Boultinghouse v. State
| Decision Date | 06 March 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-1536 |
| Citation | 120 N.E.3d 586 |
| Parties | Christopher H. BOULTINGHOUSE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Statement of the Case
[1] Christopher H. Boultinghouse appeals his conviction for invasion of privacy, as a Class A misdemeanor, following a jury trial. Boultinghouse raises three issues for our review, which we restate as the following two issues:
[2] We hold that the invasion of privacy statute does not infringe on Boultinghouse's fundamental rights. We also hold that the State presented sufficient evidence to support Boultinghouse's conviction. Accordingly, we affirm.
Facts and Procedural History
[3] On September 20, 2017, the trial court issued an ex parte order for protection for Roberta Hook and against Boultinghouse. According to the ex parte order, Hook had shown, by a preponderance of the evidence, that Boultinghouse was her intimate partner, namely, her husband (though the dissolution of their marriage would become final about one month later); that he had engaged her in domestic or family violence; that he represented a credible threat to her safety; and that the issuance of the order was necessary to bring about a cessation of that violence or threat of violence. The ex parte order expressly enjoined Boultinghouse from committing or threatening to commit further acts of domestic or family violence, stalking, or a sex offense against Hook; it prohibited him from harassing, annoying, telephoning, contacting, "or directly or indirectly communicating" with Hook; and it ordered Boultinghouse "to stay away from the residence" of Hook "even if invited ... by [Hook] or any other person." Ex. Vol. at 10-11.
[4] A local law enforcement officer, Jennifer Loesch, served the ex parte order on Boultinghouse in person and advised him that, as the order was a temporary order, there would be a "following court date that [he would] need to be [at] and speak to the Judge," who would then decide "whether or not a permanent order is issued." Tr. Vol. 2 at 185. The court held the hearing to make the ex parte order a permanent order on September 26. Both Hook and Boultinghouse attended that hearing, and Boultinghouse "agree[d] to the issuance of the Order for Protection." Ex. Vol. at 5. Later that same day, the court made the order for protection permanent and reiterated the same findings and advisements from the ex parte order. The permanent order automatically expires on September 20, 2019.
[5] Nonetheless, about two months after the issuance of the permanent order for protection, Boultinghouse "pretty much" started living with Hook again. Tr. Vol. 2 at 136, 150. When later asked why she let Boultinghouse back into her home "even though there was a valid protective order" that Hook "still fe[lt she] needed," Hook responded, "[b]ecause I just did." Id. at 150.
[6] On March 8, 2018, Boultinghouse and Hook got into an argument at her residence. During the argument, Boultinghouse was "yelling and hollering"; he "hit the wall," which resulted in a hole in the wall; he struck Hook's minor son; and he "chased [Hook] around" the kitchen. Id. at 156-57. Hook called 9-1-1, and Boultinghouse drove away in Hook's car. Officers later arrested him.
[7] The State charged Boultinghouse with invasion of privacy, as a Class A misdemeanor, among other offenses. At his ensuing jury trial, Boultinghouse did not object to the admission of, or otherwise challenge, either the ex parte order for protection or the permanent order for protection. Instead, his defense focused exclusively on the credibility of the State's witnesses. The jury found Boultinghouse guilty of invasion of privacy, as a Class A misdemeanor, and the trial court entered its judgment of conviction and sentenced Boultinghouse accordingly. This appeal ensued.
Discussion and Decision
Issue One: Constitutional Challenges
[8] On appeal, Boultinghouse first asserts that the invasion of privacy statute, Ind. Code § 35-46-1-15.1(a) (2018), as applied to him1 infringes on his constitutionally protected fundamental right to an intimate relationship, namely, his relationship with Hook. We review federal and state constitutional challenges de novo . See, e.g. , Dycus v. State , 108 N.E.3d 301, 304 (Ind. 2018). As relevant here, Indiana Code Section 35-46-1-15.1(a) states that "[a] person who knowingly or intentionally violates: (1) a protective order to prevent domestic or family violence ... commits invasion of privacy, a Class A misdemeanor."
[9] As an initial matter, the State argues that Boultinghouse has waived his constitutional arguments because he raises them for the first time on appeal. See, e.g. , Leonard v. State , 80 N.E.3d 878, 884 n.4 (Ind. 2017). However, "our appellate courts often address as-applied constitutional challenges on their merits for the first time on appeal." Sandleben v. State , 22 N.E.3d 782, 793 n.8 (Ind. Ct. App. 2014), trans. denied . Moreover, Indiana's appellate courts prefer to resolve appeals on their merits. E.g. , Moriarity v. Ind. Dep't of Nat. Res. , 113 N.E.3d 614, 623 (Ind. 2019). Accordingly, we exercise our discretion to address Boultinghouse's constitutional challenges.
[10] Boultinghouse asserts that his "conviction violates his substantive due process right to maintain intimate relationships" under the federal and state constitutions. Appellant's Br. at 23. In particular, Boultinghouse asserts that the invasion of privacy statute violates his "right to maintain a private and intimate relationship" with Hook, his former wife, where "they lived together in her house at her invitation; shared the same room; slept together in the same bed; shared the same car; provided rides for one another; lied for one another; procured medicine for one another; cared for the same child; and felt the most complex and powerful emotion—love—for one another."Id. at 27 (citations omitted). As a matter of federal constitutional law, the Supreme Court of the United States "has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment" to the United States Constitution. Cleveland Bd. of Educ. v. LaFleur , 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).
[11] However, the existence of and basis for Boultinghouse's purported right under the Indiana Constitution is less clear. The Indiana Supreme Court has never held that such a right exists under the Indiana Constitution. Boultinghouse does not specifically reference the Due Course of Law Clause from Article 1, Section 12 of the Indiana Constitution2 in his brief, but his argument is analogous to a substantive due process argument, which is occasionally associated with that provision. See, e.g. , Baird v. Lake Santee Reg'l Waste & Water Dist. , 945 N.E.2d 711, 716 (Ind. Ct. App. 2011) ; N.B. v. Sybinski , 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000) (citing Ind. High Sch. Athletic Ass'n, Inc. v. Carlberg , 694 N.E.2d 222, 241 (Ind. 1997) ), trans. denied . Alternatively, the Indiana Supreme Court has on rare occasions found implied rights under Article 1, Section 1.3 See Solomon v. State , 119 N.E.3d 173, No. 18A-CR-2041, 2019 WL 386367, at *2 (Ind. Ct. App. Jan. 31, 2019) (collecting cases), not yet certified . However, the modern validity of that approach has been called into question. See Morrison v. Sadler , 821 N.E.2d 15, 31 (Ind. Ct. App. 2005) (discussing Doe v. O'Connor , 790 N.E.2d 985, 991 (Ind. 2003) ). But we need not ascertain the precise legal basis for Boultinghouse's state constitutional argument, if there is one, to decide this appeal.
[12] Under federal substantive due process analysis, the State may not "directly and substantially" interfere with fundamental rights. Zablocki v. Redhail , 434 U.S. 374, 387, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). If it does, the State's action is subject to strict scrutiny. See Clark v. Jeter , 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). "In order to survive strict scrutiny[,] a state action must be a necessary means to a compelling governmental purpose and be narrowly tailored to that purpose." Ind. Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc. , 643 N.E.2d 331, 337 (Ind. 1994). "Ordinary government activities" that do not infringe on fundamental rights, on the other hand, "must only satisfy a rational basis test, which requires merely that the law be ‘rationally related to a legitimate governmental purpose.’ " Id. (quoting Clark , 486 U.S. at 461, 108 S.Ct. 1910 ).
[13] Our Court has held that the N.B. , 724 N.E.2d at 1112. Similarly, the Indiana Supreme Court has held that, even if judicially enforceable implied rights exist under Article 1, Section 1, the State may not impose a "material burden" on them. See, e.g. , Clinic for Women, Inc. v. Brizzi , 837 N.E.2d 973, 983-84 (Ind. 2005). The Indiana Supreme Court has held that the material-burden analysis is, at least in some contexts, "equivalent" to the corresponding federal analysis under the Fourteenth Amendment's Due Process Clause. Id.
[14] With that background, and assuming for the sake of argument that Boultinghouse's relationship with Hook implicates his federal and state fundamental rights, we conclude that the invasion of privacy statute does not directly and substantially interfere with, and is not a material burden on, those rights. While evidence of Boultinghouse's relationship with Hook was a factual predicate to the issuance of the order for protection, that relationship is not an element of the offense of invasion of privacy, and the State did not need to present any evidence of...
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