*1 Billy LUKE, Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 15A01-1409-CR-407. Appeals

Court of of Indiana.

Feb.

IV. Whether the court abused its dis- cretion in instructing jury; V. Whether the evidence is sufficient probation.2 to revoke his affirm in part, We part, reverse in remand.

Background History and Procedural [2] Luke resided at grandmother’s Dillsboro, house Indiana. Deville’s Phar- (the macy “Pharmacy”) is located across street, Weissmann, IN, Leanna employee and the Lawrenceburg, parking lot is adjacent Attorney to and Appellant. for less than ten feet from the torney General, neys Indiana, Cynthia L. Ploughe, Deputy At- Gregory F. Appellee. Zoeller, Indianapolis, Attorney General of IN, Attor- house’s Number 15D01-1202-CM-111 Ill”) Court in the Dearborn County Superior On driveway. Luke was August found guilty under Cause (“Cause of four *5 public counts of indecency as A class mis- BROWN, Judge. (cid:127) demeanors following a trial for various In this consolidated appeal,1 Billy acts of standing at a window inside his appeals Luke his residence, convictions for three exposing penis, his and mastur- counts of invasion bating of D in as class view of Pharmacy female employ- ees, T.R., felonies and stalking R.B., C.B., as a class named felony, C as and K.R. He well was as the revocation sentenced to an probation. aggregate of his term of 1,095 days, including days Luke raises suspended, seven issues which we consoli- date, placed and was revise, probation on days. for 725 and restate as: ofOne the conditions of probation I. Whether his convictions for invasion “Defendant have no contact shall with of stalking and violate dou- [T.R., R.B., C.B., or in person, by K.R.3] jeopardy principles; ble mail, telephone, computer, any or other

II. Whether the trial court abused its means at the place victim’s residence or of discretion in admitting evidence of employment.” Superior Appendix at 155. acts; other bad The court issued no contact per- orders III. Whether the evidence is sufficient R.B., taining T.R., (collectively, and C.B.

to sustain his convictions for inva- Order”), the “No Contact each of which privacy; sion of “includes, stated that contact but is not transcript 1.The record contains a and an 2. Luke further raises the issue of whether the appendix prosecution Superior stalking from both the Dearborn was barred Ind. 35-41-4-4(a), § Code prohibits Court and succes- the Dearborn Circuit Court. Ref- However, prosecutions. sive because we re- erences to the record from the Dearborn upon verse Luke's conviction based Superior "Superior Court will Ap- be to the jeopardy principles, double we need not ad- pendix” "Superior and the Transcript.” argument. dress this References to the record from the Dearborn Appen- Circuit Court will be to the "Circuit sentencing 3. The order contains name of a Transcript.” dix” and the "Circuit part fifth victim who is not a of this consoli- appeal. dated Brandt, Brandt to, harassment, stalking, Ryan and that Chief told acts limited threats, him intimidation, recently presented and force of that Luke had physical him give Exhib- a letter to to the mother of T.R. Superior Court any kind.” State’s K.R., of whom had a no contact each its 11-13. probation and porch gan der, seeing him In female May his under on a driveway Pharmacy employees “daily while No Contact while basis” Luke was on they were on his Or- be- rested. was and what had occurred pendix conviction in his order against 11. Luke Luke, opinion.” Superior Ap- explaining “who he subsequently during ar- his arriving at leaving work. Circuit Tran- On December 23, 2013, Luke was summer, case, During that Luke in another Number sentenced script (“Cause 507”), dress suit and stand 15D01-1308-FD-507 a full would wear a wearing sunglasses, Superior pursuant dark which Dearborn Court yard frightened agreement, days suspended to 365 employees, plea intimidated and Pharmacy experienced probation a number for a conviction for criminal mis- vandalism, part A As including broken chief as class misdemeanor. incidents of door, windows, glass agreement, a broken of the State dismissed a broken D outbuilding, charge voyeurism felony; a broken as class in an window van, Pharmacy’s delivery probation under No. Ill Luke’s Cause. windshield revoked, he were used to the was and was ordered serve break which marbles boy- belonging days A to T.R.’s of home detention with Southeast glass. truck Community tires Regional with flattened Correction friend was vandalized (“SERCC”). The court another no “[p]unk bitch” scratched issued words K.R., T.R., R.B., paint. regarding Id. at 302. contact order into the truck’s 2, 2014, committing acts to a On Luke ap- these and C.B. later admitted *6 Merkel, in in friend, phone Superior conversa- Dearborn Court un- peared Chase February pled re- to guilty which Merkel der Cause No. 564 at- tions Luke, at tempt privacy who was incarcerated to commit invasion of as a corded. misdemeanor, time, A Merkel to acts of class and he was sen- asked commit vandalism, including phar- days suspended probation. tenced to to shooting out windows with macy throw a pull helicopter” genitalia at 592. his sex pants out and for the toy down and into the swing security marbles, Pharmacy it “pull around like cameras. as well [his] and to as to male “freezing” 2014, Luke was driveway staring at them the Pharmacy. served Luke ^[7] Between Pharmacy employees again weather. “always outside the January outside” Superior house 3 and at despite and on the January 7, Transcript ob- On July 18, 2013, Luke was 212. On January 8, 2014, Officer Jack Prarat, Superior investigative un- an commander for charged Dearborn Court Department, der Number 15D02-1307-CM-564 Dearborn Sheriffs visited the Cause (“Cause 564”) Pharmacy pick up prescription, No. invasion attempted A him employees complained as a class misdemeanor. The about despite affidavit that on or Luke’s behavior the No Contact probable alleged cause 9, 2013, 221. July County Superior Transcript about Dearborn Sher- Order. Offi- Olson, Luke, Deputy approached while investi- cer Prarat and Luke iffs Charlie already gating police “several vandalism cases in Dills- stated had been to Police, boro,” told spoke his house earlier in the week and him with Chief Dillsboro outside, not to be that he called his attor- charges, jury and a found guilty Luke as 30, ney charged July about the matter who him 31, also told not July On 2014, outside, Superior 2, Dearborn going to be and that “he was Court un- 564, der Cause No. held a thing fact-finding tell the same he told [Officer Prarat] hearing and entered an revoking order police earlier in the week[:] he was probation, Luke’s finding that he violated going to be outside and come summer he probation by his committing the crimes of going to be out even more and the invasion of privacy under Cause No. 11. girls just at the pharmacy get needed to 15, August 2014, On the Dearborn Circuit used to it.” Id. at 221-222. filed a probation 2 with three counts of January Contact Order charged Luke in as class D felonies for violating the No 15D02-1401-FD-11 [8] On due to these new same C.B. between On charging 7, 2014, day, violation February January issued to the State information under Cause viously-suspended sentence. On Septem Dearborn under Cause Number hearing January charges. 10, 2014, (“Cause protect filed Superior in Cause No. 3, 2014, a request No. R.B., T.R., the State the State Court II”).4 August to an aggregate sentencing hearing in Cause No. 19. On Dearborn the Dearborn Circuit Court commenced a Department in Cause Nos. 11 and 564. That same day, Superior Court held a sentencing hearing Court Cause No. and on August guilty On commenced 29, 2014, Superior August as charged. of Correction the court revoked term of four a jury 21, 2014, in Cause No. 25, 2014, Court sentenced Luke trial in Cause No. (“DOC”).5 the Dearborn years in the found pre In (“Cause Number 15C01-1402-FC-19 No. 18, 2014, ber the Dearborn Circuit Court 19”) in which, the Dearborn Circuit Court resumed the sentencing hearing 14, 2014, as amended on August charged September 29, 2014, and on sen Luke with stalking as a felony class C eight years I, tenced Luke to on Count eight counts of criminal mischief as class A stalking felony, as class C year and one I, misdemeanors. Count stalking, alleged II-IX, on each of Counts the criminal mis that, 24, 2012, between and Feb- counts, chief be served the DOC. The 19, 2014, ruary C.B., R.B., Luke stalked that, court observed pursuant to Ind.Code T.R., KR. and that such and/or 35-50-1-2, § it could sentence Luke to a violated the No Contact Order under maximum executed *7 years, term of ten and Cause No. 111. accordingly I, it II, ordered that Counts ^[10] On July 22, 2014, the Dearborn and III be served consecutive to each oth Superior Court 2 commenced a trial er and that Counts IV-IX be served con in Cause No. on the privacy invasion of current with I—III Counts and concurrent charging I, II, 4. The January information filed years on three including executed on Count 10, 2014, alleged in each count that Luke years two concurrent with Count I and one violated the no contact order under Cause No. I, year years consecutive to Count and three 21, 2014, July granted 507. On the court a on concurrently Count III to be served with motion to amend the State and amended 18, 2014, September Counts I and II. On the charging the allege information to that Luke sentencing court issued an amended order in violated the no contact order under Cause No. years which it sentenced Luke to three on Ill, i.e., the No Contact Order. I, year Count one on Count II consecutive to I, years Count and three on Count III to be sentencing 5. The court’s initial order sen- concurrently served with I and Counts II. years tenced Luke to three executed on Count C.B., R.B., T.R., K.R., other, aggregate for an term of and but also and with each in the DOC. The court also that the no contact order discussed ten states years sentence be that Luke’s served in that case was issued under No. ordered Cause in his sentence Cause No. to consecutive 111. The State asserts that prove stalking to included 11. video lance stalking conviction. that the evidence female victims nesses length January low. ing convictions Luke No. stalking eration ^[12] case charges 11 became argues made from camera at his regarding The Other violate in Cause the issues of invasion for first issue stalking system facts Discussion double factually previously No. the incidents of relevant to the consid- I. He asserts that wit- officers, State will pharmacy’s jeopardy principles. trial, is whether Luke’s in such manner both trials. State showed be included tried the stalk- used to including the provided testified a surveil- in the Cause prove early He be- at indecency for pears ing documents filed Cause tact der .... relay to the the State 507 and substitute Cause No. ‘same evidence’ on trial in both Contact amended mer of acts of vandalism Luke’s actions “[t]he 14. July two trials concerned different no con- violating orders, In his in mere ” 2013, a letter Luke sent K.R. in Order Appellant’s Reply both trials does not meet is incorrect case, reply noting another letter delete reference to Cause No. mother fact the same no during stemming and that test.” Circuit and that brief, in that the in T.R. some evidence Appellee’s Luke “[t]hus, its spring from the and states Brief Luke original assertion Superior No. contact Ill, argues K.R., at and sum- tried Brief at 11 were charg- public that and #2 ap- No or- to argues that Officer Prarat “repeated his The Indiana Constitution concerning testimony 11] from No. [Cause provides put shall be “[n]o Prarat had in Luke in [sic] conversation jeopardy twice for the same offense.” Ind. 2014,” told in which Luke Prarat Const, 1, § art. 14. “Indiana’s Double right “he to be outside home had prevents] ... Jeopardy Clause the State girls pharmacy just needed and ‘the being proceed against per from able ” Appellant’s to it.’ Brief at 18. get used transgres son twice the same criminal the State relied He contends that State, Hopkins sion.” v. 759 N.E.2d trial, no contact orders at each same (Ind.2001) (quoting Richardson of K.R. to the that the addition (Ind.1999)). The jeopardy case does not alleviate double Supreme Indiana Court has held that “two concerns. or more offenses are the ‘same offense’ I, violation Article of the Section that, *8 statutory either the chal elements the three counts of invasion of for lenged crimes or the actual used violating the contact issued for no orders convict, to T.R., C.B., the essential elements of one R.B., following Cause No. challenged also the offense establish essen during period 507 discrete time between 7, challenged tial elements of January January 3 and 2014. The of another State Richardson, N.E.2d at 49. maintains that the conviction un- fense.” 717 only appeal, der “On defendant pertained Cause No. 19 to not the bears the bur-

409 violated that his convictions elements of two offenses. 759 Hopkins, den to show State, from right (citing Long to be free N.E.2d at 640 v. 743 constitutional State, denied; Boyd 253, (Ind.2001), v. 766 261 jeopardy.” reh’g double N.E.2d 396, State, (citing 263, (Ind.Ct.App.2002) 400 Redman v. N.E.2d 743 N.E.2d 268 State, 699, State, (Ind.2001)); 272 N.E.2d Lutes v. Ind. 401 see also 717 v. Griffin (1980)). 671, (Ind.1999), denied, 73, 672-673 N.E.2d 89 cert. 530 jeopardy there is a reasonable State, fense 30 evidentiary and a dence ed or establish second establish N.E.3d acquitted test, reviewing challenged which the defendant the essential violation under the all the N.E.2d a defendant must demonstrate facts In may 1222 court must conclude used essential elements offense. Hines order to find also have (Ind.2015); 806 by possibility elements the factfinder (Ind.2002), reh’g been actual of an of a double Vestal v. that the v. convict used to State, of a evi to the Spivey, factors that U.S. tions, that “between ary son, er the charging determination.” (2000). (quoting fact-finder, 717 N.E.2d at 54 n. 1247, [] 2014 In 761 “In Lee, 892 arguments 120 S.Ct. [Luke] determining N.E.2d at may ‘it information, Hines, No. is have N.E.2d at 1234 did knowingly or inten- 2697, appropriate 11, counsel’ and other 832, 48)). 3, 30 guided the facts used 147 L.Ed.2d 968 2014 and Janu- N.E.3d at and Richard State jury instruc to alleged consid (citing jury’s 1222 by tionally violate no contact as order issued possibility’ “[A] denied. ‘reasonable probation a condition of ... under [Cause jury used the same to reach two facts' R.B., T.R., C.B., protect to Ill]” requires substantially convictions more conduct felony such was a D class logical possibility.” than a v. Garrett prior because he had a unrelated convic- State, (Ind.2013) 992 N.E.2d attempted tion of under State, v. (quoting Lee 892 N.E.2d Superior Appendix Cause No. (Ind.2008)). The of a rea existence trial, 425^426. At of the recognition as possibility practical sonable turns on a fact that the No Contact specified Order may sessment of whether the fact finder “includes, to, that contact but is not limited exactly have latched on to facts same harassment, intimidation, stalking, acts of “Applica for both Id. at 720. convictions. threats, kind,”6 physical of any force requires tion of this test to ‘iden court 11-13, Court Superior State’s Exhibits tify the essential elements of of the each instructed court term on the crimes and to challenged evaluate evi Jury “harassment” Final Instruction jury’s perspective....” dence from 9No. as follows: Hines, Lee, 1222 (quoting 30 N.E.3d at N.E.2d (quoting Spivey The term “harassment” is defined (Ind.2002))). meaning law as conduct directed toward Supreme Indiana Court has determined a victim that includes but is not limited specula possibility repeated continuing impermissible be remote and therefore tive and not reasonable when contact that would cause a reasonable finding sufficiently no likeli suffer substantial emotional distress actually hood that fact-finder used the same causes the victim suffer evidentiary facts to establish essential emotional distress. does Harassment trial, stipulation language. 6. At the court read a to the contained such jury highlighting that the No Order Contact *9 outside, constitutionally him not to be and that “he statutorily or

not include picket- such as activity, thing lawful to me the he told the protected going tell same disputes to or lawful ing week, labor pursuant to going earlier in the he was police to pursuant activities employer-related going he and summer was be outside come disputes. labor girls more and at the to be out even the it.” language just get at 489. This to used to Superior Appendix pharmacy needed “harassment” is rooted in definition Id. at 221-222.

would come 7, therefore tact and then found at and sion of Luke sections stalking. 10 of Title Code is [18]The 2014. R.B. violated No. privacy) relevant titled Ind.Code C.B. throughout the between her committed 35, Article 45 of the Indiana to work and leave from work State’s case-in-chief 11 focused on testified that by being “stalking” and contains six by harassing § 35-45-10-2. No Contact Order January 3 and prosecuting three “outside when day counts Luke-had proving he would be T.R., C.B., at trial in crimes of January Chapter of inva- (and con- that we who testified whole time we We us and ty.... Joshua her house and stared surveillance one of our side Pharmacy. The State next called were worried that feel court admitted certain the house and He looked like just staring During the Cady, “[v]ery co-workers.... that Luke “stood outside his were at concerned for us State down at us testimony looking depicting he would hurt us or he was work,” pretty other evidence ” which made whole Id. at 302. toward angry [her] of Officer Luke much the video time. safe- with R.B. out- Rule 404 under Ind. Evidence to show we were the store out there while also.” employ- Luke’s the female intent harass Transcript at 182. testified Superior She regard- ees. Police Chief Brandt testified her, made that Luke would stare at vandalism, ing multiple incidents “very “scared” her feel uncomfortable” and including Pharmacy, police to the sta- that, her. 185. stated on those Id. at C.B. tion, boyfriend, Luke the vehicle of T.R.’s days “stood out and January Deputy at [her] there stared almost entire which occurred June of 2013. and Pharmacy’s in the time” would be on Sharp she Prosecutor Jeff testified that During Id. at 189-190. her parking lot. 23, 2014, Luke handed him a letter June she testimony, photograph took of Luke “I part: Luke had written which stated in his home was admitted into evi- outside tires figured broken windows and flat similarly T.R. testified that be- dence. call.” up would suffice as humane wake January 7, 2014, January tween 3 and Id. at 390. driveway Luke in the on “would stand [20] This same evidence harassment her feel phone” which made “[i]ntimidated was used the State in Cause 19 as scary and at 212. Pra- Officer [sic].” that Luke stalked part its broader case 8, 2014, January rat after testified on R.B., T.R., K.R., between Janu- C.B. Pharmacy, he

visiting observed Luke ary February 2014. C.B. “walking up driveway” down "trial indicated at spoke that he walked with him over Dillsboro” “returned] complaints about the from the women. Id. date, that she saw him on Officer Prarat testified that Luke through- he was “outside various times ear-

responded by saying police had visited before,” “[j]ust day” out the which was like telling lier in week him not be similarly “[p]ick[ed] up right and that outside, attorney [he] that his told he where *10 Transcript left off.” Circuit at 258-259. Also, cold.” Id. at 670. Officer Olson watching C.B. testified that Luke was testified and portion read the of the letter go again” women “come and and would Luke wrote in which he stated that he “stare” at her. Id. at 259. When asked “figured broken windows and flat tires how Luke’s course of conduct “for over would suffice as a humane wake-up call.” years,” including two the time in period Id. at 699. We—I

very intimidating, very nerve-racking [sic]. the video was admitted into evidence. Of- ing ficer Prarat ny regarding the vandalism the same June 2013. again admitted into evidence. Chief Brandt sponded: “It January dence at the trial the surveillance video he was testified and 2014, photograph afraid.” Officer testified about his encounter was made her very in Cady again Id. Cause No. admitted into evi- stressful. testified regard- offered testimo- 262-263. feel, reviewed, occurring C.B. re- It was Also, in these girls,” and that Officer Prarat tor vant rassed, Superior Transcript at 417. The prosecu- “multiple shown at Luke that he “cannot [T.R., C.B., argument by stating summed argued time Also, intimidated and would not leave times period up the State’s case at closing harassing Luke was trial R.B.] prosecutor “continually Luke ha- that demonstrated Luke alone,” harass” the during “responsible in Cause No. intimidating the rele- a video girls. told for the terror that’s been caused these January with Luke on in which (3) girls” three proceeded to recite the him Luke told that “as far as he was language Order, of the No Contact concerned, and, he could be outside come again stated that contact includes “acts of summer, he was going to be even outside harassment, stalking, intimidation....” Id. girls more and the at the pharmacy just (3) at 418. He stated that three “[a]ll needed to get used to it.” Circuit Tran- girls these they testified that were em- script at Byron 522. Officer Wilber testi- ployed by Pharmacy Deville’s and all the fied that he January visited Luke on harassment, intimidation, occurred di- 2014, and advised him not to be on his rectly across the street at the residence porch. R.B. testified that Luke “re- where he staying.” 419. The 2, 2014, turned” to the January house on prosecutor that, specifically noted per the and “during period January 3rd to Order, No Contact contact includes harass- January 9th” he “was out on porch ment jury and informed they again.... standing [Luke was] would be instructed on the definition of lot, driveway by the parking looking at the harassment, and he proceeded argue pharmacy, right by car.” [her] Id. at 642. that the of Luke She testified that “star- appeared it Luke did not ing” girls at the freezing while it was purpose have a cold being outside in the outside met the definition. freezing Id. at 421. presence weather and that his He argued also “[v]ery made her that Luke made sure scared that he was marbles were “in a going again, place to start where he can continually that he was harass going to hurt one of them” and that us.” Id. at 644. T.R. Luke “had the intention testified January between harass and 3 and intimidate them.” Id. at 422. Luke was outside He invited the throughout day to view Luke’s actions despite context, freezing temperature including previous public trial, would stare at indecency her which her made feel acts of vandalism “[s]cared, intimidated” because she “didn’t summer of and his earlier violation of why even know he was outside when it’s so the no contact order under Cause No. 564. During closing arguments order against him. Id. *11 A few months la- prosecutor ter, discussed calls telephone Burton made several January 3 victim, and Janu- period time between and messages left for on and 7, 2014, as follows: ary 31, 1995, approximately January after sev- 2nd, January span on 2014. en calls a of two and again phone within He’s back mind, and Now, gentle- ladies keep learning hours and that Burton one-half extremely men, testified it’s ladies driveway, seen on the victim’s had been testified it’s be- [T.R.] week. cold this police. Id. Burton the victim called constantly he’s outside of zero and low with, of, charged guilty and found was residence, pharmacy, staring at the privacy, of and harass- stalking, invasion as come they go. them and staring at He ordered to serve con- ment. Id. are. close these individuals Look how for each the offenses. secutive sentences of that’s the front of her testified [R.B.] me, you nothing from to He is vehicle. in between them, just glaring at them as On appeal, Burton raised the issue stalking that consecutive sentences for and pharmacy. in and out of the they come photo. jeopar- this Look how close takes violated double [C.B.] there, well. been to as He’s told dy he is principles. noting Id. at 926. After again, no Once how hard have contact. contains element that that each offense an it? Go ladies concept is inside. These a they other does not and that were they you and are a victim are fearful “separate under therefore offenses you crime. I understand your prior test,” we ‘same elements’ discussed the there, they your are a victim of live but question of whether “the factual bases al- They rights, have too. You crime. leged by charging in the infor- State talk Major Jack Prarat about his heard mations, upon charges and which the were him, Billy He Billy. with said told talk a predicated” jeopardy constitute double outside, me I be police told couldn’t ‘the violation. Id. at 927-928. observed We outside, me I be my lawyer told couldn’t stalking charged follows: as to be going girls I’m outside but 10, 1995, January through On or about just going have pharmacy at the are to February 1, including on or about it’. It shows his state of get used County, in Marion State mind, gentlemen. Byron Wil- ladies Indiana, defendant, Billy following He occa- named testified. told two ber Burton, he couldn’t have with sions that contact knowingly Donald or intention- them, of which he told him he one ally engaged in a course conduct in- outside, clarify it him. couldn’t be volving repeated continuing or harass- victim], person; [the ment of another Transcript at 727-728. Circuit lar Burton had N.E.2d 924 set This of facts (Ind.Ct.App.1996). previously Court has addressed a simi- Burton been charged Defendant threatened, rorized, cause further reasonable frightened, that said conduct person said conduct actu- intimidated, feel would ter- or ally caused said other to feel ter- as a re- battery and criminal recklessness rorized, intimidated, frightened, beating a female victim with whom sult of threatened; and further that said con- relationship. romantic previous he had attack, included at least two of the follow- duct Following 665 N.E.2d at permanent protective ing actions: the victim obtained 10, 1995, January words, 1. On or about said In other the invasion of privacy defendant did called information required proof [sic] [the victim] on Janu- . 31, 1995, ary Burton protec- work. violated a tive order appearing at [the victim’s] 23, 1995, 2. On or about said home and calling her numerous times. defendant did called [sic] [the victim] information required proof numerous times. *12 protective that Burton knew a order had 28, 1995, or January On about said been issued and that he harassed [the defendant did call at [the victim] her victim] on least two of the five listed home 3 times. occasions, one of which included Bur- January 4. On or about said ton’s calling and harassing [the victim] call inquire defendant did [the victim] January 1995. While Burton’s parked about van near her home. stalking conviction could have been any based on two of the five listed occa- 31, 1995, January 5. On or about said sions, it possible was for the conviction defendant did call and harass vic- [the to be based on Burton’s actions on Janu- times....; tim] numerous ary 1995. These same actions were and further that said other is a the sole basis of the invasion of privacy victim that a Protective Order has result, conviction. aAs the manner in by been issued a Court under Cause No. which the offenses charged were re- protect 49F029411PO3406 to said victim lieved the State of requirement of defendant; from the and further proving additional gain facts to the inva- given the defendant has been notice of privacy sion of beyond conviction those said Order. required prove stalking convic- Id. at 928. We then observed that inva- Therefore, tion. jeopardy princi- double privacy charged sion of was as follows: ples bar conviction for both offenses. On or about in Marion Id. We remanded to the trial court with Indiana, County, of State ... the follow- instructions to vacate the conviction and ing defendant, Burton, named Donald sentence on the privacy charge. did knowingly intentionally or violated] Id.

A 4— protective 5.1—5(a)(1)(A), order issued under IC 34- (B), or (C) bases of Luke’s invasion Just as in Burton, of the sole convic presented

tions were also prove Luke guilty stalking. of To the extent That ordered said defendant to refrain suggests State that all of Luke’s con from abusing, harassing disturbing or victions should stand because the invasion peace by appearing [the victim] of privacy convictions were based on Luke her home calling her numerous violating Order,7 the No Contact while his times. stalking conviction for punished him for engaging knowing in “a or an intentional [25] We held that: course of involving repeated conduct or argument, 7. As Luke in used probability test we find such for occurring over a cluded evidence Court *13 dence the invasion stalking under double convictions violate the same 2 in Cause in that evidence was that that the that facts to reach its conviction there 11, were used to convict jeopardy principles. longer No. jury in exists a reasonable Dearborn the actual evidence 11. Consequently, we time counts conclude Cause period, all of Superior charged No. 19 Luke that in- was found purposes, and the trial in gust the State 3(a)(Z), the commenced on Luke’s conviction cuting Cause Cause ^[29] August 15, 2014, No. No. Based Cause prosecuted 21, invasion guilty 11 were 19. proper 2014. and Luke was found No. 19 commenced on Au- upon July The facts for stalking. on remedy is Ind.Code also presented July 22, 2014, Luke for Cause No. presented privacy charges 30, 2014. The § stalking in We there- 35-41-4- in 11 trial vacate prose- guilty when Luke in

is under Richardson, must decide what lesser offenses of both proper convictions these circumstances. remedy would be to vacate 717 Having so N.E.2d at 54 therefore cannot appropriate determined, we privacy. Ordinarily, (“Because remedy stand, See with instructions to vacate Luke’s wherein the lesser offence is See fore remand to the Dearborn Circuit Court facts constitute two or more involved conviction and resentence 130 N.E.2d also Woods greater v. 143 State, (Ind.1955) ... 234 and when the Ind. accordingly. (“When necessarily 598, 607, offences, se conviction with the less we vacate the necessary facts to convict on a second consequences stand penal vere and leave prosecution necessarily would have con- conviction.”). brief, robbery In his ing first, prosecu- victed on the then the first Luke directs our attention to Ind.Code judgment tion to a final will be a bar to the second.”).8 35-41-4-3(a)(l) provides § that: Infra, opines should be vacated.” at 422. Ind.Code 8. The concurrence Ind.Code 35-41-4-3(a)(l) statutory right provides § applicable § is not under 35-41-4-4 against prosecutions. are dif- See these because successive "[t]hese circumstances offenses,” State, although the 762 statutory Williams v. N.E.2d 1219 ferent (Ind.2002) charges (noting stalking prosecution been that certain were should have barred § § waived the barred Ind.Code 35-41-4-4 and ac- under 35-41-4-4 Luke under Ind.Code below, cordingly reaching filing the defendant’s consti- not a motion to dismiss not issue claims). Conversely, subsequent jeopardy conviction for stalk- tutional double but “the (2008) § ing jeopardy 35-41-4-3 codifies principles violated of double “Indiana Code II. humane up wake call.” Appellant’s Brief The next issue is whether at 35. He argues that the State could not admit this evidence to show intent unless the trial court abused its discretion in ad claim, he a contrary advanced and here he mitting evidence of other bad acts at the “merely maintained his innocence....” trial in Cause No. 11. The admission and motive, at 37. Regarding argues exclusion of evidence falls within the sound the fact that he engaged in other court, discretion of the trial and we review behavior directed at the Pharmacy em- only the admission of evidence for abuse of ployees does not relate to whether he had State, discretion. Wilson v. 765 N.E.2d contact with them January between 3 and (Ind.2002). An abuse of discre that, argues He also tion occurs “where the clearly decision is relevant, even if this evidence should have against logic and effect of the facts and been excluded under Ind. Evidence Rule State, circumstances.” Smith prejudicial because its nature out- (Ind.2001). N.E.2d “Errors weighed probative its value and that the admission or exclusion of evidence are to not harmless. be disregarded as harmless error unless they affect the substantial rights of a par State contends that Luke’s ty.” intent when he porch Fleener v. was on his and drive- (Ind.1995) (citations omitted). way was the central issue at the invasion victim’s mother that he trial abused its discretion under Ind. Evi- summer, Superior Court in dence Rule vandalized the that he wrote a letter 404(b) contends in July his invasion of in admitting evidence Pharmacy that the Dearborn and that he the privacy to one prior much more menacing than the version his found gues that sented keeping out certain evidence which it counsel to be demonstrated that his presented trial and that the the court was meticulous in unduly prejudicial. at trial. It further ar- evidence presence *14 pre- wrote to the prosecutor June 2014 in Ind. Evidence Rule 404(b) pro- “Yes, vides: figured he stated: I broken (b) windows and flat Crimes, Wrongs, tires would suffice as a or Other Acts. protections against being placed test, jeopardy of violate the actual evidence more than Cleary they once for the same offense.” also constitute the "same offense” for the (Ind.2015); purposes § 23 N.E.3d of Ind.Code see 35-41-4-3. Boze, (Ind. also State v. that, We § further observe were Ind.Code 35- Ct.App.1985) (noting § that Ind.Code 35-41- applicable, 41-4-3 not remedy the correct recognition 4-3 "is a and codification of the would be to vacate the lesser invasion of prohibition against jeopardy”), double reh'g keep stalking convictions and the con- denied, Thus, trans. denied. Section 3 codifies Richardson, intact. See viction N.E.2d prohibition against the Indiana Constitution's "[wjhen (noting 54-55 two convictions Richardson, jeopardy. double As noted in are jeopardy prin- found to contravene double "two or more offenses are the ‘same ciples, reviewing a may remedy court offense’ the I, in violation of Article Section 14 of the by reducing violation either conviction to a Constitution, if, respect Indiana with to either less serious form of the doing same offense if statutory challenged the elements of the violation,” so will eliminate the "[i]f it convict, crimes or the not, actual evidence used to will one of the convictions must be vacat- ed,” challenged the essential elements of one of reviewing and that the court "will make fense itself, also establish the essential elements of being this determination mindful of the challenged another offense.” 717 N.E.2d at penal consequences the trial court found added). (emphases appropriate,” Because we conclude vacating “the conviction that the convictions ”). for and invasion penal consequences with the less severe ... of If (1) prejudice of a sible its admission. Uses. Evidence Prohibited crime, act ad- purpose or other is not has some besides behav- wrong, evidence person’s character prove conformity with trait missible ior in a character that on a particular favorable, to show in order the balancing test is trial acted in accor- occasion court can elect admit evidence. character. with the dance Boone, instance, N.E.2d For at 138. (2) Uses; Notice in Permitted necessary which is for may be This evidence Criminal Case. relationships between the understand purpose, such -admissible for another victim, witnesses, and the defen- various intent, motive, opportunity, proving as Wilson, 765 may dant be admissible. See knowledge, identity, plan, preparation, at 1270-1271. N.E.2d mistake, acci- of or lack of absence dent. On request by a defendant in a At trial, the State presented case, prosecutor must: criminal evidence, Luke, objection by certain over (A) 404(b). provide reasonable notice of Evidence Rule Police under Ind. any general nature of such evidence regarding multiple Chief Brandt testified that the to offer prosecutor intends in the occurring acts of vandalism summer trial; 2013, including breaking marble (B) delivery van, Pharmacy of the during windshield do so before trial —or court, cause, good breaking if of the Pharma trial marbles windows pretrial notice. cy building, being excuses lack of and a flattened and tire “punk being bitch” etched into words assess [34] The standard for boyfriend. truck T.R.’s Chief 404(b) Rule evi ing admissibility testified that Luke Brandt also (1) must is: the court determine dence him a letter to the mother addressed crimes, wrongs, that the evidence of other T.R. with instructions Chief matter acts is relevant to a at issue July deliver the letter in June or Brandt *15 propensity the other than defendant’s Also, Deputy Sharp 2013.9 Prosecutor (2) act; charged the and the court commit receiving testified about a letter from value of the probative must balance the 2014 in part: in June stated which against prejudicial pur its effect evidence “I and flat figured broken windows tires State, v. to Rule Boone 728 suant 403. up as a wake would suffice humane call.” 135, (Ind.2000), reh’g de N.E.2d 137-138 Superior Transcript This at 390. evidence nied; State, 215, v. 221 Hicks 690 N.E.2d relationship illuminated the nature of the (Ind.1997). is inadmissible The evidence and between Luke the three female vic only produce the State it when offers tims and was admissible to demonstrate the “forbidden inference” the defen Luke’s,intent to he harass them when was other, engaged in mis uncharged dant has despite in freezing outside in charged and conduct was conduct the and at them from temperatures, stared conformity uncharged miscon with the State, 1223, porch driveway, was the central and v. 736 N.E.2d duct. Crain State, (Ind.2000). trial. See issue at Ross v. 676 The trial court has wide 1235 (Ind.1996) latitude, however, (holding weighing proba in N.E.2d the against pos- prior misconduct “admissible because value of the evidence the was tive 564. This is the same act for which Luke was Cause No. charged attempted in motive tionship it demonstrated the defendant’s that could have been a motive murder, and illu- and intent to commit the murder that evidence of a third incident and of relationship graphic fairly the de- probative minated between low State, victim”); of its 630 value view remoteness in fendant Elliott v. time (Ind.1994) inadmissible, thus and that (prior N.E.2d threats considered light of the other evidence about the rela- of violence ex-wife and victim admissi- tionship, improperly-admitted relationship ble to show the evidence between motive), regarding the third reh’g de- incident was not parties defendant’s reversal). nied; State, grounds for Price v. The trial court did 619 N.E.2d (Ind.1993) not its discretion in (prior admitting abuse against bad acts vic- challenged evidence. tim are admissible “to show the relation- ship parties appellant’s between the III. motive”), State, reh’g Iqbal denied v.

N.E.2d 408-409 (Ind.Ct.App.2004) The next issue is wheth er the evidence is sufficient to sustain (holding that prior evidence to a relating Luke’s convictions for invasion privacy. put gun incident which the defendant reviewing insufficiency When claims of victim’s head and to kill threatened evidence, we do not reweigh the evi her indicative of the rela- defendant’s judge dence or the credibility of witnesses. tionship highly with the victim and rele- (Ind. Gray victim, for his vant motive to shoot 2009). Rather, we look to the evidence that the defendant’s of an acci- “assertion and the reasonable inferences therefrom dent is indicative of the nature the verdict. af support willWe relationship parties, between the charac- firm if the conviction there exists denial, evidence by jealousy terized and ulti- probative value and reasonable infer mately culminating hostility into and mur- upon ences from that drawn der,” that the evidence was “relevant to which a reasonable trier of fact could find gun accidentally show absence of the guilty beyond the defendant fired,” reasonable being and that court the trial did doubt. Id. by admitting not abuse its discretion 404(b)). bad

defendant’s acts under Rule The offense of invasion of 390. See perior Transcript at mony mane The trial ing dence evidence was dows and single N.E.2d cutor the letter wake Sharp, to was not statement at 223 (noting court flat ensure that up presented. the court In presented tires would suffice as call,” carefully parsed addition, significantly “I to figured that “at some only be admitted. Su to allowed Indeed, Deputy the relevant broken 404(b) prejudicial. Hicks, such only regard Prose a testi point win evi hu which, knowingly or is probation; has a amended a no contact order issued as a cy, a Class A misdemeanor. offense is a Class (eff. offense under governed relevant July at the time of the prior by 2014)). ... commits invasion of priva part Pub. T. No. intentionally unrelated conviction for this section.” (Subsequently Ind.Code D felony offenses, provided “[a] violates: 158-2013, § 35^46-1-15.1, if the However, condition person ... § who 557 *16 (6) an of testimony about every incident of violence argues that .his ac prejudicial tions, the two undisputed between becomes more is that “[i]t [he] than that of two probative,” nothing of did more than stand outside his the incidents rela- pharmacy illustrated the hostile home across street from the time,” away defiantly finger time to is a an inch holding at women from

and look sibling.” 21. pur- “contact” for from their Id at do not constitute witnesses women tuted contact does invasion “contact” but that harassment at its witnesses Luke both intimidated crimes, allowing allegations poses of his No presence. that “contact” privacy. Appellant’s dation.” Id. serts argues that the State accordingly privacy, that Indiana but thought N.E.2d Id. “[h]e he not harassment to define what constituted his trial for three did requires more at 25 Pharmacy Contact was oh trial for that caselaw has simply not allowed not make it He also Brief of intimidation alleged at trial that commit invasion (citing and (Ind.2008)). Order, because certain conduct at 24. the State and to harassed argues made than Hunter v. prove the or counts and invasion so. He consti- intimi- mere clear that that and He He as- of were outside. The female victims testified Hunter that frequently stared at the women when harassment, mitted invasion of by that Luke’s presented substantial evidence that Luke harass and intimidate and “includes, engaged Superior Court Exhibits 11-13. The State dence his No Contact Order physical case, presence Pharmacy requires To the extent Luke We discussed the State but is not limited repeated stalking, conduct force of outside reversal, to parking prove privacy. Specifically, sought behavior intimidation, threats, T.R., C.B., made any in Part stated that contact his we lot, that Luke com- kind.” State’s home to revoke de- suggests them disagree. in which designed to, I the evi- and adjacent acts of fearful. R.B., they that he In and, probation fendant Theron Hunter’s was to be maintains that he allowed on his following hearing, the court “found that terms of the in-home de- porch under the he proba- had violated the conditions of his order, the no-contact tention that order tion, finding ‘living had been that he accordingly that vague, and State knowingly approximately he or residence located feet prove did not that inten- (3) from tionally the No Contact a house trailer where three minor violated Order. parents reside their children with argues that reli- State Luke’s [40]The he has been the house trailer at least misplaced is because his ance Hunter pres- once a week while the children were distinguishable conduct is his con- ” ent.’ at 1162. condition The presence” “mere duct was not instead probation Hunter was found to have menacing and commu- was intentional required violated that he “must never be they victims “that neither nicated any or alone with have contact with system could control what he nor the court age under the of 18. Contact includes at 20. Appellee’s Brief The chose to do.” face-to-face, written, electronic, telephonic, maintains this criminal intent State any parties. indirect contact via third evidence, including other supported report any You must incidental contact stating that the letter “broken windows age your proba- persons under up flat would suffice as ‘wake tires tion 24 hours contact.” officer within of the argues State further call.’” *17 presented hearing Id. The evidence at the that he Luke’s assertion was unaware that essentially that Hunter moved into an be a is was being porch on his would violation by RV parked property “akin to owned his fa- meritless and is the insolent claim ther, snidely adjacent car which was his of a child in the backseat of a to father’s occupied by and a saying ‘touching’ that he is not his trem- residence mobile home husband, half-sister, three chil- bling sibling despite fact the child her During time, dren. Id. Hunter evidence was insufficient to establish that worked construction for his father in the his conduct constituted a violation of the- early mornings began to work in the asserted condition of probation. Id. Id. at 1162-1163. served that “the word ‘contact’ is not com- ably points. The fact finder is entitled to Id. Hunter when the children arrived before he had home from left, prior to when his sister’s children arrived ter’s afternoons occasions talking to wrestlin’ tion interaction have fendant knew he “wasn’t supposed to nothing at all.” Id. at 23-24. The de- [the anything to do with them as far as script] at 24. He emphasized that “I “[a]s soon as didn’t sit down with them. could, I out the door until and Hunter trailer, type probation contact The Indiana Supreme would doing of stuff. And I did not have them, around, school, intended to leave the home type remodeling with them as far as like they pack up my stuff with them.” officer] said as far as explained construction in his sis- face to face ... but there were times the next came playing with in, her bathroom. that on such day.” tools and I didn’t have as fast as I Court ob- interac- [Tran- them, get he, which such conduct logically and reason be its 11-13. warnings was pharmacy just and the natural the purposes can be inferred from a defendant’s conduct the Court discussed in Hunter. Despite inside if one of the victims was in the parking intimidation, threats, not actions any kind.” Superior Transcript at 221-222. The No stared directly at the women. When he presented here demonstrated that Luke’s outside and come summer he Luke Contact actions far exceeded the limited out informed responded were lot, even Order from to, Further, Luke State’s of the order causing more and the By contrast, acts by needed to attorneys specified that “he did and usual Officer Prarat Superior we note that “[i]ntent harassment, not fear in do so and instead “mere that contact for physical “includes, get the evidence Court Exhib sequence girls police used to it.” going presence” stalking, that his going force of women, at the but is to be go monly understood to occur pres- mere infer intent from the surrounding circum ence alone.” Id. at 1164. The Court Lee v. stances.” 973 N.E.2d found the condition of probation to am- be (citations omitted), 1210 (Ind.Ct.App.2012) biguous, noting that “[i]f the trial court trans. denied. intended a probation condition of pro- hibit the defendant from the behavior record, upon [46] Based we shown by case, the evidence in this effec- conclude that probative evidence of value tive deterrence and fair advance presented notice was from which the could necessitate that the choice of language beyond find a reasonable doubt Luke clearly must prohibited describe the con- committed the offenses of pri that, duct.” It held accordingly, vacy D as class felonies.10 denied, argues 10. in his brief that he was denied trans. in which this court held that the process due in the enforcement of the No prove evidence was insufficient to that Van- Order, asserting Contact that a reasonable Horn committed where the evidence position in his would not believe that was that VanHorn was observed standing porch driveway on his sitting parked in his city in his car on a street near would violate the No sup- Contact Order. In multiple the home of Robert Franks on occa- port argument, of his he cites to VanHorn v. sions. 889 N.E.2d at 912-914. The State, (Ind.Ct.App.2008), court noted that VanHorn “had no notice of *18 420 Pharmacy employees, that the tacted the

IV. structing er the court the ^[46] jury. abused The Generally, its discretion next issue is wheth “[t]he in in pur women’s the different crime which charged subjective acts, that fear does involve harassment is immaterial fear, is a jury that the on harass- by instructing and jury is to the instruction inform pose of an incorrectly stated the law ment the court to the facts without applicable of the law of pertains it to the crime of invasion as it to jury and to enable the misleading also that error privacy. argues He this clearly and arrive at comprehend the case jury it led the was not harmless because fair, correct verdict.” Over just, and a (Ind.2003), on women were afraid State, focus whether the 783 N.E.2d 1163 street v. denied, if it 1150, 124 encouraged jury the to convict 540 U.S. S.Ct. and rt. ce (2004). 1044 Instruc that the women were afraid. L.Ed.2d found 157 whole mislead neous, tion of the cert. cretion, only discretion L.Ed.2d 45 N.E.2d 1163-1164. denied, must misstate the and the instructions taken the instruction an abuse of that discretion. of (2000). To jury the trial court jury. constitute U.S. (Ind.1999), is Benefiel generally 830, 121 given law an abuse of dis must be reh’g or otherwise S.Ct. is reviewed within the State, denied, 83, 148 Id. at erro as 716 its merely invasion of terms fore charges. The State also upon the the victims constituted ^[49] application jury proving appropriate. of because the privacy, the definition of harassment No Contact Order Luke’s State the definition is founded The State asserts statute does not argues guilt a argues that even thus violation, of that instructing harassing crime by privacy negate there- the of

[47] Before a defendant is en if the instruction was given error, such reversal, affirmatively titled to a he must error is harmless because preju that the show erroneous instruction that Luke re- presented demonstrated State, rights. diced his substantial Lee v. at the female peatedly glared stared (cit (Ind.Ct.App.2012) 964 N.E.2d yard, driveway, porch his victims from State, ing Gantt v. N.E.2d phar- from the they while walked to and An er (Ind.Ct.App.2005)), trans. denied. macy, that even without instruction disregarded ror is to be as harmless unless jurors would have understood the common rights party. it affects substantial of harassment, meaning the term and that (citing Oatts v. have based thereon would decided 61). (Ind.Ct.App.2009); Ind. Trial Rule that his actions violated the No Contact Luke argues that he Order. charged invasion As discussed in Part I, court requires proof Jury con- Final Instruction No. 9 instructed impermissibly that he above, conduct,” proved the State impermissibility of his As discussed pursuant ”[t]he of protective issuance order he when committed invasion Code ad- Indiana Section 34-26-5 would harassing No Order violated the Contact by providing dress our concerns individual, notice to the C.B., R.B., T.R., and that the State heard, and, opportunity an to be proved by demonstrating harassment protective where the issuance of a order is presence” "mere conduct far exceeded his justified, a clear statement that his her being argument without outside. Luke’s is impermissible,” "[n]o conduct is and that merit. protective sought in order was this case.” Id. at

421 tion, affirm jury on the definition of harassment con- we will its decision to revoke. Id. The sistent with the of definition “harassment” single violation of a condition of § found Ind.Code 35-45-10-2. The probation is sufficient to revoke probation. jury in State, court instructed the this manner (Ind.Ct. Wilson v. 708 N.E.2d 34 because the No Order specifically Contact App.1999).

instructed Luke that contact is not limited proper privacy by female victims. ing, language of the No Contact force of in instructing harassment. Exhibits 11-13 (emphasis concluded in Part III the court did not abuse its discretion intimidation, for the any showing that kind.” State’s to, State acts Accordingly, threats, of that, on the harassment, prove based Superior “includes, added). Order, harassed the we conclude definition of invasion of upon physical it was Court stalk- We but vided: vided that by 2015)), 3(a) tionary period-” probation, probation if: tion condition of probation during the dence.” proba- Pub.L. No. (Supp.2012) by “The court At a preponderance “the state must Ind.Code the time Luke was Ind.Code (1) 74-2015, § the (subsequently amended may person Ind.Code § § 35-38-2-3(a) revoke a 35-38-2-3(1) prove has violated a (eff. § placed the viola- 35-38-2- person’s July pro- pro- evi- on v. Cox the sole discretion of the trial court. reh’g denied. tive to commitment A Luke’s and a Rather, er State, serve a the evidence “conditional probation. probation sentence The next issue is defendant is Probation is an alterna is liberty V. in the sufficient on “matter of probation. DOC, is not is a (Ind.1999), and is at entitled wheth revoke grace” favor, Id. tions for tioner automatically The court No. 11. No. Cause No. operation of law. Luke’s Court 2 obey probation [53] The Dearborn held invasion of The federal, state, invasion of a proceedings requirement condition based Williams probation upon and local laws is that a 564 revoked probation under Cause both Cause his convic revocation. trial, Superior proba by N.E.2d (Ind.Ct.App.1998); Ind. not a right.” Probation revocation is 38—2—1(b) (“If § (Supp.2012) Code § governed by 35-38-2-3, 35— Ind.Code and a crime, an commits additional nature, hearing revocation is civil in may probation.”). court revoke the In needing only prove State the alleged III, Part we affirm Luke’s convictions for by preponderance violations of the evi privacy. upon the rec Based Id. at 551. We consider all the dence. ord, we conclude that the court as the evidence most to supporting favorable reasonably finder of fact could judgment court conclude the trial without re preponderance weighing that of the evidence that while judging Id. If probation credibility of Luke committed the new of witnesses. there is probative Accordingly, substantial fense of of privacy. evidence of value to invasion support its trial court’s conclusion that a court did not abuse discretion in any proba- revoking defendant has violated terms of his probation.

11. § current versions Ind.Code 35-38- sions. 2-3(a) (f) are to the identical 2012 ver *20 (a) prosecution A is if all of the barred

Conclusion mand to the instructions to vacate stalking Luke’s convictions ^[54] For the as a class Dearborn Circuit Court foregoing C for invasion of felony, Luke’s conviction reasons, and we we re- affirm with for following exist: ferent facts. (1) for There was defendant the same a former prosecution for a different offense offense based on dif- of (2) prosecution The former resulted felonies, D as the revoca- well as as class in an or a conviction of the acquittal probation. of his tion and remanded. Affirmed in part, reversed in part, defendant.... (3) offense with The instant which the defendant prosecution is for an charged in the for- should have been RILEY, J., concurs. prosecution. mer J., ALTICE, part concurs in (b) A not under prosecution is barred as to issue I. concurs result if the offense it is this section on which ALTICE, Judge, concurring part based was not consummated when concurring prosecution in result as issue I. trial under the former be- With respect first issue, I gan. prosecu- have held that this successive We Luke’s con- agree my colleagues with subsequent pros- tion statute acts to bar cannot because stalking viction for stand only seeks ecution when defendant inva- stalking his dual convictions for of the prior dismissal to commencement violated actual evidence sion trial. second See Hamer v. and, thus, jeopar- test constituted a double (re- 109, 112 (Ind.Ct.App.2002) N.E.2d however, I not dy agree, violation. do prose- gardless subsequent whether majority’s on Ind.Code with reliance statute, cution was barred under the 3(a)(1). § is Ann. This statute 35^1-^ — waived the issue he failed defendant when subsequent applicable because the not trial). to the prior to seek dismissal second com- stalking not “for prosecution for and, Luke did not file a motion to dismiss (i.e., mission the same offense” invasion therefore, any claim that statutory waived already privacy) for which Luke had subsequent prosecution barred. 35^41^4-3(a).12 § been convicted. I.C. These are different statutory offenses Statutes aside, I think it suffices only jeopardy here double issues arose say subsequent conviction failed the evi- parse because the State principles jeop- violated of double carefully dence establish each ardy and should be vacated.

different evidence.

[57] The circumstances likely

this case would more fall under I.C. 35-41^M:,

§ provides: only subsequent prosecutions majority, is a for the same 12. As noted this statute prohibition against double statutory greater codification of the for a offense when offense or Boze, jeopardy. State v. See a lesser- the defendant has been convicted of However, recog- (Ind.Ct.App.1985). as agree not with the included offense. I do Boze, encom- statute] nized does not "[the majority that the statute is broad codifica- jeopar- pass concerning the entire law double of the tion actual test. view, dy”. my addresses In statute notes under State

[14] Constitution, if, Indiana respect 11, Luke was tried and convicted of

notes the State is information. The record reveals that argues mistaken when it charging that the charging State amended the information in stalking information for under Cause No. stalking prose- Cause No. 19 to reflect that be alleged that Luke violated a felony different no con- cuted as a class C because Luke violat- tact order than the No Contact Order refer- ed no contact order issued under Cause Ill, i.e., enced in privacy charging the invasion of the No Contact Order. harassment,” if there was a pre- prosecution A is barred continuing prosecution former the defendant in No. 11 was Cause by the State sented facts based on the same and for commis- female “contact” with the Luke had victims the same tor’s female victims. ed State “harassment” outside closing arguments at the theme, freezing weather harassing stalking trial in Cause using Indeed, the statute. substantially the definition them. The No. 11 on the term both cases Although the court staring at the more evi- constantly provided instruct- prosecu- No. 19 had stalking and invasion ed the “same offense”

[28] sion of the is greater an offense (1) defendant subsequently As acquittal former noted, constitutes offense, even same (A conviction of an included offense and if: prosecution Luke’s convictions for set aside.).... an conviction if the conviction double acquittal resulted in constitut- jeopardy of the