Mathias, J.
Shelly M. Phipps (“Phipps”) was convicted in Greene Superior Court of Level 6 felony invasion of privacy. Phipps appeals and raises the following dispositive issue: whether the State proved that Phipps violated a protective order by communicating with the protected person. …
Phipps was a member of a church in Solsberry, Indiana, and she and her husband were friends with K.G., the pastor of the church. In 2008, Phipps and her husband received marriage counseling from K.G, and K.G. disclosed information that he learned in their counseling sessions to the elders of the church. …
Phipps sought an apology from K.G. for the alleged breach of confidentiality but did not receive one. She sent letters and emails to K.G. and the church elders demanding an apology.
K.G. obtained a protective order against Phipps in 2008. Phipps was prohibited from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” K.G. and she was ordered to stay away from his residence and the church. In 2009, she violated the protective order by speaking to K.G. at the church, and she pleaded guilty to Class A misdemeanor invasion of privacy. In 2010, Phipps violated the protective order again by sending a letter to K.G. She pleaded guilty to the offense in March 2011, and judgment was entered as a Class A misdemeanor.
On January 6, 2016, … K.G. filed a petition to extend the protective order. … The Court extended the original protective order until February 6, 2018.
On February 28, 2016, Phipps sent an email to three church elders …
A church elder forwarded the email to K.G. on the same day the elder received it, and K.G. contacted the police. Shortly thereafter, Phipps was charged with two counts of invasion of privacy, one as a Class A misdemeanor and one as a Level 6 felony because Phipps had two prior convictions for the same offense.
A jury found Phipps guilty of both offenses. The trial court merged the two verdicts and entered a judgment of conviction for the Level 6 felony invasion of privacy charge.
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In this case, the State argues Phipps intended that her email would be communicated to K.G. because she sent the email “to the church elders demanding that K.G. take immediate action or face a criminal complaint.” The email stated that Phipps would have K.G. arrested for battery if he did not resign from the church, retire, or apologize to her by “Tuesday evening.”
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Phipps’s email is a request to the church elders to take action for the alleged wrongful conduct of their employee, K.G. Upon receipt of Phipps’s email, the church elders had discretion to ignore her email or respond to her demands. Phipps did not ask the elders to share her email with K.G., and a church elder made an independent decision to forward the email to K.G. From this evidence, we conclude that Phipps’s intent in sending the email was not to contact K.G., but to ask the church elders to discipline or punish K.G. for his alleged wrongful conduct. In other words, the intended recipient of the email was the church’s decision-making body, not K.G. For this reason, we conclude that the State failed to prove that Phipps contacted K.G. by sending the email.
We therefore reverse Phipps’s conviction for Level 6 felony invasion of privacy.
Reversed for proceedings consistent with this opinion.
Baker, J., concurs.
Pyle, J., dissents with opinion.
I respectfully dissent from my colleagues’ decision to reverse Phipps’s conviction for invasion of privacy as a Level 6 felony. … I believe there was sufficient evidence for the jury to conclude that Phipps intended her email to be communicated to K.G.
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In this case, Phipps argues that the State failed to prove that she intended the email sent to the church elders to be communicated to K.G. I disagree. …
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From the evidence in the record, it seems clear that the State sought to prove through the text of the email that Phipps intended to indirectly communicate with K.G. 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 probable consequence is that the email will be communicated to the third party. … Because the jury was in the best position to disbelieve Phipps’s claim of lack of intent, I would affirm Phipps’s conviction.