MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Dec 12 2017, 8:50 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Nelson, December 12, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1706-CR-1417
v. Appeal from the Marion County
Superior Court.
The Honorable Christina R.
State of Indiana, Klineman, Judge.
Appellee-Plaintiff. Trial Court Cause No.
49G17-1704-CM-12399
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 1 of 6
[1] Following a bench trial, Anthony Nelson was convicted of invasion of privacy
1
as a Class A misdemeanor. The sole issue Nelson raises is whether sufficient
evidence was presented to sustain his conviction. We affirm.
[2] The facts most favorable to the judgment establish that Nelson is the father of
K.N., who was twelve years old at the time the offense was committed. In May
of 2016, K.N.’s maternal grandmother, Nelson’s former mother-in-law
(hereinafter, “Grandmother”), filed a petition for guardianship of K.N. The
guardianship hearing occurred in November of 2016, and the matter was taken
2
under advisement.
[3] Also in November of 2016, Grandmother sought and received a protective
order for K.N., and against Nelson, because of allegations that Nelson
physically abused K.N. The protective order was served on Nelson by copy
service on November 10, 2016, and by certified mail on November 19, 2016.
The protective order (among other things) prohibited Nelson from “harassing,
annoying, telephoning, contacting, or directly or indirectly communicating with
[K.N.].” State’s Exhibit 4. Nelson, however, left voicemail messages on
Grandmother’s phone, expressing his displeasure regarding the protective
order.
1
Ind. Code § 35-46-1-15.1(1) (2016).
2
Grandmother’s petition for guardianship of K.N. was granted on December 22, 2016.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 2 of 6
[4] On November 28, 2016, after the protective order was issued and served,
Grandmother called the police because Nelson had been texting her and calling
her. On December 16, 2016, she called the police because Nelson had been at
her mailbox. On December 27, 2016, Grandmother called the police because
Nelson had again been texting and calling her.
[5] On the night of December 31, 2016, K.N. was on her phone in her bedroom at
3
Grandmother’s house when she heard a tapping sound on her window. When
she looked out of her window, she observed a hand holding a cellphone that
showed a picture of her father’s mother on the cellphone screen. K.N. surmised
that the person holding the cellphone must be her father. She immediately told
her Grandmother about the incident.
[6] On April 4, 2017, the State charged Nelson with Class A misdemeanor invasion
of privacy. Following a bench trial held on June 7, 2017, the trial court found
Nelson guilty as charged and sentenced Nelson to time served. Nelson now
appeals.
[7] Nelson argues the State failed to present sufficient evidence to prove he
committed invasion of privacy. According to Nelson, his conviction was based
upon circumstantial evidence, “as there was no evidence that anyone saw him
at [Grandmother’s] house on December 31, 2016,” and the circumstantial
3
The record is unclear as to when K.N. began living with Grandmother but the record does establish that
K.N. was living with Grandmother on December 31, 2016.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 3 of 6
evidence was “that of extreme bias demonstrated by [Grandmother].”
Appellant’s Br. p. 7. The State maintains that Nelson’s argument on appeal is
merely a request for this Court to reweigh the evidence and judge the credibility
of the witnesses. We agree and find sufficient evidence to support Nelson’s
conviction.
[8] When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012). Upon review,
appellate courts do not reweigh the evidence or assess the credibility of the
witnesses. Stewart v. State, 768 N.E.2d 433 (Ind. 2002). A conviction may be
supported by the uncorroborated testimony of a single witness or
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 4 of 6
by circumstantial evidence alone. McCarthy v. State, 749 N.E.2d 528 (Ind.
2001).
[9] To convict Nelson of Class A misdemeanor invasion of privacy, the State was
required to prove beyond a reasonable doubt that he knowingly or intentionally
violated a protective order. Ind. Code § 35-46-1-15.1(1) (2016). In the charging
information, the State specifically alleged that Nelson knowingly violated the
protective order “by going to [K.N.’s] residence and/or looking [into] the
window to contact her.” Appellant’s App. p. 14.
[10] Nelson does not dispute that he had knowledge of the protective order.
Grandmother testified at the bench trial that Nelson left voicemail messages on
her phone in which he expressed his displeasure regarding the protective order,
specifically: “[y]ou tryin’ [sic] to keep me away from my daughter,” and “[y]ou
got a restraining order against me.” Tr. p. 7. On one occasion, Nelson was
observed near Grandmother’s mailbox.
[11] K.N. testified that on December 31, 2016, while the protective order was in
place and while she was in the bedroom in the house where she lived, she heard
a tapping sound on her bedroom window. When she looked out of the
window, she saw a hand holding a cellphone. The screen on the cellphone
displayed a picture of Nelson’s mother, K.N.’s paternal grandmother.
Although K.N. could not see the individual who held the cellphone, she
testified that she thought it was her father holding the phone because she
“[didn’t] know who else would have the picture [of Nelson’s mother] on [the
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 5 of 6
cellphone],” and “[w]ho else would come to the window like that.” Tr. pp. 31,
33.
[12] From the testimony presented at trial, the trial court could have reasonably
inferred that Nelson was the individual holding the cellphone to K.N.’s window
and, thus, was in violation of the protective order. Nelson’s argument to the
contrary effectively amounts to an invitation for this court to reweigh the
evidence and judge the credibility of the witnesses, which we will not
do. See Stewart, 768 N.E.2d at 435. The evidence was sufficient to prove that
Nelson contacted K.N. in violation of the protective order.
[13] For the reasons stated above, we affirm Nelson’s conviction of invasion of
privacy.
[14] Affirmed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1417 | December 12, 2017 Page 6 of 6
Anthony Nelson v. State of Indiana (mem. dec.)
Combined Opinion