Rodrick Hughes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 4, 2015
• Docket: 49A02-1408-CR-562
• Status: Published

Opinion

MEMORANDUM DECISION Mar 04 2015, 8:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana

Kenneth Biggins Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rodrick Hughes, March 4, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1408-CR-562 v. Appeal from the Marion County Superior Court The Honorable Tiffany Vivo, State of Indiana, Commissioner Appellee-Plaintiff Cause No. 49G21-1405-CM-023264

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 1 of 6 Case Summary [1] Rodrick Hughes (“Hughes”) appeals his conviction for Invasion of Privacy, as a

Class A misdemeanor.1 He challenges his conviction based on the sufficiency

of the evidence. We affirm.

Facts and Procedural History [2] On October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte

order of protection under Indiana Code section 34-26-5-9(b), which, inter alia,

ordered Hughes “to stay away from the residence” of R.G. (State’s Exhibit 1 at

3.) On October 22, 2013, Indianapolis Metropolitan Police Department

(“IMPD”) Officer David Labanauskas (“Officer Labanauskas”) served Hughes

with the protective order, and Hughes testified that he was aware of it. The

order was set to expire on October 9, 2014.

[3] In the early morning of May 4, 2014, IMPD Officer Joshua Kemmerling

(“Officer Kemmerling”) was dispatched to R.G.’s residence in response to a

report of a “suspicious person” or “trouble with a person.” (Tr. 7.) R.G.’s

residence was located in a residential neighborhood in southeast Marion

County. Upon arrival at R.G.’s address, Officer Kemmerling located Hughes

walking around the north side of R.G.’s residence. The officer testified that

Hughes’s behavior was “suspicious” (Tr. 8) because Hughes was walking

1 Ind. Code § 35-46-1-15.1(1). We refer to the version of the statute in effect at the time of Hughes’s offense.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 2 of 6 “between the houses in the dark in an area that no pedestrian or person other

than a resident would be walking[.]” (Tr. 9.)

[4] Hughes identified himself to Officer Kemmerling, who searched a computer

database and discovered there was a protective order in place directing Hughes

to stay away from R.G.’s residence. IMPD Officer Terrance Cress arrived on

the scene and interviewed R.G., who was at home. Based on the officers’

investigation, Hughes was placed under arrest for invasion of privacy.

[5] On July 21, 2014, a bench trial was held, at the conclusion of which Hughes

was found guilty. He now appeals.

Discussion and Decision [6] Our standard of review for sufficiency of the evidence claims is well settled.

We consider only the probative evidence and reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

the credibility of witnesses or reweigh evidence. Id. We will affirm the

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

crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

[7] Under Indiana Code section 35-46-1-15.1(1), a person who knowingly or

intentionally violates a protective order to prevent domestic or family violence

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 3 of 6 issued under Indiana Code chapter 34-26-5 commits invasion of privacy. On

October 9, 2013, Marion Superior Court 5 Civil Division issued an ex parte

order of protection under Indiana Code section 34-26-5-9(b) ordering Hughes

“to stay away from the residence” of R.G. (State’s Exhibit 1 at 3.)

[8] The State charged that on or about May 4, 2014, Hughes “did knowingly

violate an order of protection, that is: A protective order issued to prevent

domestic or family violence issued under IC 4-26-5 . . . which was issued to

protect [R.G.], and furthermore, did so by engaging in the following conduct[:]

being at the residence and/or property of [R.G.].” (App. 14.)

[9] Hughes argues that the evidence is insufficient to support his conviction

because “[w]hile he may have been near [R.G.’s] home on [May 4, 2014], he

was not at her property.” (Appellant’s Br. 7.) The evidence shows that a

protective order was in effect on May 4, 2014, when police were called to

R.G.’s address. After arriving at that address, Officer Kemmerling testified

that he saw Hughes “walking around the north side of the home adjacent to the

residence - - the address that we were sent to.” (Tr. 8.) Officer Kemmerling’s

testimony that Hughes was walking along the outside of R.G.’s home is

sufficient to establish that Hughes failed “to stay away from” R.G.’s residence

in violation of the protective order (State’s Exhibit 1 at 3) and that Hughes was

“at the residence and/or property of [R.G.]” as charged. (App. 14.) The

evidence was thus sufficient to support Hughes’s conviction for invasion of

privacy.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 4 of 6 [10] Hughes also argues that the State did not present sufficient evidence that he

“knowingly” committed invasion of privacy because Hughes “believed the

protective order had been dismissed.” (Appellant’s Br. 6.) Hughes testified at

trial that he thought the protective order was no longer in effect because a no-

contact order issued by a different court in a separate case also involving R.G.

had been dismissed.

[11] 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. I.C. § 35-41-2-2(b). Here,

Officer Labanauskas’s testimony that he served Hughes with the protective

order coupled with Hughes’s acknowledgement of the order is sufficient to

show Hughes knowingly violated the order. See Dixon v. State, 869 N.E.2d 516,

520 (Ind. Ct. App. 2007) (holding that there was sufficient evidence to affirm

defendant’s conviction for invasion of privacy for knowingly or intentionally

violating a protective order after a police officer gave defendant oral notice of

the order and defendant returned later that day). Although Hughes testified

that he believed the order had been dismissed, in cases involving protective

orders, “it is even more important than usual to remember that on appeal, we

do not reweigh the evidence, assess the credibility of witnesses, or substitute our

judgment for that of the trial court.” Chavers v. State, 991 N.E.2d 148, 153 (Ind.

Ct. App. 2013), trans. denied. Despite Hughes’s self-serving testimony that he

believed the protective order was dismissed, there was sufficient evidence to

support Hughes’s conviction for knowingly committing invasion of privacy. See

id. (affirming defendant’s conviction for knowingly committing invasion of

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 5 of 6 privacy where defendant mistakenly believed the no-contact order that formed

the basis of the conviction was dismissed when, in fact, a separate protective

order issued by a different court had been dismissed, the no-contact order was

still valid, and the defendant’s mistaken belief was not reasonable).

Conclusion [12] There was sufficient evidence to convict Hughes of invasion of privacy.

[13] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-562 |March 4, 2015 Page 6 of 6