Feb 24 2016, 8:09 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy Luke, February 24, 2016
Appellant-Defendant, Court of Appeals Case No.
15A01-1409-CR-407
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff. Blankenship, Judge
Trial Court Cause Nos.
15D02-1401-FD-11
15D02-1307-CM-564
Appeal from the Dearborn Circuit
Court
The Honorable James D.
Humphrey, Judge
Trial Court Cause No.
15C01-1402-FC-19
Brown, Judge.
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[1] In this consolidated appeal,1 Billy Luke appeals his convictions for three counts
of invasion of privacy as class D felonies and stalking as a class C felony, as
well as the revocation of his probation. Luke raises seven issues which we
consolidate, revise, and restate as:
I. Whether his convictions for invasion of privacy and stalking violate
double jeopardy principles;
II. Whether the trial court abused its discretion in admitting evidence of
other bad acts;
III. Whether the evidence is sufficient to sustain his convictions for
invasion of privacy;
IV. Whether the court abused its discretion in instructing the jury; and
V. Whether the evidence is sufficient to revoke his probation.2
We affirm in part, reverse in part, and remand.
1
The record contains a transcript and an appendix from both the Dearborn Superior Court and the Dearborn
Circuit Court. References to the record from the Dearborn Superior Court will be to the “Superior
Appendix” and the “Superior Transcript.” References to the record from the Dearborn Circuit Court will be
to the “Circuit Appendix” and the “Circuit Transcript.”
2
Luke further raises the issue of whether the prosecution for stalking was barred by Ind. Code § 35-41-4-4(a),
which prohibits successive prosecutions. However, because we reverse Luke’s stalking conviction based
upon double jeopardy principles, we need not address this argument.
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Background and Procedural History
[2] Luke resided at his grandmother’s house in Dillsboro, Indiana. Deville’s
Pharmacy (the “Pharmacy”) is located across the street, and the employee
parking lot is adjacent to and less than ten feet from the house’s driveway.
[3] On August 3, 2012, under Cause Number 15D01-1202-CM-111 (“Cause No.
111”) in the Dearborn County Superior Court 1, Luke was found guilty of four
counts of public indecency as class A misdemeanors following a trial for various
acts of standing at a window inside his residence, exposing his penis, and
masturbating in view of Pharmacy female employees, named T.R., R.B., C.B.,
and K.R. He was sentenced to an aggregate term of 1,095 days, including 715
days suspended, and was placed on probation for 725 days. One of the
conditions of probation was that “Defendant shall have no contact with [T.R.,
R.B., C.B., or K.R.3] in person, by telephone, mail, computer, or any other
means at the victim’s residence or place of employment.” Superior Appendix at
155. The court issued no contact orders pertaining to R.B., T.R., and C.B.
(collectively, the “No Contact Order”), each of which stated that contact
“includes, but is not limited to, acts of harassment, stalking, intimidation,
threats, and physical force of any kind.” State’s Superior Court Exhibits 11-13.
[4] In May of 2013, while Luke was on probation and under the No Contact
Order, the female Pharmacy employees began seeing him on a “daily basis” on
3
The sentencing order contains the name of a fifth victim who is not a part of this consolidated appeal.
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his porch and in his driveway while they were arriving at or leaving work.
Circuit Transcript at 221. During that summer, Luke would wear a full dress
suit and stand in his yard wearing dark sunglasses, which intimidated and
frightened the employees, and the Pharmacy experienced a number of incidents
of vandalism, including broken windows, a broken glass door, a broken
window in an outbuilding, and a broken windshield on the Pharmacy’s delivery
van, in which marbles were used to break the glass. A truck belonging to T.R.’s
boyfriend was vandalized with flattened tires and the words “[p]unk bitch”
scratched into the truck’s paint. Id. at 302. Luke later admitted committing
these acts to a friend, Chase Merkel, in phone conversations in February 2014
which Merkel recorded. Luke, who was incarcerated at the time, asked Merkel
to commit acts of vandalism, including shooting out the pharmacy windows
with marbles, as well as to throw a sex toy into the Pharmacy and to pull his
pants down and “pull [his] male genitalia out and swing it around like a
helicopter” for the security cameras. Id. at 592.
[5] On July 18, 2013, Luke was charged in Dearborn Superior Court 2 under Cause
Number 15D02-1307-CM-564 (“Cause No. 564”) with attempted invasion of
privacy as a class A misdemeanor. The probable cause affidavit alleged that on
or about July 9, 2013, Dearborn County Sheriff’s Deputy Charlie Olson, while
investigating “several vandalism cases in Dillsboro,” spoke with Chief of
Dillsboro Police Ryan Brandt, and that Chief Brandt told him that Luke had
recently presented him with a letter to give to the mother of T.R. and K.R.,
each of whom had a no contact order against Luke, explaining “who he was
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and what had occurred during his conviction in his opinion.” Superior
Appendix at 11. Luke was subsequently arrested.
[6] On December 23, 2013, Luke was sentenced in another case, Cause Number
15D01-1308-FD-507 (“Cause No. 507”), in Dearborn Superior Court 1
pursuant to a plea agreement, to 365 days suspended to probation for a
conviction for criminal mischief as a class A misdemeanor. As part of the
agreement, the State dismissed a charge of voyeurism as a class D felony;
Luke’s probation under Cause. No. 111 was revoked, and he was ordered to
serve 730 days of home detention with Southeast Regional Community
Correction (“SERCC”). The court issued another no contact order regarding
K.R., T.R., R.B., and C.B. On January 2, 2014, Luke appeared in Dearborn
Superior Court 2 under Cause No. 564 and pled guilty to attempt to commit
invasion of privacy as a class A misdemeanor, and he was sentenced to 365
days suspended to probation.
[7] Between January 3 and January 7, 2014, the Pharmacy employees again
observed Luke outside the house and on the driveway staring at them at the
Pharmacy. Luke was “always outside” despite the “freezing” weather.
Superior Transcript at 212. On January 8, 2014, Officer Jack Prarat, an
investigative commander for the Dearborn Sheriff’s Department, visited the
Pharmacy to pick up a prescription, and the employees complained to him
about Luke’s behavior despite the No Contact Order. Superior Transcript at
221. Officer Prarat approached Luke, and Luke stated that the police had
already been to his house earlier in the week and told him not to be outside,
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that he called his attorney about the matter who also told him not to be outside,
and that “he was going to tell [Officer Prarat] the same thing he told the police
earlier in the week[:] he was going to be outside and come summer he was
going to be out even more and the girls at the pharmacy just needed to get used
to it.” Id. at 221-222.
[8] On January 10, 2014, the State charged Luke in Dearborn Superior Court 2
with three counts of invasion of privacy as class D felonies for violating the No
Contact Order issued to protect R.B., T.R., and C.B. between January 3, 2014,
and January 7, 2014, under Cause Number 15D02-1401-FD-11 (“Cause No.
11”).4 The same day, the State filed a request for probation violation hearing in
Cause No. 564 due to these new charges.
[9] On February 24, 2014, the State filed a charging information under Cause
Number 15C01-1402-FC-19 (“Cause No. 19”) in the Dearborn Circuit Court
which, as amended on August 14, 2014, charged Luke with stalking as a class C
felony and eight counts of criminal mischief as class A misdemeanors. Count I,
stalking, alleged that, between January 24, 2012, and February 19, 2014, Luke
stalked C.B., R.B., T.R., and/or K.R. and that such stalking violated the No
Contact Order under Cause No. 111.
4
The charging information filed on January 10, 2014, alleged in each count that Luke violated the no contact
order under Cause No. 507. On July 21, 2014, the court granted a motion to amend by the State and
amended the charging information to allege that Luke violated the no contact order under Cause No. 111,
i.e., the No Contact Order.
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[10] On July 22, 2014, the Dearborn Superior Court 2 commenced a jury trial in
Cause No. 11 on the invasion of privacy charges, and a jury found Luke guilty
as charged on July 30, 2014. On July 31, 2014, the Dearborn Superior Court 2,
under Cause No. 564, held a fact-finding hearing and entered an order revoking
Luke’s probation, finding that he violated his probation by committing the
crimes of invasion of privacy under Cause No. 11. On August 15, 2014, the
Dearborn Circuit Court commenced a jury trial in Cause No. 19, and on
August 21, 2014, the jury found Luke guilty as charged.
[11] On August 25, 2014, the Dearborn Superior Court held a sentencing hearing in
Cause Nos. 11 and 564. That same day, the Dearborn Circuit Court
commenced a sentencing hearing in Cause No. 19. On August 29, 2014, in
Cause No. 11, the Dearborn Superior Court sentenced Luke to an aggregate
term of four years in the Department of Correction (“DOC”).5 In Cause No.
564, the court revoked his previously-suspended sentence. On September 18,
2014, the Dearborn Circuit Court resumed the sentencing hearing in Cause No.
19, and on September 29, 2014, sentenced Luke to eight years on Count I,
stalking as a class C felony, and one year on each of Counts II-IX, the criminal
mischief counts, to be served in the DOC. The court observed that, pursuant to
Ind. Code § 35-50-1-2, it could sentence Luke to a maximum executed term of
5
The court’s initial sentencing order sentenced Luke to three years executed on Count I, three years executed
on Count II, including two years concurrent with Count I and one year consecutive to Count I, and three
years on Count III to be served concurrently with Counts I and II. On September 18, 2014, the court issued
an amended sentencing order in which it sentenced Luke to three years on Count I, one year on Count II
consecutive to Count I, and three years on Count III to be served concurrently with Counts I and II.
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ten years, and accordingly it ordered that Counts I, II, and III be served
consecutive to each other and that Counts IV-IX be served concurrent with
Counts I-III and concurrent with each other, for an aggregate term of ten years
in the DOC. The court also ordered that Luke’s sentence be served consecutive
to his sentence in Cause No. 11.
[12] Other facts relevant to the consideration of the issues will be provided below.
Discussion
I.
[13] The first issue is whether Luke’s convictions for invasion of privacy and stalking
violate double jeopardy principles. Luke argues that the State tried the stalking
case in Cause No. 19 in such a manner that the evidence previously used to
prove the charges of invasion of privacy in Cause No. 11 became factually
included in the stalking conviction. He asserts that witnesses at his stalking
trial, including the female victims and officers, testified at length regarding the
incidents of early January 2014, and the State showed a video made from the
pharmacy’s surveillance camera system at both trials. He argues that Officer
Prarat “repeated his testimony from [Cause No. 11] concerning a conversation
Prarat had in [sic] Luke in January 2014,” in which Luke told Prarat “he had
the right to be outside his home and ‘the girls at the pharmacy just needed to get
used to it.’” Appellant’s Brief at 18. He contends that the State relied on the
same no contact orders at each trial, and that the addition of K.R. to the
stalking case does not alleviate double jeopardy concerns.
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[14] The State notes that, under Cause No. 11, Luke was tried and convicted of
three counts of invasion of privacy for violating the no contact orders issued for
R.B., T.R., and C.B., following Cause No. 507 during a discrete time period
between January 3 and January 7, 2014. The State maintains that the stalking
conviction under Cause No. 19 pertained to not only C.B., R.B., and T.R., but
also K.R., and states that the no contact order discussed in that case was issued
under Cause No. 111. The State asserts that the evidence presented to prove
stalking included Luke’s actions during the spring and summer of 2013, a letter
Luke sent K.R. in July 2012, another letter Luke tried to relay to the mother of
T.R. and K.R., and acts of vandalism in 2013, and states that “[t]he mere fact
that some evidence appears in both trials does not meet the ‘same evidence’
test.” Appellee’s Brief at 14. In his reply brief, Luke argues that the State is
incorrect in its assertion that the two trials concerned different no contact
orders, noting that the original charging documents filed in Cause No. 11 were
amended to delete reference to Cause No. 507 and substitute Cause No. 111,
the No Contact Order stemming from the public indecency case, and that
“[t]hus, Luke was on trial in both Circuit and Superior #2 for violating the
same no contact order . . . .” Appellant’s Reply Brief at 6.
[15] The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double
Jeopardy Clause . . . prevent[s] the State from being able to proceed against a
person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d
633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.
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1999)). The Indiana Supreme Court has held that “two or more offenses are the
‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution,
if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.” Richardson,
717 N.E.2d at 49. “On appeal, the defendant bears the burden to show that his
convictions violated his constitutional right to be free from double jeopardy.”
Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (citing Lutes v. State, 272
Ind. 699, 401 N.E.2d 671, 672-673 (1980)).
[16] In order to find a double jeopardy violation under the actual evidence test, a
defendant must demonstrate and a reviewing court must conclude that there is
a reasonable possibility that the evidentiary facts used by the factfinder to
establish the essential elements of an offense for which the defendant was
convicted or acquitted may also have been used to establish all the essential
elements of a second challenged offense. Hines v. State, 30 N.E.3d 1216, 1222
(Ind. 2015); Vestal v. State, 773 N.E.2d 805, 806 (Ind. 2002), reh’g denied. “[A]
‘reasonable possibility’ that the jury used the same facts to reach two
convictions requires substantially more than a logical possibility.” Garrett v.
State, 992 N.E.2d 710, 719 (Ind. 2013) (quoting Lee v. State, 892 N.E.2d 1231,
1236 (Ind. 2008)). The existence of a reasonable possibility turns on a practical
assessment of whether the fact finder may have latched on to exactly the same
facts for both convictions. Id. at 720. “Application of this test requires the
court to ‘identify the essential elements of each of the challenged crimes and to
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evaluate the evidence from the jury’s perspective . . . .’” Hines, 30 N.E.3d at
1222 (quoting Lee, 892 N.E.2d at 1234 (quoting Spivey v. State, 761 N.E.2d 831,
832 (Ind. 2002))). The Indiana Supreme Court has determined the possibility to
be remote and speculative and therefore not reasonable when finding no
sufficiently substantial likelihood that the fact-finder used the same evidentiary
facts to establish the essential elements of two offenses. Hopkins, 759 N.E.2d at
640 (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001), reh’g denied; Redman
v. State, 743 N.E.2d 263, 268 (Ind. 2001)); see also Griffin v. State, 717 N.E.2d 73,
89 (Ind. 1999), cert. denied, 530 U.S. 1247, 120 S. Ct. 2697 (2000). “In
determining the facts used by the fact-finder, ‘it is appropriate to consider the
charging information, jury instructions, [ ] arguments of counsel’ and other
factors that may have guided the jury’s determination.” Hines, 30 N.E.3d at
1222 (quoting Lee, 892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832, and
Richardson, 717 N.E.2d at 54 n.48)).
[17] In Cause No. 11, the State alleged that “between January 3, 2014 and January
7, 2014 [Luke] did knowingly or intentionally violate a no contact order issued
as a condition of probation . . . under [Cause No. 111]” to protect R.B., T.R.,
and C.B., and that such conduct was a class D felony because he had a prior
unrelated conviction of attempted invasion of privacy under Cause No. 564.
Superior Appendix at 425-426. At trial, in recognition of the fact that the No
Contact Order specified that contact “includes, but is not limited to, acts of
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harassment, stalking, intimidation, threats, and physical force of any kind,”6
State’s Superior Court Exhibits 11-13, the court instructed the jury on the term
“harassment” in Final Jury Instruction No. 9 as follows:
The term “harassment” is defined by law as meaning conduct
directed toward a victim that includes but is not limited to
repeated or continuing impermissible contact that would cause a
reasonable person to suffer emotional distress and that actually
causes the victim to suffer emotional distress. Harassment does
not include statutorily or constitutionally protected activity, such
as lawful picketing pursuant to labor disputes or lawful employer-
related activities pursuant to labor disputes.
Superior Appendix at 489. This language is rooted in the definition of
“harassment” found at Ind. Code § 35-45-10-2. Chapter 10 of Title 35, Article
45 of the Indiana Code is titled “stalking” and contains six sections relevant to
prosecuting crimes of stalking.
[18] The State’s case-in-chief at trial in Cause No. 11 focused on proving that Luke
violated the No Contact Order (and therefore committed three counts of
invasion of privacy) by harassing T.R., C.B., and R.B. between January 3 and
January 7, 2014. C.B. testified that Luke had contact with her by being
“outside when we would come to work and leave from work and then
throughout the day he would be out there while we were in the store also.”
Superior Transcript at 182. She testified that Luke would stare at her, which
6
At trial, the court read a stipulation to the jury highlighting that the No Contact Order contained such
language.
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made her feel “very uncomfortable” and “scared” her. Id. at 185. C.B. stated
that, on those days in January 2014, Luke “stood out there and stared at [her]
almost the entire time” she would be in the Pharmacy’s parking lot. Id. at 189-
190. During her testimony, a photograph she took of Luke outside his home
was admitted into evidence. T.R. similarly testified that between January 3 and
January 7, 2014, Luke “would stand in the driveway on the phone” which
made her feel “[i]ntimidated and scary [sic].” Id. at 212. Officer Prarat testified
that on January 8, 2014, after visiting the Pharmacy, he observed Luke
“walking up and down his driveway” and that he walked over and spoke with
him about the complaints from the women. Id. at 221. Officer Prarat testified
that Luke responded by saying police had visited earlier in the week telling him
not to be outside, that his attorney similarly told him not to be outside, and that
“he was going to tell me the same thing he told the police earlier in the week, he
was going to be outside and come summer he was going to be out even more
and the girls at the pharmacy just needed to get used to it.” Id. at 221-222.
[19] During the testimony of Officer Joshua Cady, the State presented video
surveillance evidence depicting Luke outside the house and looking toward the
Pharmacy. The State next called R.B. who testified that Luke “stood outside
his house and stared us down pretty much the whole time we were at work,”
which made her feel “[v]ery concerned for [her] safety . . . . He looked like he
was angry with us and just staring at us the whole time. We were worried that
he would hurt us or one of our co-workers . . . .” Id. at 302. The court
admitted certain other evidence under Ind. Evidence Rule 404 to show Luke’s
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intent to harass the female employees. Police Chief Brandt testified regarding
the multiple incidents of vandalism, including to the Pharmacy, the police
station, and the vehicle of T.R.’s boyfriend, which occurred in June of 2013.
Deputy Prosecutor Jeff Sharp testified that on June 23, 2014, Luke handed him
a letter Luke had written which stated in part: “I figured broken windows and
flat tires would suffice as a humane wake up call.” Id. at 390.
[20] This same evidence of harassment was used by the State in Cause No. 19 as a
part of its broader case that Luke stalked T.R., K.R., R.B., and C.B. between
January 24, 2012, and February 19, 2014. C.B. indicated at the stalking trial
that Luke “return[ed] to Dillsboro” on January 3, 2014, that she saw him on
that date, that he was “outside at various times throughout the day” which was
“[j]ust like before,” and that he “[p]ick[ed] up right where [he] left off.” Circuit
Transcript at 258-259. C.B. testified that Luke was watching the women “come
and go again” and would “stare” at her. Id. at 259. When asked how Luke’s
course of conduct “for over two years,” including the time period in January
2014, made her feel, C.B. responded: “It was very stressful. It was very
intimidating, very nerve-racking [sic]. We - - I was afraid.” Id. at 262-263.
Also, the same photograph admitted into evidence at the trial in Cause No. 11
was again admitted into evidence. Chief Brandt testified and again offered
testimony regarding the vandalism occurring in June 2013. Officer Cady
testified regarding the surveillance video he reviewed, and the video was
admitted into evidence. Officer Prarat testified about his encounter with Luke
on January 8, 2014, in which Luke told him that “as far as he was concerned,
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he could be outside and, come summer, he was going to be outside even more
and the girls at the pharmacy just needed to get used to it.” Circuit Transcript
at 522. Officer Byron Wilber testified that he visited Luke on January 3, 2014,
and advised him not to be on his porch. R.B. testified that Luke “returned” to
the house on January 2, 2014, and “during the period of January 3 rd to January
9th” he “was out on the porch again. . . . [Luke was] standing in the driveway
by the parking lot, looking at the pharmacy, right by [her] car.” Id. at 642. She
testified that it appeared Luke did not have a purpose for being outside in the
freezing weather and that his presence made her “[v]ery scared that marbles
were going to start again, that he was going to hurt one of us.” Id. at 644. T.R.
testified that between January 3 and January 8, 2014, Luke was outside
throughout the day despite the freezing temperature and would stare at her
which made her feel “[s]cared, intimidated” because she “didn’t even know
why he was outside when it’s so cold.” Id. at 670. Also, Officer Olson testified
and read the portion of the letter Luke wrote in which he stated that he “figured
broken windows and flat tires would suffice as a humane wake-up call.” Id. at
699.
[21] Also, the prosecutor in Cause No. 11 summed up the State’s case at closing
argument by stating that during the relevant time period Luke “continually
harassed, intimidated and would not leave [T.R., C.B., and R.B.] alone,” that a
video shown at the trial demonstrated Luke “multiple times harassing and
intimidating these girls,” and that Officer Prarat told Luke that he “cannot
harass” the girls. Superior Transcript at 417. The prosecutor argued that Luke
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was “responsible for the terror that’s been caused in these three (3) girls” and
proceeded to recite the language of the No Contact Order, which again stated
that contact includes “acts of harassment, stalking, intimidation . . . .” Id. at
418. He stated that “[a]ll three (3) of these girls testified that they were
employed by Deville’s Pharmacy and all the harassment, the intimidation,
occurred directly across the street at the residence where he was staying.” Id. at
419. The prosecutor specifically noted that, per the No Contact Order, contact
includes harassment and informed the jury that they would be instructed on the
definition of harassment, and he proceeded to argue that the evidence presented
of Luke “staring” at the girls while it was freezing cold outside met the
definition. Id. at 421. He also argued that Luke made sure he was “in a place
where he can continually harass them” and that Luke “had the intention to
harass and intimidate them.” Id. at 422. He invited the jury to view Luke’s
actions in context, including the previous public indecency trial, acts of
vandalism in the summer of 2013, and his earlier violation of the no contact
order under Cause No. 564.
[22] During closing arguments in Cause No. 19, the prosecutor discussed the time
period between January 3 and January 7, 2014, as follows:
He’s back again on January 2nd, 2014. Now, keep in mind, ladies
and gentlemen, the ladies testified it’s extremely cold this week.
[T.R.] testified it’s below zero and he’s constantly outside of his
residence, staring at the pharmacy, staring at them as they come
and go. Look how close these individuals are. [R.B.] testified
that’s the front of her vehicle. He is from you to me, nothing in
between them, just glaring at them as they come in and out of the
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pharmacy. [C.B.] takes this photo. Look how close he is there,
as well. He’s been told to have no contact. Once again, how
hard a concept is it? Go inside. These ladies are fearful of you
and they are a victim of your prior crime. I understand you live
there, but they are a victim of your crime. They have rights, too.
You heard Major Jack Prarat talk about his talk with Billy. He
said Billy told him, ‘the police told me I couldn’t be outside, my
lawyer told me I couldn’t be outside, but I’m going to be outside
and the girls at the pharmacy are just going to have to get used to
it’. It shows his state of mind, ladies and gentlemen. Byron
Wilber testified. He told Billy on two occasions that he couldn’t
have contact with them, one of which he told him he couldn’t be
outside, to clarify it for him.
Circuit Transcript at 727-728.
[23] This Court has addressed a similar set of facts in Burton v. State, 665 N.E.2d 924
(Ind. Ct. App. 1996). Defendant Burton had previously been charged with
battery and criminal recklessness as a result of beating a female victim with
whom he had a previous romantic relationship. 665 N.E.2d at 925. Following
the attack, the victim obtained a permanent protective order against him. Id. A
few months later, Burton made several telephone calls and left messages for the
victim, and on January 31, 1995, after approximately seven phone calls within a
span of two and one-half hours and learning that Burton had been seen on the
victim’s driveway, the victim called the police. Id. Burton was charged with,
and found guilty of, stalking, invasion of privacy, and harassment. Id. He was
ordered to serve consecutive sentences for each of the offenses. Id.
[24] On appeal, Burton raised the issue that consecutive sentences for stalking and
invasion of privacy violated double jeopardy principles. Id. at 926. After noting
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that each offense contains an element that the other does not and that they were
therefore “separate offenses under the ‘same elements’ test,” we discussed the
question of whether “the factual bases alleged by the State in the charging
informations, and upon which the charges were predicated” constitute a double
jeopardy violation. Id. at 927-928. We observed that stalking was charged as
follows:
On or about January 10, 1995, through and including on or
about February 1, 1995, in Marion County, State of Indiana, the
following named defendant, Donald Burton, knowingly or
intentionally engaged in a course of conduct involving repeated
or continuing harassment of [the victim], another person; and
further that said conduct would cause a reasonable person to feel
terrorized, frightened, intimidated, or threatened, and that said
conduct actually caused said other person to feel terrorized,
frightened, intimidated, or threatened; and further that said
conduct included at least two of the following actions:
1. On or about January 10, 1995, said defendant did called [sic]
[the victim] at work.
2. On or about January 23, 1995, said defendant did called [sic]
[the victim] numerous times.
3. On or about January 28, 1995, said defendant did call [the
victim] at her home 3 times.
4. On or about January 29, 1995, said defendant did call [the
victim] to inquire about a van parked near her home.
5. On or about January 31, 1995, said defendant did call and
harass [the victim] numerous times . . . . ;
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 18 of 40
and further that said other person is a victim and that a Protective
Order has been issued by a Court under Cause No.
49F029411PO3406 to protect said victim from the defendant;
and further that the defendant has been given notice of said
Order.
Id. at 928. We then observed that invasion of privacy was charged as follows:
On or about January 31, 1995, in Marion County, State of
Indiana, . . . the following named defendant, Donald Burton, did
knowingly or intentionally violate[:]
A protective order issued under IC 34-4-5.1-5(a)(1)(A), (B), or (C)
....
That ordered said defendant to refrain from abusing, harassing or
disturbing the peace of [the victim] by appearing at her home and
calling her numerous times.
Id.
[25] We held that:
In other words, the invasion of privacy information required
proof that on January 31, 1995, Burton violated a protective
order by appearing at [the victim’s] home and calling her
numerous times. The stalking information required proof that
Burton knew a protective order had been issued and that he
harassed [the victim] on at least two of the five listed occasions,
one of which included Burton’s calling and harassing [the victim]
on January 31, 1995. While Burton’s stalking conviction could
have been based on any two of the five listed occasions, it was
possible for the conviction to be based on Burton’s actions on
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 19 of 40
January 31, 1995. These same actions were the sole basis of the
invasion of privacy conviction. As a result, the manner in which
the offenses were charged relieved the State of the requirement of
proving additional facts to gain the invasion of privacy
conviction beyond those required to prove the stalking
conviction. Therefore, double jeopardy principles bar conviction
for both offenses.
Id. We remanded to the trial court with instructions to vacate the conviction
and sentence on the invasion of privacy charge. Id.
[26] Just as in Burton, the sole bases of Luke’s invasion of privacy convictions were
also presented to prove that Luke was guilty of stalking. To the extent the State
suggests that all of Luke’s convictions should stand because the invasion of
privacy convictions were based on Luke violating the No Contact Order,7 while
his conviction for stalking punished him for engaging in “a knowing or an
intentional course of conduct involving repeated or continuing harassment,” the
evidence presented by the State in Cause No. 11 was that Luke had “contact”
with the female victims by harassing them. The prosecutor’s closing arguments
in both cases had the same theme, that Luke was constantly outside in freezing
weather staring at the female victims. Indeed, the court instructed the jury in
Cause No. 11 on the term “harassment” using the definition provided in the
7
As Luke notes in his argument, the State is mistaken when it argues that the charging information for
stalking under Cause No. 19 alleged that Luke violated a different no contact order than the No Contact
Order referenced in the invasion of privacy charging information. The record reveals that the State amended
the charging information in Cause No. 19 to reflect that stalking be prosecuted as a class C felony because
Luke violated the no contact order issued under Cause No. 111, i.e., the No Contact Order.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 20 of 40
stalking statute. Although the State presented substantially more evidence at
the stalking trial in Cause No. 19 occurring over a longer time period, included
in that evidence was all of the evidence presented in Dearborn Superior Court 2
in Cause No. 11. Consequently, we find that there exists a reasonable
probability that the jury in Cause No. 19 used the same facts to reach its
conviction for stalking that were used to convict Luke of the invasion of privacy
counts charged in Cause No. 11, and we conclude that such convictions violate
the actual evidence test under double jeopardy principles.
[27] Having so determined, we must decide what the appropriate remedy is under
these circumstances. Ordinarily, the proper remedy would be to vacate the
lesser offenses of invasion of privacy. See Richardson, 717 N.E.2d at 54
(“Because both convictions therefore cannot stand, we vacate the conviction
with the less severe penal consequences and leave standing the robbery
conviction.”). In his brief, Luke directs our attention to Ind. Code § 35-41-4-
3(a)(1) which provides that:
A prosecution is barred if there was a former prosecution of the
defendant based on the same facts and for commission of the
same offense and if:
(1) the former prosecution resulted in an acquittal or a
conviction of the defendant (A conviction of an included
offense constitutes an acquittal of the greater offense, even
if the conviction is subsequently set aside.) . . . .
[28] As noted, Luke’s convictions for stalking and invasion of privacy constituted
the “same offense” for double jeopardy purposes, and the facts presented in
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prosecuting the invasion of privacy charges in Cause No. 11 were also
presented when the State prosecuted Luke for stalking in Cause No. 19. The
Cause No. 11 trial commenced on July 22, 2014, and Luke was found guilty on
July 30, 2014. The trial in Cause No. 19 commenced on August 15, 2014, and
Luke was found guilty on August 21, 2014.
[29] Based upon Ind. Code § 35-41-4-3(a)(1), the proper remedy is to vacate Luke’s
conviction for stalking. We therefore remand to the Dearborn Circuit Court
with instructions to vacate Luke’s stalking conviction and resentence
accordingly. See also Woods v. State, 234 Ind. 598, 607, 130 N.E.2d 139, 143
(Ind. 1955) (“When the facts constitute two or more offences, wherein the lesser
offence is necessarily involved in the greater . . . and when the facts necessary to
convict on a second prosecution would necessarily have convicted on the first,
then the first prosecution to a final judgment will be a bar to the second.”).8
8
The concurrence opines that Ind. Code § 35-41-4-3(a)(1) is not applicable under these circumstances
because “[t]hese are different statutory offenses,” that although the stalking prosecution should have been
barred under Ind. Code § 35-41-4-4 Luke waived the issue by not filing a motion to dismiss below, but that
“the subsequent conviction for stalking violated principles of double jeopardy and should be vacated.” Infra,
at 39-40. Ind. Code § 35-41-4-4 provides for a statutory right against successive prosecutions. See Williams v.
State, 762 N.E.2d 1216, 1219 (Ind. 2002) (noting that certain charges were barred under Ind. Code § 35-41-4-
4 and accordingly not reaching the defendant’s constitutional double jeopardy claims). Conversely, “Indiana
Code § 35-41-4-3 (2008) codifies protections against being placed in jeopardy more than once for the same
offense.” Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015); see also State v. Boze, 482 N.E.2d 276, 278 (Ind. Ct.
App. 1985) (noting that Ind. Code § 35-41-4-3 “is a recognition and codification of the prohibition against
double jeopardy”), reh’g denied, trans. denied. Thus, Section 3 codifies the Indiana Constitution’s prohibition
against double jeopardy. As noted in Richardson, “two or more offenses are the ‘same offense’ in violation of
Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” 717 N.E.2d at 49 (emphases added). Because
we conclude that the convictions for stalking and invasion of privacy violate the actual evidence test, they
also constitute the “same offense” for the purposes of Ind. Code § 35-41-4-3.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 22 of 40
II.
[30] The next issue is whether the trial court abused its discretion in admitting
evidence of other bad acts at the trial in Cause No. 11. The admission and
exclusion of evidence falls within the sound discretion of the trial court, and we
review the admission of evidence only for abuse of discretion. Wilson v. State,
765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs “where the
decision is clearly against the logic and effect of the facts and circumstances.”
Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001). “Errors in the admission or
exclusion of evidence are to be disregarded as harmless error unless they affect
the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind.
1995) (citations omitted).
[31] Luke contends that the Dearborn Superior Court in his invasion of privacy trial
abused its discretion under Ind. Evidence Rule 404(b) in admitting evidence
that he vandalized the Pharmacy the prior summer, that he wrote a letter to one
victim’s mother in July 2013, and that he wrote to the prosecutor in June 2014
in which he stated: “Yes, I figured broken windows and flat tires would suffice
We further observe that, were Ind. Code § 35-41-4-3 not applicable, the correct remedy would be to vacate
the lesser invasion of privacy convictions and keep the stalking conviction intact. See Richardson, 717 N.E.2d
at 54-55 (noting that “[w]hen two convictions are found to contravene double jeopardy principles, a
reviewing court may remedy the violation by reducing either conviction to a less serious form of the same
offense if doing so will eliminate the violation,” that “[i]f it will not, one of the convictions must be vacated,”
and that the reviewing court “will make this determination itself, being mindful of the penal consequences
that the trial court found appropriate,” and vacating “the conviction with the less severe penal consequences .
. .”).
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 23 of 40
as a humane wake up call.” Appellant’s Brief at 35. He argues that the State
could not admit this evidence to show intent unless he advanced a contrary
claim, and here he “merely maintained his innocence . . . .” Id. at 37.
Regarding motive, Luke argues that the fact that he engaged in other behavior
directed at the Pharmacy employees does not relate to whether he had contact
with them between January 3 and January 7, 2014. He also argues that, even if
relevant, this evidence should have been excluded under Ind. Evidence Rule
403 because its prejudicial nature outweighed its probative value and that the
evidence was not harmless.
[32] The State contends that Luke’s intent when he was on his porch and driveway
was the central issue at the invasion of privacy trial and that the evidence
presented demonstrated that his presence was much more menacing than the
version his counsel presented at trial. It further argues that the court was
meticulous in keeping out certain evidence which it found to be unduly
prejudicial.
[33] Ind. Evidence Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence
may be admissible for another purpose, such as proving
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 24 of 40
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. On
request by a defendant in a criminal case, the prosecutor
must:
(A) provide reasonable notice of the general nature
of any such evidence that the prosecutor intends to
offer at trial; and
(B) do so before trial--or during trial if the court, for
good cause, excuses lack of pretrial notice.
[34] The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the
court must determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity to commit the
charged act; and (2) the court must balance the probative value of the evidence
against its prejudicial effect pursuant to Rule 403. Boone v. State, 728 N.E.2d
135, 137-138 (Ind. 2000), reh’g denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind.
1997). The evidence is inadmissible when the State offers it only to produce the
“forbidden inference” that the defendant has engaged in other, uncharged
misconduct and the charged conduct was in conformity with the uncharged
misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial court
has wide latitude, however, in weighing the probative value of the evidence
against the possible prejudice of its admission. Id. If evidence has some
purpose besides behavior in conformity with a character trait and the balancing
test is favorable, the trial court can elect to admit the evidence. Boone, 728
N.E.2d at 138. For instance, evidence which is necessary for the jury to
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understand the relationships between the victim, various witnesses, and the
defendant may be admissible. See Wilson, 765 N.E.2d at 1270-1271.
[35] At trial, the State presented certain evidence, over objection by Luke, under
Ind. Evidence Rule 404(b). Police Chief Brandt testified regarding multiple acts
of vandalism occurring in the summer of 2013, including a marble breaking the
windshield of the Pharmacy delivery van, marbles breaking windows of the
Pharmacy building, and a tire being flattened and the words “punk bitch” being
etched into the truck of T.R.’s boyfriend. Chief Brandt also testified that Luke
presented him with a letter addressed to the mother of T.R. with instructions
that Chief Brandt deliver the letter in June or July 2013.9 Also, Deputy
Prosecutor Sharp testified about receiving a letter from Luke in June 2014
which stated in part: “I figured broken windows and flat tires would suffice as a
humane wake up call.” Superior Transcript at 390. This evidence illuminated
the nature of the relationship between Luke and the three female victims and
was admissible to demonstrate Luke’s intent to harass them when he was
outside in January 2014, despite freezing temperatures, and stared at them from
his porch and driveway, which was the central issue at trial. See Ross v. State,
676 N.E.2d 339, 346 (Ind. 1996) (holding that prior misconduct was
“admissible because it demonstrated the defendant’s motive and intent to
commit the murder and illuminated the relationship between the defendant and
victim”); Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994) (prior threats of
9
This is the same act for which Luke was charged with attempted invasion of privacy in Cause No. 564.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 26 of 40
violence to ex-wife and victim admissible to show the relationship between the
parties and defendant’s motive), reh’g denied; Price v. State, 619 N.E.2d 582, 584
(Ind. 1993) (prior bad acts against the victim are admissible “to show the
relationship between the parties and appellant’s motive”), reh’g denied; Iqbal v.
State, 805 N.E.2d 401, 408-409 (Ind. Ct. App. 2004) (holding that evidence
relating to a prior incident in which the defendant put a gun to the victim’s head
and threatened to kill her was indicative of the defendant’s relationship with the
victim and highly relevant for his motive to shoot the victim, that the
defendant’s “assertion of an accident is indicative of the nature of the
relationship between the parties, characterized by jealousy and denial, and
ultimately culminating into hostility and murder,” that the evidence was
“relevant to show the absence of the gun accidentally being fired,” and that the
trial court did not abuse its discretion by admitting the defendant’s bad acts
under Rule 404(b)).
[36] In addition, the 404(b) testimony was not significantly prejudicial. The trial
court carefully parsed such evidence to ensure that only the relevant evidence
was presented. Indeed, regarding the letter presented to Deputy Prosecutor
Sharp, the court allowed only the single statement “I figured broken windows
and flat tires would suffice as a humane wake up call,” to be admitted.
Superior Transcript at 390. See Hicks, 690 N.E.2d at 223 (noting that “at some
point testimony about every incident of violence between the two becomes
more prejudicial than probative,” that evidence of two of the incidents
illustrated the hostile relationship that could have been a motive for murder,
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that evidence of a third incident was graphic and of fairly low probative value in
view of its remoteness in time and thus inadmissible, and that considered in
light of the other evidence about the relationship, the improperly-admitted
evidence regarding the third incident was not grounds for reversal). The trial
court did not abuse its discretion in admitting the challenged evidence.
III.
[37] The next issue is whether the evidence is sufficient to sustain Luke’s convictions
for invasion of privacy. When reviewing claims of insufficiency of the
evidence, we do not reweigh the evidence or judge the credibility of witnesses.
Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Rather, we look to the evidence
and the reasonable inferences therefrom that support the verdict. Id. We will
affirm the conviction if there exists evidence of probative value and reasonable
inferences drawn from that evidence upon which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. Id.
[38] The offense of invasion of privacy is governed by Ind. Code § 35-46-1-15.1,
which, at the time of the offenses, provided in relevant part that “[a] person
who knowingly or intentionally violates: . . . (6) a no contact order issued as a
condition of probation; . . . commits invasion of privacy, a Class A
misdemeanor. However, the offense is a Class D felony if the person has a
prior unrelated conviction for an offense under this section.” (Subsequently
amended by Pub. L. No. 158-2013, § 557 (eff. July 1, 2014)).
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[39] Luke argues that his actions, in which “[i]t is undisputed that [he] did nothing
more than stand outside his home across the street from the pharmacy and look
at the women from time to time,” do not constitute “contact” for the purposes
of his No Contact Order, and that accordingly he did not commit invasion of
privacy. Appellant’s Brief at 24. He asserts that Indiana caselaw has made
clear that “contact” requires more than mere presence. Id. at 25 (citing Hunter
v. State, 883 N.E.2d 1161 (Ind. 2008)). He argues that the State alleged at trial
that Luke both intimidated and harassed the women at the Pharmacy to prove
the crimes, but “[h]e was on trial for invasion of privacy, not harassment or
intimidation.” Id. at 27. He also argues that allowing allegations of
intimidation and harassment at his trial for three counts of invasion of privacy
allowed the State and its witnesses to define what constituted “contact” but that
simply because certain witnesses thought that his conduct constituted contact
does not make it so. He maintains that he was allowed to be on his porch
under the terms of the in-home detention order, that the no-contact order was
vague, and that accordingly the State did not prove that he knowingly or
intentionally violated the No Contact Order.
[40] The State argues that Luke’s reliance on Hunter is misplaced because his
conduct is distinguishable and that his conduct was not “mere presence” and
instead was intentional and menacing and communicated to the victims “that
neither they nor the court system could control what he chose to do.”
Appellee’s Brief at 20. The State maintains that this criminal intent was
supported by other evidence, including the letter stating that “broken windows
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and flat tires would suffice as a ‘wake up call.’” Id. The State further argues
that Luke’s assertion that he was unaware that being on his porch would be a
violation is meritless and is “akin to the insolent claim of a child in the backseat
of a car snidely saying that he is not ‘touching’ his trembling sibling despite the
fact that the child is defiantly holding a finger an inch away from their sibling.”
Id. at 21.
[41] We discussed in Part I the evidence presented to prove that Luke committed
invasion of privacy. Specifically, the No Contact Order stated that contact
“includes, but is not limited to, acts of harassment, stalking, intimidation,
threats, and physical force of any kind.” State’s Superior Court Exhibits 11-13.
The State presented substantial evidence that Luke engaged in repeated
behavior designed to harass and intimidate T.R., C.B., and R.B., by his
presence outside his home adjacent to the Pharmacy parking lot, in which he
frequently stared at the women when they were outside. The female victims
testified that Luke’s conduct made them fearful.
[42] To the extent Luke suggests that Hunter requires reversal, we disagree. In that
case, the State sought to revoke defendant Theron Hunter’s probation and,
following a hearing, the court “found that he had violated the conditions of his
probation, finding that he had been ‘living in a residence located approximately
15 feet from a house trailer where three (3) minor children reside with their
parents and that he has been in the house trailer at least once a week while the
children were present.’” 883 N.E.2d at 1162. The condition of probation
Hunter was found to have violated required that he “must never be alone with
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 30 of 40
or have contact with any person under the age of 18. Contact includes face-to-
face, telephonic, written, electronic, or any indirect contact via third parties.
You must report any incidental contact with persons under age 18 to your
probation officer within 24 hours of the contact.” Id. The evidence presented
at the hearing was essentially that Hunter moved into an RV parked on
property owned by his father, which was adjacent to his father’s residence and a
mobile home occupied by his half-sister, her husband, and three children. Id.
During that time, Hunter worked construction for his father in the early
mornings and began to work in the afternoons doing construction in his sister’s
trailer, remodeling her bathroom. Id. Hunter intended to leave the home prior
to when his sister’s children arrived home from school, but there were times
when the children arrived before he had left, and Hunter explained that on such
occasions
“[a]s soon as they came in, as fast as I could, I would pack up my
tools and get out the door until the next day.” [Transcript] at 24.
He emphasized that “I didn’t sit down with them. I didn't have
anything to do with them as far as wrestlin’ around, playing with
them, nothing at all.” Id. at 23-24. The defendant knew he
“wasn’t supposed to have contact with them as far as like he, [the
probation officer] said as far as talking to them, face to face . . .
interaction type of stuff. And I did not have interaction type stuff
with them.”
Id. at 1162-1163.
[43] The Indiana Supreme Court observed that “the word ‘contact’ is not commonly
understood to occur by mere presence alone.” Id. at 1164. The Court found
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the condition of probation to be ambiguous, noting that “[i]f the trial court
intended a condition of probation to prohibit the defendant from the behavior
shown by the evidence in this case, effective deterrence and fair advance notice
necessitate that the choice of language must clearly describe the prohibited
conduct.” Id. It held that, accordingly, the evidence was insufficient to
establish that his conduct constituted a violation of the asserted condition of
probation. Id.
[44] By contrast, the evidence presented here demonstrated that Luke’s actions far
exceeded the “mere presence” the Court discussed in Hunter. Despite warnings
from attorneys and police to go inside if one of the victims was in the parking
lot, Luke did not do so and instead stared directly at the women. When he was
informed by Officer Prarat that his actions were causing fear in the women,
Luke responded that “he was going to be outside and come summer he was
going to be out even more and the girls at the pharmacy just needed to get used
to it.” Superior Transcript at 221-222. The No Contact Order specified that
contact for the purposes of the order “includes, but is not limited to, acts of
harassment, stalking, intimidation, threats, and physical force of any kind.”
State’s Superior Court Exhibits 11-13. Further, we note that “[i]ntent can be
inferred from a defendant’s conduct and the natural and usual sequence to
which such conduct logically and reasonably points. The fact finder is entitled
to infer intent from the surrounding circumstances.” Lee v. State, 973 N.E.2d
1207, 1210 (Ind. Ct. App. 2012) (citations omitted), trans. denied.
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[45] Based upon the record, we conclude that evidence of probative value was
presented from which the jury could find beyond a reasonable doubt that Luke
committed the offenses of invasion of privacy as class D felonies. 10
IV.
[46] The next issue is whether the court abused its discretion in instructing the jury.
Generally, “[t]he purpose of an instruction is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.”
Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150,
124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion
of the trial court and is reviewed only for an abuse of that discretion. Id. at
1163-1164. To constitute an abuse of discretion, the instruction given must be
erroneous, and the instructions taken as a whole must misstate the law or
10
Luke argues in his brief that he was denied due process in the enforcement of the No Contact Order,
asserting that a reasonable person in his position would not believe that standing on his porch or in his
driveway would violate the No Contact Order. In support of his argument, he cites to VanHorn v. State, 889
N.E.2d 908 (Ind. Ct. App. 2008), trans. denied, in which this court held that the evidence was insufficient to
prove that VanHorn committed stalking where the evidence presented was that VanHorn was observed
sitting in his car parked on a city street near the home of Robert Franks on multiple occasions. 889 N.E.2d at
909, 912-914. The court noted that VanHorn “had no notice of the impermissibility of his conduct,” that
“[t]he issuance of a protective order pursuant to Indiana Code Section 34-26-5 would address our concerns
by providing notice to the individual, an opportunity to be heard, and, where the issuance of a protective
order is justified, a clear statement that his or her conduct is impermissible,” and that “[n]o protective order
was sought in this case.” Id. at 913.
As discussed above, the State proved that Luke committed invasion of privacy when he violated the No
Contact Order by harassing C.B., R.B., and T.R., and that the State proved harassment by demonstrating
that his conduct far exceeded his “mere presence” of being outside. Luke’s argument is without merit.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 33 of 40
otherwise mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999),
reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83 (2000).
[47] Before a defendant is entitled to a reversal, he must affirmatively show that the
erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d
859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind.
Ct. App. 2005)), trans. denied. An error is to be disregarded as harmless unless it
affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d 714,
727 (Ind. Ct. App. 2009); Ind. Trial Rule 61).
[48] Luke argues that he was charged with invasion of privacy which requires proof
that he impermissibly contacted the Pharmacy employees, that the women’s
subjective fear is immaterial to the charged acts, that harassment is a different
crime which does involve fear, and that by instructing the jury on harassment
the court incorrectly stated the law as it pertains to the crime of invasion of
privacy. He also argues that this error was not harmless because it led the jury
to focus on whether the women were afraid and encouraged the jury to convict
if it found that the women were afraid.
[49] The State argues that by the terms of the No Contact Order harassing the
victims constituted a violation, therefore proving Luke’s guilt of the crime of
invasion of privacy, and thus instructing the jury on the definition of
harassment was appropriate. The State asserts that merely because the
definition is founded upon the stalking statute does not negate its application to
the invasion of privacy charges. The State also argues that even if the
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instruction was given in error, such error is harmless because the evidence
presented demonstrated that Luke repeatedly stared and glared at the female
victims from his yard, driveway, and porch while they walked to and from the
pharmacy, that even without the instruction the jurors would have understood
the common meaning of the term harassment, and that the jury would have
decided based thereon that his actions violated the No Contact Order.
[50] As discussed in Part I, the court in Final Jury Instruction No. 9 instructed the
jury on the definition of harassment consistent with the definition of
“harassment” found at Ind. Code § 35-45-10-2. The court instructed the jury in
this manner because the No Contact Order specifically instructed Luke that
contact “includes, but is not limited to, acts of harassment, stalking, intimidation,
threats, and physical force of any kind.” State’s Superior Court Exhibits 11-13
(emphasis added). We concluded in Part III that, based upon the language of
the No Contact Order, it was proper for the State to prove invasion of privacy
by showing that Luke harassed the female victims. Accordingly, we conclude
that the court did not abuse its discretion in instructing the jury on the
definition of harassment.
V.
[51] The next issue is whether the evidence is sufficient to revoke Luke’s probation.
Probation is an alternative to commitment in the DOC, and is at the sole
discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g
denied. A defendant is not entitled to serve a sentence on probation. Id.
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Rather, probation is a “matter of grace” and a “conditional liberty that is a
favor, not a right.” Id. Probation revocation is governed by Ind. Code § 35-38-
2-3, and a revocation hearing is civil in nature, the State needing only to prove
the alleged violations by a preponderance of the evidence. Id. at 551. We
consider all the evidence most favorable to supporting the judgment of the trial
court without reweighing that evidence or judging the credibility of witnesses.
Id. If there is substantial evidence of probative value to support the trial court’s
conclusion that a defendant has violated any terms of probation, we will affirm
its decision to revoke. Id. The violation of a single condition of probation is
sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.
1999).
[52] At the time Luke was placed on probation, Ind. Code § 35-38-2-3(a) provided:
“The court may revoke a person’s probation if: (1) the person has violated a
condition of probation during the probationary period . . . .” Ind. Code § 35-38-
2-3(a) (Supp. 2012) (subsequently amended by Pub. L. No. 74-2015, § 21 (eff.
July 1, 2015)), and Ind. Code § 35-38-2-3(f) provided that “the state must prove
the violation by a preponderance of the evidence.”11
[53] The Dearborn Superior Court 2 held proceedings in both Cause No. 11, the
invasion of privacy trial, and Cause No. 564, the probation revocation. The
court in Cause No. 564 revoked Luke’s probation based upon his convictions
11
The current versions of Ind. Code § 35-38-2-3(a) and (f) are identical to the 2012 versions.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 36 of 40
for invasion of privacy under Cause No. 11. The requirement that a
probationer obey federal, state, and local laws is automatically a condition of
probation by operation of law. Williams v. State, 695 N.E.2d 1017, 1019 (Ind.
Ct. App. 1998); Ind. Code § 35-38-2-1(b) (Supp. 2012) (“If the person commits
an additional crime, the court may revoke the probation.”). In Part III, we
affirm Luke’s convictions for invasion of privacy. Based upon the record, we
conclude that the court as the finder of fact could reasonably conclude by a
preponderance of the evidence that while on probation Luke committed the
new offense of invasion of privacy. Accordingly, the court did not abuse its
discretion in revoking his probation.
Conclusion
[54] For the foregoing reasons, we remand to the Dearborn Circuit Court with
instructions to vacate Luke’s conviction for stalking as a class C felony, and we
affirm Luke’s convictions for invasion of privacy as class D felonies, as well as
the revocation of his probation.
[55] Affirmed in part, reversed in part, and remanded.
Riley, J., concurs.
Altice, J., concurs in part and concurs in result as to issue I.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 37 of 40
IN THE
COURT OF APPEALS OF INDIANA
Billy Luke, Court of Appeals Case No.
15A01-1409-CR-407
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Altice, Judge, concurring in part and concurring in result as to issue I.
[56] With respect to the first issue, I agree with my colleagues that Luke’s conviction
for stalking cannot stand because his dual convictions for stalking and invasion
of privacy violated the actual evidence test and, thus, constituted a double
jeopardy violation. I do not agree, however, with the majority’s reliance on
Ind. Code Ann. § 35-41-4-3(a)(1). This statute is not applicable because the
subsequent prosecution for stalking was not “for commission of the same
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 38 of 40
offense” (i.e., invasion of privacy) for which Luke had already been convicted.
I.C. § 35-41-4-3(a).12 These are different statutory offenses and double jeopardy
issues arose here only because the State failed to parse the evidence and
carefully establish each with different evidence.
[57] The circumstances presented in this case would more likely fall under I.C. § 35-
41-4-4, which provides:
(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a
different offense or for the same offense based on different
facts.
(2) The former prosecution resulted in an acquittal or a
conviction of the defendant….
(3) The instant prosecution is for an offense with which the
defendant should have been charged in the former
prosecution.
(b) A prosecution is not barred under this section if the offense on
which it is based was not consummated when the trial under the
former prosecution began.
12
As noted by the majority, this statute is a codification of the prohibition against double jeopardy. See State
v. Boze, 482 N.E.2d 276, 278 (Ind. Ct. App. 1985). However, as recognized in Boze, “[the statute] does not
encompass the entire law concerning double jeopardy”. Id. In my view, the statute addresses only
subsequent prosecutions for the same statutory offense or for a greater offense when the defendant has been
convicted of a lesser-included offense. I do not agree with the majority that the statute is a broad codification
of the actual evidence test.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 39 of 40
We have held that this successive prosecution statute acts to bar a subsequent
prosecution only when the defendant seeks dismissal prior to commencement of
the second trial. See Hamer v. State, 771 N.E.2d 109, 112 (Ind. Ct. App. 2002)
(regardless of whether the subsequent prosecution was barred under the statute,
the defendant waived the issue when he failed to seek dismissal prior to the
second trial). Luke did not file a motion to dismiss and, therefore, waived any
statutory claim that the subsequent prosecution was barred.
[58] Statutes aside, I think it suffices to say that the subsequent conviction for
stalking violated principles of double jeopardy and should be vacated.
Court of Appeals of Indiana | Opinion 15A01-1409-CR-407 | February 24, 2016 Page 40 of 40
Billy Luke v. State of Indiana
Combined Opinion