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FOR PUBLICATION

ATTORNEY FOR APPELLANT: MATTHEW JON McGOVERN Evansville, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICKY SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 82A01-0504-CR-169

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-0406-FC-591

December 29, 2005 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Ricky Smith appeals his conviction for Stalking as a Class C Felony, arguing that the trial court erred in admitting the cell phone records of his victim. Alternatively, Smith argues that his sentence is inappropriate in light of the nature of the offense and character of the offender. Finding that the cell phone records were properly admitted and that the sentence is appropriate in this case, we affirm. Facts and Procedural History Ricky Smith and A.B. were in a relationship for approximately four years. During much of this period, Smith lived with A.B. and her three children in her house in Evansville. In February 2004, A.B. terminated her relationship with Smith and instructed him to move out of her house. Smith did not wish to break up and indicated that he hoped to salvage the relationship. Later that month, however, A.B. filed a petition for a temporary protective order. At a hearing on March 29, 2004, the trial court issued a permanent protective order prohibiting Smith from "threatening to commit or committing acts of domestic or family violence, stalking, or a sex offense [against, or] . . . harassing, annoying, telephoning, contacting, or directly or indirectly communicating" with A.B. Ex. 3. The order also directed Smith to "stay away from the residence, school, and/or place of employment" of A.B. Id. Despite the protective order, Smith continued to contact A.B. by telephone and to violate those provisions of the order prohibiting his physical presence near A.B. A.B. became fearful of Smith and was afraid that he might harm her or her children. Acting on the advice of a police officer with whom she consulted, A.B. kept a log of Smith's phone 2

calls and any other violations of the protective order. During the period from March 1 to June 2, 2004, A.B. documented sixty-nine phone calls from Smith to her cell, work, and home phone numbers. In several phone calls Smith indicated that he was or had been near A.B.'s residence. Oftentimes, Smith would accuse A.B. of having new relationships or he would interrogate her about her daily activities. He frequently indicated to her that he was keeping track of her activities and that she could not hide from him. A.B. changed her home phone number once during this period and her cell phone number twice, but each time Smith managed to obtain the new numbers and persisted in calling A.B. Additionally, A.B. worked with the telephone operators at her place of employment to limit Smith's ability to reach her there, but with only limited success. Smith also committed numerous other violations of the protective order involving physical contact with or stalking of A.B., including several instances where Smith drove by A.B.'s home, where he drove by the home of her friend, Carla Bradley, when A.B. was visiting, and where he drove next to or just behind A.B. or her friends when they were driving or walking along the street. Smith called Bradley at one point and directed her to inform A.B. that he "had somebody watching her and what she was doing. He knows everything she was doing, that he had his ways or his connections in getting information about her." Tr. p. 113. Additionally, A.B.'s son informed A.B. on one occasion that he saw Smith in the area while walking home from school and on another occasion that he saw Smith outside his window facing the street. While on a smoke break, A.B. and her co-worker, Jane Sutton, saw Smith drive by A.B.'s place of employment twice, waving at them the second time. Also, Smith was in a bar that A.B. 3

visited with friends one evening, and he sat at her table and pleaded with her to discuss their relationship with him. A.B. reported many of these instances to the police and sought enforcement of the protective order, but Smith always left the area before the police arrived. He was eventually arrested on a warrant and charged with five counts of Invasion of Privacy 1 and one count of Stalking. 2 A trial was held at which A.B. used the log she had kept to refresh her memory regarding the circumstances surrounding each of Smith's violations of the protective order. She testified in detail as to the date and time of each contact and read aloud the notes she had taken about what Smith said in each phone call. Id. at 19-51. In addition, the jury heard testimony from Bradley and Sutton regarding Smith's contacts with A.B., id. at 110-14, 123-25, as well as testimony from Martha Sutton, a telephone operator at A.B.'s workplace, confirming Smith's phone calls there. Id. at 127-29. A witness for Smith, Joseph Schlumpf, testified that Smith and A.B. phoned each other back and forth even after the protective order was issued. Further, the judge admitted A.B.'s cell phone records over Smith's objection that the State failed to lay a proper foundation for the records. See Exs. 5 & 6; Tr. p. 135-38. The jury found Smith guilty of Stalking as a Class C felony and Invasion of Privacy as a Class D felony. At a separate sentencing proceeding, the trial judge merged Smith's conviction for invasion of privacy into his conviction for stalking. 3 The court found Smith's prior

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