ILNews

Supreme Court addresses protective orders

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court released two opinions today regarding the service of protective orders to respondents.

In Richard Joslyn v State of Indiana, No. 49S04-1102-CR-85, the Supreme Court held that a “minor defect in the service of a protective order was cured by (Richard) Joslyn’s statements to police and his testimony at trial.” Because of this, the court affirmed Joslyn’s convictions of Class C felony stalking and four counts of Class A misdemeanor invasion of privacy, which were all based on violations of the protective order.

In Jeffrey Tharp v. State of Indiana, No. 49S02-1005-CR-256, the court reversed Jeffrey Tharp’s conviction of invasion of privacy. In that case, the court wrote that “proof of knowledge must be beyond a reasonable doubt. The evidence of oral notice in this case, however, is insufficient to sustain Tharp’s conviction.”

Joslyn claimed he was not properly served with his protective order that had been filed by Stephanie Livingston. A deputy with the Marion County Sheriff’s Department served Joslyn with a copy of the protective order by attaching it to a door at his home. However, under Indiana Trial Rule 4.1 (B), a copy of the order was also to be sent via first class mail. There was no indication this took place.

But at trial, the court admitted a recording and transcript of Joslyn's statement to police where he stated he knew there was a restraining order and that he found it at his residence, even if he was somewhat unclear regarding the date the order was received. The incidents in question, including a note left on the front porch of the home where Livingston was staying, four broken windows to Livingston’s friend’s vehicle, and Joslyn hiding in the crawl space where Livingston lived, took place after the protective order was served.

“We agree with the Court of Appeals that Joslyn’s admission of receipt is sufficient to sustain his convictions,” wrote Chief Justice Randall T. Shepard. “As the court noted, the purpose of the Indiana Civil Protection Order Act is to promote the protection and safety of all victims of domestic violence and prevent future incidents. It would run contrary to this purpose if we were to embrace Joslyn’s contention that a defendant does not violate the criminal code because of some defect in civil process even where the court had in fact issued a protective order and the defendant in fact knew it had done so.”

Chief Justice Shepard also addressed the importance of protective orders to prevent domestic violence in the Joslyn opinion.

“The declared legislative intent that these provisions in the Code be interpreted in a way that will ‘promote the: protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and [the] prevention of future domestic and family violence,’” he wrote. “Joslyn’s proposed rule that one who acknowledges actual receipt at his home but not an additional copy by mail commits no violation would have real world implications placing far too many Hoosiers at risk of becoming a domestic violence statistic.”

In Tharp, however, it was not as clear as to whether the respondent was aware of the protective order against him.

When officers pulled Tharp’s car over during a traffic stop Feb. 16, 2009, they found the woman who filed a protection order against him on Oct. 1, 2008, Lisa Pitzer, and her daughter, among the passengers in the vehicle.

When officers ran Tharp’s information through a computer records check, they learned about the protective order, as well as the existence of an active warrant for Tharp for operating a vehicle while intoxicated, and that his license was suspended.

On Feb. 18, 2009, Pitzer filed a request for dismissal of the protective order and the court granted her request the same day.

At trial, Tharp denied he was ever served with the order or that Pitzer ever told him about it, and he denied that he told the officers that he was aware of the order. A return of service for the order indicated the service attempt had failed because he had moved.

In her testimony, Pitzer said she had told Tharp about the order when they got back together, a few months after she filed the order in October 2008. She also testified that she told him prior to the February 2009 traffic stop, but that she also thought she had the order dismissed prior to that time.

“…was there substantial evidence of probative value from which a finder of fact could find beyond a reasonable doubt that Tharp knowingly violated a protective order? We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction. Put another way, the evidence is insufficient that Tharp received adequate notice of the protective order,” Chief Justice Shepard wrote.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Been there 4 months with 1 paycheck what can i do

  2. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  3. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  4. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  5. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

ADVERTISEMENT