MEMORANDUM DECISION FILED
Oct 13 2016, 6:33 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Memorandum Decision shall not be regarded as Indiana Supreme Court
Court of Appeals
precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis Linderman, October 13, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1602-CR-398
v. Appeal from the Marion Superior
Court.
The Honorable Patrick Murphy,
State of Indiana, Magistrate.
Appellee-Plaintiff. The Honorable Angela Dow Davis,
Judge.
Cause No. 49G16-1511-CM-38856
Shepard, Senior Judge
[1] Dennis Linderman appeals his conviction of invasion of privacy, a Class A
misdemeanor. Ind. Code § 35-46-1-15.1 (2014). We affirm.
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Facts and Procedural History
[2] Linderman and his wife, Kelly Linderman, were estranged. She obtained a no
contact order against Linderman, which he signed in October 2015. Directly
above Linderman’s signature, the order stated: “I have read the above Order
and I understand it. A copy of this Order has been given to me.” State’s Ex. 1.
The order directed Linderman to avoid any contact with Kelly, whether in
person, by telephone, or through an intermediary, until “further order of the
court.” Id.
[3] On November 2, 2015, the police were dispatched to Kelly’s house to
investigate a domestic disturbance. An officer encountered Linderman on the
front porch. After speaking with Kelly, the officer determined that she had an
active no contact order against Linderman and arrested him.
[4] The State charged Linderman with invasion of privacy and several other
misdemeanors. A jury determined he was guilty of invasion of privacy and not
guilty of the other charges.
Issue
[5] Linderman raises one issue: whether there is sufficient evidence to sustain his
conviction.
Discussion and Decision
[6] Linderman claims the State failed to provide sufficient evidence to support his
conviction because he “mistakenly and honestly believed” that he was not
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violating the no contact order because Kelly invited him to the house. In
reviewing a sufficiency, we affirm unless no reasonable trier of fact could have
found each of the elements of a crime proven beyond a reasonable doubt. Smith
v. State, 8 N.E.3d 668 (Ind. 2014). We neither reweigh evidence nor assess the
credibility of witnesses. Id.
[7] To obtain a conviction for invasion of privacy as charged, the State was
required to prove beyond a reasonable doubt that Linderman (1) knowingly or
intentionally (2) violated a valid no contact order. Ind. Code § 35-46-1-15.1.
[8] It is undisputed that at all times relevant to this case, there was a valid no
contact order in place which prohibited Linderman from contacting Kelly.
[9] As for Linderman’s knowledge, Kelly testified that on October 31, 2015,
Linderman’s son from a prior relationship called her, asking her to call a phone
number. When she did, Linderman answered. He wanted Kelly to come pick
him up and talk. Kelly reminded Linderman of the no contact order. He said
he thought it was only for her children from a prior relationship, but she
pointed out that it was for her. Kelly was not at home at the time, but she said
he could go to the marital house to pick up some personal items. Kelly told
Linderman he could not stay at the house.
[10] When she returned to the house with her daughter and a cousin later on that
same day, Linderman was in the fenced-in yard. He was angry to see that Kelly
was not alone. Eventually, Kelly’s companions left. Kelly repeatedly asked
Linderman to gather his personal items and leave, but he refused. Instead, he
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stayed at the house until the police arrived on November 2, leaving only once
on November 1 to go get dinner with Kelly and his son. After returning home
from the dinner, Linderman drank heavily, yelled at Kelly, and repeatedly
prevented her from calling 911 until she finally succeeded.
[11] This is ample evidence from which the jury could have determined beyond a
reasonable doubt that Linderman knowingly or intentionally violated the no
contact order—first, by contacting her telephonically through an intermediary,
and second, by coming to the house and refusing to leave. See Dixon v. State,
869 N.E.2d 516 (Ind. Ct. App. 2007) (invasion of privacy conviction affirmed
where officer made defendant aware of a protective order against him, but
defendant later returned to the protected person’s residence).
[12] Linderman claims Kelly told him he could stay at the house and that he
thought the no contact order applied only to Kelly’s children. This argument is
a request to reweigh the evidence. Linderman further claims he believed in
good faith that he did not violate the protective order because Kelly allowed
him to come to the house. He thus raises a mistake of fact defense.
[13] Pursuant to statute, “it is a defense that the person who engaged in the
prohibited conduct was reasonably mistaken about a matter of fact, if the
mistake negates the culpability required for commission of the offense.” Ind.
Code § 35-41-3-7 (1977). When the State has made a prima facie case of guilt,
the burden shifts to the defendant to establish three elements: (1) the mistake is
honest and reasonable; (2) the mistake was about a matter of fact; and (3) the
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mistake negates the culpability required to commit the crime. Chavers v. State,
991 N.E.2d 148 (Ind. Ct. App. 2013), trans. denied. We look only to the
evidence and reasonable inferences supporting the judgment, and we will not
disturb the finder of fact’s credibility determinations. Id.
[14] Any mistake by Linderman was not honest or reasonable. He signed the
protective order and indicated that he had read it. It explicitly stated: “If so
ordered by the court, the respondent is forbidden to enter or stay at the
petitioner’s residence or residence of any child who is the subject of this order,
even if invited to do so by the petitioner or any other person.” State’s Ex. 1.
The order lists Kelly, not her children, as the subject of the no contact order.
Moreover, though Kelly allowed Linderman to come to the house to gather
personal items, she told him: (1) the no contact order was for her, not her
children; and (2) he would not be allowed to stay at the house. Based on the
plain language of the order and Linderman’s testimony, the jury appropriately
rejected his claim that he was mistaken as to the order’s terms.
Conclusion
[15] For the reasons stated above, we affirm the judgment of the trial court.
[16] Affirmed.
Najam, J., and Bailey, J., concur.
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