                                                                            Mar 19 2015, 10:06 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jane H. Conley                                             Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Johnny Gomillia,                                           March 19, 2015

Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           49A02-1408-CR-572
        v.                                                 Appeal from the Marion Superior
                                                           Court
                                                           Cause No. 49G16-1402-FD-9596
State of Indiana,
Appellee-Plaintiff.                                        The Honorable Helen Marchal,
                                                           Judge




Barnes, Judge.




Court of Appeals of Indiana | Opinion 49A02-1408-CR-572 | March 19, 2015                   Page 1 of 5
                                              Case Summary
[1]   Johnny Gomillia appeals his conviction for Class D felony attempted

      obstruction of justice. We reverse.


                                                      Issue
[2]   Gomillia raises one issue, which we restate as whether there is sufficient

      evidence to support his conviction.


                                                      Facts
[3]   On February 23, 2014, Gomillia was incarcerated in the Marion County Jail.

      That day, using the PIN assigned to Gomillia, a man called Samantha Gaines,

      a witness in a domestic violence case against David Madriz, who was

      incarcerated in the same block of the Marion County Jail as Gomillia. The

      caller told Gaines that, if she did not want to come to court, she did not have to

      come to court. He said that Gaines should act like she is coming to court to

      testify against Madriz and then, on the day of trial, not show up to court. The

      caller told Gaines that, if she did not go to court, the charges would be dropped,

      and Madriz would be released.


[4]   The State charged Gomillia with Class D felony attempted obstruction of

      justice. At the jury trial, Gomillia claimed that his PIN had been stolen and

      that he did not make the call. A jury found Gomillia guilty. He now appeals.




      Court of Appeals of Indiana | Opinion 49A02-1408-CR-572 | March 19, 2015   Page 2 of 5
                                                   Analysis
[5]   Gomillia argues that there is insufficient evidence to support his conviction.

      When reviewing a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor assess the credibility of witnesses. Bailey v. State, 979

      N.E.2d 133, 135 (Ind. 2012). We view the evidence—even if conflicting—and

      all reasonable inferences drawn from it in a light most favorable to the

      conviction and affirm if there is substantial evidence of probative value

      supporting each element of the crime from which a reasonable trier of fact

      could have found the defendant guilty beyond a reasonable doubt. Id.


[6]   At the time Gomillia was charged, obstruction of justice was defined in relevant

      part as:

              (a) A person who:
                       (1) knowingly or intentionally induces, by threat, coercion, or
                       false statement, a witness or informant in an official proceeding
                       or investigation to:
                                (A) withhold or unreasonably delay in producing any
                                testimony, information, document, or thing;
                                                *****
              commits obstruction of justice, a Class D felony.
[7]   Ind. Code 35-44.1-2-2(a)(1)(A) (2012). “A person attempts to commit a crime

      when, acting with the culpability required for commission of the crime, he

      engages in conduct that constitutes a substantial step toward commission of the

      crime.” I.C. § 35-41-5-1 (2012). The State alleged that Gomillia attempted to

      commit obstruction of justice by inducing Gaines to withhold testimony “by

      threat, coercion or false statement” “by calling Samantha Gains [sic] and telling

      Court of Appeals of Indiana | Opinion 49A02-1408-CR-572 | March 19, 2015             Page 3 of 5
      her not to come to court in the case involving David Madriz so that charges

      would be dropped.” App. p. 17.


[8]   Gomillia contends there is insufficient proof that the caller “was knowingly

      using false information to induce the witness not to go to trial . . . .” 1

      Appellant’s Br. p. 9. The State argues that it established Gomillia’s statements

      were false through the testimony of Indianapolis Metropolitan Police

      Department Detective Tiffany Woods, who stated that a body attachment can

      be issued to secure a witness’s presence in court and that, because there were

      other eyewitnesses, Madriz’s trial could have proceeded without Gaines’s

      testimony. Thus, we must determine whether the statute required the State to

      prove that Gomillia knew the statements were false, not just that they were in

      fact false.


[9]   “Penal statutes should be construed strictly against the State and ambiguities

      should be resolved in favor of the accused.” Merritt v. State, 829 N.E.2d 472,

      475 (Ind. 2005). Although statutes should not be narrowed to exclude cases

      they would fairly cover, we assume that the language in a statute was used

      intentionally and that every word should be given effect and meaning. Id. “We




      1
        Gomillia cites Sheppard v. State, 484 N.E.2d 984, 987 (Ind. Ct. App. 1985), and Brown v. State, 859 N.E.2d
      1269 (Ind. Ct. App. 2007), both of which involved inducement by coercion, not false statements, and are not
      instructive here. He also cites Moore v. State, 845 N.E.2d 225, 228 (Ind. Ct. App. 2006), which is not
      instructive because its sufficiency analysis was dicta and involved a different subsection of the obstruction of
      justice statute. See Howell v. State, 921 N.E.2d 503, 508 (Ind. Ct. App. 2009) (“The dictum in Moore regarding
      the sufficiency of evidence to support the conviction does not constitute binding precedent.”).

      Court of Appeals of Indiana | Opinion 49A02-1408-CR-572 | March 19, 2015                             Page 4 of 5
       seek to give a statute practical application by construing it in a way favoring

       public convenience and avoiding absurdity, hardship, and injustice.” Id.


[10]   Pursuant to Indiana Code Section 35-41-2-2(d), “Unless the statute defining the

       offense provides otherwise, if a kind of culpability is required for commission of

       an offense, it is required with respect to every material element of the prohibited

       conduct.” Accordingly, the State was required to prove that Gomillia knew the

       statements were false when he communicated them to Gaines and not just that

       the statements were in fact false.


[11]   Here, there is no evidence that Gomillia knew the statements were false. In

       fact, Detective Woods testified it is a commonly held belief that the absence of a

       witness means the dismissal of a case. See Tr. p. 76. Without any evidence

       suggesting Gomillia knew the statements were false, there is insufficient

       evidence to establish that he knowingly or intentionally attempted to induce

       Gaines not to testify by false statement.


                                                  Conclusion
[12]   Because the State did not establish that Gomillia knew the statements were false

       when he made them, the State failed to prove the attempted obstruction of

       justice charge. We reverse.


[13]   Reversed.


       May, J., and Pyle, J., concur.



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