Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Suzy St. John

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael A. Wilson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 7, 2017

Court of Appeals Case No.

49A02-1604-CR-908

Appeal from the Marion Superior 

Court

The Honorable Christina 

Klineman, Judge

Trial Court Cause No.

49G17-1603-CM-10168

Altice, Judge.

Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 2 of 5

[1] Following a bench trial, Michael A. Wilson was convicted of invasion of 

privacy as a Class A misdemeanor. On appeal, Wilson presents one issue for 

our review, which we restate as: Whether there was an improper variance 

between the charging information and the proof at trial. 

[2] We affirm.

Facts & Procedural History

[3] On March 14, 2016, an ex parte order for protection was issued, ordering 

Wilson to stay away from Millette Grady and her residence located at a 

specified address in Marion County. The protective order was served on 

Wilson the following day. Later in the day after the order was served, Wilson 

returned to Grady’s residence. Grady called the police and reported that 

Wilson was at her home and that he “should not be there.” Transcript at 6.

[4] Officer Eric Hotseller of the Indianapolis Metropolitan Police Department 

along with a second officer were dispatched to Grady’s residence. As the 

officers were talking to Grady at her front door, Wilson walked around the 

corner of the building and approached them. Both Grady and Wilson had a 

copy of the protective order. Officer Hotseller confirmed with control that a

protective order had in fact been served on Wilson earlier that day. Officer 

Hotseller then placed Wilson under arrest for invasion of privacy. 

[5] On March 16, 2016, the State charged Wilson with invasion of privacy as a 

Class A misdemeanor. Wilson filed a motion for an early trial, which the trial 
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-908 | February 7, 2017 Page 3 of 5

court granted. A bench trial was held on April 6, 2016. During the bench trial, 

the State introduced as State’s Exhibit 2 a copy of the March 14 ex parte order 

for protection. After the State presented its evidence and again at the 

conclusion of all evidence, Wilson moved for involuntary dismissal under Ind. 

Trial Rule 41(B). The trial court denied each motion and found Wilson guilty 

as charged and sentenced him to time served. Wilson now appeals.

Discussion & Decision

[6] Indiana’s invasion of privacy statute provides, in pertinent part, as follows:

A person who knowingly or intentionally violates:

(1) a protective order to prevent domestic or family 

violence issued under IC 34-26-5...;

(2) an ex parte protective order issued under IC 34-26-5...;

commits invasion of privacy, a Class A misdemeanor.

Ind. Code § 35-46-1-15.1. Wilson’s charging information alleged a violation of

a protective order under subsection (1) and tracked the language thereof.

1

 The 

State’s evidence at trial, however, consisted of an ex parte protective order as 

set out in subsection (2) of the statute. Wilson thus argues that his conviction 

 

1 The charging information also identified the protective order by reference to the cause number under which 

it was issued. 
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must be reversed because the State failed to prove that he violated a protective 

order under subsection (1) as alleged in the charging information.

[7] The State admits that the charging information incorrectly alleged a violation of 

a protective order under subsection (1) rather than a violation of an ex parte 

protective order under subsection (2). The State argues, however, that dismissal 

is not necessary because there is no material variance in the charging 

information and the State’s proof at trial.

[8] We agree with the State that the issue at hand concerns whether there was a 

material variance. As a general matter, a “variance” is a difference between the 

pleading and proof at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). Not 

all variances are material and thus not all variances require reversal. Id. “Relief 

is required only if the variance (1) misled the defendant in preparing a defense, 

resulting in prejudice, or (2) leaves the defendant vulnerable to future 

prosecution under the same evidence.” Blount v. State, 22 N.E.3d 559, 569 (Ind.

2014). 

[9] We begin by noting that for purposes of preparing a defense in this case, there is 

no relevant distinction between a protective order and an ex parte protective 

order. As noted in the statute defining invasion of privacy, both orders are 

issued pursuant to the same chapter, Ind. Code 34-26-5,2 and serve the same 

purpose to promote the protection and safety of all victims of domestic or 

 

2 This chapter is titled “Indiana Civil Protection Order Act.” I.C. 34-26-5.
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family violence and the prevention of future domestic and family violence. The 

key difference between a protective order and an ex parte protective order is the 

procedural manner in which the order was obtained. A protective order may be 

issued after a hearing at which the parties are present and an ex parte order may 

be issued without notice or hearing or after a hearing at which respondent had 

notice, but did not appear.3 Thus, because subsections (1) and (2) of the 

invasion of privacy statute essentially define the same crime, proof that Wilson 

violated a protective order, ex parte or otherwise, is proof that he committed 

invasion of privacy. 

[10] In sum, the error in the charging information did not impact Wilson’s defense 

preparation and given that the charging information identified the date of the 

offense and the cause under which the protective order was issued, Wilson is 

not vulnerable to future prosecution for the same offense. We find therefore 

that there was no material variance in the charging information and the proof at 

trial. 

[11] Judgment affirmed.

[12] Riley, J. and Crone, J., concur.

 

3 When a trial court issues an ex parte protective order, the court, upon request, shall set a date for a hearing 

on the petition. See I.C. § 34-26-5-10.