Pyle, J.
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…Hatchett was prohibited from contacting Janetta Buckhalter (“Buckhalter”), the mother of his child, as a result of a no-contact order and a protective order that were in effect. The orders prohibited contact “by telephone, letter, or any other way, either directly or indirectly.” … Nevertheless, … a man called Buckhalter from the Marion County Jail and spoke with her and her daughter. Although the man used another inmate’s identification number, Buckhalter recognized Hatchett’s voice, and the call was placed from Hatchett’s cell block at the jail.
Subsequently, … the State charged Hatchett with two counts of Class A misdemeanor invasion of privacy for the telephone call….
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At the conclusion of the trial, the State tendered a proposed jury instruction that became Final Jury Instruction Number 15. It provided:
When determining whether a party committed the act of invasion of privacy, we do not consider whether Ms. Buckhalter knowingly ignored the protective order but, rather, whether the defendant knowing[ly] violated the protective order.
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The trial court accepted the State’s tendered jury instruction over Hatchett’s objections….
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Hatchett acknowledges that Final Jury Instruction Number 15 was an accurate statement of the law, but he argues that part of the instruction—“we do not consider whether Buckhalter knowingly ignored the protective order”—was inapplicable to him because he did not argue that Buckhalter had consented to his telephone call…..
We disagree that Hatchett did not imply that Buckhalter had consented to his contact….
The implication of … the only two questions that Hatchett’s defense counsel asked Buckhalter[]was that Buckhalter had given Hatchett her new number and therefore consented to his contact. [Footnote omitted.] Thus, because Hatchett himself implied that Buckhalter had consented to the contact, we conclude that the jury instruction was a proper clarification of the law with respect to the evidence in this case.
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However, sua sponte, we do note that the same evidence—Hatchett’s March 22 telephone call to Buckhalter—was used to prove Hatchett’s violation of both the no-contact order and the protective order. This violates the “actual evidence” test for the Double Jeopardy Clause of the Indiana Constitution, which prohibits using the same evidentiary facts to establish the essential elements of two different offenses. Hines v. State, No. 52S05-1408-CR-563, *6 (Ind. May 19, 2015)…..
In this case, the elements of both counts of invasion of privacy are established by showing that Hatchett knowingly or intentionally violated (1) a protective order to prevent domestic or family violence, or (2) a no contact order issued as a condition of pretrial release. I.C. § 35-46-1-15.1(1), (5). In its charging information, the State alleged that Hatchett’s March 22 telephone call from the jail was the sole piece of evidence violating both counts of invasion of privacy. Likewise, the jury instructions given by the trial court inform the jury that Hatchett’s March 22 telephone call was the only piece of evidence to be considered in determining whether the protective order or no contact order were violated. As a result, the jury used the same evidence to establish the essential elements of both offenses. Accordingly, we reverse and remand to the trial court with instructions to vacate one of Hatchett’s convictions for Class A misdemeanor invasion of privacy, as well as the merged count enhancing it to a Class D felony.
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Crone, J., and Brown, J., concur.