IN THE
Court of Appeals of Indiana Phillip D. Hinkle, FILED Aug 15 2024, 9:25 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
August 15, 2024 Court of Appeals Case No. 24A-CR-136 Appeal from the Marion Superior Court The Honorable Clark Rogers, Judge The Honorable David Hooper, Magistrate Trial Court Cause No. 49D25-2311-CM-31848
Opinion by Judge Riley Judges Kenworthy and Felix concur.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 1 of 11 Riley, Judge.
STATEMENT OF THE CASE [1] Appellant-Defendant, Phillip D. Hinkle (Hinkle), appeals his conviction for
invasion of privacy, a Class A misdemeanor, Ind. Code § 35-46-1-15.1(a)(1).
[2] We affirm.
ISSUES [3] Hinkle presents this court with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it admitted the chronological case summary (CCS) of Hinkle’s protective order proceeding into evidence; and
(2) Whether the State presented sufficient evidence to establish that Hinkle committed invasion of privacy by violating the protective order.
FACTS AND PROCEDURAL HISTORY [4] On November 8, 2023, B.H. obtained an ex parte protective order against Hinkle
in cause number PO-43456 (Protective Order Case), prohibiting Hinkle from
entering B.H.’s residence and place of employment. According to the CCS in
the Protective Order Case, service upon Hinkle was perfected on November 9,
2023 at 9:27 p.m. Specifically, the entry reads:
Service Returned Served: Order of Protection Served: Respondent Hinkle, Phillip POR Service Perfected: Service Date: 11/9/2023 9:27 PM
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 2 of 11 Person Served. Phillip Hinkle, Served By: [G]arrett [T]rout, [] Street: 241 [F]inley; City: Indianapolis; County: Marion; Agency: IMPD Department of Public Safety; Manner: Personal.
(State’s Exh., p. 7).
[5] Two days later, on November 11, 2023, two officers of the Indianapolis
Metropolitan Police Department were dispatched to B.H.’s address in response
to a report of a person outside B.H.’s garage. The two-car garage is detached
from and adjacent to the main residence and stands in the backyard behind the
house. Upon arrival, the officers located Hinkle inside the garage. After Hinkle
refused to exit the garage, the officers decided to enter. When entering the
garage, the officers noticed that Hinkle was holding a black object in his hand.
Although he was ordered to drop the object, Hinkle refused and the officers,
after using force, handcuffed and detained Hinkle.
[6] On November 12, 2023, the State filed an Information, charging Hinkle with
invasion of privacy and resisting law enforcement, both Class A misdemeanors.
On December 19, 2023, the trial court conducted a bench trial. At the close of
the evidence, the trial court found Hinkle guilty of invasion of privacy and not
guilty of resisting law enforcement. The trial court sentenced Hinkle to time
served, which was seventy-four days.
[7] Hinkle now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 3 of 11 DISCUSSION AND DECISION I. Admission of Evidence
[8] Hinkle contends that the trial court abused its discretion by admitting the
certified CCS of the Protective Order Case as evidence that Hinkle had notice
of the protective order. The general admission of evidence at trial is a matter
we leave to the discretion of the trial court. Nicholson v. State, 963 N.E.2d 1096,
1099 (Ind. 2012). We review these determinations for an abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights. Id.
[9] To establish that Hinkle was aware of the existence of the protective order, the
State introduced the certified CCS of the Protective Order Case into evidence,
which included a notation indicating that Hinkle had been served with the
protective order. Hinkle objected to the admission based on hearsay grounds,
maintaining that the entry, reflecting the service of the protective order,
amounted to the clerk creating a notation on the CCS which summarized the
statements of the process server. He argues that a better practice would have
been for the process server to testify at the hearing. The State contends that the
certified CCS is admissible under the public records exception of the hearsay
rules.
[10] “Hearsay is a statement, other than one made by the declarant while testifying
at trial, offered in evidence to prove the truth of the matter asserted.” Ind.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 4 of 11 Evidence Rule 801(c). “Hearsay is not admissible unless it falls within one of
the exceptions provided in the evidence rules.” Evid. R. 802. We will affirm
the trial court’s hearsay ruling on any legal basis apparent in the record.
Robinson v. State, 730 N.E.2d 185, 194 (Ind. Ct. App. 2000).
[11] The CCS contains hearsay because it includes an out-of-court statement that
Hinkle was served with the protective order, the identifying information of the
person who served it, the place of service, and this specific notation was offered
for the purpose of establishing that Hinkle had, in fact, been served with the
protective order. A pertinent exception to the hearsay rule—and applicable
here—concerns “public records and reports,” contained within Indiana
Evidence Rule 803(8):
[u]nless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.
See Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010). The following
types of records are explicitly excluded from the rule:
(a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in a criminal
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 5 of 11 case; and (d) factual findings resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
Ind. Evidence Rule 803(8); see id.
[12] The public records exception to the hearsay rule is grounded in the “assumption
that public officials perform their duties properly without motive or interest
other than to submit accurate and fair reports.” Fowler, 929 N.E.2d at 878
(quoting 13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence §
803.108 (3d ed.2007)).
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IN THE
Court of Appeals of Indiana Phillip D. Hinkle, FILED Aug 15 2024, 9:25 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
August 15, 2024 Court of Appeals Case No. 24A-CR-136 Appeal from the Marion Superior Court The Honorable Clark Rogers, Judge The Honorable David Hooper, Magistrate Trial Court Cause No. 49D25-2311-CM-31848
Opinion by Judge Riley Judges Kenworthy and Felix concur.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 1 of 11 Riley, Judge.
STATEMENT OF THE CASE [1] Appellant-Defendant, Phillip D. Hinkle (Hinkle), appeals his conviction for
invasion of privacy, a Class A misdemeanor, Ind. Code § 35-46-1-15.1(a)(1).
[2] We affirm.
ISSUES [3] Hinkle presents this court with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it admitted the chronological case summary (CCS) of Hinkle’s protective order proceeding into evidence; and
(2) Whether the State presented sufficient evidence to establish that Hinkle committed invasion of privacy by violating the protective order.
FACTS AND PROCEDURAL HISTORY [4] On November 8, 2023, B.H. obtained an ex parte protective order against Hinkle
in cause number PO-43456 (Protective Order Case), prohibiting Hinkle from
entering B.H.’s residence and place of employment. According to the CCS in
the Protective Order Case, service upon Hinkle was perfected on November 9,
2023 at 9:27 p.m. Specifically, the entry reads:
Service Returned Served: Order of Protection Served: Respondent Hinkle, Phillip POR Service Perfected: Service Date: 11/9/2023 9:27 PM
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 2 of 11 Person Served. Phillip Hinkle, Served By: [G]arrett [T]rout, [] Street: 241 [F]inley; City: Indianapolis; County: Marion; Agency: IMPD Department of Public Safety; Manner: Personal.
(State’s Exh., p. 7).
[5] Two days later, on November 11, 2023, two officers of the Indianapolis
Metropolitan Police Department were dispatched to B.H.’s address in response
to a report of a person outside B.H.’s garage. The two-car garage is detached
from and adjacent to the main residence and stands in the backyard behind the
house. Upon arrival, the officers located Hinkle inside the garage. After Hinkle
refused to exit the garage, the officers decided to enter. When entering the
garage, the officers noticed that Hinkle was holding a black object in his hand.
Although he was ordered to drop the object, Hinkle refused and the officers,
after using force, handcuffed and detained Hinkle.
[6] On November 12, 2023, the State filed an Information, charging Hinkle with
invasion of privacy and resisting law enforcement, both Class A misdemeanors.
On December 19, 2023, the trial court conducted a bench trial. At the close of
the evidence, the trial court found Hinkle guilty of invasion of privacy and not
guilty of resisting law enforcement. The trial court sentenced Hinkle to time
served, which was seventy-four days.
[7] Hinkle now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 3 of 11 DISCUSSION AND DECISION I. Admission of Evidence
[8] Hinkle contends that the trial court abused its discretion by admitting the
certified CCS of the Protective Order Case as evidence that Hinkle had notice
of the protective order. The general admission of evidence at trial is a matter
we leave to the discretion of the trial court. Nicholson v. State, 963 N.E.2d 1096,
1099 (Ind. 2012). We review these determinations for an abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights. Id.
[9] To establish that Hinkle was aware of the existence of the protective order, the
State introduced the certified CCS of the Protective Order Case into evidence,
which included a notation indicating that Hinkle had been served with the
protective order. Hinkle objected to the admission based on hearsay grounds,
maintaining that the entry, reflecting the service of the protective order,
amounted to the clerk creating a notation on the CCS which summarized the
statements of the process server. He argues that a better practice would have
been for the process server to testify at the hearing. The State contends that the
certified CCS is admissible under the public records exception of the hearsay
rules.
[10] “Hearsay is a statement, other than one made by the declarant while testifying
at trial, offered in evidence to prove the truth of the matter asserted.” Ind.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 4 of 11 Evidence Rule 801(c). “Hearsay is not admissible unless it falls within one of
the exceptions provided in the evidence rules.” Evid. R. 802. We will affirm
the trial court’s hearsay ruling on any legal basis apparent in the record.
Robinson v. State, 730 N.E.2d 185, 194 (Ind. Ct. App. 2000).
[11] The CCS contains hearsay because it includes an out-of-court statement that
Hinkle was served with the protective order, the identifying information of the
person who served it, the place of service, and this specific notation was offered
for the purpose of establishing that Hinkle had, in fact, been served with the
protective order. A pertinent exception to the hearsay rule—and applicable
here—concerns “public records and reports,” contained within Indiana
Evidence Rule 803(8):
[u]nless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.
See Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010). The following
types of records are explicitly excluded from the rule:
(a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in a criminal
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 5 of 11 case; and (d) factual findings resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
Ind. Evidence Rule 803(8); see id.
[12] The public records exception to the hearsay rule is grounded in the “assumption
that public officials perform their duties properly without motive or interest
other than to submit accurate and fair reports.” Fowler, 929 N.E.2d at 878
(quoting 13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence §
803.108 (3d ed.2007)). A document does not need to be open and available to
the public in order to qualify for admission under the public records exception.
Id. (citing 2 Kenneth S. Broun, McCormick On Evidence § 295 (6th ed. 2006)).
Fundamentally, the rule requires that a public agency or office created the
document. Id. (citing Evid. R. 803(8)).
[13] The Indiana Protective Order Registry is an Internet based electronic depository
for protective orders that was established by the legislature and that is managed
and maintained by the division of state court administration. See I.C. §§ 5-2-9-
1.4; -5.5. When a court enters a protective order, including one, like here,
entered under Chapter 34-26-5, the clerk of the court is required to enter the
protective order into the Protective Order Registry. See I.C. §§ 34-26-5-3(f), (g);
34-26-5-9(d)(6); see also I.C. § 5-2-9-5.5(b) (“Copies of all protective orders shall
be retained in the registry.”). The court is also required to provide the order to
the county sheriff for service. See I.C. § 35-26-5-9(d)(1). Similarly, when a law
enforcement agency perfects service of the protective order, it is required to
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 6 of 11 enter the service information into the Registry. See I.C. § 5-2-9-6.5(b). The
division of state court administration was required by law to create and
implement a protocol to allow county court case management systems to
interface with the Protective Order Registry to facilitate the duty of courts to
register all protective orders issued. See I.C. §§ 5-2-9-5.5(f), (g); 34-26-6-3(a)(7).
Thus, the service history information is routinely provided and maintained by
public officials who have a statutory duty to record and maintain this
information for the purpose of allowing court officers and law enforcement
officials to rely on the information so that they can give effect to valid orders of
protection. Far from indicating a lack of trustworthiness, the circumstances of
the creation of the record affirm the presumption that public officials perform
their duties properly. The State’s proffered CCS, which interfaced with the
Protective Order Registry as evidenced by the annotation ‘POR,’ indicated the
service history for the protective order and it lists the person served, the date
and time of service, the method of service, the location of service, and the name
and law enforcement agency of the officer who perfected service. See I.C. § 5-2-
9-6.5(b).
[14] Accordingly, because the service history entry on the Protective Order Registry
sets out a matter observed while under a legal duty to observe and report, its
source does not indicate a lack of trustworthiness, and the Protective Order
Registry is statutorily required to interface with the county court case
management systems, the certified CCS of the Protective Order case falls within
the public records exception set forth under the hearsay rule. See Evid. R.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 7 of 11 803(8)(A)(i)(b); Evid. R. 803(8)(A)(ii). We conclude that the trial court did not
abuse its discretion overruling Hinkle’s hearsay objection.
II. Sufficiency of the Evidence
[15] Next, Hinkle contends that the State failed to present sufficient evidence
beyond a reasonable doubt to establish that he committed invasion of privacy.
Our standard of review of a challenge to the sufficiency of the evidence
supporting a criminal conviction is well-established: we do not reweigh the
evidence or judge the credibility of the witnesses, and we affirm if there is
“substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Lehman v. State, 203 N.E.3d 1097, 1104 (Ind. Ct.
App. 2023), trans. denied.
[16] After a bench trial Hinkle was convicted of invasion of privacy under Indiana
Code section 35-46-1-15.1(a)(1), which provides, in pertinent part, that
A person who knowingly or intentionally violates:
(1) a protective order to prevent domestic or family violence or harassment issued under [I.C. §] 34-26-5 (or, if the order involved a family or household member, under [I.C. §] 34-26- 2 or [I.C. §] 34-4-5.1-5 before their repeal);
(2) an ex parte protective order issued under [I.C. §] 34-26-5 (or, if the order involved a family or household member, an emergency order issued under [I.C. §] 34-26-2 or [I.C. §] 34-4- 5.1 before their repeal);
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 8 of 11 commits invasion of privacy, a Class A misdemeanor.
[17] On November 9, 2023 the court held a hearing in the Protective Order Case and
issued an ex parte protective order under Indiana Code section 34-26-5. The
protective order stated that Hinkle was “forbidden to enter or stay at [B.H.’s]
residence.” (State’s Exh. p. 5). Not contesting the statutory elements of the
instant offense, Hinkle challenges the interpretation of the underlying protective
order and advocates to adopt a minimalist interpretation of ‘residence’ as to
encompass solely the physical structure of the main house, thereby excluding
the detached garage where he had been located by the officers.
[18] In support of his argument, Hinkle analogizes our case law involving search
warrants which requires the warrant to specifically include a detached garage.
However, we find these cases distinguishable from the case at hand. Whereas
in the case of search warrants, we mandate the existence of probable cause and
a particular description of “the place to be searched” in order to protect “the
right of the people to be secure in their persons, houses, papers, and effects,” a
different purpose is served by the issuance of a protective order. See IN. Const.
Art. 1 § 11.
[19] Indiana’s Civil Protection Order Act, enacted in 2002, has the express purpose
of promoting the “(1) protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner; (2) protection and safety of all
victims of harassment in a fair, prompt, and effective manner; and (3)
prevention of future domestic violence, family violence, and harassment.” I.C.
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 9 of 11 § 34-26-5-1. Aimed at combating the scourge of domestic and family violence,
the Act protects both past and present victims and their children. S.H. v. D.W.,
139 N.E.3d 214, 219 (Ind. 2020). “Allowing protective order respondents to
evade enforcement through technicalities is counter to the purpose of the Civil
Protection Order Act and simply dangerous for those whom the act is designed
to protect.” Joslyn v. State, 942 N.E.2d 809, 810 (Ind. 2011). Embracing
Hinkle’s limited interpretation of ‘residence’ as only the physical dwelling
without regard to the remainder of the premises would run counter to
promoting the Act’s purpose of protection and safety. Therefore, we interpret
‘residence,’ as employed in the protective order, to include the entire property
address, including the home and any detached buildings on the premises.
Because the detached garage is part of the same residence, same address, and
same property, we conclude that Hinkle violated the protective order when he
entered the garage. As such, we leave the trial court’s conclusion that Hinkle
committed invasion of privacy undisturbed.
CONCLUSION [20] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by admitting the CCS of the Protective Order case into evidence and
that the State presented sufficient evidence beyond a reasonable doubt to
support Hinkle’s conviction of invasion of privacy.
[21] Affirmed.
Kenworthy, J. and Felix, J. concur Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 10 of 11 ATTORNEY FOR APPELLANT Steven J. Halbert Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-136 | August 15, 2024 Page 11 of 11