                                                                      Aug 07 2015, 9:30 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ryan W. Tanselle                                           Gregory F. Zoeller
Capper Tulley & Reimondo                                   Attorney General of Indiana
Brownsburg, Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Newland McElfresh,                                        August 7, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A01-1411-CR-514
        v.                                                Appeal from the Hendricks Superior
                                                          Court
State of Indiana,                                         The Honorable Karen M. Love,
Appellee-Plaintiff.                                       Judge

                                                          Cause No. 32D03-1305-FD-487




Baker, Judge.




Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015                     Page 1 of 9
[1]   Newland McElfresh appeals his convictions for Class D Felony Attempted

      Obstruction of Justice1 and Class A Misdemeanor Invasion of Privacy,2 arguing

      that there is insufficient evidence to support the convictions and that the trial

      court erred in sentencing him. We find insufficient evidence supporting the

      attempted obstruction of justice conviction and reverse that conviction. We

      find insufficient evidence supporting the invasion of privacy conviction and

      reverse, but find sufficient evidence supporting the lesser-included offense of

      attempted invasion of privacy. We therefore remand to the trial court with

      directions to enter judgment against McElfresh on one count of attempted

      invasion of privacy and to sentence him accordingly.


                                                            Facts
[2]   On November 11, 2012, the State charged McElfresh with twelve counts of

      sexual offenses against three children, including T.W., in Cause No. 32D03-

      1211-FC-144 (“FC-144”). Pending a trial in that case, McElfresh signed two

      no-contact orders barring him from having any contact with the alleged victims.

      In April 2013, McElfresh pleaded guilty to three counts of child molesting

      involving T.W. and the two other victims.




      1
          Ind. Code § 35-44.1-2-2; Ind. Code § 35-41-5-1.
      2
          Ind. Code § 35-46-1-15.1.


      Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015    Page 2 of 9
[3]   On May 3, 2013, after entering a plea agreement with the State but prior to his

      guilty plea hearing and sentencing, McElfresh wrote a four-page letter to T.W.’s

      mother stating in relevant part as follows:


              I would like for you to ask [T.W.] about the whole incident.
              Why? Because it never happened!!! I never touched [T.W., K.,
              or A.]!! I want to know why they said that happened, and how
              their statements were exactly the same. I know you will be able
              to get the truth out of [T.W.]

              For something that NEVER happened, I want to know how they
              stated in their deposition[3] something word for word as to what
              happened. I know they talked to one another before they gave
              their depositions. But, I also know that [K. and T.W.] are not
              smart enough to have thought of this by themselves. Someone
              told them what to say! . . . They were coached as [sic] what to
              say, and I know if anyone could find out the truth, it would be
              you!

              You don’t have to reply and tell me what you find out, and in
              truth you don’t even have to ask [T.W.], that would be up to you.
              But, if I was you, I would really like to know the truth. . . .
              I will be honest with you. I really wanted to take this to trial. I
              know that I did not live in the house at the time of this allegation,
              and if I could have gotten either [T.W. or K.] to admit it never
              happened, they would have been charged with a “D” felony of
              “False Informing.” They would have been charged with a felony
              for it. More than likely they would have been put on probation
              only, but they would have gotten themselves in serious trouble. I
              am pretty sure my attorney would have made one of the girls tell
              the truth. But, I told him I was guilty of other things and I really



      3
        While McElfresh refers to T.W.’s “deposition,” there is nothing in the record to indicate whether she gave
      a deposition or merely gave a statement to police in the course of the child molest investigation.

      Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015                          Page 3 of 9
              didn’t want to go after the girls, I just wanted to find out who
              told them that. To me it is just amazing that I did things on the
              31st of August. [A.] stated she was with [T.W.] when I did
              things with [T.W.], but she said they were on the 31st. To me,
              that is another reason I believe the girls all talked, and that was
              something else my attorney wanted to go after the girls with
              Conspiracy. That is another charge. They all would have had
              talked to each other about different instances she said they
              happened on the 31st of August. . . .

              I would rather you not talk to the Prosecutor about this. I would
              hope that [T.W.] would tell you the truth, that [K.] told her what
              to say. . . .


      State’s Ex. 5.


[4]   After receiving the letter, T.W.’s mother, A.W., contacted the Hendricks

      County Prosecutor’s Office and Avon Police Detective Brian Nugent. And on

      May 9, 2013, the State charged McElfresh with obstruction of justice, a Class D

      felony, and invasion of privacy, as a Class A misdemeanor. On July 16, the

      State moved to dismiss the obstruction of justice count and to add a new count

      of attempted obstruction of justice, a Class D felony, which the trial court

      granted. Following a bench trial, the trial court found McElfresh guilty as

      charged, entered judgment of conviction, and sentenced him to an aggregate

      term of 600 days at the Department of Correction. McElfresh now appeals.




      Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015      Page 4 of 9
                                    Discussion and Decision
[5]   McElfresh contends that the State presented insufficient evidence to support his

      convictions. Our standard of review for sufficiency of the evidence claims is

      well settled:

              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)

      (internal quotation marks omitted).


                          I. Attempted Obstruction of Justice
[6]   To convict McElfresh of attempted obstruction of justice, the State was required

      to prove beyond a reasonable doubt that McElfresh took a substantial step

      toward committing obstruction of justice, that is, knowingly or intentionally

      inducing, by threat or coercion, T.W. to withhold or unreasonably delay in

      producing any testimony. Ind. Code §§ 35-41-5-1, 35-44.1-2-2(a)(1)(A).


[7]   At trial, the State presented evidence that McElfresh mailed the May 3 letter to

      A.W. regarding her daughter T.W., a witness in the pending criminal

      proceeding against him. The State argued that the letter was an effort to

      Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015     Page 5 of 9
      convince T.W. to change or withhold her testimony against him by threatening

      prosecution against her for false informing and/or conspiracy. We note that

      the trial court had not yet accepted McElfresh’s plea agreement at the time he

      wrote the letter. Thus, there was still a possibility that he would face a trial and

      T.W. would testify against him.


[8]   In McElfresh’s letter, he accused T.W. of lying, contended that K. and T.W

      were coached, that K. told T.W “what to say,” and that the girls conspired to

      give false testimony. State’s Ex. 5. He contended that at trial his attorney

      “would have made one of the girls tell the truth,” in which case, according to

      McElfresh, the girls would have been charged with false informing. Id. And

      McElfresh stated that his attorney “wanted to go after the girls with

      Conspiracy. That is another charge.” Id. He contended that if T.W. will tell

      the truth now there would be no consequences and that she would not face

      “serious trouble.” Id. On the other hand, if she continued to lie and his case

      were to be tried, her lies would be exposed and she would run the risk of

      criminal liability. Finally, he implied that if she did not recant her statement to

      law enforcement and tell “the truth” as he sees it, it would still be possible to

      take the case to trial, in which event T.W. would suffer legal consequences for

      having made false statements. Id.


[9]   In other words, McElfresh essentially told T.W.’s mother that if T.W. intended

      to lie under oath, she would face legal consequences for the dishonesty. That is

      simply the truth. We cannot believe that in the State of Indiana it can

      constitute a crime to make a true statement, even if the subject matter of the

      Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015    Page 6 of 9
       true statement involves the future testimony of a witness in a criminal

       proceeding. There are certainly circumstances in which this crime is committed

       when an individual writes a letter to someone with instructions to pass threats

       or coercive statements onto a third party. But those circumstances are not

       present in this case. We find that there is insufficient evidence supporting the

       attempted obstruction of justice conviction, and reverse that conviction.


                                       II. Invasion of Privacy
[10]   To convict McElfresh of invasion of privacy as a Class A misdemeanor, the

       State was required to prove beyond a reasonable doubt that McElfresh

       knowingly or intentionally violated a no contact order. I.C. § 35-46-1-15.1(5).

       McElfresh contends that, because the no contact order only applied to any

       contact with T.W., his letter to A.W. did not constitute a violation of that

       order.4


[11]   But the State contends that McElfresh’s letter constituted an attempt to

       indirectly contact T.W., which is sufficient to support his conviction. In

       C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997), this Court noted

       that “contact” may include communication that is “either direct or indirect and

       is not limited by the means in which it is made known to another person.”




       4
        McElfresh contends that the letter did not ask A.W. to contact T.W. We disagree, inasmuch as it begins, “I
       would like for you to ask [T.W.] about the whole incident.” State’s Ex. 5.

       Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015                        Page 7 of 9
       Therefore, the mere fact that McElfresh’s attempted communication with T.W.

       was indirect—via a third party—does not vitiate the conviction.


[12]   Our inquiry does not end there, however, given that the contact between

       McElfresh and T.W. was incomplete. In Huber v. State, this Court considered a

       case in which there was an order of protection preventing Huber from

       contacting his wife, Julie. 805 N.E.2d 887 (Ind. Ct. App. 2004). Huber

       reached out to a domestic violence advocate and asked her to contact Julie on

       his behalf. The domestic violence advocate refused, and no contact was made.

       The State charged Huber with class B misdemeanor invasion of privacy, and

       after he was convicted, he appealed. This Court reversed the conviction,

       finding that while indirect communication can support an invasion of privacy

       conviction, it must be a completed communication:

               . . . [W]e find that the State failed to carry its burden on the material
               element of Huber violating a Protective Order by contacting Julie,
               either directly or indirectly. [The advocate] specifically told Huber
               that she could not convey the message; therefore, Huber’s attempt to
               contact Julie indirectly through [the advocate] was incomplete.
               Accordingly, we must reverse[.]
[13]   Id. at 892.


[14]   In this case, likewise, while McElfresh may have made an attempt at indirect

       communication with T.W., the contact was incomplete. There is no evidence

       in the record that A.W. ever actually spoke to T.W. on behalf of McElfresh.

       Therefore, we find insufficient evidence supporting the class A misdemeanor

       invasion of privacy conviction.


       Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015            Page 8 of 9
[15]   When a conviction is reversed because of insufficient evidence, we may remand

       to the trial court with instructions to enter a judgment of conviction on a lesser-

       included offense if the evidence is sufficient to support the lesser offense.

       Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006). Attempted

       invasion of privacy is an inherently lesser-included offense of invasion of

       privacy. We find that McElfresh’s conduct in this case—writing a letter to

       T.W.’s mother with a request to communicate with T.W. on his behalf—

       constituted a substantial step towards committing the crime of class A

       misdemeanor invasion of privacy. Accordingly, we reverse McElfresh’s

       invasion of privacy conviction and remand with instructions to enter judgment

       for attempted invasion of privacy as a class A misdemeanor.


[16]   Given that we have reversed both of McElfresh’s convictions and remand with

       instructions for entry of judgment on a lesser-included offense, we need not

       address his sentencing arguments. Instead, we instruct the trial court to

       sentence McElfresh on the class A misdemeanor attempted invasion of privacy

       conviction.


[17]   The judgment of the trial court is reversed and remanded with instructions to

       enter judgment for class A misdemeanor attempted invasion of privacy and to

       resentence McElfresh accordingly.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1411-CR-514 | August 7, 2015    Page 9 of 9
