Margie Rene Mayhill v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 8, 2017
• Docket: 30A01-1610-CR-2340
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 08 2017, 8:16 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicole A. Zelin Curtis T. Hill, Jr. Pritzke & Davis, LLP Attorney General of Indiana Greenfield, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Margie Rene Mayhill, March 8, 2017 Appellant-Defendant, Court of Appeals Case No. 30A01-1610-CR-2340 v. Appeal from the Hancock Superior Court State of Indiana, The Honorable Dan E. Marshall, Appellee-Plaintiff Judge Trial Court Cause No. 30D02-1512-CM-1926

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 1 of 8 Case Summary [1] Margie Rene Mayhill appeals her conviction, following a jury trial, for class A

misdemeanor invasion of privacy. She asserts that the State presented

insufficient evidence to support her conviction and that the trial court

committed fundamental error in failing to administer an oath to one of the

witnesses who testified at trial. Finding the evidence sufficient and no

fundamental error, we affirm.

Facts and Procedural History [2] On November 5, 2015, the Hancock Superior Court issued an ex parte order for

protection prohibiting Mayhill from “threatening to commit or committing acts

of domestic or family violence, stalking or a sex offense against petitioner

[H.A.]” State’s Ex. 2. The order also prohibited Mayhill from “harassing,

annoying, telephoning, contacting, or directly or indirectly communicating with

[H.A.]” Id. The sheriff served Mayhill with the protection order on November

12, 2015.

[3] On November 18, 2015, Mayhill drove a borrowed vehicle to the residence of

Bruce Townsend, Sr. (“Senior”), to pick up Bruce Townsend, Jr. (“Junior”),

because Junior had previously told Mayhill that he would fix her broken vehicle

if she came to pick him up. When Mayhill arrived at the residence, H.A.’s

truck was parked in the driveway, and H.A. and Junior were sitting inside the

truck. Junior works for H.A., and H.A. was there to pick up Junior for work.

Senior was standing on the front porch of the residence when he observed

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 2 of 8 Mayhill communicating with H.A. Specifically, she had exited her vehicle and

was “raising all kinds of heck, this and that, cussing [at H.A.], hitting and

pulled his beard and so on.” Tr. at 41. Senior called 911 and informed the

dispatcher that Mayhill was on his property and refusing to leave, and that she

was fighting with and screaming at H.A. Senior stated that Mayhill was driving

a green Ford Ranger.

[4] Hancock County Sheriff’s Deputy Russell Silver was dispatched to Senior’s

home. However, he passed a green Ford Ranger driving away from the home,

so he performed a traffic stop of the vehicle. Deputy Silver spoke with Mayhill,

who acknowledged the existence of the order of protection regarding H.A., but

stated that she immediately backed out of Senior’s driveway and left when she

saw H.A.’s vehicle. Deputy Silver then went to Senior’s residence to

investigate. H.A. was no longer at the residence, but Senior reported that

Mayhill did not immediately leave his residence after she arrived, and that he

witnessed Mayhill yelling at and arguing with H.A.

[5] Thereafter, the State charged Mayhill with class A misdemeanor invasion of

privacy. Following a jury trial, Mayhill was found guilty as charged. The trial

court sentenced Mayhill to 365 days suspended to probation. This appeal

ensued.

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 3 of 8 Discussion and Decision

Section 1 – The State presented sufficient evidence to support Mayhill’s conviction. [6] Mayhill contends that the State presented insufficient evidence to support her

conviction. When reviewing a claim of insufficient evidence, we neither

reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

therefrom that support the conviction, and will affirm if there is probative

evidence from which a reasonable factfinder could have found the defendant

guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

trier of fact is enough to support the conviction, then the reviewing court will

not disturb it. Id. at 500.

[7] To convict Mayhill of invasion of privacy, the State was required to prove that

Mayhill knowingly or intentionally violated an ex parte protection order issued

under Indiana Code Chapter 34-26-5. See Ind. Code § 35-46-1-15.1(2).1 A

person engages in conduct “knowingly” if, when she engages in the conduct,

she is aware of a high probability that she is doing so. Ind. Code § 35-41-2-2(a).

Mayhill contends that there is insufficient evidence that she knowingly violated

the protection order because she was unaware that H.A. would be at Senior’s

house when she traveled there, and that any contact she had with him was

1 Mayhill concedes that the evidence establishes that a valid ex parte protection order was issued and that she was aware of that order.

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 4 of 8 merely “incidental” because she “immediately backed her vehicle up out of the

driveway and drove away” when she saw H.A.’s car. Appellant’s Br. at 8;

Reply Br. at 5; Tr. at 98.

[8] Contrary to Mayhill’s claim, Senior testified that Mayhill did not immediately

leave the residence and that he witnessed Mayhill communicate and have direct

contact with H.A. when she argued with him, cursed at him, and touched him.

Mayhill maintains that Senior was not truthful, and urges us to give more credit

to her self-serving testimony as well as other evidence in the record that she

claims supports her version of events. However, it was the jury’s prerogative to

assess the evidence, and Mayhill’s argument is simply an invitation for this

Court to reweigh that evidence and reassess witness credibility, which we

cannot do. The evidence most favorable to the jury’s verdict supports a

reasonable inference that Mayhill knowingly violated the protection order. The

State presented sufficient evidence to support Mayhill’s conviction.

Section 2 – Mayhill has not established fundamental error. [9] Mayhill next asserts that reversible error occurred because the trial court failed

to administer an oath to Deputy Silver before he testified at trial. Indiana

Evidence Rule 603 provides that “[b]efore testifying, a witness must give an

oath or affirmation to testify truthfully. It must be in a form designed to

impress that duty on the witness’s conscience.” Similarly, Indiana Code Section

34-45-1-2 provides: “Before testifying, every witness shall be sworn to testify the

truth, the whole truth, and nothing but the truth. The mode of administering an

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 5 of 8 oath must be the most consistent with and binding upon the conscience of the

person to whom the oath may be administered.”

[10] Because Mayhill failed to object to this claimed error at trial, she asserts that the

trial court committed fundamental error.2 See Treadway v. State, 924 N.E.2d

621, 633 (Ind. 2010) (failure to object at trial waives the issue for review unless

fundamental error occurred). The fundamental error doctrine is extremely

narrow and applies only when the error constitutes a blatant violation of basic

principles, the harm or potential for harm is substantial, and the resulting error

denies the defendant fundamental due process. Mathews v. State, 849 N.E.2d

578, 587 (Ind. 2006). “To qualify as fundamental error, an error must be so

prejudicial to the rights of the defendant to make a fair trial impossible.” Brown

v. State, 799 N.E.2d 1064, 1067 (Ind. 2003) (citation and quotation marks

omitted).

[11] We observe that the transcript says “Russell Silver[:] Not having been sworn to

testify to the truth, the whole truth and nothing but the truth was examined and

testified as follows.” Tr. at 66. Because we presume that the transcript as

presented accurately reflects the proceedings, we must conclude that the trial

court in fact failed to administer an oath to Deputy Silver.3 Nevertheless, we

2 We note that twice in her reply brief, Mayhill states that “the trial court did not commit fundamental error.” Reply Br. at 2, 6 (emphasis added). Because the crux of her claim is that the court did commit fundamental error, we assume that these were simply misstatements. 3 While the State questions the accuracy of the transcript, the State acknowledges that Indiana Appellate Rule 32(A) provides that a party may move the trial court to resolve a disagreement as to whether the

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 6 of 8 cannot say that such error was so prejudicial to Mayhill’s rights as to make a

fair trial impossible.

[12] Significantly, during Deputy Silver’s testimony, Mayhill’s counsel questioned

him about his probable cause affidavit in this case and noted that “it’s under

oath” and Deputy Silver responded, “Yes.” Id. at 78. Then counsel specifically

inquired, “Same as what you’re under oath here today[?]” and Deputy Silver

again responded, “Yes.” Id. Hence, it is clear that Deputy Silver subjectively

believed that he was under oath when he testified and that the duty to testify

truthfully was impressed upon his conscience. Moreover, much of Deputy

Silver’s testimony regarding Mayhill’s commission of the crime was merely

cumulative of Senior’s testimony which was given under proper oath.

Accordingly, the trial court’s failure to administer an oath and any error in the

admission of Deputy Silver’s testimony would not rise to level of fundamental

error. See Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (erroneous

admission of evidence does not justify reversal if evidence is cumulative of other

evidence presented at trial).

[13] Mayhill’s sole assertion of prejudice is that the trial court’s failure to administer

an oath to Deputy Silver effectively deprived her of her constitutional right to

confrontation.4 This assertion is not supported by the record. Mayhill’s counsel

transcript “accurately discloses what occurred in the trial court.” The State has chosen not to invoke this procedure. 4 Mayhill’s argument in this regard is very poorly developed and could have been deemed waived on appeal. See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (a party waives an issue where she fails to

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 7 of 8 engaged in a lengthy and thorough cross-examination of Deputy Silver, during

which counsel was able to point out alleged inconsistencies between the

probable cause affidavit and Deputy Silver’s trial testimony. In addition,

Mayhill’s counsel utilized Deputy Silver’s testimony to identify and admit

several defense photographic exhibits. Id. at 77. Under the circumstances,

Mayhill was not deprived of her right to confrontation, and she has failed to

demonstrate that prejudicial error occurred such that a fair trial was impossible.

Mayhill’s conviction is affirmed.

[14] Affirmed.

Riley, J., and Altice, J., concur.

develop a cogent argument or provide adequate citation to authority or portions of the record). However, we choose to briefly address and dispose of it.

Court of Appeals of Indiana | Memorandum Decision 30A01-1610-CR-2340 | March 8, 2017 Page 8 of 8