MCKINSEY v. STATE (2026)

MEMORANDUM DECISION

[1] Following a jury trial, Matthew D. McKinsey (“McKinsey”) was found guilty of invasion of privacy as a Class A misdemeanor.¹ McKinsey raises a single issue on appeal, which we restate as: whether the State presented sufficient evidence that venue was proper in Clinton County. We affirm.

 Facts and Procedural History

[2] McKinsey and his ex-wife, L.P. (“L.P.”), share two children. Under their parenting arrangement, he exercised parenting time with the children on Wednesdays after school and on alternating weekends. The children attended school in Clinton County, where both McKinsey and L.P. resided.

[3] On August 9, 2023, following a hearing at which both McKinsey and L.P. appeared, the Clinton Circuit Court issued an order for protection naming L.P. as the protected person. The order prohibited McKinsey from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” L.P., except that it did “not prohibit reasonable and peaceful communications regarding the parties’ children and parenting time, with all such communications to be via” a designated co-parenting application. Ex. Vol. 3 p. 4. L.P. had asked that the parties communicate through that free application, and she thereafter repeatedly invited McKinsey to join it. The protective order was served on McKinsey at his residence in Clinton County.

[4] L.P. testified that, on the morning of Friday, August 11, 2023, she was “down at the hospital in Indy”—in Marion County. Tr. Vol. 2 p. 89. That day, McKinsey sent L.P. a series of direct text messages, rather than messages through the parenting application, concerning arrangements to pick up the children for the weekend. When McKinsey asked what time they could be brought to him, L.P. responded that he should pick them up “at the school like you normally do.” Ex. Vol. 3 p. 12. McKinsey continued to text her directly, at one point requesting a letter “from Clinton central school corporation” so that he could go to the school to exercise his parenting time. Id. at 15.

[5] L.P. reported the direct communications to Deputy Nicholas Light (“Deputy Light”) of the Clinton County Sheriff's Office. Deputy Light confirmed that a protective order issued by the Clinton Circuit Court was in effect. Later that day, he spoke with McKinsey in person in Clinton County, and McKinsey admitted that he had sent the text messages to L.P.

[6] The State charged McKinsey with invasion of privacy, alleging that he, “on or about August 11, 2023[,] in Clinton County, State of Indiana, ․ did knowingly violate a protective order to prevent domestic or family violence or harassment issued under I.C. 34-26-5 ․” Appellant's App. Vol. 2 p. 15. After the State's direct examination of L.P., McKinsey moved to dismiss, contending that, because L.P. was in Marion County when she received the messages, venue lay in Marion County rather than Clinton County. The trial court denied the motion, and it later denied McKinsey's renewed challenge presented in a motion for a directed verdict. McKinsey later testified in his defense.

[7] The jury found McKinsey guilty. At the outset of the sentencing hearing, McKinsey moved to vacate the verdict and transfer the cause to Marion County under Indiana Code section 35-32-2-5; the trial court denied that motion as well. The court entered judgment of conviction and sentenced McKinsey to 365 days, with ninety days executed on home detention through community corrections and the remainder suspended to probation. McKinsey now appeals.

 Discussion and Decision

[8] McKinsey does not challenge the sufficiency of the evidence that he violated the protective order. He contends only that the State failed to prove that venue was proper in Clinton County, arguing that the sole evidence of the offense's location was L.P.’s testimony that she was in Marion County when she received the text messages on August 11, 2023.

[9] A defendant has a constitutional and statutory right to be tried in the county in which the offense was committed. Ind. Const. art. 1, § 13; Ind. Code § 35-32-2-1(a); Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001). Venue is not an element of the offense, however, and the State therefore need not prove it beyond a reasonable doubt. Alkhalidi, 753 N.E.2d at 628. Rather, the State need only prove venue by a preponderance of the evidence. Id. A claim that the State failed to prove venue is reviewed under the same standard as any other challenge to the sufficiency of the evidence. Eberle v. State, 942 N.E.2d 848, 855 (Ind. Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the credibility of the witnesses. Id. We look to the evidence and reasonable inferences most favorable to the judgment. Id.

[10] Under the venue statute, criminal actions “shall be tried in the county where the offense was committed, except as otherwise provided by law.” I.C. § 35-32-2-1(a). The statute further provides that, when “a person committing an offense upon the person of another is located in one (1) county and the person's victim is located in another county at the time of the commission of the offense, the trial may be in either of the counties.” I.C. § 35-32-2-1(b). The statute also provides that an offense “committed by use of the Internet or another computer network” may be tried in any county “from which or to which access to the Internet or other computer network was made ․” I.C. § 35-32-2-1(j). Addressing venue in the context of communications offenses, this court has explained that, “[c]onsidering the nature of mobile phone technology, an offense committed over the telephone may reasonably be deemed to have been committed at either the geographic location from which the calls were made or at which the calls were received.” Eberle, 942 N.E.2d at 856.

[11] McKinsey directs us to evidence that L.P. was in Marion County when she received his messages. But that evidence established only that Marion County would also have been a proper venue; it did not render Clinton County an improper venue. See I.C. § 35-32-2-1(b), (j). The evidence most favorable to the judgment permits the reasonable inference that McKinsey was in Clinton County when he sent the August 11 messages. McKinsey resided in Clinton County, and the protective order listed an address for McKinsey in Frankfort, Indiana, which is in Clinton County. The messages sought to arrange the retrieval of his children from their school in Clinton County that same afternoon and expressly referred to the “Clinton central school corporation ․” Ex. Vol. 3 p. 14. Moreover, Deputy Light spoke with McKinsey in person in Clinton County later that day, when McKinsey admitted that he had sent the messages. From this evidence, the trier of fact could conclude that it was more likely than not that McKinsey sent the messages from Clinton County. Because venue was proper where McKinsey sent the messages, venue was proper in Clinton County. See I.C. § 35-32-2-1(b), (j).

[12] The State presented sufficient evidence from which the jury could find, by a preponderance of the evidence, that venue was proper in Clinton County. We therefore affirm McKinsey's conviction for invasion of privacy.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-1-15.1(a)(1).

Foley, Judge.

Vaidik, J., and Altice, J., concur.