BENZIGER v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Lane Brook Benziger appeals his conviction and sentence for Class A misdemeanor invasion of privacy. We affirm Benziger's conviction but remand for resentencing.

Facts and Procedural History

[2] Benziger and Katherine Radabaugh married in 2017 and have one child together, E.B. Radabaugh filed for divorce in June 2022. In September 2022, Radabaugh obtained an ex parte order for protection against Benziger pursuant to Indiana Code section 34-26-5-9(c). Ex. 1. The protective order prohibited Benziger from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [Radabaugh], except: contact permitted only as specified in the provisional order” in the divorce case. Id. That provisional order provided:

The parties are ordered to communicate exclusively via Our Family Wizard [(“OFW”)]․ Each party shall limit his/her messages to the reasonable number needed each week to communicate co-parenting time issues for the best interests of the Child. The parties’ communication shall be limited to communication related only to the Child, the parties’ ongoing arbitration matter [with a builder regarding a home they had purchased], and marital expenses.

Ex. 2.

[3] On August 27, 2024, Benziger sent Radabaugh a message through OFW that said, “Please see attached.” Ex. 3. The four-page attachment, which was called “Notice_Served_Defamation,” accused Radabaugh of making “false and defamatory statements” against Benziger. Exs. 3, 4. He wrote, “In accordance with I.C. 34.15.3.2, I am serving this notice to you at least three (3) days before I intend to file a Complaint for Damages with the court” to seek “compensation for these atrocities.” Ex. 4. He continued:

Your statements have caused me, and continue to cause me, to be pre-judged, affecting my personal and professional life. I am requesting you immediately retract the false and defamatory statements, as described below, including all associated and supporting documentation that you supplied when publishing them.

Id. The notice catalogued approximately 50 statements Radabaugh allegedly made, which ranged from parenting complaints about Benziger to accusations Benziger made about Radabaugh's other child and Benziger's religious practices. See id.¹

[4] Radabaugh contacted the police, and the State charged Benziger with Class A misdemeanor invasion of privacy. A jury trial was held in January 2026. Benziger did not testify. At the close of the evidence, Benziger asked the trial court to give a mistake-of-fact instruction called “Defense 1.” Tr. p. 141. He claimed that he mistakenly believed the defamation notice he sent to Radabaugh constituted a communication about E.B., which was permitted by the provisional order in the divorce case. Finding there was no “evidence to support a mistake in fact,” the trial court refused to give Defense 1. Id. at 143; see also Appellant's App. Vol. 2 p. 88 (Jury Minute Day 1 noting that “Argument heard on Defense 1 and it is refused”). The jury found Benziger guilty. The court sentenced Benziger to 365 days in jail, with 45 days executed and the remainder suspended, and 365 days of probation. The court also ordered Benziger to have no contact with Radabaugh.

[5] Benziger now appeals.

Discussion and Decision

I. Benziger has failed to provide a record adequate to review the trial court's refusal to give his mistake-of-fact jury instruction

[6] Benziger first contends that the trial court erred in refusing to give Defense 1, which was his jury instruction on mistake of fact. When reviewing a trial court's decision to refuse an instruction, we consider (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions given. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).

[7] The language of Benziger's mistake-of-fact instruction is not before us, so we cannot review whether it correctly states the law. As Benziger himself acknowledges, “The written instruction itself was not filed or included in the record[.]” Appellant's Br. p. 18.² According to Indiana Appellate Rule 46(A)(8)(e), “When an error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” (Emphasis added). In addition, Appellate Rule 50(B)(1)(c) provides that the appellant's appendix shall contain “any instruction not included in appellant's brief under Rule 46(A)(8)(e) when error is predicated on the giving or refusing of the instruction.” (Emphasis added).

[8] Benziger suggests it is the trial court's fault that Defense 1 is not included in the record. See Appellant's Reply Br. p. 6. But even if that were so—meaning that Benziger could not have included the instruction in his appendix under Appellate Rule 50(B)(1)(c) without supplementing the record—he still could have set out the instruction “verbatim” in the argument section of his brief under Appellate Rule 46(A)(8)(e).³ “It is well settled that it is the appellant's burden to provide us with an adequate record to permit meaningful appellate review.” Martinez v. State, 82 N.E.3d 261, 263 (Ind. Ct. App. 2017), trans. denied. By failing to provide us with the language of Defense 1, Benziger has waived review of this issue.⁴

II. The evidence is sufficient to support Benziger's conviction for invasion of privacy

[9] Benziger next contends that the evidence is insufficient to support his conviction for Class A misdemeanor invasion of privacy. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will consider only the evidence supporting the conviction and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

[10] To convict Benziger of Class A misdemeanor invasion of privacy as charged here, the State had to prove that he knowingly or intentionally violated an ex parte protective order issued under Indiana Code chapter 34-26-5. See Appellant's App. Vol. 2 p. 38; Ind. Code § 35-46-1-15.1(a)(2). Benziger argues that the evidence is insufficient to prove that he knowingly violated the protective order. Benziger acknowledges that the defamation notice “did contain language that, on its face, appeared to refer to [his] personal and professional life and his desire to be compensated by Radabaugh.” Appellant's Br. p. 25. However, he claims that the notice “provided the jury with some evidence that [he] believed the document as a whole related to the subjects of health, well being, custody of E.B., and parenting time.” Id. To be sure, the provisional order permitted communication about parenting-time and other co-parenting issues concerning E.B., and Radabaugh acknowledged as much during her trial testimony. But the jury heard evidence that the notice, on its face, was a formal defamation demand—cataloguing statements Benziger claimed had harmed his personal and professional reputation and seeking their retraction and his compensation—the core of which fell outside the provisional order's permitted subjects of E.B. (including parenting time), the parties’ arbitration with the builder, and marital expenses. That some of the statements referred to E.B. did not compel the jury to find the communication was permitted, because a message may touch on a permitted subject yet, taken as a whole, exceed the exception. See Jordan v. State, 77 N.E.3d 1271, 1274 (Ind. Ct. App. 2017) (“But the evidence supports the trial court's finding that Jordan's voicemail exceeded the scope of what was necessary to communicate with Price about parenting time.”). From that evidence, a reasonable jury could find that Benziger knowingly sent Radabaugh a communication the protective order did not permit. Benziger's contrary argument—that the notice showed he believed it related to E.B. and his parenting time—is just a request for us to reweigh the evidence, which we don't do. The evidence is sufficient to support Benziger's conviction for Class A misdemeanor invasion of privacy.

III. The trial court erred in sentencing Benziger to a combined term of 410 days

[11] In the alternative, Benziger contends that the trial court erred in sentencing him to a combined term of 410 days (45 days in jail plus 365 days of probation) for his Class A misdemeanor conviction. He points out that the maximum combined term of imprisonment and probation for a misdemeanor is 365 days. See I.C. § 35-50-3-1(b) (“[T]he combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.”). The State agrees that the court erred in sentencing Benziger to 410 days. See Appellee's Br. p. 12. We therefore remand this case to the trial court to impose a probationary term not to exceed 320 days (365 days minus 45 days in jail). To the extent the no-contact order's duration is tied to Benziger's sentence, the court should also adjust the order's expiration date accordingly.

[12] Affirmed in part and remanded in part.

FOOTNOTES

1.   Benziger sued Radabaugh for defamation per quod, and the trial court granted summary judgment to Radabaugh. We affirmed and awarded Radabaugh attorney's fees. See Benziger v. Radabaugh, 267 N.E.3d 1149 (Ind. Ct. App. 2025); Benziger v. Radabaugh, No. 25A-CT-1945, 2026 WL 114054 (Ind. Ct. App. Jan. 15, 2026) (mem.).

2.   Although cited by neither party, we note that Indiana Code section 35-37-2-2(6) provides that if the defendant requests special instructions, then the instructions must be (1) reduced to writing, (2) numbered, (3) accompanied by an affixed cover sheet that refers to the instructions by number and is signed by the defendant or their attorney, and (4) delivered to the trial court. It's unclear whether Benziger followed all these steps here.

3.   Although Benziger describes Defense 1 as “a pattern jury instruction on mistake of fact,” he does so only in his statement of the issues; he never identifies that pattern instruction or sets out its language anywhere in his argument. See Appellant's Br. p. 5.

4.   Benziger notes that the trial court refused Defense 1 because the evidence did not support it, not because it misstated the law. But the court's rationale does not relieve Benziger of his burden to supply an adequate record. Nor can fundamental error rescue the argument, as Benziger claims. Without the instruction's language, we cannot say that refusing it was error at all, let alone error so blatant as to make a fair trial impossible. See Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied.

Vaidik, Judge.

Altice, J., and Foley, J., concur.