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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 Later, Pitzer attempted to have the order dismissed and believed it was no longer in effect.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 Although Pitzer told Tharp about the protective order, she also erroneously told him it was no longer in effect," wrote Judge Melissa May.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. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  2. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

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