Steede E. Maxey, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] After a court issued a protective order requiring Steede Maxey to stay away from his wife, he drove by her home, threatened her with a gun, called her from varying phone numbers, and sent her threatening text messages. Maxey was charged with and convicted of misdemeanor invasion of privacy based on his violation of the protective order. Maxey appeals, alleging various inadequacies in the evidence including that the protective order was never admitted, that he could not have known its terms, and that the conduct proven at trial did not occur on the date reflected in his criminal charge. Finding his claims unpersuasive, we affirm.

Facts

[2] By the end of 2024, the five-year marriage of Maxey and his wife, B.T., had unraveled, and their divorce was pending. They also were simultaneously involved in an Indiana Department of Child Services (DCS) case involving their two young children.

[3] In January 2025, B.T. petitioned for a protective order against Maxey. The court set the petition for hearing on February 6, 2025, and sent notice to both parties. Although B.T. appeared at the hearing, Maxey did not. The court granted B.T.’s petition and issued an order of protection (Original Protective Order) that same day. The Original Protective Order prohibited Maxey from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with B.T. and their two children. It also required him to stay away from B.T.’s residence.

[4] The next day, a Marion County Sheriff's Deputy served Maxey with a copy of the Original Protective Order. Maxey continued to contact B.T. by phone and email. His phone calls alone numbered about 15 times daily and appeared to originate from different phone numbers. During the calls, Maxey would “say the same thing about just doing something to [B.T.], threatening [her],” according to B.T. Tr. Vol. II, p. 12. B.T. recognized Maxey's voice during the calls, and text messages were sent to her from a number that Maxey had used during such calls.

[5] Maxey also drove by B.T.’s house after issuance of the Original Protective Order. When Maxey showed up outside her home, he called her “stupid b***h[ ]” and threatened her with his gun in their children's presence. Id. at 8.

[6] Five days after being served with the Original Protective Order, Maxey filed a motion to reconsider it, requesting that the trial court delete the two children he shares with B.T. from the Order's scope. He noted that DCS was already overseeing his interactions with the children, so the protective order essentially was unnecessary to ensure their safety. Maxey did not challenge the Original Protective Order as it related to B.T., however.

[7] The court scheduled a hearing on Maxey's motion to reconsider for March 13, 2025. Maxey appeared, representing himself. B.T. did not appear. During the hearing, the court granted Maxey's petition and modified the protective order to remove the two children from its scope. The court issued the modified order (Modified Protective Order) that same day. The entries on the CCS that day reflect:

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Exhs., p. 6. These entries show the Original Protective Order's replacement with the Modified Protective Order.

[8] Maxey continued to contact B.T. after the trial court modified the Original Protective Order. In mid-April 2025, B.T. received a string of text messages from a number she identified as Maxey's. The messages threatened “your day will come nasty b****h,” referred to B.T. as a “wh*re,” and commented about her purported sex life. Exhs., p. 14. Two days later, Maxey sent a gun emoji paired with the message: “Som (sic) dogs don[’]t go to heaven b***h.” Id.

[9] The State charged Maxey with Class A misdemeanor invasion of privacy, alleging he violated a protective order issued to protect B.T. At Maxey's bench trial, the trial court admitted without objection State's Exhibit 1, which was the certified CCS from the protective order action reflecting both the Original Protective Order—issued February 6, 2025, and expired on March 13, 2025— and the Modified Protective Order issued March 13, 2025. Id. The court also admitted without objection State's Exhibit 2, which was a copy of the Modified Protective Order.

[10] When the State sought to introduce text messages that Maxey purportedly sent to B.T. in mid-April, Maxey objected, claiming the State had failed to show that he authored or sent the messages. The trial court credited B.T.’s identification of the sending phone number as Maxey's, overruled Maxey's objection, and admitted the text messages. B.T. later testified during the trial that Maxey's unrelenting contact left her overwhelmed and afraid for her safety.

[11] Testifying in his own defense, Maxey acknowledged he was “aware of the protective order” but denied contacting B.T. when a protective order was in effect. Tr. Vol. II, p. 23. He claimed B.T. had initiated all contacts during the relevant period and that DCS service providers had witnessed and reported those contacts to DCS.

[12] Maxey also claimed his phone number had a 463 area code, while the text messages showed they originated from a 219 area code. Maxey denied using any phone applications that would reflect a different number on text messages. In response to B.T.’s claim that he had threatened her with a gun, Maxey denied owning a gun. Aside from his own testimony, Maxey presented no other evidence in his defense.

[13] The trial court found Maxey guilty of invasion of privacy as a Class A misdemeanor and sentenced him to 180 days, fully suspended to probation.

Discussion and Decision

[14] Maxey appeals his conviction, challenging the sufficiency of the evidence supporting it. Maxey's arguments are grounded in his assertion that the trial court relied solely on the Original Protective Order in finding him guilty of invasion of privacy. But Maxey provides no citations to the record that are supportive of his claim that only the Original Protective Order was at issue. The charging information does not specify the protective order at issue. When entering judgment of conviction, the trial court did not specify whether it found Maxey guilty based on his violation of the Original Protective Order, the Modified Protective Order, or both. Accordingly, the violation of either order is sufficient to uphold his conviction.

[15] When reviewing such a claim, “our role is to consider only the probative evidence and reasonable inferences supporting the verdict.” Carmouche v. State, 188 N.E.3d 482, 485 (Ind. Ct. App. 2022). We neither reassess witness credibility nor reweigh the evidence. Id. “We affirm unless no reasonable factfinder could find each element of the crime proven beyond a reasonable doubt.” Id.

[16] The charging information alleged that “on or about May 5, 2025, STEEDE E. MAXEY did knowingly violate a protective order to prevent family violence or harassment issued under I.C. 34-26-5 by the Superior Court of Marion County under cause number 49D16-2501-PO-003501, to protect [B.T.],” in violation of Indiana Code § 35-46-1-15.1(a)(1). App. Vol. II, p. 10. Indiana Code § 35-46-1-15.1(a)(1) specifies that “[a] person who knowingly or intentionally violates ․ a protective order to prevent domestic or family violence or harassment issued under IC 34-26-5 ․ commits invasion of privacy, a Class A misdemeanor.”

I. Original Protective Order

[17] Maxey argues that the State's failure to introduce the Original Protective Order was fatal to the State's case. He claims that “Indiana [l]aw specifies language that must be included in the order for it to be used as a basis for an invasion of privacy conviction” and that “[t]here is no way to know whether the [Original Protective Order] contains the language required by I.C. 34-26-5-3.” Appellant's Br., p. 7. Indiana Code § 34-26-5-3(b)-(c) requires the inclusion of specified information in all orders for protection. Maxey also argues that the State failed to present proof beyond a reasonable doubt that he violated a protective order. We are unpersuaded for multiple reasons.

A. Protective Order's Statutory Compliance

[18] In sole support of his claim that there was no evidence of the Original Protective Order's compliance with Indiana Code § 34-26-5-3, Maxey cites Clemons v. State, 68 N.E.3d 625 (Ind. Ct. App. 2016). But Clemons is a memorandum decision that may not be cited as authority under these circumstances. See Ind. Appellate Rule 65(D)(2) (Absent exceptions not present here, “a memorandum decision [issued before January 1, 2023,] is not binding precedent for any court and must not be cited to any court except to establish res judicata, collateral estoppel, or law of the case.”). Maxey therefore has waived this issue by failing to support it with relevant authority. See App. R. 46(A)(8)(a) (“Each contention [in the appellant's brief] must be supported by citations to the authorities ․ relied on[.]”).

[19] Waiver notwithstanding, the second problem with Maxey's attack on the protective order evidence is that it assumes evidentiary requirements that the invasion of privacy statute does not impose. The invasion of privacy statute does not specify the manner in which the State must prove the existence or contents of the protective order that the defendant knowingly or intentionally violated. Ind. Code § 35-46-1-15.1. Although the Original Protective Order itself was never admitted, the State introduced, and the trial court admitted, the CCS recounting the entire protective order proceedings.

[20] The CCS reflects the issuance of the Original Protective Order, its service on Maxey, and the issuance of the Modified Protective Order. B.T. also testified to the issuance of the Original Protective Order, and Maxey conceded he was “aware of the protective order.” Tr. Vol. II, p. 23. Maxey's knowledge of the Original Protective Order also is reflected in his filing of a motion to modify the Original Protective Order five days after he was served with it. Aside from seeking the deletion of his children from the scope of the Original Protective Order, Maxey never challenged, either in the trial court or on appeal, the entry of either the Original Protective Order or the Modified Protective Order. He also never questioned their statutory compliance in the protective order action.

[21] At Maxey's invasion of privacy trial, the State also introduced, and the trial court admitted, the Modified Protective Order issued pursuant to Indiana Code § 34-26-5. As the CCS shows, the trial court modified the Original Protective Order in only one respect. Whereas the Original Protective Order protected B.T. and the two children of B.T. and Maxey, the Modified Protective Order protected only B.T. Although the better course would have been for the State to also introduce the Original Protective Order, the evidence that was introduced was sufficient to establish the existence of the Original Protective Order issued pursuant to Indiana Code § 34-26-5.

B. Evidence of Maxey's Violation of Original Protective Order

[22] Maxey also claims the State did not prove beyond a reasonable doubt that he violated the Original Protective Order. He focuses largely on a variance between the charging information and the evidence—an argument we find unavailing.

[23] The information alleged that Maxey violated a protective order that protected B.T. “[o]n or about May 5, 2025.” App. Vol. II, p. 10. Maxey argues that the State did not meet its burden of proof because the evidence did not show any contact by Maxey with B.T. “[o]n or about May 5, 2025.” Id.

[24] A variance between the charging information and proof at trial does not necessarily require reversal. Broude v. State, 956 N.E.2d 130, 135 (Ind. Ct. App. 2011). A variance is not fatal when the defendant was not misled by the variance in the preparation and maintenance of his defense and the defendant was not otherwise harmed or prejudiced by the variance. Id.

[25] Maxey does not contend he was misled or harmed by the variance. He simply assumes the State was required to prove Maxey violated the protective order either on May 5 or very close thereto, and that failure to do so results in automatic reversal. But by failing to argue that he was misled or otherwise harmed by the variance, he has failed in his burden on appeal to establish reversible error. See Gaines v. State, 999 N.E.2d 999, 1002 (Ind. Ct. App. 2013) (finding variance immaterial based on lack of evidence that the variance was misleading to the defendant or harmed him). Regardless, time is not an element of invasion of privacy except to the extent that the alleged conduct must violate an existing protective order. See I.C. § 35-46-1-15.1(a)(1).

[26] The evidence supports a finding that Maxey committed invasion of privacy by violating the Original Protective Order while it was in effect. B.T. testified that, after issuance of the Original Protective Order, Maxey appeared at her home and threatened her with a gun. She also testified that she received about 15 phone calls daily from Maxey after issuance of the Original Protective Order. This evidence was sufficient to prove beyond a reasonable doubt that Maxey committed invasion of privacy by violating the Original Protective Order.

II. Modified Protective Order

[27] Even if the evidence was insufficient to prove violation of the Original Protective Order, the trial court could have determined that the State proved beyond a reasonable doubt that Maxey violated the Modified Protective Order by sending B.T. text messages in April 2025—a month after that Order was issued.¹ Maxey claims no such violation could be proven because the CCS reflects he was never served with a copy of the Modified Protective Order. Although the CCS is, at most, ambiguous about service of the Modified Protective Order, such service is not necessarily a prerequisite to a conviction for invasion of privacy.

[28] The statute under which Maxey was charged with invasion of privacy requires only that the defendant “knowingly or intentionally” violated a protective order. Ind. Code § 35-46-1-15.1(a)(1). Thus, a defendant who violates a protective order of which the defendant has actual knowledge may be found guilty of invasion of privacy even absent proof that the order had been personally served on the defendant at the time of the alleged violation. See, e.g., Hendricks v. State, 649 N.E.2d 1050, 1052 (Ind. Ct. App. 1995) (finding evidence of invasion of privacy sufficient when defendant claimed he did not have notice of the protective order, but the evidence showed that he had been orally informed of it by the protected person and by a police officer). It would defeat “the purpose of the Indiana Civil Protection Order Act ․ if we were to embrace [the] contention that a defendant does not violate the criminal code because of some defect in civil process even where the court had in fact issued a protective order and the defendant in fact knew it had done so.” Joslyn v. State, 942 N.E.2d 809, 812 (Ind. 2011).

[29] On appeal, Maxey does not suggest he was unaware of the Modified Protective Order—only that the CCS does not reflect that he was personally served with it. During his trial, Maxey testified that he was aware of “the protective order.” Tr. Vol. II, p. 23. He also was in the courtroom when the trial court, while hearing his request to modify the Original Protective Order, issued the Modified Protective Order.

[30] The trial court also could infer that Maxey was aware of both the Original Protective Order and the Modified Protective Order from Maxey's attempts to hide his identity when calling B.T. and/or sending the text messages during the periods when each of those orders was in effect.

[31] This evidence was sufficient to prove Maxey was aware of the Modified Protective Order when he knowingly and intentionally sent the text messages to B.T. in April 2025 in violation of that Order. By engaging in such conduct, he committed invasion of privacy. See Ind. Code § 35-46-1-15.1(a)(1). Thus, even if the evidence of Maxey's violation of the Original Protective Order was lacking, the State proved he committed invasion of privacy through evidence of his violation of the Modified Protective Order.

[32] As a reasonable factfinder could determine that each element of invasion of privacy was proven beyond a reasonable doubt, we affirm the trial court's judgment.

FOOTNOTES

1.   Maxey contends that B.T.’s failure to provide specific dates of Maxey's calls and drive-by rendered the evidence insufficient to support a finding that Maxey violated the Original Protective Order. But B.T.’s testimony made clear that these contacts occurred when the prohibitions against such contact were in place. Thus, the evidence of Maxey's calls and drive-by would have violated at least one of the two protective orders (that is, the Original Protective Order or the Modified Protective Order or possibly both, depending on the specific dates of the calls and drive-by).

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.