Mark T. Hager v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 17, 2016
• Docket: 33A04-1604-CR-759
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 17 2016, 9:09 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark T. Hager, October 17, 2016 Appellant-Defendant, Court of Appeals Case No. 33A04-1604-CR-759 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Bob A. Witham, Appellee-Plaintiff. Judge Trial Court Cause No. 33C03-1509-F6-246

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016 Page 1 of 5 [1] Mark T. Hager appeals his conviction for invasion of privacy as a level 6 felony.

Hager raises one issue which we revise and restate as whether the evidence is

sufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] On June 8, 2015, the court entered an ex parte order for protection which stated

in part that Hager was “prohibited from harassing, annoying, telephoning,

contacting, or directly or indirectly communicating with” Brittany Toth. State’s

Exhibit 1 at 2. The order indicated that it would expire on June 8, 2017. On

June 9, 2015, Henry County Sheriff’s Special Deputy Bobby Hightower served

the protective order to Hager.

[3] On September 8, 2015, while Toth was transferring buses in the area of the New

Castle Henry County Public Library, Hager yelled “Red” or “redhead” at her

from the top of the steps at the library. Transcript at 25. Bobbi Strange, a

library assistant, was taking a break outside the library and heard Hager

“hollering for Brittany.” Id. at 38. Toth went to the bus driver, asked her what

she should do, and told her that there was a protective order in place, and the

bus driver told her to call the police and said “we’ll wait on you.” Id. at 26.

Toth then called the police.

[4] New Castle Police Officer Ty Terrell arrived at the scene and observed that

Toth was “visibly shaken” and “appeared to be upset.” Id. at 44. Toth told

Officer Terrell what happened. Shortly after her break, Officer Terrell asked

Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016 Page 2 of 5 Strange about the incident, and Strange told him what she saw and identified

Hager as the person she saw yelling.

[5] The State charged Hager with invasion of privacy as a class A misdemeanor,

enhanced to a level 6 felony. On February 10, 2016, the court held a jury trial.

Toth, Strange, Deputy Hightower, and Officer Terrell testified. After the State

rested, Hager moved for a directed verdict, and the court denied the motion.

Hager testified that he had known Toth for four years, that he was at the library

on September 8, 2015, caught a glimpse of Toth, and turned and walked right

back in the library without saying anything.

[6] The jury found Hager guilty of invasion of privacy as a class A misdemeanor.

Hager then waived a jury trial on the State’s request for enhancement, and the

court found him guilty on the enhancement.

Discussion

[7] The issue is whether the evidence is sufficient to sustain Hager’s conviction for

invasion of privacy. When reviewing claims of insufficiency of the evidence,

we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.

State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the

evidence and the reasonable inferences therefrom that support the verdict. Id.

We will affirm the conviction if there exists evidence of probative value from

which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016 Page 3 of 5 [8] The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1

which at the time of the offense provided in part that “[a] person who

knowingly or intentionally violates . . . an ex parte protective order issued under

IC 34-26-5 . . . commits invasion of privacy, a Class A misdemeanor.” 1

“However, the offense is a Level 6 felony if the person has a prior unrelated

conviction for an offense under this section.” Ind. Code § 35-46-1-15.1.

[9] Hager argues that the evidence is insufficient because the contact with Toth was

incomplete. He argues that Toth testified that she heard Hager yelling Red or

Redhead at her, but he did nothing else before she called the police, and that

there is no evidence that he ever actually spoke to her or in any way transmitted

information to her. The State argues that the evidence is sufficient as it

establishes that Hager deliberately and intentionally yelled at Toth with the

intent that she hear him and that she heard him yell at her, became fearful, and

called the police.

[10] The record reveals that Toth testified that Hager yelled “Red” or “redhead” at

her from the top of the steps at the library while she was transferring buses in

the area of the library and that she called the police. Transcript at 25. Strange

testified that Hager was “hollering for Brittany.” Id. at 38. On cross-

examination, Strange testified that she was “[v]ery sure” that Hager said

“Brittany.” Id. at 41. Based upon the record, we conclude that evidence of

1 Subsequently amended by Pub. L. No. 65-2016, § 37 (eff. July 1, 2016).

Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016 Page 4 of 5 probative value was presented from which the jury could find beyond a

reasonable doubt that Hager committed the offense of invasion of privacy.

[11] To the extent Hager relies upon Huber v. State, 805 N.E.2d 887 (Ind. Ct. App.

2004), we find that case distinguishable. In Huber, Terry Huber and his wife

Julie were in the middle of a divorce, and Julie obtained three protective orders

against Huber. 805 N.E.2d at 889. The protective orders were issued to

restrain Huber from abusing, harassing, or disturbing the peace of Julie, either

by direct or indirect contact. Id. Huber asked Suzie Ginn, a domestic violence

advocate for Putnam County Family Support Services, to call Julie for him to

ask why she was doing this to him. Id. Ginn told Huber she could not do that.

Id. On appeal from a conviction for invasion of privacy, we observed that Ginn

specifically told Huber that she could not convey the message to Julie. Id. at

892. We held that Huber’s attempt to contact Julie indirectly through Ginn was

incomplete and reversed Huber’s conviction for invasion of privacy. Id. Unlike

in Huber, Hager communicated directly to Toth and she heard him and called

the police.

Conclusion

[12] For the foregoing reasons, we affirm Hager’s conviction.

[13] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-759 | October 17, 2016 Page 5 of 5