No abuse in giving jury instruction, but COA still reverses 1 conviction

A trial court did not abuse its discretion when it gave a jury instruction during an invasion of privacy trial, the Court of Appeals ruled, but the appeals court sua sponte did reverse one of two convictions because of double jeopardy.

Tony Hatchett was convicted of two counts of Class A misdemeanor invasion of privacy, enhanced to Class D felonies because of a prior unrelated conviction, for calling Janetta Buckhalter, the mother of his child, from jail in violation of a no-contact order and protective order in effect.

In Tony Hatchett v. State of Indiana, 49A02-1408-CR-561, Hatchett argued that the trial court abused its discretion when it instructed the jury on the law regarding invasion of privacy. Over Hatchett’s objection, the trial court accepted the state’s tendered jury instruction, which said, “When determining whether a party committed the act of invasion of privacy, we do not consider whether Ms. Buckhalter knowingly ignored the protective order but, rather, whether the defendant knowing[ly] violated the protective order.”

The state noted the issue of consent was brought up by several potential jurors during jury selection; Hatchett maintained he never contended that Buckhalter consented to the contact.

The COA disagreed that Hatchett did not imply Buckhalter had consented to his call because during cross-examination of her at trial, Hatchett’s counsel asked her about the number Hatchett called from jail. That number was a different number than what she had when the two were together, which implied she may have given her number to Hatchett.

Even if the trial court abused its discretion in giving the instruction, it did not prejudice Hatchett’s substantial rights as there was sufficient evidence to convict him of the crime.

But because the same telephone call was used as evidence to support that Hatchett violated both the protective order and the no-contact order, and the jury used the same evidence to establish the essential elements of both offenses, the judges sua sponte ordered one conviction vacated.