Phipps v. State

• Decision Date: 16 February 2018
• Docket Number: No. 28S05–1707–CR–499,28S05–1707–CR–499
• Citation: 90 N.E.3d 1190
• Parties: Shelly M. PHIPPS, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Supreme Court

90 N.E.3d 1190

Shelly M. PHIPPS, Appellant (Defendant),

v.STATE of Indiana, Appellee (Plaintiff).

No. 28S05–1707–CR–499

Supreme Court of Indiana.

FILED February 16, 2018

Attorney for Appellant : Kimberly A. Jackson, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Andrew Kobe, Deputy Attorneys General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 28A05–1609–CR–2097

Goff, Justice.

Protective orders have sweeping reach in our state. By their terms, these orders endeavor to establish a hedge of protection around one person by restricting the actions or words of another. Thousands of faceless Hoosiers are currently subject to or shielded by protective orders like the one at the center of this case. Because violating a protective order amounts to a criminal act, the State must prove a mens rea element—that the person intended to violate the order. This case presents the question of what constitutes sufficient evidence to prove a person intentionally or knowingly violated a protective order.

Factual and Procedural History

In 2008, a parishioner in a small Solsberry, Indiana church leveled accusations against the pastor, K.G. The parishioner, Defendant Shelly Phipps, alleged K.G. breached her confidence by revealing to other church members the personal, private information she divulged during counseling. She also alleged K.G. inappropriately hugged her on two occasions. Despite efforts from church leaders to remedy the situation and bring reconciliation, the relationship between Phipps and K.G. deteriorated. Phipps left the church and began writing to K.G. and other parishioners about her departure.

Later that year, citing repeated "harassment and emails and letters" from Phipps, K.G. sought a protective order. The court issued a protective order that included standard statutory relief, prohibiting Phipps from "harassing, annoying, telephoning, contacting, or directly or indirectly communicating with" K.G. The order mandated that Phipps stay away from K.G.'s residence and the church.

In 2009, Phipps violated the order by speaking to K.G. In April of that year, she pleaded guilty to Invasion of Privacy as a Class A misdemeanor for this violation. In that case, the trial court sentenced Phipps to 180 days incarceration with 176 days suspended to probation. In 2010, Phipps violated the protective order a second time. She pleaded guilty in March 2011 and was ordered to serve one year in the Greene County Jail with all but sixteen days suspended.

In January 2016, K.G. filed a petition to extend the original order of protection. The Greene County Superior Court granted the petition and extended the order for another two years. On February 28, 2016, Phipps emailed three elders at the church. The message reads in pertinent part:

I originally sent this to my dad and now I am forwarding it. I'm off work Tuesday. I will give [K.G.] until Tuesday evening to comply. I have e-mailed channel 13 about doing a story. If Tuesday evening passes by then I will have him arrested for battery.

* * *

If he puts me in jail again I will just hold a news conference from my jail cell. [K.G.] has choices: He can resign, retire, apologize or go to jail for battery. I hope he makes the right decision soon. I am more than willing to apologize for my part in this.

State's Ex. 1. Upon learning of the email from a church elder, K.G. requested that the elder forward him the message. K.G. then contacted the police. On March 3, 2016 the State charged Phipps with two counts of Invasion of Privacy: one as a Class A misdemeanor and the second as a Level 6 felony. The charging information alleged she had knowingly or intentionally violated the order "by harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [K.G.]" A jury found Phipps guilty as charged. The trial court merged the two verdicts and entered a judgment of conviction for the Level 6 felony. It sentenced Phipps to two-and-one-half years with one year in work release and the remaining one-and-one-half years suspended to probation.

Phipps appealed, claiming the evidence was insufficient to support the conviction. She also argued the trial court abused its discretion by considering her criminal history as an aggravating circumstance and that her two-and-one-half-year sentence was inappropriate in light of the nature of the offense and her character. In a split opinion, the Court of Appeals majority concluded that "Phipps's email is a request to the church elders to take action for the alleged wrongful conduct of their employee, K.G. [and] [u]pon receipt of Phipps's email, the church elders had discretion to ignore her email or respond to her demands."¹ Phipps v. State, 77 N.E.3d 180, 185 (Ind. Ct. App. 2017). The majority reasoned that "Phipps did not ask the elders to share her email with K.G., and a church elder made an independent decision to forward the email to K.G." Id. Therefore, the majority "conclude[d] that Phipps's intent in sending the email was not to contact K.G., but to ask the church elders to discipline or punish K.G. for his alleged wrongful conduct." Id. Judge Pyle dissented. Singling out Phipps's testimony on cross-examination, he found the evidence sufficient for the jury to conclude that Phipps intended for her email to be communicated to K.G. Id. at 185–87 (Pyle, J., dissenting). We granted the State's petition to transfer.² Other facts will be included later in this opinion as necessary.

Discussion and Decision

Our General Assembly enacted Indiana's Civil Protection Order Act to promote the "protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and ... prevention of future domestic and family violence." Ind. Code § 34–26–5–1 (Ind. 2017). Nationwide, "[p]rotection orders are widely used legal interventions intended to reduce the risk of future harm by one person considered to be a threat to another." Christopher T. Benitez, et al., Do Protection Orders Protect?, 38 J. AM. ACAD. OF PSYCHIATRY AND L. 376 (2010). Indiana follows this national trend. Locally, these orders average approximately seven percent of Indiana's civil court docket with over thirty thousand cases filed annually.³

These cases spill over into criminal dockets when persons subject to protective orders violate the orders' terms. That is what happened here. Although one of thousands, this case presents an important question: what constitutes sufficient evidence to show a person subject to a protection order intentionally or knowingly violated that order?

I. The evidence was sufficient to affirm Phipps's invasion of privacy conviction.

When an appeal raises "a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses, and we respect a fact-finder's ‘exclusive province to weigh conflicting evidence.’ " Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001) ). We consider only the probative evidence and the reasonable inferences that support the verdict. Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011). "We will affirm ‘if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.’ " Joslyn, 942 N.E.2d at 811 (quoting Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000) ).

To convict Phipps of invasion of privacy as a Level 6 felony, the State had to prove three elements beyond a reasonable doubt: that she (1) knowingly or intentionally; (2) violated an ex parte protective order [by harassing, annoying, telephoning, contacting, or directly or indirectly communicating with K.G.]; and (3) has a prior, unrelated conviction for invasion of privacy. I.C. § 35–46–1–15.1(2) (2014 Repl.). At oral argument, the parties agreed this case narrowly turns on the first element—intent. We, therefore, limit our review to that specific issue. The State maintains it met its burden whereas Phipps argues otherwise. Based on the evidence presented to the jury, we agree with the State.

We must begin our analysis by acknowledging that "intentionally" and "knowingly" are statutorily defined terms. "A person engages in conduct ‘intentionally’ if, when [s]he engages in the conduct, it is [her] conscious objective to do so." I.C. § 35–41–2–2(a) (2014 Repl.). "A person engages in conduct ‘knowingly’ if, when [s]he engages in the conduct, [s]he is aware of a high probability that [s]he is doing so." Id. at § 35–41–2–2(b) (2014 Repl.). These definitions reinforce our longstanding instruction that "[i]ntent is a mental function." Byassee v. State, 251 Ind. 114, 118, 239 N.E.2d 586, 588 (1968) (quoting Hanes v. State, 155 Ind. 112, 116, 57 N.E. 704, 705 (1900) ). As such, a defendant's intent normally cannot be established with "mathematical precision," id. 239 N.E.2d at 588, and can rarely be proved by direct evidence, Miller v. State, 502 N.E.2d 92, 94 (Ind. 1986) (quoting Hammond v. State, 479 N.E.2d 629, 632 (Ind. Ct. App. 1985) ) ("Because specific intent is a mental state not generally susceptible of direct proof, it may be inferred from all the surrounding circumstances."). Therefore, it is well-established that a defendant's intent can be proved by circumstantial evidence. McCaskill v. State, 3 N.E.3d 1047,1050 (Ind. Ct. App. 2014). For example, "[i]ntent can be inferred from a defendant's conduct and the natural and usual sequence to which such conduct logically and reasonably points." Id.

While there is no direct proof of Phipps' conscious objective here, there is ample circumstantial evidence that shows she knew she would be communicating indirectly with K.G. by emailing the church elders. First, the content of her email suggests Phipps was aware she was communicating with K.G. Although she sent the e-mail to her father and church elders,...