MEMORANDUM DECISION Jul 22 2015, 9:49 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 ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender’s Office Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Evelyn Butcher, July 22, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1412-CR-831
v. Appeal from the Marion Superior
Court
State of Indiana, Lower Court Cause No.
49G21-1408-CM-38640
Appellee-Plaintiff.
The Honorable Tiffany Vivo,
Commissioner
Pyle, Judge.
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Statement of the Case
[1] Appellant/Defendant, Evelyn Butcher (“Evelyn”), appeals her conviction for
Class A misdemeanor invasion of privacy,1 which was based on an incident
when she called and visited the residence of her former husband, who had a
protective order against her. On appeal, she argues that there was insufficient
evidence to support her conviction because there was no indication that she
knew the terms of the protective order and, therefore, knew that she could not
visit her former husband’s residence or call him. She also argues that her
conviction was contrary to the purpose and intent behind the Civil Protection
Order Act (“CPOA”) because she had formerly been a victim of her husband’s
domestic abuse. We conclude that, because Evelyn’s husband told her about
the protective order and told her she could not come around anymore, there
was sufficient evidence that Evelyn knew the protective order’s terms. We also
conclude that Evelyn waived her CPOA claim by failing to raise it below.
We affirm.
Issues
1. Whether there was sufficient evidence to support Evelyn’s
conviction for Class A misdemeanor invasion of privacy.
2. Whether Evelyn’s conviction is contrary to the purpose and
intent behind the CPOA.
1
IND. CODE § 35-46-1-15.1(1).
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Facts
[2] Prior to 2014, Evelyn was married to Darrell Butcher (“Darrell”). In February
2013, Darrell was arrested for domestic battery against Evelyn, but she did not
cooperate in the prosecution. (Tr. 53). Later, in December of that same year,
Darrell was again arrested for domestic battery of Evelyn. This time, he was
convicted of the charge and placed on probation. After the conviction, Evelyn
filed for divorce and began dating one of Darrell’s long time family friends,
Bobby McIntosh (“McIntosh”).
[3] Thereafter, on July 7, 2014, Darrell filed an ex parte petition with the trial court
requesting a protective order against Evelyn. He claimed that she had been
stalking him and physically abusive towards him. The trial court granted the
petition and issued an ex parte protective order, which provided that Evelyn
was prohibited from “harassing, annoying, telephoning, contacting, or directly
or indirectly communicating with [Darrell].” (State’s Ex. 22 at 21). The order
also required Evelyn to “stay away from” Darrell’s residence, school, and place
of employment. (State’s Ex. 22 at 21). The trial court then issued an order
setting the matter for a hearing on August 5, 2014.
[4] The Indiana Protection Order Registry, which the State presented as evidence
at trial, documents that one or both of the trial court’s orders—the ex parte
protective order and the order setting the matter for a hearing—were served on
Evelyn at Darrell’s place of residence, the residence they had previously shared.
An individual from the Marion County Sheriff’s Department left notice of one
or both of the orders at the front door of the residence at that address on July 9,
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2014, and the Sheriff Department mailed notice of one or both of the orders to
the same address on July 10, 2014. Evelyn was not living at that residence at
the time because she was, instead, living with McIntosh. However, Evelyn was
also served with one or both of the orders in court on July 12, 2014. The
Registry does not document which of the trial court’s orders were served on
which dates.
[5] Two days later, on July 14, 2014, Darrell saw Evelyn leave the backyard of his
residence. He went to investigate and discovered that she had drained his
swimming pool. Later that day, she called him and left him a voicemail stating
that “the other cap’s coming off, too, today.” (State’s Ex. 1). In another
voicemail the same day, she said, “You got a restraining order on me. You are
not allowed to call me. Why are you calling my phone? Why are you calling
my family? . . . You can have it all.” (State’s Ex. 1).
[6] On August 8, 2014, the State charged Evelyn with Class A misdemeanor
invasion of privacy, alleging that she had violated the protective order either by
visiting Darrell’s residence or by telephoning him. On September 19, 2014, the
State amended the charging information to add a second charge of Class B
misdemeanor criminal mischief, alleging that Evelyn had recklessly damaged or
defaced Darrell’s pool.
[7] On October 6, 2014 and November 5, 2014, the trial court held a bench trial on
the charges. At trial, Darrell admitted that, prior to receiving Evelyn’s
voicemail messages on July 14, 2014, he had contacted her family members to
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ask them to get her possessions out of the house. He also admitted to leaving a
note at McIntosh’s house stating “You’re hit.” (Tr. 25). However, he denied
having had any contact with Evelyn.
[8] Next, Evelyn’s boyfriend, McIntosh, testified and said that, since he had started
dating Evelyn, he had experienced several incidents of property vandalism,
including having his car tires slashed, his “grills” flipped over, and his backyard
torn up. (Tr. 42). He reported that, prior to dating Evelyn, he had not
experienced any property vandalism in the four years he had lived on his
property. In addition, McIntosh also testified that he had been required to
undergo a drug test at work because someone, whom he believed to be Darrell,
had called his work and left an anonymous tip stating that he was on drugs.
[9] Finally, Evelyn testified. She admitted that she had called Darrell on July 14,
2014, but testified that she had done so because he “kept calling [her] . . . over
and over and over,” and had also called her sister. (Tr. 57).
[10] At the conclusion of the evidence, the trial court found Evelyn not guilty of her
criminal mischief charge but guilty of invasion of privacy. The court sentenced
her to 180 days, suspended to probation. Evelyn now appeals.
Decision
[11] On appeal, Evelyn argues that: (1) there was insufficient evidence to support
her conviction for invasion of privacy; and (2) that her conviction was contrary
to the purpose and intent behind the CPOA. We will address each of these
arguments in turn.
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1. Sufficiency
[12] The standard of review for a sufficiency of the evidence claim is that this Court
should only reverse a conviction when reasonable persons would not be able to
form inferences as to each material element of the offense. Perez v. State, 872
N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh
evidence or judge the credibility of witnesses. Id. at 213. In addition, we only
consider the evidence most favorable to the judgment and the reasonable
inferences stemming from that evidence. Id.
[13] In order to convict Evelyn of invasion of privacy, the State had to prove that
she knowingly or intentionally violated a protective order. I.C. § 35-46-1-
15.1(1). On appeal, Evelyn asserts that there was no evidence that she had
received the order or knew of its terms and, therefore, she could not have
“knowingly” violated it. See id. In support of this argument, she notes that the
order was served at Darrell’s residence, but she was not living there. She also
points to the fact that Darrell wrote in his petition requesting the protective
order that he was the sole owner of the residence. She claims that this
admission was evidence that she could not have received the order served at
that address. With respect to the in-court service of the trial court’s order on
July 12, 2014, Evelyn argues that the Indiana Protection Order Registry does
not specify which trial court order was served that day. Finally, she
acknowledges that Darrell told her about the protective order, but she contends
that this evidence was not sufficient to prove that she knew of its terms.
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[14] We have previously noted that the legislature’s intent behind the Indiana Code
provisions regarding protective orders was that they be interpreted in a way that
will “‘promote the: protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner; and [] prevent[] future
domestic and family violence.’” Joslyn v. State, 942 N.E.2d 809, 813 (Ind. 2011)
(quoting I.C. § 34-26-5-1).
[15] Even assuming that Evelyn was not properly served with notice of the ex parte
order on any of the dates listed in the Indiana Protection Order Registry,
Indiana Courts have held that proper service of an ex parte order is not required
to prove that a respondent has knowledge of the order. See, e.g., Joslyn, 942
N.E.2d at 811-12 (“the statutes defining the crimes of stalking and invasion of
privacy do not require actual service of a protective order for a conviction.”)
Oral notice may be sufficient if it includes “adequate indication of the order’s
terms.” Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2015). Further, the notice
does not have to include notice of every specific action prohibited by the
protective order. Smith v. State, 999 N.E.2d 914, 916 (Ind. Ct. App. 2013), trans.
denied. In Joslyn, our supreme court discussed Hendrix v. State, 649 N.E.2d 1050
(Ind. Ct. App. 1995), and noted that “a single notification of the protective
order and its prohibition on contact would have been sufficient[.]” Id.
(interpreting Joslyn, 942 N.E.2d at 813). In Smith, there was sufficient evidence
of Smith’s knowledge and violation of a protective order where he was orally
informed that he could not make any contact with the subject of the protective
order and then he broke into the subject’s home and confronted her. Id. at 916.
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[16] Here, Evelyn’s knowledge of the terms of Darrell’s protective order was similar
to Smith’s knowledge in Smith. Even if we assumed that she never received
actual notice of the order, Darrell testified that the day he received the
protective order he “told [Evelyn] [he] had a restraining order against her and
not to come around.” (Tr. 30). Evelyn argues that she interpreted this
statement to mean that she was not supposed to have in-person contact with
Darrell, but we find that another logical interpretation of the phrase “not to
come around” is that Evelyn could not come to Darrell’s residence. (Tr. 30).
Therefore, when we interpret the evidence in the light favorable to the trial
court’s judgment, Evelyn (1) had knowledge that she could not visit Darrell’s
home; and (2) “knowingly” violated the protective order when she visited the
home on July 14, 2014.
[17] Further, as the trial court found, Evelyn’s voicemail messages to Darrell
indicate that she had knowledge of the restraining order. She stated in the
messages, “You got a restraining order on me. You are not allowed to call me.
Why are you calling my phone?” (State’s Ex. 1). While this statement
indicates Evelyn’s mistaken belief that Darrell was prohibited from contacting
her as a result of the protective order, it also demonstrates that she knew that
telephone contact was a type of contact prohibited under a protective order.
Thus, there was evidence that she knew she was violating the protective order
when she called Darrell and left voicemail messages. In light of the above
factors, we conclude that there was sufficient evidence of Evelyn’s knowledge
of the protective order to support her conviction.
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2. Civil Protection Order Act
[18] Next, Evelyn argues that her conviction was contrary to the purpose and intent
behind the CPOA. In INDIANA CODE § 34-26-5-1, the legislature stated that its
purpose for enacting the Act was “to promote the: (1) protection and safety of
all victims of domestic or family violence in a fair, prompt, and effective
manner; and (2) prevention of future domestic and family violence.” Evelyn
asserts that her conviction is contrary to this intent because Darrell has a history
of domestic violence against her, and, according to her, was using the protective
order as a sword rather than a shield to vandalize McIntosh’s property.
[19] However, we need not address this argument because Evelyn did not argue it
below and has therefore waived it. See Griffin v. State, 16 N.E.3d 997, 1006 (Ind.
Ct. App. 2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342
(Ind. Ct. App. 2009), trans. denied) (“[S]ubstantive questions independent in
character and not within the issues or not presented to the trial court shall not
be first made upon appeal. . . . The rule of waiver in part protects the integrity
of the trial court; it cannot be found to have erred as to an issue or argument
that it never had an opportunity to consider.”) (emphasis omitted).
Affirmed.
Crone, J., and Brown, J., concur.
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Evelyn Butcher v. State of Indiana (mem. dec.)
Combined Opinion