TUCKER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Patricia Tucker was convicted of Class A misdemeanor invasion of privacy after she was found to have violated a protective order in place against her. On appeal, Tucker contends that the trial court abused its discretion in admitting certain evidence and that the State committed prosecutorial misconduct. Because we disagree with both of Tucker's contentions, we affirm.

Facts and Procedural History

[2] On January 4, 2022, a protective order was entered under cause number 46C01-2109-PO-308 (the “Protective Order”) against Tucker and in favor of her neighbor, Dax Richter. The Protective Order, which remained in effect until on January 4, 2024, enjoined Tucker “from threatening to commit or committing acts of harassment” against Richter and his household members and prohibited Tucker “from harassing, annoying, telephoning, contacting, or directly or indirectly communicating” with Richter. Ex. Vol. III p. 6.

[3] On April 12, 2023, as Richter returned home, Tucker “came out of her barn and was waving frantically at [Richter], and called [him] a jacka[**], and then proceeded to give [him] the middle finger, and then both middle fingers.” Tr. Vol. II p. 45. After Richter reported the incident to police, the responding police officer verified the existence of the Protective Order before speaking to Tucker. Tucker was “[v]ery argumentative” and “[v]ery abrasive” when speaking to the police officer. Tr. Vol. II p. 89. Tucker first denied that she had been communicating with Richter, claiming instead that she had been communicating with her son. When the officer indicated that he “would be filing a warrant,” Tucker stated that she would “rather kill [her]self than go back to jail” and suggested that she may be suicidal. Tr. Vol. II p. 91.

[4] The State charged Tucker with Class A misdemeanor invasion of privacy, alleging that she had violated the Protective Order. At trial, Tucker objected to the admission of both the Protective Order and her statement to the police officer about not wanting to go back to jail. Both were admitted over Tucker's objections. After the jury found Tucker guilty as charged, the trial court sentenced Tucker to 365 days in the LaPorte County Jail, with 305 of those days suspended.

Discussion and Decision

[5] Tucker contends that the trial court abused its discretion in admitting certain evidence. She also contends that the State committed prosecutorial misconduct. For its part, the State argues that both of Tucker's contentions are without merit.

I. Admission of Evidence

[6] The admission of evidence is a matter that we generally “leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259–60 (Ind. 2013). “We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. at 260 (internal citation omitted). “[W]e will not reverse the decision to admit or exclude evidence if that decision is sustainable on any ground.” Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied.

[7] Relevant evidence is generally admissible. Ind. Evidence Rule 402. However, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of” unfair prejudice. Evid. R. 403.

The risk of unfair prejudice relates to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest making a decision on an improper basis. Because all relevant evidence is inherently prejudicial in a criminal prosecution, the weighing test under Evidence Rule 403 boils down to a balance of probative value against the likely unfair prejudicial impact the evidence may have on the jury. Furthermore, we afford our trial courts wide latitude in weighing probative value against the danger of unfair prejudice.

Cobb v. State, 222 N.E.3d 373, 387 (Ind. Ct. App. 2023) (internal brackets, ellipses, and quotations omitted), trans. denied. “A trial court's evidentiary rulings are presumptively correct, and the defendant bears the burden on appeal of persuading us that the court erred in weighing prejudice and probative value under Evid. R. 403.” Rivera v. State, 132 N.E.3d 5, 12 (Ind. Ct. App. 2019) (internal quotation omitted), trans. denied.

A. The Protective Order

[8] In charging Tucker with Class A misdemeanor invasion of privacy, the State alleged that Tucker had violated the Protective Order. A person who knowingly or intentionally violates a protective order under Indiana Code chapter 34-26-5 commits Class A misdemeanor invasion of privacy.¹ Ind. Code § 35-46-1-15.1(a). Thus, in order to prove that Tucker committed the charged offense, the State was required to prove that she knowingly or intentionally violated the Protective Order.

[9] In arguing that the trial court abused its discretion in admitting a copy of the Protective Order into evidence, Tucker acknowledges that the State was required to prove that the Protective Order existed and that she knowingly or intentionally violated it. Tucker argues, however, that “[w]hy the protective order was granted or what the court found in granting the protective order is not relevant.” Appellant's Br. p. 11. We disagree.

[10] The Indiana Supreme Court has held that a protective order “may be admissible to prove such things as motive, intent, and identity.” Hatcher v. State, 735 N.E.2d 1155, 1159 (Ind. 2000) (emphasis added). “When determining whether a party committed the act of invasion of privacy identified in Indiana Code § 35-46-1-15.1, we do not consider whether the victim knowingly ignored the protective order but, rather, whether the defendant knowingly violated the protective order.” Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App. 2007). It seems reasonably apparent that in order to determine whether an individual violated the terms of a protective order, one must know what it prohibits. Thus, the terms of the Protective Order were relevant to the question of whether Tucker knowingly or intentionally violated it.

[11] The Protective Order indicated that Richter had shown by a preponderance of the evidence that Tucker had repeatedly threatened or harassed him, enjoined Tucker “from threatening to commit or committing acts of harassment against” Richter, and prohibited her “from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” Richter. Ex. Vol. III p. 6. Tucker argues that the “prejudicial impact” of the admission of the Protective Order “cannot be overstated” as it “encouraged the jury to apply the forbidden inference that [she] had previously committed repeated acts of stalking and harassment.” Appellant's Br. p. 11. The Protective Order does not explicitly list any acts of stalking or lay out Tucker's prior actions but rather merely refers generally to “repeated acts of harassment.” Ex. Vol. III p. 6. It stands to reason, however, that an order prohibiting harassing behavior would not have been issued if Tucker had not engaged in prior threatening or harassing behaviors.

[12] As such, the Protective Order's mere existence supports the inference that Tucker had engaged in prior threatening or harassing behavior. The Protective Order did not specify any acts committed by Tucker beyond finding that she had previously harassed Richter, i.e., the same inference supported by the mere existence of the Protective Order. Thus, while the Protective Order's reference to Tucker's previous harassing conduct against Richter may, on some level, have been minimally prejudicial to Tucker, Tucker has failed to convince us that the risk of prejudice from its admission outweighed its relevance or was unfairly prejudicial.² Rivera, 132 N.E.3d at 12.

B. Tucker's Statement to Police

[13] Tucker also argues that the trial court abused its discretion in admitting her statement to police that she would “rather kill [her]self than go back to jail.” Tr. Vol. II p. 91. Tucker objected to the admission of this statement citing Indiana Evidence Rules 403 and 404. The trial court admitted the statement over Tucker's objection.

[14] Indiana Evidence Rule 404(b) provides that “[e]vidence 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.” Indiana Evidence Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of” unfair prejudice.

[15] On appeal, Tucker argues that the statement was unfairly prejudicial as it was more prejudicial than probative. Specifically, she argues that admission of her statement “permitted the jury to speculate that [she] had been arrested on a case other than the case for which she was being tried and had a history of convictions and to convict her based upon that speculation.” Appellant's Br. p. 12. Tucker asserts that there was “no justifiable reason for the State to seek to introduce said statement as it had no relevance on whether [she had] violated the protective order.” Appellant's Br. p. 13.

[16] “Generally, evidence of a defendant's prior criminal history is highly prejudicial and is not admissible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). However, evidence suggesting prior criminal activity may be admitted if the challenged evidence shows a guilty intent, motive, purpose, identification, or common scheme or plan. Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983).

[17] Tucker made the statement to the police officer when the officer informed her of Richter's allegation that she had violated the Protective Order. Tucker first denied that she had been talking to Richter. She then made the statement, after which she indicated that she may possibly be suicidal. One may reasonably infer that Tucker's statement and suggestion that she may be suicidal if faced with the possibility of going to jail if found to have violated the Protective Order demonstrates a guilty intent or conscience. Tucker's statement can also reasonably be seen as an attempt to persuade the police officer not to investigate Richter's claims further. Applying Grimes to the challenged statement, we cannot say that the trial court abused its discretion in this regard.³

II. Prosecutorial Misconduct

[18] Tucker also contends that the State committed misconduct by deploying an “evidentiary harpoon” in proffering an unredacted version of the Protective Order as evidence at trial. Appellant's Br. p. 16. “An evidentiary harpoon occurs when the prosecution places inadmissible evidence before the jury for the deliberate purpose of prejudicing the jurors against the defendant.” Evans v. State, 643 N.E.2d 877, 879 (Ind. 1994). “Thus, to prevail on such a claim of error, the defendant must show that (1) the prosecution acted deliberately to prejudice the jury and (2) the evidence was inadmissible.” Id. (emphasis added).

[19] Having determined that the Protective Order was admissible, we conclude that Tucker cannot prevail on her claim of prosecutorial misconduct because she cannot show that the challenged evidence was inadmissible. See id. (providing that a defendant alleging an evidentiary harpoon must show that the challenged evidence was inadmissible). In addition, based on the record before us, Tucker has failed to convince us that the State acted deliberately to prejudice the jury. See id. (providing that an evidentiary harpoon must include a deliberate act by the prosecution to prejudice the jury). The State merely introduced evidence that was relevant to proving the charged offense.

[20] The judgment of the trial court is affirmed.

FOOTNOTES

1.   Tucker did not include a copy of the charging information in her appellate appendix. We therefore characterize the charge against Tucker as it was characterized in the trial court's preliminary and final instructions to the jury.

2.   Tucker argues, for the first time on appeal, that admission of the Protective Order violated the general rule that civil-law findings are not binding on criminal courts. In support, Tucker cites Indiana Code section 34-26-5-9(j) (“The fact than an order for protection is issued under this chapter does not raise an inference or presumption in a subsequent case or hearings between the parties.”) and Green v. State, 204 Ind. 349, 360, 184 N.E. 183, 187 (1933) (concluding that it was error to admit the proceedings and judgment from a civil receivership proceeding into the record in the defendant's criminal proceedings). Tucker has waived this argument for failing to raise it below. See McClendon v. State, 671 N.E.2d 486, 489 (Ind. Ct. App. 1996) (“An issue cannot be raised for the first time on appeal.”).

3.   Even if the trial court had abused its discretion in admitting the challenged statement, such error would be harmless. An error in admitting evidence is harmless when the evidence's admission was not “inconsistent with substantial justice” and did not affect the defendant's substantial rights. See Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (internal quotation omitted). Here, the evidentiary focus was on the question of whether Tucker had violated the Protective Order. The State presented significant, independent evidence of Tucker's guilt, including Richter's testimony and a video recording of the encounter. Given the significant, independent evidence of Tucker's guilt, we do not believe that a brief momentary mention of Tucker's desire to not go back to jail was likely to have affected the jury.

Bradford, Judge.

May, J., and Mathias, J., concur.