Opinion
23A-CR-1010
08-28-2023
Derrick Lamont Marble, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Kathrine D. Jack Jack Law Office LLC Greenfield, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General David Dekold Certified Legal Intern Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hancock Superior Court The Honorable Dan E. Marshall, Judge Trial Court Cause No. 30D02-2111-CM-1469
ATTORNEY FOR APPELLANT Kathrine D. Jack Jack Law Office LLC Greenfield, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General David Dekold Certified Legal Intern Indianapolis, Indiana
Judges Crone and Felix concur.
MEMORANDUM DECISION
Brown, Judge.
[¶1] Derrick Lamont Marble ("Marble") claims the evidence is insufficient to sustain his conviction for invasion of privacy as a class A misdemeanor. We affirm.
Facts and Procedural History
[¶2] Marble is the ex-husband of Tiffany Marble ("Tiffany"). On August 23, 2021, the trial court entered a no contact order against Marble under cause number 30D02-2108-F6-1078 ("Cause No. 78") providing:
THE DEFENDANT IS ORDERED TO HAVE NO CONTACT WITH:
Tiffany S. Marble
in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial. This includes, but is not limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.
This provision shall also be effective even if the defendant has not been released from lawful detention.
Marble was served with the order on August 23, 2021, and he signed the order that day. At some point in October 2021, while the no contact order was in place, Marble sent text messages to Tiffany stating that he was sorry, he had changed, he was "getting his life together," and he had a new apartment. Transcript Volume II at 7. He texted her their wedding song. Marble also called Tiffany several times. Tiffany made a report to the police. On October 20, 2021, Hancock County Sheriff's Deputy Justin Owens spoke with Tiffany, confirmed the no contact order was in effect and the order had been served on Marble, observed the text messages on Tiffany's phone, and saw that she had received calls from Marble's phone earlier that same day.
[¶3] The State charged Marble with invasion of privacy as a class A misdemeanor. The court held a bench trial. The prosecutor asked Tiffany if there was any reason for Marble to not contact her in October 2021, and she stated "we had a No Contact Order." Id. at 6. When asked "and were you, in fact, contacted by [Marble]," she answered "[y]es," and when asked "[h]ow were you contacted," she replied: "Text message." Id. When asked how she knew that Marble was the person contacting her, she stated "I was assuming that it was him it was the - his phone number." Id. at 7. When asked if he had contacted her from that number in the past, she replied affirmatively. When asked "[w]hat did he text you," Tiffany testified: "Um, I don't remember that. He text me that he was sorry and that . . . he had changed and . . . I think he text me our wedding song. He text me . . . somethin' about him getting his life together. He had got a new apartment. Um, I really don't recall ...." Id. The prosecutor asked "[d]id he try calling you at any point," and she stated: "I think I had his number blocked. I'm sure I had - um - maybe." Id. at 7-8. When asked, "[b]efore the No Contact Order was in place, had [Marble] called you from that number" and "did you hear his voice on the other end of the phone call," she answered affirmatively. Id. at 8. On cross-examination, when asked "you're not sure of the date that . . . you received these alleged text messages, correct," Tiffany answered "No." Id. She indicated that she no longer had the phone. When asked "is there any way that you can tell us that this officer would know or have knowledge of [] Marble's phone number," she answered "it was stored in my phone under his name," and when asked "who put that information into your phone," she replied "[m]e." Id. at 10. On redirect examination, Tiffany indicated that her wedding song was "Forever Mine" and she had not been married to anyone else. Id. at 11.
[¶4] Deputy Owens testified that he responded to a dispatch on October 20, 2021, regarding a violation of a court order. He indicated that he spoke with Tiffany and confirmed the no contact order existed. When asked if he was able to confirm the no contact order was in place at the time the alleged contact was made, he replied affirmatively. The court took judicial notice of Cause No. 78 at the prosecutor's request. Deputy Owens indicated he confirmed that the no contact order was served on Marble. He testified: "she showed me her cell phone . . . about some text messages that was received by her. Um, good morning text . . . picture of a music lyric, I believe. Um, some missed phone calls. Um, some other text messages of an . . . new apartment, I believe." Id. at 15. He testified she showed him "basically some missed phone calls and then several text messages that include the candy pictures, new apartment pictures, and good morning texts." Id. at 16. When asked if he knew "what phone number those came from," he replied affirmatively and provided the phone number. Id. When asked "were you able to see when those text messages were sent," he answered: "There were a few - um - I wasn't able to see the text messages. There was a few phone calls from that number that day, yes . . . earlier that day." Id. at 17. The prosecutor recalled Tiffany and asked if she recognized the phone number provided by Deputy Owens, and she responded "[i]t's [Marble's] phone number." Id. at 20.
[¶5] Marble testified that he did not send any text messages to Tiffany on October 20, 2021, he did not send her any text messages of candy, flowers, a wedding song, or a new apartment, and he did not have a new apartment on that date. On cross-examination, when asked "[w]hat was your wedding song," he stated that he did not remember. Id. at 22. When asked "[d]id you sign a No Contact Order in order to be released from custody on the 'F6' cause number I . . . read off earlier," he answered "Yes." Id. at 22-23. The court found Marble guilty and sentenced him to 365 days, all suspended to probation except for any time already served.
Discussion
[¶6] Marble asserts the evidence is insufficient to sustain his conviction. He argues the only evidence of the text messages was Tiffany and Deputy Owens's testimony, that Tiffany's testimony regarding the content of the messages was equivocal, and the evidence did not show the messages were sent after the no contact order was issued.
[¶7] When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence and consider conflicting evidence most favorably to the trial court's ruling. Id. We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.
[¶8] Ind. Code § 35-46-1-15.1(a) provides "[a] person who knowingly or intentionally violates: . . . (11) an order issued under IC 35-33-8-3.2 . . . commits invasion of privacy, a Class A misdemeanor." "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-41-2-2(b).
[¶9] The evidence most favorable to the trial court's ruling is that a no contact order was entered in Cause No. 78 on August 23, 2021, which prohibited Marble from having any contact with Tiffany, Marble signed the order that day, and, in October 2021, while the order was in effect, he sent her text messages and called her. Tiffany testified regarding the content of the messages, that he sent her their wedding song, and that she recognized his phone number. Deputy Owens observed that Tiffany received calls from Marble's phone number on October 20, 2021. We will not reweigh the evidence. See Drane, 867 N.E.2d at 146. We conclude that evidence of probative value was presented from which the trier of fact could have found beyond a reasonable doubt that Marble committed invasion of privacy as a class A misdemeanor.
[¶10] For the foregoing reasons, we affirm Marble's conviction.
[¶11] Affirmed.
Crone, J., and Felix, J., concur.