Shelly M. Phipps, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Greene Superior Court The Honorable Dena A. Martin,
Judge Trial Court Cause No. 28D01-1603-F6-42
Attorney for Appellant Kimberly A. Jackson Indianapolis,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Justin F. Roebel Deputy Attorney General
Shelly M. Phipps ("Phipps") was convicted in Greene
Superior Court of Level 6 felony invasion of privacy. Phipps
appeals and raises the following dispositive issue: whether
the State proved that Phipps violated a protective order by
communicating with the protected person.
We reverse and remand for proceedings consistent with this
and Procedural History
Phipps was a member of a church in Solsberry, Indiana, and
she and her
husband were friends with K.G., the pastor of the church. In
2008, Phipps and her husband received marriage counseling
from K.G, and K.G. disclosed information that he learned in
their counseling sessions to the elders of the church. The
church elders met with Phipps and her husband to discuss the
information K.G. had disclosed to them. Phipps was also upset
that K.G. hugged her twice, once during an individual
counseling session and a second time on the day she was
Phipps sought an apology from K.G. for the alleged breach of
confidentiality but did not receive one. She sent letters and
emails to K.G. and the church elders demanding an apology.
K.G. obtained a protective order against Phipps in 2008.
Phipps was prohibited from "harassing, annoying,
telephoning, contacting, or directly or indirectly
communicating with" K.G. and she was ordered to stay
away from his residence and the church. Ex. Vol, State's
Ex. 2. In 2009, she violated the protective order by speaking
to K.G. at the church, and she pleaded guilty to Class A
misdemeanor invasion of privacy. In 2010, Phipps violated the
protective order again by sending a letter to K.G. She
pleaded guilty to the offense in March 2011, and judgment was
entered as a Class A misdemeanor.
On January 6, 2016, in case number 28D01-1201-PO-12, K.G.
filed a petition to extend the protective order. On January
25, 2016, the court held a hearing on the petition and found
that the "conditions which caused the original Order for
Protection to be issued continue to exist." Id.
The court further concluded that Phipps "continues to
represent a credible threat to the safety of the Petitioner
or a member of the Petitioner's household" and K.G.
"has shown, by a preponderance of the evidence, the
threat of stalking continues to exist sufficient to justify
an extension of the original Order." Id.
Finally, the court found that Phipps is "sending letters
to the Court and Church Members asking to have them forwarded
to the Petitioner. She continues to harass and make threats
to" K.G. Id. The Court extended the original
protective order until February 6, 2018.
On February 28, 2016, Phipps sent an email to three church
elders, which is reproduced in its entirety.
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 emailed channel 13 about doing a
story. If Tuesday evening passes by then I will have him
arrested for battery.
I went for my counseling session yesterday. I told my
counselor that I can't handle this thing between me and
[K.G.] anymore. I am no longer angry, and I am beyond hurt, I
think I am broken. It has ruined by life. That's exactly
what I told [K.G.] when I seen him in Court a month ago. I
can't handle the stress of it alone. After much
consideration, I have now gone public with my story. I have
talked with several high ranking officials this week about my
case. Hopefully they can intervene. I told my counselor that
I believe [K.G.] owes me an apology and here's why: He
broke my trust in two ways:
1) the first small way is because I told him something I
thought was confidential and he said 'o.k. you can pray
for us too.' He then proceeded to plaster mine and my
husband's name all over the prayer list for the whole
church to see. He stabbed me in the back. 2) The second big
way he broke my trust is when I was in his office he came
from around his desk and said "I love you Shelly, "
and gave me a hug. It happened again the night I was
baptized. He waited for me outside the front door and said
"I love you Shelly." That's TWICE!!! That is
My concern is that I know he got in trouble in New Hampshire
for the same type of behavior. Then he denied it, and then
had death threats on him. The problem is they want to pick,
pick, pick on other people's marriages when they
definitely have one of their own to work on. I reported this
behavior to the Elders. One Elder brought the four of us
together and said "Nobody say anything because it will
hurt the church." That wasn't fair. I was not
allowed to say what was bothering me. That's when I
started writing letters. Then that same Elder said
"Shelly you need to be quiet because it makes it look
like all you want is [K.G.] back. I don't want [K.G.] If
I had of wanted him I could have had him when I was in his
office, but that's not what I was there for. It is
negligence! Needless to say it was not handled properly. The
Elders need to step up and take control of this situation
because it has spiraled out of control. Instead, they are
sitting back and letting [K.G.] call the shots. They are his
boss and they can tell him what to do. 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. For
now, my counselor's advising me to exercise to relieve
some of the stress that's on me.
Ex. Vol., State's Ex. 1.
A church elder forwarded the email to K.G. on the same day
the elder received it, and K.G. contacted the police. Shortly
thereafter, Phipps was charged with two counts of invasion of
privacy, one as a Class A misdemeanor and one as a Level 6
felony because Phipps had two prior convictions for the same
A jury found Phipps guilty of both offenses. The trial court
merged the two verdicts and entered a judgment of conviction
for the Level 6 felony invasion of privacy charge.
At the sentencing hearing, the trial court considered her
prior invasion of privacy convictions and long-term
harassment of K.G. as an aggravating circumstance. The court
considered Phipps's mental health as a mitigating
circumstance and specifically noted that "she appears to
be addressing [her mental health issues] at this time with
medication and counseling." Appellant's App. p. 8.
Phipps was ordered to serve a two-and-one-half year sentence,
with a one-year placement in work release and the remainder
of the sentence suspended to probation. Phipps now appeals.
Evidence of Communication
Phipps argues that the State failed to present sufficient
evidence to prove that she committed invasion of privacy.
When we review a claim challenging the sufficiency of the
evidence we neither reweigh the evidence nor assess the
credibility of the witnesses. Instead, we consider only the
evidence and reasonable inferences drawn therefrom that
support the verdict. And we will affirm the conviction if
there is probative evidence from which jury could have found
the defendant guilty beyond a reasonable doubt.
Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016)
(citing Treadway v. State, 924 N.E.2d 621, 639 (Ind.
To convict Phipps of Level 6 felony invasion of privacy, the
State was required to prove that Phipps knowingly or
intentionally violated an ex parte protective order issued
under Indiana Code chapter 34-26-5 and that Phipps had a
prior unrelated conviction for invasion of privacy. Ind. Code
§ 35-46-1-15.1((2). The State specifically alleged that
Phipps harassed, annoyed, telephoned, contacted, or directly
or indirectly communicated with K.G. in violation of the
protective order issued under case number 28D01-1201-PO-12.
Appellant's App. pp. 24-25.
It is undisputed that Phipps was aware of the protective
order. The issue is whether she indirectly
contacted K.G. by sending the email to a church elder.
Contact is defined as "establishing of communication
with someone" or "to get in communication
with." Communication occurs when a person makes
something known or transmits information to another. Further,
communication may be either direct or indirect and is not
limited by the means in which it is made known to another
C.W.W. v. State, 688 N.E.2d 224, 226 (Ind.Ct.App.
1997) (internal citations omitted).
In Kelly v. State, 13 N.E.3d 902, 905 (Ind.Ct.App.
2014), this court concluded that the defendant's text to
the victim's child, which stated, "if you see your
mom tell her I said rattle, rattle, rattle" and was
immediately shown to the victim, was sufficient evidence to
prove that the defendant indirectly communicated with the
Our court reached the opposite conclusion in Huber v.
State, 805 N.E.2d 887 (Ind.Ct.App. 2004). In that case,
the defendant asked a domestic violence advocate to call the
victim and speak to her on his behalf. The domestic violence
advocate refused and told the defendant she could not do
that. Therefore, we concluded that the defendant's