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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 Later, Pitzer attempted to have the order dismissed and believed it was no longer in effect.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 Although Pitzer told Tharp about the protective order, she also erroneously told him it was no longer in effect," wrote Judge Melissa May.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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  4. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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