from which a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt. Id.

[6] A person who knowingly or intentionally violates a protective order to prevent

domestic or family violence commits invasion of privacy, a Class A

misdemeanor. Ind. Code § 35-46-1-15.1(1). Benge argues that his

communication with Melissa on March 24, 2013 was not beyond the bounds of

innocent communications accompanying a typical child exchange and was not

harassing or annoying.

[7] We disagree. The protective order specifically prohibited Benge “from

harassing, annoying, telephoning, contacting or directly or indirectly

communicating with” Melissa. Cause No. 166 Ex. 1. Benge was irritated

when he spoke with Melissa while the child remained in his car. During the ten

to fifteen minute conversation, Benge questioned Melissa about her relationship

with another man and asked to meet him. Melissa specifically testified that the

conversation did not relate to the couple’s child. The trial court was able to

assess Melissa’s and Benge’s credibility when they testified at trial and found

that the conversation was not a communication about the child and went

beyond the exception for supervised parenting time. There is sufficient

evidence to establish that Benge knowingly or intentionally contacted and/or

communicated with Melissa in violation of the protective order.

Court of Appeals of Indiana | Memorandum Decision 67A01-1409-CR-393 | April 17, 2015 Page 4 of 5 Conclusion [8] There is sufficient evidence to support Benge’s conviction for Class A

misdemeanor invasion of privacy. We affirm.

[9] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 67A01-1409-CR-393 | April 17, 2015 Page 5 of 5