Smith v. State, 102220 INCA, 20A-CR-663
|Opinion Judge:||Brown, Judge.|
|Party Name:||Koyhan Iesha Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.|
|Attorney:||ATTORNEY FOR APPELLANT Ernest P. Galos South Bend, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana|
|Judge Panel:||Robb, J., and Crone, J., concur.|
|Case Date:||October 22, 2020|
|Court:||Court of Appeals of Indiana|
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the St. Joseph Superior Court The Honorable Keith C. Doi, Magistrate Trial Court Cause No. 71D08-1908-CM-2913
ATTORNEY FOR APPELLANT Ernest P. Galos South Bend, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
[¶1] Koyhan Iesha Smith appeals her conviction for invasion of privacy as a class A misdemeanor and claims the evidence is insufficient to support her conviction. We reverse.
Facts and Procedural History
[¶2] On December 8, 2016, the trial court issued a no contact order under cause number 71D01-1608-F5-164 ("Cause No. 164") which ordered that Smith have "no contact" with Terrance Cannon "in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly" and that she not visit his address or "wherever [she] knows him to be located." State's Exhibit 1-a. The order remained in effect during her executed sentence and until her probation was terminated. The chronological case summary ("CCS") for Cause No. 164 contains entries dated December 8, 2016, stating Smith had pled guilty to battery resulting in moderate bodily injury and the court sentenced her to two years with one year suspended and ordered that the non-suspended sentence be served on community corrections and that she be placed on probation for one year. A petition to revoke was filed in August 2017, status hearings were held in October and November 2017 and February and April 2018, and an evidentiary hearing was held in May 2018. The CCS contains entries on June 5, 2018, stating the court had accepted Smith's admission to the violation of her probation and ordered that she continue on probation and comply with all of its terms and conditions. The CCS also contains entries stating a petition to revoke was filed in July 2018, that a hearing on violation of probation scheduled for December 19, 2018, was cancelled because there was an agreed resolution, a sentencing hearing was held on January 8, 2019, and Smith was continued on probation under the same terms and conditions as previously entered.
[¶3] On the evening of August 11, 2019, South Bend Police Officers Andrew Ream and Matthew Tadevich were dispatched to an address on South Street near Four Winds Field in South Bend in response to a report that Smith's cell phone had been lost or stolen. According to Smith's friend, Smith had an altercation with someone "and somehow her phone came up missing," they used an app on the friend's phone to look for the phone, the app indicated Smith's phone was near Four Winds Field, and "we called the police." Transcript Volume II at 22. When the officers arrived at South Street, they noticed several people including Smith and Cannon. The officers indicated they spoke to the parties in this group for approximately ten or fifteen minutes. Officer Tadevich went across the street to speak to someone at an apartment who may have taken Smith's phone. At some point, Officer Ream learned through a computer check of the no contact order, which was brought to the attention of Officer Tadevich after he spoke to the person at the apartment across the street. According to Officer Tadevich, he had further questions for Smith, he called her and learned she was at a Taco Bell on LaSalle Avenue, and he "told her to wait for [him] at Taco Bell." Id. at 19. Officer Tadevich traveled to the restaurant and placed Smith under arrest. Officers Ream and Tadevich also saw Cannon at the Taco Bell location. According to Officer Tadevich, after he placed Smith under arrest, Cannon walked up to him and told him, and was "pretty emphatic," that he was not with Smith's group. Id. at 21.
[¶4] The State charged Smith with invasion of privacy as a class A misdemeanor alleging that she knowingly violated the no contact order issued under Cause No. 164. At the bench trial, Officer Ream testified that he was dispatched to South Street and, when he arrived, he encountered several people including Smith and Cannon. He testified he had been wearing a body camera, and a recording taken from the camera was played for the court. He stated that the person in the recording wearing the white t-shirt was Cannon, the person wearing the pink tank top was Smith, and the recording was taken directly south of Four Winds Field on South Street.
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