Brent A. Clemons v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be

Nov 30 2016, 6:13 am

regarded as precedent or cited before any

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Mark Small Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Brent A. Clemons, November 30, 2016

Appellant-Defendant, Court of Appeals Case No.

66A05-1604-CR-770

v. Appeal from the

Pulaski Superior Court

State of Indiana, The Honorable

Appellee-Plaintiff. Patrick Blankenship, Judge

Trial Court Cause No.

66D01-1503-F5-19

Kirsch, Judge.

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[1] Brent A. Clemons (“Clemons”) was convicted after a jury trial of two counts of

stalking,1 each as a Level 5 felony, and three counts of invasion of privacy,2

each as a Class A misdemeanor and was sentenced to a four-year aggregate

sentence. He appeals and raises several issues, which we consolidate and

restate as:

I. Whether the trial court abused its discretion when it allowed

State’s Exhibit J, the service history of the protective order, to be

admitted into evidence; and

II. Whether the State presented sufficient evidence to support

Clemons’s convictions.

[2] We affirm in part, reverse in part, and remand.

Facts and Procedural History

[3] C.C. married Clemons in October 2013 and filed a petition for dissolution of

marriage in February 2015. During C.C.’s marriage to Clemons, her teenage

son, V.W., lived with her and Clemons for a time in 2014 in Starke County,

Indiana. In early 2014, there was an incident where Clemons battered both

C.C. and V.W. when V.W. attempted to protect his mother. Clemons moved

out of the house for a period of time, but moved back in October 2014. In

February 2015, Clemons put a knife to C.C.’s throat and threatened to kill her.

1

See Ind. Code § 35-45-10-5(a), (b)(2)(D).

2

See Ind. Code § 35-46-1-15.1(2).

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C.C. tried to leave, and Clemons smashed the windows of her vehicle with a

baseball bat and took her keys and cell phone. Clemons hit C.C. in the face

with his fist, and she feared for her life. C.C. moved out of the home she had

shared with Clemons and moved in with her ex-husband and V.W. in Pulaski

County, Indiana.

[4] After this incident of battery, C.C. obtained an “Ex Parte Order for Protection”

(“the Protective Order”) against Clemons issued under Cause No. 75C01-1503-

PO-18. State’s Ex. D. The Protective Order was issued on March 3, 2015 and

was personally served on Clemons on March 4, 2015. Tr. at 190; State’s Exs. D,

J. The Protective Order prohibited Clemons from “harassing, annoying,

telephoning, contacting, or directly or indirectly communicating” with C.C.

and was valid for two years. State’s Ex. D. C.C. testified that she included

V.W. on the Protective Order “because [she] was afraid for him” and he had

been a victim of Clemons’s domestic violence. Tr. at 113.

[5] While C.C. was staying at the home of her ex-husband, which was in a town

approximately twenty minutes away from where Clemons lived, Clemons

drove by the home twice, once in March 2015 and once in April 2015.

Clemons had no legitimate reason for driving past as he did not live or work

nearby. One of the times he drove past, C.C. was outside, and a car in which

Clemons was a passenger drove by slowly, and Clemons stared at her, which

frightened C.C.

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[6] On March 9, 2015, at approximately 6:50 p.m., Clemons sent a text message to

V.W.’s phone that said, “there you go c[.c.], the same guy you told me was a

better love maker than me has your dog and you now have everything, thnx for

the humiliation and be proud.” State’s Ex. E; Tr. at 125. V.W. showed the text

message to C.C., and the police were called. Winamac Police Department

Officer Tyler Campbell (“Officer Campbell”) responded and saw the Protective

Order, which prevented Clemons “from having any direct or indirect contact

[with] either [V.W.] or [C.C.].” Tr. at 169. Officer Campbell contacted

dispatch to make sure that the Protective Order had been served on Clemons.

After viewing the text message, Officer Campbell called the number from which

the text message was sent and verified that it was Clemons’s number. Officer

Campbell left a voicemail for Clemons informing him of the Protective Order

and telling him “he needed to cease any further contact.” Id. at 172.

[7] Later on the night of March 9, at approximately 11:37 p.m., Clemons sent

another text message to V.W.’s phone that stated, “You are a piece of shot

who’re. Duck you for this. Duck you [C.C.].” State’s Ex. F; Tr. at 126-27.

V.W. again showed the message to C.C. Sometime after, another text message

was sent to V.W.’s phone by Clemons. This message consisted of a photo of

Clemons “flipping [them] off.” State’s Ex. G; Tr. at 127. On March 15, 2015, at

approximately 4:41 p.m., Clemons again sent a message to V.W.’s phone; this

message said, “[C.C.] . . . I tried to leave y’all alone but y’all want to play

games I got ur number game on puncks [sic].” State’s Ex. H; Tr. at 133-34.

Clemons also posted a message on C.C.’s Facebook page. As a result of this

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contact by Clemons, both C.C. and V.W. were scared and fearful for their

safety.

[8] The State charged Clemons with two counts of stalking, one involving C.C.,

and the other involving V.W., which were enhanced to Level 5 felonies due to

the existence of the Protective Order. Clemons was also charged with three

counts of Class A misdemeanor invasion of privacy, two counts alleging

violations on March 9 involving C.C. and V.W. respectively, and one count

alleging a violation on March 15 involving C.C.3 A jury trial was held, at

which Clemons failed to appear, and he was tried in absentia. At trial,

Clemons’s counsel objected to the admission of State’s Exhibit J, which was a

printout of the service history of the Protective Order, and alleged an

insufficient foundation was provided to qualify the exhibit as a business record.

The trial court overruled the objection, and State’s Exhibit J was admitted into

evidence. At the conclusion of the trial, Clemons was convicted of two counts

of Level 5 felony stalking and three counts of Class A misdemeanor invasion of

privacy. He was sentenced to four years on each stalking conviction and one

year on each invasion of privacy conviction, with all of the sentences to be

served concurrent with each other for an aggregate sentence of four years

executed. Clemons now appeals.

3

The State also charged Clemons with a fourth count of Class A misdemeanor invasion of privacy alleging a

violation on March 15 involving V.W., but that count was later dismissed.

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Discussion and Decision

I. Admission of Evidence

[9] Generally, we review the trial court’s ruling on the admission of evidence for an

abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013)

(citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. We

reverse only where the decision is clearly against the logic and effect of the facts

and circumstances. Id. Even if the trial court’s decision was an abuse of

discretion, we will not reverse if the admission constituted harmless error. Id.

“It is well-settled that ‘[t]he Court of Appeals may affirm the trial court’s ruling

[on the admissibility of evidence] if it is sustainable on any legal basis in the

record, even though it was not the reason enunciated by the trial court.’” Reeves

v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011) (quoting Scott v. State, 883

N.E.2d 147, 152 (Ind. Ct. App. 2008)), trans. denied.

[10] Clemons argues that the trial court abused its discretion when it allowed the

service history of the Protective Order, State’s Exhibit J, to be admitted into

evidence at trial. He claims that State’s Exhibit J was hearsay and that the State

failed to lay a proper foundation for the exhibit to be admitted under the

business records exception to the hearsay rule. Specifically, Clemons contends

that the witness who testified about State’s Exhibit J was not the keeper or the

custodian of the records and that there was no testimony to establish that the

information contained in State’s Exhibit J was imputed on a regular basis or

regularly made as is required by Indiana Evidence Rule 803(6). Clemons,

therefore, asserts that State’s Exhibit J was not properly admitted into evidence.

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[11] We need not address Clemons’s hearsay argument because the service

information in State’s Exhibit J is cumulative of other evidence presented at

trial that established that Clemons was served or notified of the Protective

Order. The admission of evidence is harmless and is not grounds for reversal

where the evidence is merely cumulative of other evidence properly admitted.

Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). Here, testimony was

presented of Pulaski County Sheriff’s Deputy Nicholas Bowyer (“Deputy

Bowyer”), who responded to C.C.’s residence on March 15, 2015 regarding a

text message sent by Clemons on that date. Deputy Bowyer testified that he

took the police report on that date and confirmed that the Protective Order was

valid and that it had previously been served on Clemons on March 4, 2015. Tr.

at 193-94. Additionally, Officer Campbell testified that he called Clemons on

March 9, 2015, personally notified Clemons of the Protective Order, and

advised Clemons to “cease any further contact with [C.C.] or possible criminal

prosecution could ensue.” Id. at 171-72. Indiana Courts have held that proper

service of an ex parte order is not required to prove that a respondent has

knowledge of the order. See Joslyn v. State, 942 N.E.2d 809, 811-12 (Ind. 2011)

(“[T]he statutes defining the crimes of stalking and invasion of privacy do not

require actual service of a protective order for a conviction.”). We, therefore,

conclude that any error in admitting State’s Exhibit J was harmless because

ample other evidence was presented that demonstrated that Clemons was given

notice of the Protective Order.

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II. Sufficient Evidence

[12] The deferential standard of review for sufficiency claims is well settled. When

we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We also consider conflicting evidence in the light most

favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

We will affirm unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

2012). As the reviewing court, we respect “the jury’s exclusive province to

weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

[13] Clemons argues that the State failed to present sufficient evidence to support his

convictions for two counts of Level 5 felony stalking and three counts of Class

A misdemeanor invasion of privacy. In order to convict Clemons of stalking as

a Level 5 felony, the State was required to prove beyond a reasonable doubt

that he stalked another person, that a protective order to prevent domestic or

family violence under Indiana Code chapter 34-26-5 or Indiana Code chapter

34-4-5.1 had been issued to protect the same victim from Clemons, and that

Clemons had been given actual notice of the protective order. Ind. Code § 35-

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45-10-5(a), (b)(2)(D). Stalk is defined as “a knowing or an intentional course of

conduct involving repeated or continuing harassment of another person that

would cause a reasonable person to feel terrorized, frightened, intimidated, or

threatened and that actually causes the victim to feel terrorized, frightened,

intimidated, or threatened.” Ind. Code § 35-45-10-1. In order to convict

Clemons of invasion of privacy as a Class A misdemeanor, the State was

required to prove beyond a reasonable doubt that he knowingly or intentionally

violated an ex parte protective order issued under Indiana Code chapter 34-26-

5. Ind. Code § 35-46-1-15.1(2).

[14] Clemons first challenges his convictions for stalking by claiming that he “was

charged with violating ‘a’ protective order that . . . never was introduced into

evidence.” Appellant’s Br. at 21. Because this was the basis of enhancing his

two stalking convictions to Level 5 felonies, Clemons asserts that the evidence

was insufficient to support his convictions for stalking as Level 5 felonies.

[15] In the present case, C.C. testified that she obtained the Protective Order against

Clemons after an incident of domestic abuse because she was afraid of Clemons

and for her life. Tr. at 109, 111-14. Officer Campbell testified that he saw the

Protective Order on the night of March 9, 2015 after responding to the dispatch

of the text messages. Id. at 169. Deputy Bowyer also testified that, on March

15, 2015, when he responded to C.C.’s residence, he confirmed the Protective

Order was valid and that it had been served on Clemons on March 4, 2015. Id.

at 194. Further, contrary to Clemons’s claim, the Protective Order itself was

admitted into evidence as State’s Exhibit D. Id. at 114; State’s Ex. D. The

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Protective Order was an Ex Parte Order for Protection issued under the

authority of Indiana Code section 34-26-5-9(b) against Clemons on March 3,

2015. State’s Ex. D. The Protective Order was issued because C.C. had shown

that domestic violence had occurred, that Clemons represented a credible threat

to C.C.’s safety, and that the Protective Order was necessary to bring about the

cessation of the violence or threat of violence. Id. Although Clemons alleges

that C.C.’s testimony discussed two different protective orders, the evidence

presented at trial established that State’s Exhibit D was the only protective

order at issue in this case and the order on which the charges were based. We

conclude that sufficient evidence was presented to support the existence of a

protective order to enhance stalking to a Level 5 felony.

[16] Clemons next argues that insufficient evidence was presented to support the

enhancement of Count 2 stalking to a Level 5 felony and to support Count 4

invasion of privacy because the evidence did not establish that Clemons knew

or was notified that the Protective Order named V.W. as a protected individual.

Clemons asserts that V.W.’s name does not appear anywhere on the Protective

Order and that V.W. was not mentioned as a protected person in State’s Exhibit

D. Clemons contends that pursuant to Indiana Code section 34-26-5-9(b),

under which the Protective Order was issued, a “court may grant the following

relief without notice and hearing in an ex parte order for protection . . .: (1)

Enjoin a respondent from threatening to commit or committing acts of

domestic or family violence against a petitioner and each designated family or

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household member,” and because V.W. was not designated in the Protective

Order, insufficient evidence was presented. We agree.

[17] In the present case, State’s Exhibit D was the Protective Order at issue, the

violation of which was the subject of the charges against Clemons. On the face

of State’s Exhibit D, C.C. is clearly listed as the Petitioner, and Clemons is

clearly prohibited from having contact with C.C. State’s Ex. D. However,

nowhere in State’s Exhibit D does V.W.’s name appear. Id. Under the heading

Findings, it states, “This order does/does not protect an intimate partner or

child”; however, neither “does” nor “does not” is circled. Id. Under the

heading Order, paragraph 1 is checked and provides, “The Respondent is

hereby enjoined from threatening to commit or committing acts of domestic or

family violence, stalking, or a sex offense against the Petitioner and the

following designated family or household members, if any”; the lines following

are blank and do not contain V.W.’s or any other name. Id.

[18] Under Indiana Code subsections 35-45-10-5(a), (b)(2)(D), in order for the crime

of stalking to be elevated to a Level 5 felony, the State is required to prove

beyond a reasonable doubt that a protective order to prevent domestic or family

violence under Indiana Code chapter 34-26-5 or Indiana Code chapter 34-4-5.1

had been issued to protect the victim from the defendant and that the defendant

had been given actual notice of the protective order. Under Indiana Code section

35-46-1-15.1(2), in order to convict a defendant of invasion of privacy as a Class

A misdemeanor, the State is required to prove beyond a reasonable doubt that

the defendant knowingly or intentionally violated an ex parte protective order

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issued under Indiana Code chapter 34-26-5. Here, although evidence was

presented that Clemons was served with the Protective Order, because the

Protective Order did not contain V.W.’s name as a protected person, the State

did not present evidence that Clemons was given actual notice of the Protective

Order as it related to V.W. or that Clemons knowingly or intentionally violated

the Protective Order as to V.W.

[19] The State contends that testimony by C.C. and Officer Campbell established

that V.W. was included in the Protective Order, tr. at 113, 169, and was

sufficient to support Clemons’s convictions. However, we conclude that this

testimony did not establish that Clemons was given actual notice of the

Protective Order and any prohibition of contact with V.W. or that Clemons

knowingly or intentionally violated the Protective Order regarding V.W. We,

therefore, vacate the enhancement of Count 2 to Level 5 felony stalking,

reducing it to Level 6 felony stalking, and we reverse Clemons’s conviction for

Count 4, Class A misdemeanor invasion of privacy.

[20] Lastly, Clemons argues that the evidence was insufficient to support his

convictions for stalking.4 He contends that the evidence that he drove past

C.C.’s residence was not sufficient to support his conviction because he was

4

Although Clemons concludes his argument section with the statement, “The evidence was not sufficient to

support judgment of conviction on any count, Appellant’s Br. at 28, the text of his argument does not make

any reference to his invasion of privacy convictions and only addresses his stalking convictions. We,

therefore, find that he has waived any contention that his remaining invasion of privacy convictions, Counts

3 and 5, were not supported by sufficient evidence for failure to make a cogent argument. See Ind. Appellate

Rule 46(A)(8)(a).

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engaged in constitutionally protected activity as he was traveling on a public

road and had no control of the vehicle as he was the passenger in the car.

Clemons also claims that all of the text messages were sent to V.W.’s phone,

and because V.W. was not included on the Protective Order, this evidence did

not support his convictions for stalking. Clemons further asserts that it was not

clear on what date he posted the message to C.C.’s Facebook page, so it was

not proven to be made after the Protective Order was issued.

[21] The definition of stalk is stated as, “a knowing or an intentional course of

conduct involving repeated or continuing harassment of another person that

would cause a reasonable person to feel terrorized, frightened, intimidated, or

threatened and that actually causes the victim to feel terrorized, frightened,

intimidated, or threatened.” Ind. Code § 35-45-10-1. The definition of stalk

does not include statutorily or constitutionally protected activity. Id. Here, the

evidence presented at trial showed that although C.C. lived in a different town

that was approximately twenty minutes away from where Clemons lived,

Clemons drove by the home twice, once in March 2015 and once in April 2015.

Clemons had no legitimate reason for driving past as he did not live or work

nearby, and one of the times he drove past, C.C. observed a car in which

Clemons was a passenger drive by slowly, and Clemons stared at C.C.,

frightening her. Clemons’s reliance on VanHorn v. State, 889 N.E.2d 908 (Ind.

Ct. App. 2008), trans. denied, to support that his actions of driving on a public

road are constitutionally protected is misplaced. In VanHorn, no protective

order had been issued so the defendant had no notice of the impermissibility of

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his conduct in a public place where he parked near the complainants’ house and

looked at their house on several occasions. Id. at 911-13. Here, a protective

order had been issued, and Clemons had notice that he was prohibited from

contacting C.C.

[22] The Protective Order prohibited Clemons from “harassing, annoying,

telephoning, contacting, or directly or indirectly communicating” with C.C.

State’s Ex. D. The evidence presented at trial showed that, on different days,

Clemons sent multiple harassing text messages that were directed to C.C. to

V.W.’s phone. Although the messages were sent to V.W.’s phone, they were

clearly directed to C.C., Clemons had been explicitly prohibited from

contacting C.C. both directly and indirectly. Based on this evidence, the jury

could reasonably infer that Clemons was attempting to contact C.C. when he

sent the text messages and, therefore, violating the Protective Order. As a result

of receiving these messages and of Clemons’s other behavior, both C.C. and

V.W. testified that they felt threatened by and frightened of Clemons. Tr. at

135, 155. We conclude that sufficient evidence was presented from which a

reasonable jury could find that Clemons knowingly or intentionally harassed

both C.C. and V.W. in a way that would cause a reasonable person to feel

terrorized, frightened, intimidated, or threatened and that actually caused them

to feel terrorized, frightened, intimidated, or threatened. See Ind. Code § 35-45-

10-1. Sufficient evidence was presented to support Clemons’s convictions for

Level 5 felony stalking relating to C.C. and Level 6 felony stalking relating to

V.W.

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[23] In conclusion, we find that even if there was an error in the admission of State’s

Exhibit J, it was harmless because the exhibit was merely cumulative of other

evidence that was properly admitted. We conclude that sufficient evidence was

presented to support the existence of a protective order to enhance the stalking

of C.C. to a Level 5 felony as to Count 1; however, we find that the State

presented insufficient evidence to prove that Clemons was given actual notice of

the Protective Order as it related to V.W. or that Clemons knowingly or

intentionally violated the Protective Order as to V.W. Further, based on the

evidence presented at trial, we conclude that sufficient evidence was presented

to prove that Clemons stalked both C.C. and V.W. Based on these conclusions,

we vacate the enhancement of Count 2 and reduce Clemons’s Level 5 felony

stalking conviction to Level 6 felony stalking, and we reverse Clemons’s

conviction for Count 4, Class A misdemeanor invasion of privacy. We affirm

all of Clemons’s other convictions and remand with instructions to enter

judgment consistent with this decision.

[24] Affirmed in part, reversed in part, and remanded.

May, J., and Crone, J., concur.

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