Patrick McCartney v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2020
• Docket: 19A-CR-1992
• 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 21 2020, 9:27 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Zachary J. Stock Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Patrick McCartney, February 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1992 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Appellee-Plaintiff Stephenie Lemay-Luken, Judge Trial Court Cause No. 32D05-1904-F5-52

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 1 of 6 Case Summary [1] Patrick McCartney appeals his conviction for Level 6 felony invasion of

privacy, arguing that it is not supported by sufficient evidence. We affirm.

Facts and Procedural History [2] McCartney married J.N. (“Mother”) in 2009. Their son, B.M. (“Son”), was

born in March 2013. In November 2016, Mother filed for divorce and

requested a protective order, alleging that McCartney had abused and

threatened her. Mother was granted a two-year protective order that prohibited

McCartney from, among other things, “directly or indirectly communicating

with” Mother. Trial Ex. 18. After the divorce was finalized in November

2017, the protective order was extended until December 2028.

[3] The divorce court granted McCartney parenting time that included Facetime

calls with Son. To enable Son to use Facetime on her iPad, Mother created an

iCloud email address for Son, and the email address was provided to

McCartney. Between March 13 and March 20, 2019, shortly after Son’s sixth

birthday, McCartney sent numerous emails to Son’s email address, including

the following:

Good morning [Son]! Your always in my heart even though evil people keep u and I apart God will bless u and I and those who have done wrong will be dealt with God’s wrath! I love u little boy!!!!!

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 2 of 6 Good morning son!!!!!!! Your father’s love for u is forever and know one can ever take that away! Not with their lyes and behind back talk and evil! I’m thinking of you and miss us so much!

For the eyes of the Lord are over the righteous, and his ears are open unto their prayers: but the face of the Lord is against them that do evil. 1 Peter 3:12 KJV

Good morning [Son]! I love you son! Our bond will always be with each other my boy, and one day soon we will be in each other’s arms and be as father and son with love for one and other. Always praying for you that God keeps you safe and that your surroundings are healthy and his love for you and I are abundant! Evil people will never prevail son! Love u always

Trial Ex. 5. Mother saw the emails on her iPad, read them, and, believing that

McCartney had violated the protective order, contacted law enforcement.

[4] The State charged McCartney with Level 6 felony invasion of privacy (elevated

from a Class A misdemeanor because he was convicted of the same offense in

August 2017). See Ind. Code § 35-46-1-15.1(a). A jury trial was held, and

Mother testified that she believed the emails were actually intended for her

because Son did not know how to access the emails, let alone read them, “[t]he

content was all of the same things that I had been hearing in the previous

messages that I had received,” and “the words that were used regarding evil and

wrath and God and the enemy, those are all words that I’ve heard before.” Tr.

Vol. III pp. 20, 30. The State introduced printoffs of several such messages

from McCartney to Mother as an exhibit. Trial Ex. 2. The jury found

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 3 of 6 McCartney guilty of invasion of privacy, McCartney admitted that he has a

prior conviction for the same offense, and the trial court sentenced him to two

years in prison.

[5] McCartney now appeals.

Discussion and Decision [6] McCartney contends that the evidence is insufficient to support his conviction.

In reviewing the sufficiency of the evidence supporting a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied.

We do not reweigh the evidence or assess witness credibility. Id. We consider

conflicting evidence most favorably to the verdict. Id. We will affirm the

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence. Id. The evidence is

sufficient if an inference may reasonably be drawn from it to support the

verdict. Id.

[7] McCartney was charged under Indiana Code section 35-46-1-15.1(a)(1), which

provides that a person who knowingly or intentionally violates “a protective

order to prevent domestic or family violence or harassment issued under IC 34-

26-5” commits invasion of privacy. As noted above, the protective order in this

case prohibits McCartney from “directly or indirectly communicating with”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 4 of 6 Mother. McCartney concedes that he indirectly communicated with Mother,

but he argues that the State failed to prove that he did so knowingly or

intentionally. Specifically, he asserts that there is not enough evidence to

support the jury’s conclusion that he “sent the emails to his son knowing or

intending that [Mother] would receive them.” Appellant’s Br. p. 8. We

disagree.

[8] “A person engages in conduct ‘intentionally’ if, when he engages in the

conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” Id. at (b). These elements may

be proven by circumstantial evidence alone and may be inferred from the facts

and circumstances of each case. McMiller v. State, 90 N.E.3d 672, 675 (Ind. Ct.

App. 2017). Here, the State presented evidence that Mother set up Son’s email

address solely to facilitate Facetime calls, that Son did not know how to access

emails sent to the email address, and that even if he had known how to access

the emails he would not have been able to read them. More importantly, the

State presented evidence, both testimony and an exhibit, that some of the

language used in the emails, such as “evil” and “wrath,” matched language

McCartney used toward Mother in earlier messages to her. Taking all this

evidence together, it was not unreasonable for the jury to conclude that it was

McCartney’s “conscious objective” for the emails to be read by Mother or at

least that he was “aware of a high probability” that Mother would read them.

[9] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 5 of 6 Najam, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1992 | February 21, 2020 Page 6 of 6