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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 Later, Pitzer attempted to have the order dismissed and believed it was no longer in effect.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 Although Pitzer told Tharp about the protective order, she also erroneously told him it was no longer in effect," wrote Judge Melissa May.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. 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.

  2. 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

  3. 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

  4. 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

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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