EVANS v. STATE (2018)

MEMORANDUM DECISION

[1] Devon Evans appeals his conviction of Level 6 felony invasion of privacy when defendant has a prior conviction.¹ Evans argues the State did not present sufficient evidence he knowingly violated a no contact order (“NCO”). We affirm.

Facts and Procedural History

[2] On December 12, 2016, Evans signed a plea agreement for cause number 49G04–1607–F5–27986 (“Cause # 27986”) wherein he pled guilty to Level 5 felony criminal confinement.² In return, the State agreed to dismiss other pending charges. In the plea agreement, the NCOs as to K.O. and A.P. were noted to be available for modification if either K.O. or A.P. requested it. Additionally, the State agreed “to not file charges regarding violating the [NCO] with regard to jail calls.” (Ex. Vol. III at 12.)

[3] On December 27, 2016, the trial court (“Court 4”) approved the plea agreement and entered a sentencing order wherein Evans was sentenced to six years for Level 5 felony criminal confinement. The sentencing order stated “[NCO] may be modified by the court if [K.O.] or [A.P.] appears in person and gives testimony requesting the [NCO] be lifted.” (Id. at 18.) It did not include any language regarding charges stemming from jail calls.

[4] At the same time, NCOs for both women were issued, stating:

THE DEFENDANT IS ORDERED TO HAVE NO CONTACT WITH:

[K.O.] 3

in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while on probation. This includes, but is not limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.

(Id. at 7) (footnote added). The third page of the order pertaining to A.P. contains a “STATEMENT OF DEFENDANT,” (id. at 10), reflecting Evans' receipt of the order and that he had read and understood it. On December 28, 2016, Court 4 issued its abstract of judgment stating the “[NCO] may be modified by the court if [K.O.] or [A.P.] appears in person and gives testimony requesting the [NCO] be lifted.” (Id. at 16.)

[5] On May 4, 2017, Evans was arrested on other charges. He was placed in jail. Beech Grove Police Department Detective Jill Liter was assigned to the case. Detective Liter was familiar with both Evans and K.O. from other domestic violence investigations. Detective Liter checked Evans' name on INcite ⁴ and found an active order in place protecting K.O. from Evans. Detective Liter then requested the records for jail calls made by Evans. Detective Liter found Evans had called K.O. in May and July of 2017. The State filed charges as to two of the calls, alleging Evans had committed Level 6 felony invasion of privacy by violating the NCO.

[6] On September 19, 2017, this trial court (“Court 16”) conducted a bench trial. The State presented evidence of the NCOs as to both A.P. and K.O. Evans argued at trial that, because the NCOs contained language permitting modification, the State was required to show they had not been modified. Court 16 found that to make the State prove they had not been modified would be “speculation.” (Tr. at 33.)

[7] Although both orders appear to be identical, the third page of the order pertaining to K.O. is missing. The third page contains the signature by Evans that he received notice of the NCO. The State explained to Court 16 the missing page was due to a “scanning” issue but that Evans had “signed it for both.” (Id. at 35.) Evans objected that the lack of a signature page was “evidence that there was no valid [NCO] in place[.]” (Id.)

[8] Court 16 found that although the third page of the NCO pertaining to K.O. was missing, Evans was aware it was in place, if for no other reason than the plea agreement, the sentencing order, and the abstract of judgment also noted the presence of the NCOs as to both women. The trial court found Evans guilty and sentenced him to 180 days, consecutive to his sentence in Cause # 27986.

Discussion and Decision

[9] Evans asserts the State did not present sufficient evidence he had committed Level 6 felony invasion of privacy. Specifically, he argues the State did not present evidence the NCO had not been modified and that, because of this possible modification, Evans was unaware the NCO was still in effect.

[10] When reviewing sufficiency of the evidence in support of a conviction, we will consider only probative evidence in the light most favorable to the trial court's judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh'g denied. The decision comes before us with a presumption of legitimacy, and we will not substitute our judgment for that of the fact-finder. Id. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference reasonably may be drawn from it to support the verdict. Id. at 147.

[11] To prove Level 6 felony invasion of privacy, the State must prove Evans “knowingly or intentionally violated ․ an order issued under IC 35–38–1–30.” ⁵ Ind. Code § 35–46–1–15.1(12) (2016). It is enhanced from a Class A misdemeanor to a Level 6 felony “if the person has a prior unrelated conviction for an offense under this section.” ⁶ Id.

Did Evans knowingly violate the terms of the NCO?

[12] Evans asserts he did not knowingly violate the NCO because he believed it may have been modified and because his plea agreement indicated the State “agree[d] to not file charges regarding the violating the [NCO] with regard to jail calls[.]” (Ex. Vol. III at 12.) We address each argument separately.

Modification

[13] Evans asserts that, as the NCO may have been modified, he did not knowingly violate its terms. Evans' argument is essentially that he made a mistake of fact regarding the existence of the NCO.

[14] “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35–41–2–2(b). Indiana Code section 35–41–3–7 states: “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.” If a defendant is unaware of the NCO, he has a defense to a charge of invasion of privacy. Chavers v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013), trans. denied.

[15] Once the State demonstrates a defendant was aware of an NCO, “the burden is on the defendant to establish an evidentiary predicate of his mistaken belief of fact.” Id. Once invoked as a defense, the defendant must satisfy three elements: “(1) that the mistake be honest and reasonable; (2) that the mistake be about a matter of fact; and (3) that the mistake negate the culpability required to commit the crime.” Id. (quoting Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) ). The State “retains the ultimate burden of proving beyond a reasonable doubt every element of the charged crime, including culpability or intent, which would in turn entail proof that there was no reasonably held mistaken belief of fact.” Id. at 151–52. It may do so by “directly rebutting evidence, by affirmatively showing that the defendant made no such mistake, or by simply relying upon evidence from its case-in-chief.” Id. at 152.

[16] Here, the State presented evidence of the plea agreement, signed by Evans, in Cause # 27986 referencing the NCOs. It presented evidence of the NCOs themselves, the sentencing order referencing the NCOs, and the abstract of judgment referencing the NCOs. The NCO is listed under the heading of “Additional Sentencing Information” on the sentencing order. (Ex. Vol. III at 18.) The NCO is listed under the heading of “Additional Comments and Recommendations” in the abstract of judgment. (Id. at 16.) Although all those documents indicate the women are permitted to request the NCO be modified or lifted, no evidence was presented to reflect that such a modification had been effectuated. Evans was presented with numerous documents notifying him the NCO was in place as a term of his sentence entered on December 27, 2016. The jail calls happened five to six months after Evans was sentenced. The State also presented evidence from Detective Liter that she had accessed the INcite database and found the NCO from Court 4 was still valid.

[17] Although Evans claims he thought the NCO had been modified, he presented no evidence to support that claim. Briefly, during sentencing, he mentioned K.O. had written to Court 4 to have the NCO lifted, but he presented no proof of these writings or an order from the other court either acknowledging the request or granting it.⁷ At trial, he presented no evidence for the State to rebut. His reliance on that modification language actually constituting a modification of the NCO is not reasonable and does not negate his culpability in this matter.

[18] In Chavers, on July 16, 2012, Amber Cushenberry received a civil protection order against Chavers. Chavers, 991 N.E.2d at 150. When she did not appear at the renewal hearing on September 10, 2012, that order was dismissed. Id. However, on September 17, 2012, Chavers was sentenced for a Class D felony criminal confinement charge in which Cushenberry was one of the victims. Id. As a condition of his probation, the court entered a no contact order, “with instruction that the order could be vacated at the victims' request.” Id.

[19] On September 18 or 19, 2012, Cushenberry went to the court from where the civil protection order was issued and asked to have it removed. Id. They gave her paperwork indicating the dismissal. Id. On September 20, 2012, Chavers met with his probation officer and was apprised of the terms of probation, including the no contact order stemming from his criminal case. Id. That same day, Chavers and Cushenberry conversed and Cushenberry indicated she had the dismissal papers. Id. With Cushenberry's consent, Chavers went to Cushenberry's home that day. Id.

[20] Because Chavers was on GPS monitoring, the police saw he was at Cushenberry's home and conducted a welfare check on her. Id. Upon arrival, and after some initial non-cooperation from both Cushenberry and Chavers, the couple showed the officer the dismissal paperwork. Id. at 151. After checking with dispatch, though, the officer confirmed the NCO from the criminal court was still in effect and arrested Chavers for invasion of privacy. Chavers was convicted and sentenced. Id.

[21] Chavers appealed claiming he had made a mistake of fact and that his culpability was negated because he “professed confusion regarding the validity of the protective orders filed against him.” Id. at 152. We affirmed his sentence because NCOs are between the defendant and the State and absent information provided by the State to the defendant, the defendant may not reasonably rely on information received from other sources as to whether the NCO is still in place. Id. at 153.

[22] The same is true in the case before us. Here, Court 16 heard the evidence in this matter and found Evans was aware the NCO was in place and that no proof of a modification had been presented. Evans' arguments to the contrary are an invitation that we reweigh the evidence and judge the credibility of the witnesses, which we cannot do. See id. at 152 (on appeal, “we will not disturb the trial court's credibility determinations”).

Jail Call Clause

[23] Evans also argues he did not knowingly violate the terms of the NCO because his plea agreement in Cause # 27986 indicates the State “agree[d] to not file charges regarding violating the No Contact Order with regard to jail calls[.]” (Ex. Vol. III at 12.) The State argues that condition applied only to a “violation of a no contact order that had occurred during the pendency of that particular case[.]” (Appellee's Br. at 12.)

[24] Beyond a bare assertion the clause exists, Evans presents no cogent argument this clause should negate his culpability. Moreover, he did not make this assertion at trial. As such, this argument is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (waiving argument for failure to city authority or provide cogent argument); see also Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010) (failure to raise issue at trial court waives the issue for appellate review), trans. denied. Waiver notwithstanding, relief remains available under a narrow exception for fundamental error. Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). A fundamental error is one that “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.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) ).

[25] A plea agreement is contractual in nature, binding the defendant, the State, and the trial court. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied. We look to principles of contract law when construing plea agreement to determine what is reasonably due the defendant. Id. The primary goal of contract interpretation is to give effect to the parties' intent. Id. If the terms are “clear and unambiguous, the parties' intent is conclusive, and the court will not construe the contract or look to extrinsic evidence.” Id. at 483. Terms are not ambiguous just because the parties do not agree. Id. Ambiguity exists only if a reasonable person would find the contract “subject to more than one construction.” Id. Ambiguity in a plea agreement is construed against the State. Id.

[26] Here, the plea agreement in Cause # 27986 was signed approximately two weeks prior to sentencing. The fact that plea agreement called for Evans to be released to community corrections following sentencing, such that Evans would no longer be in jail, suggests the plea agreement's reference to Evans not being charged for calls made from jail was a reference to any calls Evans may have already made while in jail waiting to resolve Cause # 27986. Furthermore, none of the documents implementing the NCOs, which were entered pursuant to Evans' sentence in Cause # 27986 and as a condition of Evans' probation therein, provide Evans a contact exception if Evans is in jail while those NCOs are in effect. The NCOs state that Evans is not allowed to contact either woman “in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while on probation.” (Ex. Vol. III at 7.) Thus, it is wholly illogical for Evans to assert the clause from his plea agreement created a perpetual jail-call exception to any NCO that might ever be entered against him. Such a broad interpretation would produce an absurd result and we will not so interpret it. See Owens, 886 N.E.2d at 67 (appellate court interprets plea agreement clauses to produce sensible result).

Conclusion

[27] As the State presented sufficient evidence Evans had knowledge the NCO was in effect when he called K.O. in May and July of 2017, we affirm his conviction.

[28] Affirmed.

FOOTNOTES

1.   Ind. Code § 35–46–1–15.1 (2016).

2.   Ind. Code § 35–42–3–3 (2014).

3.   Identical orders were entered as to both women, with only the names changed.

4.   The Indiana Court Information Technology Extranet (INcite) is a “secure extranet website [that] serve[s] as a single environment for hosting all of the web-based applications that the Supreme Court currently provides[.]” https://www.in.gov/judiciary/admin/2665.htm (last visited May 17, 2018). Amongst the applications included is the “Protection Order Registry.” Id.

5.   Indiana Code section 35–38–1–30 states: “A sentencing court may require that, as a condition of a person's executed sentence, the person shall refrain from any direct or indirect contact with an individual.”

6.   Evans stipulated to the enhancement. (See Tr. at 42.)

7.   Court 16 did find “it a mitigator that [K.O.] did attempt to have the [NCO] lifted.” (Tr. at 52.) However, Evans did not present any evidence, during trial or sentencing, that Court 4 had granted K.O.'s request.

May, Judge.

Riley, J., and Mathias, J., concur.