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Dad’s text to daughter supports violation of protective order

July 17, 2014

A Johnson County man who sent a text message to his daughter to give to his ex-wife – who had a protective order against him – violated that order when he sent his daughter the message, the Indiana Court of Appeals affirmed.

S.B., who has remarried and has two children with her new husband, had a protective order in effect against her ex-husband Todd Dewayne Kelly. Kelly was prohibited from having direct or indirect contact with her. He sent their daughter, L.K., a text and told her to give the message to her mother.

The message said “contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.” S.B. believed it was an attempt to threaten or intimidate her based on Kelly’s previous use of the phrase “rattle, rattle, rattle” to intimidate her while they were still married.

Kelly was charged with Class A misdemeanor invasion of privacy and found guilty. He was sentenced to one year in jail, with 180 days executed and the rest suspended – provided he refrained from contacting his ex-wife.

Kelly cited Huber v. State, 805 N.E.2d 887 (Ind. Ct. App. 2004), to support his claim that the state didn’t prove he directly or indirectly contacted his ex-wife. In Huber, the appeals court found the defendant didn’t directly or indirectly contact the victim when he asked a domestic violence advocate, who refused, to contact the victim.

Unlike the third party in Huber, L.K. did not tell Kelly that she would not give the message to S.B, Judge Cale Bradford wrote. She showed it to her mom and stepdad, and they contacted police on the belief the message was threatening. Kelly even used the same “rattle” phrase on S.B.’s Facebook page while the misdemeanor charge was pending.

The judges declined to reweigh the evidence and affirmed Kelly’s conviction.

The case is Todd DeWayne Kelly v. State of Indiana, 41A01-1311-CR-519.

 

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