Michael A. Wilson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 7, 2017
• Docket: 49A02-1604-CR-908
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 07 2017, 6:17 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael A. Wilson, February 7, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-908 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1603-CM-10168

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 1 of 5 [1] Following a bench trial, Michael A. Wilson was convicted of invasion of

privacy as a Class A misdemeanor. On appeal, Wilson presents one issue for

our review, which we restate as: Whether there was an improper variance

between the charging information and the proof at trial.

[2] We affirm.

Facts & Procedural History

[3] On March 14, 2016, an ex parte order for protection was issued, ordering

Wilson to stay away from Millette Grady and her residence located at a

specified address in Marion County. The protective order was served on

Wilson the following day. Later in the day after the order was served, Wilson

returned to Grady’s residence. Grady called the police and reported that

Wilson was at her home and that he “should not be there.” Transcript at 6.

[4] Officer Eric Hotseller of the Indianapolis Metropolitan Police Department

along with a second officer were dispatched to Grady’s residence. As the

officers were talking to Grady at her front door, Wilson walked around the

corner of the building and approached them. Both Grady and Wilson had a

copy of the protective order. Officer Hotseller confirmed with control that a

protective order had in fact been served on Wilson earlier that day. Officer

Hotseller then placed Wilson under arrest for invasion of privacy.

[5] On March 16, 2016, the State charged Wilson with invasion of privacy as a

Class A misdemeanor. Wilson filed a motion for an early trial, which the trial

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 2 of 5 court granted. A bench trial was held on April 6, 2016. During the bench trial,

the State introduced as State’s Exhibit 2 a copy of the March 14 ex parte order

for protection. After the State presented its evidence and again at the

conclusion of all evidence, Wilson moved for involuntary dismissal under Ind.

Trial Rule 41(B). The trial court denied each motion and found Wilson guilty

as charged and sentenced him to time served. Wilson now appeals.

Discussion & Decision

[6] Indiana’s invasion of privacy statute provides, in pertinent part, as follows:

A person who knowingly or intentionally violates:

(1) a protective order to prevent domestic or family violence issued under IC 34-26-5...;

(2) an ex parte protective order issued under IC 34-26-5...;

commits invasion of privacy, a Class A misdemeanor.

Ind. Code § 35-46-1-15.1. Wilson’s charging information alleged a violation of

a protective order under subsection (1) and tracked the language thereof.1 The

State’s evidence at trial, however, consisted of an ex parte protective order as

set out in subsection (2) of the statute. Wilson thus argues that his conviction

1 The charging information also identified the protective order by reference to the cause number under which it was issued.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 3 of 5 must be reversed because the State failed to prove that he violated a protective

order under subsection (1) as alleged in the charging information.

[7] The State admits that the charging information incorrectly alleged a violation of

a protective order under subsection (1) rather than a violation of an ex parte

protective order under subsection (2). The State argues, however, that dismissal

is not necessary because there is no material variance in the charging

information and the State’s proof at trial.

[8] We agree with the State that the issue at hand concerns whether there was a

material variance. As a general matter, a “variance” is a difference between the

pleading and proof at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). Not

all variances are material and thus not all variances require reversal. Id. “Relief

is required only if the variance (1) misled the defendant in preparing a defense,

resulting in prejudice, or (2) leaves the defendant vulnerable to future

prosecution under the same evidence.” Blount v. State, 22 N.E.3d 559, 569 (Ind.

2014).

[9] We begin by noting that for purposes of preparing a defense in this case, there is

no relevant distinction between a protective order and an ex parte protective

order. As noted in the statute defining invasion of privacy, both orders are

issued pursuant to the same chapter, Ind. Code 34-26-5,2 and serve the same

purpose to promote the protection and safety of all victims of domestic or

2 This chapter is titled “Indiana Civil Protection Order Act.” I.C. 34-26-5.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 4 of 5 family violence and the prevention of future domestic and family violence. The

key difference between a protective order and an ex parte protective order is the

procedural manner in which the order was obtained. A protective order may be

issued after a hearing at which the parties are present and an ex parte order may

be issued without notice or hearing or after a hearing at which respondent had

notice, but did not appear.3 Thus, because subsections (1) and (2) of the

invasion of privacy statute essentially define the same crime, proof that Wilson

violated a protective order, ex parte or otherwise, is proof that he committed

invasion of privacy.

[10] In sum, the error in the charging information did not impact Wilson’s defense

preparation and given that the charging information identified the date of the

offense and the cause under which the protective order was issued, Wilson is

not vulnerable to future prosecution for the same offense. We find therefore

that there was no material variance in the charging information and the proof at

trial.

[11] Judgment affirmed.

[12] Riley, J. and Crone, J., concur.

3 When a trial court issues an ex parte protective order, the court, upon request, shall set a date for a hearing on the petition. See I.C. § 34-26-5-10.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 5 of 5