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COA reverses woman’s conviction for violation of protective order

May 10, 2017

A woman who sent an email to the board of elders of her former church did not violate the church pastor’s protective order against her because the email was intended for the elders, not the pastor, a divided Indiana Court of Appeals ruled Wednesday.

In Shelly M. Phipps v. State of Indiana, 28A05-1609-CR-2097, Shelly Phipps and her husband attended a church in Solsberry, where K.G. was the pastor. After providing marital counseling to the couple, K.G. shared what he had learned from the counseling sessions with the church’s board of elders, which, in turn, met with Phipps and her husband to discuss the information K.G. had shared.

Phipps sought an apology from K.G. for the alleged breach of confidentiality and sent letters to him and the elders demanding the apology, though she never received one. Phipps was also upset that K.G. had hugged her on two occasions – once during an individual counseling session and once on the day she was baptized.

K.G. obtained a protective order against Phipps in 2008, prohibiting her from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” the pastor. The order also required Phipps to stay away from K.G.’s residence and the church, but she violated the order by speaking to him at the church in 2009 and sending him a letter in 2010. As a result of her violations, Phipps twice pleaded guilty to Class A misdemeanor invasion of privacy.

Then in 2016, K.G. moved to extend the protective order, which the Greene Superior Court agreed to do through February 2018. However, in February 2016, Phipps sent an email to the church elders saying she was going to “go public” with her story and once again demanded an apology from K.G. for breaking her trust and for “sexual harassment” when he hugged her and said he loved her. She also wrote K.G. had “until Tuesday evening to comply.”

The email was forwarded to K.G., who contacted police. Phipps was subsequently charged with two counts of invasion of privacy, one as a Class A misdemeanor and one as a Level 6 felony. A jury found her guilty as charged, and the trial court merged the two verdicts and entered judgment of conviction for the Level 6 felony.

After being sentenced to 2 ½ years, with a one-year placement in work release and the remainder suspended to probation, Phipps appealed, arguing there was insufficient evidence to prove she committed invasion of privacy. A divided panel of the Indiana Court of Appeals agreed, with Judge Paul Mathias writing Tuesday that Phipps’ email was “a request to the church elders to take action,” not an attempt to contact K.G.

Thus, the majority reversed her conviction and remanded for further proceedings. But in a dissenting opinion, Judge Rudolph Pyle noted the protective order prohibited indirect communication with the pastor.

“The jury believed that when a person sends an email to a supervising authority with an ultimatum directed at a third party, the natural and probably consequence is that the email will be communicated to the third party,” Pyle wrote, noting he would have affirmed Phipps’ conviction.
 

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