MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Mar 08 2017, 8:16 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General of Indiana
Greenfield, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Margie Rene Mayhill, March 8, 2017
Appellant-Defendant, Court of Appeals Case No.
30A01-1610-CR-2340
v. Appeal from the Hancock Superior
Court
State of Indiana, The Honorable Dan E. Marshall,
Appellee-Plaintiff Judge
Trial Court Cause No.
30D02-1512-CM-1926
Crone, Judge.
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Case Summary
[1] Margie Rene Mayhill appeals her conviction, following a jury trial, for class A
misdemeanor invasion of privacy. She asserts that the State presented
insufficient evidence to support her conviction and that the trial court
committed fundamental error in failing to administer an oath to one of the
witnesses who testified at trial. Finding the evidence sufficient and no
fundamental error, we affirm.
Facts and Procedural History
[2] On November 5, 2015, the Hancock Superior Court issued an ex parte order for
protection prohibiting Mayhill from “threatening to commit or committing acts
of domestic or family violence, stalking or a sex offense against petitioner
[H.A.]” State’s Ex. 2. The order also prohibited Mayhill from “harassing,
annoying, telephoning, contacting, or directly or indirectly communicating with
[H.A.]” Id. The sheriff served Mayhill with the protection order on November
12, 2015.
[3] On November 18, 2015, Mayhill drove a borrowed vehicle to the residence of
Bruce Townsend, Sr. (“Senior”), to pick up Bruce Townsend, Jr. (“Junior”),
because Junior had previously told Mayhill that he would fix her broken vehicle
if she came to pick him up. When Mayhill arrived at the residence, H.A.’s
truck was parked in the driveway, and H.A. and Junior were sitting inside the
truck. Junior works for H.A., and H.A. was there to pick up Junior for work.
Senior was standing on the front porch of the residence when he observed
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Mayhill communicating with H.A. Specifically, she had exited her vehicle and
was “raising all kinds of heck, this and that, cussing [at H.A.], hitting and
pulled his beard and so on.” Tr. at 41. Senior called 911 and informed the
dispatcher that Mayhill was on his property and refusing to leave, and that she
was fighting with and screaming at H.A. Senior stated that Mayhill was driving
a green Ford Ranger.
[4] Hancock County Sheriff’s Deputy Russell Silver was dispatched to Senior’s
home. However, he passed a green Ford Ranger driving away from the home,
so he performed a traffic stop of the vehicle. Deputy Silver spoke with Mayhill,
who acknowledged the existence of the order of protection regarding H.A., but
stated that she immediately backed out of Senior’s driveway and left when she
saw H.A.’s vehicle. Deputy Silver then went to Senior’s residence to
investigate. H.A. was no longer at the residence, but Senior reported that
Mayhill did not immediately leave his residence after she arrived, and that he
witnessed Mayhill yelling at and arguing with H.A.
[5] Thereafter, the State charged Mayhill with class A misdemeanor invasion of
privacy. Following a jury trial, Mayhill was found guilty as charged. The trial
court sentenced Mayhill to 365 days suspended to probation. This appeal
ensued.
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Discussion and Decision
Section 1 – The State presented sufficient evidence to support
Mayhill’s conviction.
[6] Mayhill contends that the State presented insufficient evidence to support her
conviction. When reviewing a claim of insufficient evidence, we neither
reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,
499 (Ind. 2015). We look to the evidence and reasonable inferences drawn
therefrom that support the conviction, and will affirm if there is probative
evidence from which a reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the
trier of fact is enough to support the conviction, then the reviewing court will
not disturb it. Id. at 500.
[7] To convict Mayhill of invasion of privacy, the State was required to prove that
Mayhill knowingly or intentionally violated an ex parte protection order issued
under Indiana Code Chapter 34-26-5. See Ind. Code § 35-46-1-15.1(2).1 A
person engages in conduct “knowingly” if, when she engages in the conduct,
she is aware of a high probability that she is doing so. Ind. Code § 35-41-2-2(a).
Mayhill contends that there is insufficient evidence that she knowingly violated
the protection order because she was unaware that H.A. would be at Senior’s
house when she traveled there, and that any contact she had with him was
1
Mayhill concedes that the evidence establishes that a valid ex parte protection order was issued and that she
was aware of that order.
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merely “incidental” because she “immediately backed her vehicle up out of the
driveway and drove away” when she saw H.A.’s car. Appellant’s Br. at 8;
Reply Br. at 5; Tr. at 98.
[8] Contrary to Mayhill’s claim, Senior testified that Mayhill did not immediately
leave the residence and that he witnessed Mayhill communicate and have direct
contact with H.A. when she argued with him, cursed at him, and touched him.
Mayhill maintains that Senior was not truthful, and urges us to give more credit
to her self-serving testimony as well as other evidence in the record that she
claims supports her version of events. However, it was the jury’s prerogative to
assess the evidence, and Mayhill’s argument is simply an invitation for this
Court to reweigh that evidence and reassess witness credibility, which we
cannot do. The evidence most favorable to the jury’s verdict supports a
reasonable inference that Mayhill knowingly violated the protection order. The
State presented sufficient evidence to support Mayhill’s conviction.
Section 2 – Mayhill has not established fundamental error.
[9] Mayhill next asserts that reversible error occurred because the trial court failed
to administer an oath to Deputy Silver before he testified at trial. Indiana
Evidence Rule 603 provides that “[b]efore testifying, a witness must give an
oath or affirmation to testify truthfully. It must be in a form designed to
impress that duty on the witness’s conscience.” Similarly, Indiana Code Section
34-45-1-2 provides: “Before testifying, every witness shall be sworn to testify the
truth, the whole truth, and nothing but the truth. The mode of administering an
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oath must be the most consistent with and binding upon the conscience of the
person to whom the oath may be administered.”
[10] Because Mayhill failed to object to this claimed error at trial, she asserts that the
trial court committed fundamental error.2 See Treadway v. State, 924 N.E.2d
621, 633 (Ind. 2010) (failure to object at trial waives the issue for review unless
fundamental error occurred). The fundamental error doctrine is extremely
narrow and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process. Mathews v. State, 849 N.E.2d
578, 587 (Ind. 2006). “To qualify as fundamental error, an error must be so
prejudicial to the rights of the defendant to make a fair trial impossible.” Brown
v. State, 799 N.E.2d 1064, 1067 (Ind. 2003) (citation and quotation marks
omitted).
[11] We observe that the transcript says “Russell Silver[:] Not having been sworn to
testify to the truth, the whole truth and nothing but the truth was examined and
testified as follows.” Tr. at 66. Because we presume that the transcript as
presented accurately reflects the proceedings, we must conclude that the trial
court in fact failed to administer an oath to Deputy Silver.3 Nevertheless, we
2
We note that twice in her reply brief, Mayhill states that “the trial court did not commit fundamental error.”
Reply Br. at 2, 6 (emphasis added). Because the crux of her claim is that the court did commit fundamental
error, we assume that these were simply misstatements.
3
While the State questions the accuracy of the transcript, the State acknowledges that Indiana Appellate
Rule 32(A) provides that a party may move the trial court to resolve a disagreement as to whether the
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cannot say that such error was so prejudicial to Mayhill’s rights as to make a
fair trial impossible.
[12] Significantly, during Deputy Silver’s testimony, Mayhill’s counsel questioned
him about his probable cause affidavit in this case and noted that “it’s under
oath” and Deputy Silver responded, “Yes.” Id. at 78. Then counsel specifically
inquired, “Same as what you’re under oath here today[?]” and Deputy Silver
again responded, “Yes.” Id. Hence, it is clear that Deputy Silver subjectively
believed that he was under oath when he testified and that the duty to testify
truthfully was impressed upon his conscience. Moreover, much of Deputy
Silver’s testimony regarding Mayhill’s commission of the crime was merely
cumulative of Senior’s testimony which was given under proper oath.
Accordingly, the trial court’s failure to administer an oath and any error in the
admission of Deputy Silver’s testimony would not rise to level of fundamental
error. See Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (erroneous
admission of evidence does not justify reversal if evidence is cumulative of other
evidence presented at trial).
[13] Mayhill’s sole assertion of prejudice is that the trial court’s failure to administer
an oath to Deputy Silver effectively deprived her of her constitutional right to
confrontation.4 This assertion is not supported by the record. Mayhill’s counsel
transcript “accurately discloses what occurred in the trial court.” The State has chosen not to invoke this
procedure.
4
Mayhill’s argument in this regard is very poorly developed and could have been deemed waived on appeal.
See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (a party waives an issue where she fails to
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engaged in a lengthy and thorough cross-examination of Deputy Silver, during
which counsel was able to point out alleged inconsistencies between the
probable cause affidavit and Deputy Silver’s trial testimony. In addition,
Mayhill’s counsel utilized Deputy Silver’s testimony to identify and admit
several defense photographic exhibits. Id. at 77. Under the circumstances,
Mayhill was not deprived of her right to confrontation, and she has failed to
demonstrate that prejudicial error occurred such that a fair trial was impossible.
Mayhill’s conviction is affirmed.
[14] Affirmed.
Riley, J., and Altice, J., concur.
develop a cogent argument or provide adequate citation to authority or portions of the record). However, we
choose to briefly address and dispose of it.
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Margie Rene Mayhill v. State of Indiana (mem. dec.)
Combined Opinion