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Kelly v. State

Court of Appeals of Indiana

July 17, 2014

TODD DEWAYNE KELLY, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE JOHNSON SUPERIOR COURT. The Honorable Judith A. Stewart, Special Judge. Cause No. 41D02-1204-CM-775.

ATTORNEY FOR APPELLANT: KURT A. YOUNG, Nashville, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; LYUBOV GORE, Deputy Attorney General, Indianapolis, Indiana.

BRADFORD, Judge. BARNES, J., and BROWN, J., concur.

OPINION

Page 903

BRADFORD, Judge.

CASE SUMMARY

Appellant-Defendant Todd Dewayne Kelly was previously married to S.B. Kelly and S.B. are the parents of L.K. On October 4, 2011, the Johnson Circuit Court issued an ex parte order of protection which prohibited Kelly from having direct or indirect contact with S.B. On or about March 5, 2012, Kelly sent a text message to L.K. requesting that L.K. give a message to S.B. L.K. showed the text that she received from Kelly to S.B. S.B. took the message to be an attempt to threaten or intimidate her and reported the contact to the Franklin Police Department.

Appellee-Plaintiff the State of Indiana (the " State" ) subsequently charged Kelly with Class A misdemeanor invasion of privacy. Following a bench trial, the trial court found Kelly guilty as charged. The trial court subsequently sentenced Kelly to a one-year term of imprisonment in the Johnson County Jail, with 180 days executed and the remainder suspended, provided that Kelly refrained from contacting S.B. On appeal, Kelly contends that the State did not present sufficient evidence to sustain his conviction for Class A misdemeanor invasion of privacy. We affirm.

FACTS AND PROCEDURAL HISTORY

Kelly and S.B. are divorced and have a daughter, L.K. S.B. has remarried and has two children with her new husband. On October 4, 2011, the Johnson Circuit Court issued an ex parte order for protection prohibiting Kelly from having direct or indirect contact with S.B., her husband, and their two children. The protective order was set to expire on October 4, 2013.

On or about March 5, 2012, Kelly was attempting to communicate with L.K. In the months leading up to March 5, 2012, Kelly had been leaving L.K. voicemails and text messages at all times of the day and night. Some of these messages were threatening, scary, and " crazy off the wall stuff." Oct. 8, 2013 Tr. p. 44. One of these messages stated, " contacting court next week, if you see your mom tell her I said rattle, rattle, rattle." Oct. 8, 2013 Tr. p. 44. L.K. knew that because of the protective order, Kelly was not supposed to have any contact with S.B. L.K. immediately

Page 904

showed the text messages to S.B. and her step-father. S.B. did not know exactly what the text message meant, but she believed it to be an attempt to threaten or intimidate her because Kelly had used the phrase " rattle, rattle, rattle" as a way of intimidating S.B. when she and Kelly were still married. Oct. 8, ...


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