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Proof of service is state's burden

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The Indiana Court of Appeals reversed an invasion of privacy conviction today because the state didn't prove the defendant knew he was the subject of an active protective order. The appellate court also concluded that notice of a protective order should come from the state.

Lisa Pitzer, who has a child with Jeffrey Tharp, filed a protective order against him in October 2008. She had the notice served at his mother's house, but it was returned because he had moved. Later, Pitzer attempted to have the order dismissed and believed it was no longer in effect. When Tharp was pulled over while Pitzer was a passenger, they learned the order was still valid. The police officer was told by the communication control operator that the protective order was served. Tharp knew there was a protective order against him because Pitzer had mentioned it, but they thought it had been dismissed.

He was convicted of Class A misdemeanor invasion of privacy. After he was arrested, the court dismissed the protective order at Pitzer's request.

The state failed to prove Tharp knowingly or intentionally violated the protective order, the Court of Appeals ruled in Jeffrey Tharp v. State of Indiana, No. 49A02-0905-CR-394. The state didn't present testimony based on personal knowledge nor did it admit any documentation that Tharp was served. The appellate judges rejected the state's argument that Tharp bore the burden of proving he wasn't served and that Pitzer's oral statement to him about the no contact order was sufficient notice.

The judges concluded the exception recognized in Hendricks v. State, 649 N.E.2d 1050 (Ind. Ct. App. 1995), and Dixon v. State, 869 N.E.2d 516 (Ind. Ct. App. 2007), should be narrowly construed to require notice from an agent of the state.

"The facts of this case highlight the importance of service. Although Pitzer told Tharp about the protective order, she also erroneously told him it was no longer in effect," wrote Judge Melissa May. "Tharp should not have to rely on information from a lay person who is not knowledgeable about the status of a legal proceeding."

Placing the burden on a person to find out if a protective order exists would require him to check in multiple courts in multiple counties, which would undermine the importance of service, she continued.

The Court of Appeals also addressed a moot issue: that the trial court erred by delegating to the probation department authority to set the terms and conditions of Tharp's probation. In accordance with Lucas v. State, 501 N.E.2d 480 (Ind. Ct. App. 1986), the trial court should have imposed all conditions when Tharp was sentenced instead of giving the probation department the option to impose additional conditions.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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