Luke v. State, No. 15A01–1409–CR–407.

Docket NºNo. 15A01–1409–CR–407.
Citation51 N.E.3d 401
Case DateFebruary 24, 2016
CourtCourt of Appeals of Indiana

51 N.E.3d 401

Billy LUKE, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 15A01–1409–CR–407.

Court of Appeals of Indiana.

Feb. 24, 2016.


51 N.E.3d 405

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BROWN, Judge.

1] In this consolidated appeal,1 Billy Luke appeals his convictions for three counts of invasion of privacy as class D felonies and stalking as a class C felony, as well as the revocation of his probation. Luke raises seven issues which we consolidate, revise, and restate as:
I. Whether his convictions for invasion of privacy and stalking violate double jeopardy principles;

II. Whether the trial court abused its discretion in admitting evidence of other bad acts;

III. Whether the evidence is sufficient to sustain his convictions for invasion of privacy;

IV. Whether the court abused its discretion in instructing the jury; and

V. Whether the evidence is sufficient to revoke his probation.2

We affirm in part, reverse in part, and remand.

Background and Procedural History

[2] Luke resided at his grandmother's house in Dillsboro, Indiana. Deville's Pharmacy (the “Pharmacy”) is located across the street, and the employee parking lot is adjacent to and less than ten feet from the house's driveway.

[3] On August 3, 2012, under Cause Number 15D01–1202–CM–111 (“Cause No. 111”) in the Dearborn County Superior Court 1, Luke was found guilty of four counts of public indecency as class A misdemeanors following a trial for various acts of standing at a window inside his residence, exposing his penis, and masturbating in view of Pharmacy female employees, named T.R., R.B., C.B., and K.R. He was sentenced to an aggregate term of 1,095 days, including 715 days suspended, and was placed on probation for 725 days. One of the conditions of probation was that “Defendant shall have no contact with [T.R., R.B., C.B., or K.R.3 ] in person, by telephone, mail, computer, or any other means at the victim's residence or place of employment.” Superior Appendix at 155. The court issued no contact orders pertaining to R.B., T.R., and C.B. (collectively, the “No Contact Order”), each of which stated that contact “includes, but is not

[51 N.E.3d 406

limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.” State's Superior Court Exhibits 11–13.

4] In May of 2013, while Luke was on probation and under the No Contact Order, the female Pharmacy employees began seeing him on a “daily basis” on his porch and in his driveway while they were arriving at or leaving work. Circuit Transcript at 221. During that summer, Luke would wear a full dress suit and stand in his yard wearing dark sunglasses, which intimidated and frightened the employees, and the Pharmacy experienced a number of incidents of vandalism, including broken windows, a broken glass door, a broken window in an outbuilding, and a broken windshield on the Pharmacy's delivery van, in which marbles were used to break the glass. A truck belonging to T.R.'s boyfriend was vandalized with flattened tires and the words “[p]unk bitch” scratched into the truck's paint. Id. at 302. Luke later admitted committing these acts to a friend, Chase Merkel, in phone conversations in February 2014 which Merkel recorded. Luke, who was incarcerated at the time, asked Merkel to commit acts of vandalism, including shooting out the pharmacy windows with marbles, as well as to throw a sex toy into the Pharmacy and to pull his pants down and “pull [his] male genitalia out and swing it around like a helicopter” for the security cameras. Id. at 592.

[5] On July 18, 2013, Luke was charged in Dearborn Superior Court 2 under Cause Number 15D02–1307–CM–564 (“Cause No. 564”) with attempted invasion of privacy as a class A misdemeanor. The probable cause affidavit alleged that on or about July 9, 2013, Dearborn County Sheriff's Deputy Charlie Olson, while investigating “several vandalism cases in Dillsboro,” spoke with Chief of Dillsboro Police Ryan Brandt, and that Chief Brandt told him that Luke had recently presented him with a letter to give to the mother of T.R. and K.R., each of whom had a no contact order against Luke, explaining “who he was and what had occurred during his conviction in his opinion.” Superior Appendix at 11. Luke was subsequently arrested.

[6] On December 23, 2013, Luke was sentenced in another case, Cause Number 15D01–1308–FD–507 (“Cause No. 507”), in Dearborn Superior Court 1 pursuant to a plea agreement, to 365 days suspended to probation for a conviction for criminal mischief as a class A misdemeanor. As part of the agreement, the State dismissed a charge of voyeurism as a class D felony; Luke's probation under Cause. No. 111 was revoked, and he was ordered to serve 730 days of home detention with Southeast Regional Community Correction (“SERCC”). The court issued another no contact order regarding K.R., T.R., R.B., and C.B. On January 2, 2014, Luke appeared in Dearborn Superior Court 2 under Cause No. 564 and pled guilty to attempt to commit invasion of privacy as a class A misdemeanor, and he was sentenced to 365 days suspended to probation.

[7] Between January 3 and January 7, 2014, the Pharmacy employees again observed Luke outside the house and on the driveway staring at them at the Pharmacy. Luke was “always outside” despite the “freezing” weather. Superior Transcript at 212. On January 8, 2014, Officer Jack Prarat, an investigative commander for the Dearborn Sheriff's Department, visited the Pharmacy to pick up a prescription, and the employees complained to him about Luke's behavior despite the No Contact Order. Superior Transcript at 221. Officer Prarat approached Luke, and Luke stated that the police had already been to his house earlier in the week and told him

[51 N.E.3d 407

not to be outside, that he called his attorney about the matter who also told him not to be outside, and that “he was going to tell [Officer Prarat] the same thing he told the police earlier in the week[:] he was going to be outside and come summer he was going to be out even more and the girls at the pharmacy just needed to get used to it.” Id. at 221–222.

8] On January 10, 2014, the State charged Luke in Dearborn Superior Court 2 with three counts of invasion of privacy as class D felonies for violating the No Contact Order issued to protect R.B., T.R., and C.B. between January 3, 2014, and January 7, 2014, under Cause Number 15D02–1401–FD–11 (“Cause No. 11”).4 The same day, the State filed a request for probation violation hearing in Cause No. 564 due to these new charges.

[9] On February 24, 2014, the State filed a charging information under Cause Number 15C01–1402–FC–19 (“Cause No. 19”) in the Dearborn Circuit Court which, as amended on August 14, 2014, charged Luke with stalking as a class C felony and eight counts of criminal mischief as class A misdemeanors. Count I, stalking, alleged that, between January 24, 2012, and February 19, 2014, Luke stalked C.B., R.B., T.R., and/or K.R. and that such stalking violated the No Contact Order under Cause No. 111.

[10] On July 22, 2014, the Dearborn Superior Court 2 commenced a jury trial in Cause No. 11 on the invasion of privacy charges, and a jury found Luke guilty as charged on July 30, 2014. On July 31, 2014, the Dearborn Superior Court 2, under Cause No. 564, held a fact-finding hearing and entered an order revoking Luke's probation, finding that he violated his probation by committing the crimes of invasion of privacy under Cause No. 11. On August 15, 2014, the Dearborn Circuit Court commenced a jury trial in Cause No. 19, and on August 21, 2014, the jury found Luke guilty as charged.

[11] On August 25, 2014, the Dearborn Superior Court held a sentencing hearing in Cause Nos. 11 and 564. That same day, the Dearborn Circuit Court commenced a sentencing hearing in Cause No. 19. On August 29, 2014, in Cause No. 11, the Dearborn Superior Court sentenced Luke to an aggregate term of four years in the Department of Correction (“DOC”).5 In Cause No. 564, the court revoked his previously-suspended sentence. On September 18, 2014, the Dearborn Circuit Court resumed the sentencing hearing in Cause No. 19, and on September 29, 2014, sentenced Luke to eight years on Count I, stalking as a class C felony, and one year on each of Counts II–IX, the criminal mischief counts, to be served in the DOC. The court observed that, pursuant to Ind.Code § 35–50–1–2, it could sentence Luke to a maximum executed term of ten years, and accordingly it ordered that Counts I, II, and III be served consecutive to each other and that Counts IV–IX be served concurrent with Counts I–III and concurrent

[51 N.E.3d 408

with each other, for an aggregate term of ten years in the DOC. The court also ordered that Luke's sentence be served consecutive to his sentence in Cause No. 11.

12] Other facts relevant to the consideration of the issues will be provided below.

Discussion

I.

[13] The first issue is whether Luke's convictions for invasion of privacy and stalking violate double jeopardy principles. Luke argues that the State tried the stalking case in Cause No. 19 in such a manner that the evidence previously used to prove the charges of invasion of privacy in Cause No. 11 became factually included in...

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22 practice notes
  • Stiff v. State, 20A-CR-2028
    • United States
    • Indiana Court of Appeals of Indiana
    • April 9, 2021
    ...(Ind.Ct.App. 2020), and in weighing the probative value of the evidence against the possible prejudice of its admission, Luke v. State, 51 N.E.3d 401, 416 (Ind.Ct.App. 2016), trans. denied. [¶34] State's Exhibits 16-17 and 19-65 consist of text messages indicating drug dealing activity[8] t......
  • Glenn v. State, Court of Appeals Case No. 19A-CR-727
    • United States
    • Indiana Court of Appeals of Indiana
    • November 21, 2019
    ...latitude in weighing the probative value of the evidence against possible unfair prejudice resulting from its admission. Luke v. State , 51 N.E.3d 401, 416 (Ind. Ct. App. 2016), trans. denied . "[A]ll evidence is ‘inherently prejudicial’ and, therefore, the Rule 403 analysis ‘boils down to ......
  • Jackson v. State, 20A-CR-1832
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2021
    ...offense, was under the influence of an illegal substance, and had the financial wherewithal to pay his probation fees. See Luke v. State, 51 N.E.3d 401, 421 (Ind.Ct.App. 2016), trans. denied. ("The violation of a single condition of probation is sufficient to revoke probation."). Thus, the ......
  • Jackson v. State, Court of Appeals Case No. 20A-CR-1832
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2021
    ...was under the influence of an illegal substance, and had the financial wherewithal to pay his probation fees. See Luke v. State , 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied. ("The violation of a single condition of probation is sufficient to revoke probation."). Thus, the eviden......
  • Request a trial to view additional results
21 cases
  • Stiff v. State, 20A-CR-2028
    • United States
    • Indiana Court of Appeals of Indiana
    • April 9, 2021
    ...(Ind.Ct.App. 2020), and in weighing the probative value of the evidence against the possible prejudice of its admission, Luke v. State, 51 N.E.3d 401, 416 (Ind.Ct.App. 2016), trans. denied. [¶34] State's Exhibits 16-17 and 19-65 consist of text messages indicating drug dealing activity[8] t......
  • Glenn v. State, Court of Appeals Case No. 19A-CR-727
    • United States
    • Indiana Court of Appeals of Indiana
    • November 21, 2019
    ...latitude in weighing the probative value of the evidence against possible unfair prejudice resulting from its admission. Luke v. State , 51 N.E.3d 401, 416 (Ind. Ct. App. 2016), trans. denied . "[A]ll evidence is ‘inherently prejudicial’ and, therefore, the Rule 403 analysis ‘boils down to ......
  • Jackson v. State, 20A-CR-1832
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2021
    ...offense, was under the influence of an illegal substance, and had the financial wherewithal to pay his probation fees. See Luke v. State, 51 N.E.3d 401, 421 (Ind.Ct.App. 2016), trans. denied. ("The violation of a single condition of probation is sufficient to revoke probation."). Thus, the ......
  • Jackson v. State, Court of Appeals Case No. 20A-CR-1832
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2021
    ...was under the influence of an illegal substance, and had the financial wherewithal to pay his probation fees. See Luke v. State , 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied. ("The violation of a single condition of probation is sufficient to revoke probation."). Thus, the eviden......
  • Request a trial to view additional results

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