Opinion
21A-CR-2887
07-18-2022
Leonard E. Schwenk, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Steven E. Ripstra Ripstra Law Office Jasper, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, 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 Dubois Circuit Court The Honorable Nathan A. Verkamp, Judge Trial Court Case No. 19C01-2110-F5-873
ATTORNEY FOR APPELLANT Steven E. Ripstra Ripstra Law Office Jasper, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAKER, SENIOR JUDGE.
Statement of the Case
[¶1] After a protective order was entered against him for his unsolicited advances toward Holly Farhar, Leonard E. Schwenk engaged in a sequence of harassing conduct toward her. Schwenk appeals from his conviction after a bench trial of two counts of Class A misdemeanor invasion of privacy, contending that the court abused its discretion in the admission of certain evidence. Finding no error, we affirm.
Ind. Code § 35-46-1-15.1 (2019).
Facts and Procedural History
[¶2] Schwenk has lived in his house on Sixth Street in Jasper, Indiana since 2005. Holly Farhar has lived in her home with her adult daughter and three younger children on Fifth Street in Jasper since 2009. After her divorce in November 2018, Farhar began dating Andrew Hochgesang.
[¶3] At around the same time she began dating Hochgesang, Farhar received three cards from Schwenk postmarked the same day. The cards each contained Schwenk's expressions of love for Farhar, and one in particular concluded with "Forever friend, neighbor, lover." Tr. Vol. 2, p. 9. Farhar, who had no interactions with Schwenk between 2009 and 2018, obtained a protective order against him on December 3, 2018. The order of protection covered Farhar and each of her children. Meanwhile, Hochgesang and Farhar became engaged, and he moved in with Farhar and her family in August 2019.
[¶4] On two occasions, one in July and the other in September of 2020, Farhar and/or her family observed Schwenk standing by her back fence in the alleyway next to her property spraying a poisonous substance on an area of her property she had tilled and planted with grass seed. The grass had begun to grow, but died after Schwenk sprayed it. Farhar's family notified the police after the second incident and supplied them with videotapes of both incidents. In one video, Hochgesang can be heard asking Schwenk to stop spraying poison on the growing grass. Schwenk continued spraying the grass, nonetheless.
[¶5] During that same July to September 2020 timeframe, Schwenk engaged in other harassing behavior. He would sit in his truck, revving the truck's engine and honking the horn "incessantly" whenever Farhar and her family were outside. Tr. Vol. 2, p. 20. Schwenk also drove his truck to the front of Farhar's house and would sit and stare at her and her family for a long enough period of time to make them feel uncomfortable. Additionally, on one occasion, Schwenk, while standing in the alleyway behind Farhar's home, shone a flashlight at their faces while they were in their back yard.
[¶6] On yet another occasion, Farhar was pushing a "a quad stroller" with "four kids in the stroller," and a five-year-old child was walking with her in the alley to go to a nearby bakery. Schwenk "stopped watering his plants and stood there and watered the alley" making it so that Farhar and the children could not easily pass without getting wet. Id. at 22. While he was doing this, Schwenk was staring, and it was "not a friendly stare." Id. Once, when Hochgesang was outside with Farhar's nine-year-old daughter and the daycare children, Schwenk walked down the alley behind Farhar's home, "holding his hand up giving [them] the finger." Id. at 47.
[¶7] Farhar ran a daycare out of her home, but had plans to expand her business and relocate it. Her plan to renovate a building to relocate her daycare was accelerated "definitely as a result of the scenario." Id. at 28. With Schwenk spraying poison on her property, Farhar believed there was "a potential risk factor for [her] daycare kids," her pets, and her own children. Id. at 25.
[¶8] The State charged Schwenk with one count of Level 5 felony stalking, and two counts of Class A misdemeanor invasion of privacy, one based on the July poison-spraying incident, and the other based on the September poison-spraying incident. During the bench trial, Schwenk objected to the admission of the cards, arguing that as a matter leading to the issuance of the protective order, the cards were irrelevant to the charges and that the scope of the evidence should be limited to the matters charged, i.e., those occurring between July and September 2020. The trial court overruled the objection and admitted the exhibits.
[¶9] Farhar testified that there was a series of harassing events involving Schwenk that occurred between 2018 and 2020. Schwenk's objection was that her testimony should be limited to events that occurred during the time period charged. That objection was overruled. However, the State clarified the question by explaining to Farhar, "let's move to the summer of 2020" and "focus" on the three months between July and September. Id. at 14. Farhar testified without objection about incidents during that time period. And at the beginning of Hochgesang's testimony, the State made clear that "we're going to talk primarily about the time period of July through September of 2020." Id. at 40. Hochgesang testified without objection about the July spraying incident and other incidents during that time period.
[¶10] At the conclusion of the bench trial, the court found Schwenk guilty of two counts of invasion of privacy, but not guilty on the stalking charge. The court imposed concurrent 30-day sentences, entirely suspended, and placed Schwenk on non-reporting probation for 365 days.
Discussion and Decision
[¶11] Schwenk explicitly states that he does not challenge the sufficiency of the evidence. See Appellant's Br. p. 4. Instead, he challenges the admission of the cards Schwenk sent to Farhar, and testimony about "incidents which were both outside the Charges' timelines and the specific Charges themselves." Id.
[¶12] Schwenk's challenges are to the admission of evidence. The State correctly observes that Schwenk expressly disavowed a prejudice objection, meaning one under Evidence Rule 403 or 404(b) ("I'm not as concerned about it being prejudicial towards my client given that it's a bench trial." Tr. Vol. 2, p. 10). The State argues that because Schwenk's objection at trial was relevance, or Evidence Rule 401, the argument is waived. We agree with the State. A party may not object on one ground at trial and then object on a different ground on appeal. See White v. State, 772 N.E.2d 408, 411 (Ind. 2002).
[¶13] As for Schwenk's objection to matters outside the charged time frame, the State says that these arguments are also waived. After Schwenk's initial objection, the State directed Farhar and Hochgesang to tailor their responses to only the events that occurred between July and September 2020. Schwenk made no objection to the testimony after the State's guidance to its witnesses; consequently, that argument is also waived.
[¶14] Nonetheless, we prefer to decide matters on the merits where possible, and do so here. See Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind.Ct.App. 2003) ("[W]e prefer to decide cases on their merits" unless there is substantial noncompliance with rules of appellate procedure.) "The admission or exclusion of evidence lies within the sound discretion of the trial court and is afforded great deference on appeal." Turner v. State, 183 N.E.3d 346, 352 (Ind.Ct.App. 2022). "We will reverse the trial court's ruling on the admissibility of evidence only for an abuse of discretion." Id. "An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.
[¶15] To establish invasion of privacy, the State was required to prove beyond a reasonable doubt that Schwenk violated the protective order, which prohibited him from harassing or annoying Farhar and ordered him to stay away from her residence. See Ind. Code § 35-46-1-15.1. Stalking is defined as "a knowing or an intentional course of conduct involving repeated or continuing harassment of another person" that would cause a reasonable person to feel frightened or threatened and that actually caused the victim to feel that way. See Ind. Code § 35-45-10-1 (1993). Harassment is defined as "conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress." See Ind. Code § 35-45-10-2 (1993).
[¶16] Schwenk was convicted of two counts of invasion of privacy. The acts alleged supporting those counts were the incidents in July and September where Schwenk sprayed something poisonous on Farhar's grass. There was testimonial evidence from Farhar and Hochgesang about Schwenk's actions, and videotaped evidence showing Schwenk spraying something on the grass on those two occasions.
[¶17] As for the remaining evidence that was admitted at trial, "errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party." Turner, 183 N.E.3d at 352. "To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury." Id. at 252-53.
[¶18] Here, we consider the probable impact of the evidence on the court because this was a bench trial. The evidence complained of on appeal was relevant to the stalking charge, a charge on which the trial court acquitted Schwenk, but for which the State was entitled to present supporting evidence. A longstanding principle termed the judicial-temperance presumption, provides for the presumption "that in a proceeding tried to the bench a court renders its decisions solely on the basis of relevant and probative evidence." Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011). Here, though the court initially admitted the evidence of the cards over objection, it was admissible as relevant to the stalking charge. The evidence of other harassing behavior, likewise, was admissible as relevant to the stalking charge. Here, we need not engage in the harmless-error analysis because the complained of evidence was not necessary to support the convictions for invasion of privacy. Further, the court acquitted Schwenk of the stalking charge, a charge to which the evidence was relevant. Thus, the court's decisions were rendered "solely on the basis of relevant and probative evidence." Id. We find no error, let alone reversible error, here.
Conclusion
[¶19] Based on the foregoing, we affirm the judgment of the trial court.
[¶20] Affirmed.
Brown, J., and Tavitas, J., concur.