Kokomo Tribune; Kokomo, Indiana

December 18, 2012

Local case overturned on appeal

Ruling could affect domestic violence cases.

By Scott Smith

— An Indiana Court of Appeals ruling on a Kokomo case could have a lasting impact on domestic violence victims who file for protective orders.

At stake is the ability of police to arrest abuse victims who invite their abusers to violate a protective order.

Last week the appeals court, in a split decision, overturned the conviction of Kokomo resident Melissa Patterson on two charges of aiding, inducing or causing invasion of privacy.

For the majority, Appeals Court Judge Ezra Friedlander said the Indiana General Assembly never intended make it a criminal offense to invite an abusive ex to violate a protective order.

The point of law covered by the case is a familiar one to local police — someone obtains a protective order against a partner, only to be found later voluntarily in the company of the same person.

If the protective order is still in effect, police usually arrest both individuals.

The Dec. 14 appeals court decision, written “for publication,” in order to serve as a legal precedent, contends only the subject of the protective order can and should be arrested under those circumstances.

A Howard County sheriff deputy arrested Patterson in October 2011, accusing her of helping her on-again, off-again boyfriend, Gregory Darden, violate the protective order she’d taken out against him.

Specifically, the deputy found Darden at the same house with Patterson, who in turn told the deputy she was “just visiting” Darden.

Both Darden and Patterson told the deputy they thought the protective order against Darden had been dismissed by the court, but the deputy arrested them anyway — Darden on a charge of invasion of privacy and Patterson on a charge of aiding, inducing or causing invasion of privacy.

About a month later, Darden and Patterson were both arrested again, for the same offenses.

Patterson sought to have the charges against her thrown out prior to trial, but Howard Superior Court 1 Judge William Menges declined her motion, based on the rationale that Patterson was criminally complicit in helping Darden violate the no-contact order.

The appeals court disagreed, basing its decision in part on a 2003 Ohio Supreme Court decision, State vs. Lucas.

In that decision, the appeals court noted Ohio’s protective order law is very similar to Indiana’s, and said Ohio’s law specifically states that even if the person who sought a protective order urges the person named in the order to violate it, that doesn’t nullify the power of the order.

In other words, even if Patterson asked Darden to visit her, that didn’t absolve Darden from criminal liability for violating the order.

Any criminal responsibility for violating the order would rest on the person named in the order — and not on the person who asked for the order, the appeals court concluded.

The Legislature’s decision to not write a specific criminal violation for urging someone to violate an order “must be viewed not as an omission, but as a determination that such should not be criminalized,” Friedlander wrote for the 2-1 majority.

In the Lucas decision, the Ohio Supreme Court also stated that “if petitioners for protective orders were liable for criminal prosecution, a violator of a protection order could create a real chill on the reporting of a violation by simply claiming the illegal visit was the result of an illegal invitation.”

“Protection orders are about the behavior of the [person named in the order] and nothing else,” the Ohio majority wrote. “How or why [that person] finds himself at the petitioner’s doorstep is irrelevant.”

Scott Smith can be reached at 765-454-8569 or at scott.smith@kokomotribune.com