Michael S. Gower, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Michael Gower appeals his conviction for Class A misdemeanor invasion of privacy, arguing (1) the trial court abused its discretion when it permitted the State to reopen its case-in-chief, (2) there was insufficient evidence to support his conviction, and (3) his due process rights were violated. Finding his arguments without merit, we affirm.

Facts and Procedural History

[2] On November 1, 2024, Natalie Sams obtained a two-year protective order against Gower from the Washington Circuit Court. Sams and Gower share a child together. The order stated, in relevant part, “[Gower] is prohibited from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [Sams].” Exhibits at 4. In the parties’ separate paternity cause, the trial court initially issued an order allowing Gower to communicate with Sams about parenting matters. But in early April 2025, the paternity court limited their contact to communication through the parenting time application AppClose.

[3] Gower called Sams on her cell phone on April 12, 2025. Then, on April 24, Sams went to the Floyd County Police Department and showed Officer Ethan Conroy her cell phone call log. She explained there was a protection order in effect and Gower was only allowed to contact her through the parenting app. Sams also showed Officer Conroy text messages she received from Gower in February and March. Officer Conroy verified that the number associated with the texts and call belonged to Gower. As a result, the State charged Gower with invasion of privacy, a Class A misdemeanor.¹ The charging information read, in relevant part:

That on or about April 24, 2025, in the County of Floyd, State of Indiana:

․

Michael S. Gower did knowingly violate a protective order to prevent domestic or family violence or harassment issued ․ under cause number 88C01-2410-PO-000800, to protect Natalie L Sams[.]

Appellant's Appendix Vol. 2 at 17.

[4] A bench trial was held on April 22, 2026. The State called Officer Conroy and Sams as witnesses, and both testified consistently with the facts above. When the State rested, Gower moved for a directed verdict, arguing the State failed to prove the crime took place in Floyd County on April 24, 2025. In response, the State moved to reopen its case-in-chief to present additional testimony from Sams, and Gower objected. The trial court reasoned:

I understand ․ Gower's position with regards to ․ reopening the case, but I do think that ․ points can be made. We haven't had any closing argument. We're not that far along where there still cannot be ․ opportunity to examine the witness on these issues․ I don't see an interference with any strategy that ․ Gower would have or that there couldn't be an adjustment for a sub-strategy․ [S]o, I'm gonna [sic] allow the reopening of the case so that we can address the issues that are outstanding.

Transcript at 39. The court thus granted the State's motion to reopen its casein-chief without ruling on Gower's motion for directed verdict, and the State recalled Sams.

[5] Sams testified that she received Gower's February and March text messages and April 12 phone call while she was at her job or home in Floyd County. Gower renewed his motion for directed verdict, again arguing the State failed to prove the crime took place in Floyd County. The trial court denied the motion, found Gower guilty as charged, and imposed a one-year suspended sentence. Gower now appeals.

Discussion and Decision

[6] Gower presents three issues for our review, which we restate as:

I. Whether the trial court abused its discretion when it permitted the State to reopen its case-in-chief;

II. Whether there was sufficient evidence to convict Gower of invasion of privacy; and

III. Whether Gower was denied due process under the Fourteenth Amendment of the United States Constitution.

1. Reopening the State's Case-in-Chief

[7] Gower contends the trial court violated Indiana Trial Rule 41(B) when it deferred ruling on his motion for directed verdict and abused its discretion when it permitted the State to reopen its case-in-chief. We address each contention in turn.

[8] First, during his bench trial, Gower moved for a directed verdict at the close of the State's case-in-chief. The trial court deferred ruling on the motion until after it permitted the State to reopen its case. Since directed verdicts are available only in the context of a jury trial, when a defendant moves for a directed verdict during a bench trial, we review it on appeal as a motion for involuntary dismissal under Indiana Trial Rule 41(B). Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999). The rule states that when presented with such a motion, “[t]he court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.” Ind. Trial Rule 41(B) (emphases added). Based on the plain language of the rule, the trial court had the discretion to defer ruling on Gower's motion for involuntary dismissal. We cannot therefore say the trial court violated the rule.²

[9] Second, a party should generally be allowed “to reopen its case to submit evidence that could have been part of its case in chief.” Saunders v. State, 807 N.E.2d 122, 126 (Ind. Ct. App. 2004). The decision “to reopen a case is within the discretion of the trial court” and is reviewed for an abuse of discretion. Ford v. State, 523 N.E.2d 742, 745 (Ind. 1988). When exercising its discretion, the trial court should consider factors such as “whether there is any prejudice to the opposing party, whether the party seeking to reopen appears to have rested inadvertently or purposely, the state of the proceedings at which the request is made, and whether any real confusion or inconvenience would result from granting the request.” Flynn v. State, 497 N.E.2d 912, 914 (Ind. 1986). We will not set aside a court's decision to re-open the plaintiff's case-in-chief unless two facts are shown: (1) the court's decision was “unreasonable in light of all attendant circumstances or [was] clearly untenable or unreasonable” and (2) the complaining party suffered prejudice as a result. Ford, 523 N.E.2d at 746.

[10] Here, in support of his motion for involuntary dismissal, Gower argued the State failed to prove the crime took place in Floyd County on April 24, 2025. When the State moved to reopen its case-in-chief, the trial court reasoned (1) the State could readily recall Sams, who had just testified; (2) the parties had not yet made closing arguments; and (3) reopening the case would not interfere with Gower's trial strategy. The court granted the motion to reopen and the State recalled Sams, who was still present in the courthouse.

[11] When she returned to the stand, Sams clarified that she received Gower's February and March text messages and April 12 phone call while she was in Floyd County—either at home or at work. This evidence could have been part of the State's case-in-chief. And we cannot say that permitting the State to reopen its case—which it had just closed—to establish the venue and offense date was untenable or unreasonable in light of the circumstances, or that it was prejudicial to Gower.

[12] On appeal, Gower argues the trial court failed to apply the Flynn factors. But “when a trial court exercises its discretion in ruling on a party's motion to reopen its case-in-chief, there is no requirement that the court specifically articulate the reasons for its ruling.” Moriarty v. Moriarty, 150 N.E.3d 616, 627 (Ind. Ct. App. 2020), trans. denied. Thus, while knowing which Flynn factors the court considered may be helpful, the court did not need to recite or explain which ones were relied upon. Moreover, Indiana appellate courts have long held a court does not abuse its discretion when it permits the State to reopen its case-in-chief to present evidence of venue or the offense date. See Dixon v. State, 621 N.E.2d 1152, 1154 (Ind. Ct. App. 1993) (venue); King v. State, 531 N.E.2d 1154, 1161 (Ind. 1988) (offense date). We therefore conclude the court did not abuse its discretion.

2. Sufficiency of Evidence

[13] Next, Gower argues the State did not present sufficient evidence to sustain his conviction for invasion of privacy. Our standard of review for such claims is well-settled. Generally, we consider only the evidence supporting the judgment and any reasonable inferences drawn therefrom. Luke v. State, 273 N.E.3d 450, 459 (Ind. Ct. App. 2025), trans. denied. We neither judge witness credibility nor reweigh the evidence. Id. at 459-60. And we will affirm unless no reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Moone v. State, 250 N.E.3d 1101, 1106 (Ind. Ct. App. 2025), trans. denied.

[14] To convict Gower of invasion of privacy, the State had to prove that on or about April 24, 2025, in Floyd County, Indiana, Gower knowingly violated the protective order under Cause 88C01-2410-PO-800 issued to protect Sams. See Appellant's App. Vol. 2 at 17; see also Ind. Code § 35-46-1-15.1(a)(1) (2023). Gower argues only that the State failed to prove the crime took place in Floyd County on April 24, 2025.

[15] First, “[w]e treat a claim of insufficient evidence of venue in the same manner as other insufficient evidence claims.” Perry v. State, 78 N.E.3d 1, 11 (Ind. Ct. App. 2017). However, “[v]enue is not an element of the offense.” Lovelace v. State, 280 N.E.3d 808, 814 (Ind. Ct. App. 2026) (alteration in original) (quoting Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001)), trans. denied. As such, the State must only prove venue by a preponderance of the evidence, not beyond a reasonable doubt. Id. This burden is met when “the facts and circumstances permit the trier of fact to infer that the crime occurred in the given county.” Id. (quoting Perry, 78 N.E.3d at 11). And, “[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 v. State, 942 N.E.2d 848, 856 (Ind. Ct. App. 2011), trans. denied.

[16] Here, Sams testified that she received the text messages and phone call either while she was at home or at work in Floyd County. Gower argues Sams was speculating about her location because she could not recall her exact whereabouts the moment she received them. This is an invitation to reweigh the evidence which we will not do. Based on Sams’ testimony, the trial court could reasonably infer Sams was in Floyd County when she received Gower's text messages and call. Thus, we conclude the State proved by a preponderance of the evidence that the crime occurred in Floyd County.

[17] Second, a charging information need only contain “the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense.” Ind. Code § 35-34-1-2(a)(5) (2018). When “time is not an element of the offense, the State is not required to prove the offense occurred on the precise date alleged, and its presentation of evidence is not limited to events on that date.” Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014).

[18] Time is not an element of invasion of privacy. See I.C. § 35-46-1-15.1. Thus, the State did not have to prove the offense occurred exactly on April 24, 2025. Yet Gower argues “time is of the essence” because “neither the State nor Sams could establish the exact date on which the Washington County Circuit Court modified the paternity order to require [the parties to use] AppClose.” Appellant's Br. at 21-22. We acknowledge that the State did not establish the exact date the amended paternity order went into effect. But even in the absence of such date, the State nonetheless presented evidence that Gower called Sams after the paternity court limited their communication to AppClose. Specifically, Officer Conroy testified, “[Sams] pointed out that on April [12, 2025] ․ Gower violated the protection order by calling her on her cell phone and texting her in lieu of the parenting app that was set in place [by] Washington County.” Tr. at 17 (emphasis added). Thus, even if Gower is right that the paternity order permitted certain communications the protective order prohibited, the trial court could reasonably infer from the officer's testimony that the method of Gower's April 12 communication was not authorized by either order. And we will not reweigh that evidence. Given these facts, we conclude there was sufficient evidence to support Gower's conviction.

3. Due Process

[19] Finally, Gower contends the paternity order and the protective order “created an ambiguity that failed to provide clear guidance to Gower about prohibited conduct” and violated his due process rights under the Fourteenth Amendment to the United States Constitution. Appellant's Br. at 22. The State contends Gower waived the issue because he failed to preserve it for appeal. We find that Gower failed to raise the issue below or develop an adequate record to review it on appeal. And our Supreme Court has long held that “failure to file a proper motion to dismiss raising the [c]onstitutional challenge waives the issue on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). Based on his failure to preserve the issue, we decline to address it.

Conclusion

[20] For these reasons, we affirm Gower's conviction for Class A misdemeanor invasion of privacy.

[21] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-1-15.1(a)(1) (2023).

2.   Gower also argues the trial court violated Williams v. State, 892 N.E.2d 666 (Ind. Ct. App. 2008), trans. denied. Specifically, Gower claims Williams establishes a procedure trial courts must follow when a party motions for involuntary dismissal. But Williams creates no such procedure. Instead, it sets forth the applicable appellate procedure when reviewing the denial of a motion for involuntary dismissal. See Williams, 892 N.E.2d at 670-71 (“[O]ur review of the denial of the motion for involuntary dismissal is limited to the State's evidence presented during its case-in-chief.”). Stated another way, Williams limits what this Court can review on appeal, not what a trial court must do below. And because Gower does not appeal the denial of his motion for involuntary dismissal, Williams is inapplicable here, and we decline to analyze it further.

DeBoer, Judge.

Foley, J., and Felix, J., concur.