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Conviction splits COA in determining actions of a ‘reasonable person’

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In affirming the conviction of a man who violated a no-contact order, the Indiana Court of Appeals split over what a “reasonable person” would have done in similar circumstances.

The case originated from two separate protection orders issued against William Chavers by two different courts in Marion County.

One civil-protection order was issued by Marion Superior Court 21 on July 16, 2012, but dismissed Sept. 10, 2012. The other no-contact order was signed by Marion Superior Court 16 on Sept. 17, 2012, as a condition of Chavers’ probation following his guilty plea for Class D felony criminal confinement.

Court 16 noted the no-contact order could be vacated at the victims’ request.

A few days after the Sept. 17 hearing, Amber Cushenberry, one of Chavers’ victims who had sought the original protective order, went to Court 21 to ask the protective order be removed. She was given paperwork indicating that the order had already been dismissed. She did not go to Court 16.

On Sept. 20, 2012, Cushenberry told Chavers that she had the protective order dismissed and he could come to her home.

However, when Indianapolis Metropolitan Police discovered Chavers at Cushenberry’s home, he was charged and subsequently convicted of Class A misdemeanor invasion of privacy in violation of Court 16’s no-contact order.

Chavers appealed on the grounds that his violation of the Court 16 order was a mistake of fact, negating his culpability.

The Court of Appeals affirmed his conviction, ruling in William Chavers v. State of Indiana, 49A04-1211-CR-580, that Chavers failed to show he made an honest and reasonable mistake of fact.  

Writing for the majority, Judge Paul Mathias concluded even if Chavers mistake was honest, it is not clear that his mistake was reasonable. Chavers did not ask to see Cushenberry’s documentation and instead relied only on her assertion even though he had been informed by his probation officer that day that the no-contact order was still in effect.

“In the face of such conflicting information, a reasonable person would attempt to verify the validity of the order, by looking at the dismissal papers personally, or by contacting the clerk of the issuing court,” Mathias wrote. “This is especially true of a man who had just been convicted and sentenced for D felony criminal confinement.”

In his dissent, Judge John Baker disputed that Chavers knowingly violated the order of protection. He pointed out the confusion Cushenberry had between the orders from the two courts and the confusion of the arresting officer.

“Under these circumstances, I cannot conclude that there was sufficient evidence to convict Chavers,” Baker wrote. “He was not with Cushenberry when she tried to get the no contact order vacated, and an average person could be easily mistaken regarding the exact superior court number where he or she needed to go to get a no contact vacated, especially in a county as large as Marion.”

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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