MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 24 2019, 8:38 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Angela N. Sanchez
                                                          Assistant Section Chief, Criminal
                                                          Appeals
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Robinson,                                     April 24, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1409
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Angela Dow
Appellee-Plaintiff.                                       Davis, Judge
                                                          Trial Court Cause No.
                                                          49G16-1711-F6-45055



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019                  Page 1 of 8
                                          Statement of the Case
[1]   Christopher Robinson appeals his conviction of attempted obstruction of

      justice. We reverse.


                                                          Issue
[2]   Robinson presents one issue for our review, which we restate as: whether the

      State presented evidence sufficient to support his conviction.


                                   Facts and Procedural History
[3]   Robinson was arrested and charged with domestic battery and battery resulting

      in bodily injury as a result of an incident that occurred between he and his wife,

      K.R., on September 28, 2017. While in jail, Robinson made numerous phone

      calls to K.R. Two of the phone calls and their content form the basis for the

      charges in the present case. The State charged Robinson with attempted
                                                             1
      obstruction of justice, a Level 6 felony, and two counts of invasion of privacy
                                            2
      as Class A misdemeanors.


[4]   At a bench trial on these charges, State’s Exhibit 4, which contains recordings

      of Robinson’s September 29 and October 3 calls to K.R., was admitted and

      played for the court. Prior to the playing of Exhibit 4, the court sustained a

      defense objection to K.R.’s statements in the phone calls and stated it would



      1
          Ind. Code §§ 35-44.1-2-2(a)(1)(A) (2017), 35-41-5-1 (2014).

      2
          Ind. Code § 35-46-1-15.1(a)(11) (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 2 of 8
only consider Robinson’s statements from the conversations. Pertinent parts of

Robinson’s statements during the September 29 phone call are as follows:


        What you gonna tell them?


        They call you yet?


        They gonna call you.


        You tell the people I had access to guns? And I said I was gonna
        kill you? You trying to hurt me.


        Just tell ‘em you ain’t afraid. I’d have been outta there Tuesday.
        I gotta sit here all weekend now. . . . You know I’m not gonna do
        s**t to you. Why you tryin’ to hurt me, man? . . . Why you
        tryin’ to punish me?


        So why you want me sittin’ in jail?


        Quit bein’ all dramatic, babe. . . . You’re not afraid.


        So you want me to be in jail, [K.R.]? Is that what you’re sayin’? .
        . . If you don’t want to be with me [inaudible] but don’t have me
        in jail.


        I’m not mad at all. [inaudible] I’m not mad . . . I’m mad because
        you talkin’ bout you bein’ afraid of me. What the f**k is that?


        If you don’t want to be botherin’ with me, [K.R.], I understand
        that, but don’t have me sittin’ in jail. That’s all I’m sayin’.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 3 of 8
              You do. You can come to court and say you’re alright, or don’t
              come to court at all.


              They gonna call you, they gonna be callin’ you within the next
              couple days, talkin’ ’bout court. They gonna ask you, do you
              want me . . . don’t have me sittin’ in jail or I’ll be sittin’ in here
              forever. Just say you . . . just say . . . don’t come. Whatever.
              Whatever.


      Ex. Vol. 1, Ex. 4.


[5]   During the October 3 call, Robinson made no statements regarding K.R.

      testifying or going to court. The short conversation consisted of Robinson

      stating he had been released from jail but that he could not come home because

      of a no contact order. He stated that K.R. needed to talk to the prosecutor’s

      office to have the order vacated. See id. On cross examination, K.R. testified

      that Robinson never threatened her to keep her from going to court.


[6]   The trial court found Robinson guilty as charged. At sentencing, the court

      vacated its judgment on both counts of invasion of privacy and sentenced

      Robinson on his attempted obstruction of justice conviction to 545 days, all

      suspended, consecutive to his sentence in the domestic battery case. He now

      appeals.


                                   Discussion and Decision
[7]   When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

      State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 4 of 8
      consider only the evidence most favorable to the judgment and any reasonable

      inferences drawn therefrom. Id. If there is substantial evidence of probative

      value from which a reasonable fact-finder could have found the defendant

      guilty beyond a reasonable doubt, the judgment will not be disturbed. Labarr v.

      State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).


[8]   The State charged that Robinson (1) on September 29, 2017 and October 3,

      2017 (2) knowingly or intentionally (3) induced by threat, coercion, or false

      statement, (4) K.R., a witness in an official proceeding or investigation (5) to

      withhold or unreasonably delay in producing testimony, information,

      document, or thing (6) by engaging in conduct which constituted a substantial

      step toward commission of the offense. See Appellant’s App. Vol. II, p. 16; see

      also Ind. Code §§ 35-44.1-2-2(a)(1)(A), 35-41-5-1. Robinson contends the State’s

      evidence of coercion is insufficient to support his conviction.


[9]   For purposes of the offense of obstruction of justice, the term “coercion” has

      been defined as some form of pressure or influence exerted on the will or choice

      of another. Sheppard v. State, 484 N.E.2d 984, 988 (Ind. Ct. App. 1985), trans.

      denied (1986). This pressure or influence may take many forms, including but

      not limited to harassment, physical force, intimidation and threats. Id. Absent

      any indication to the witness of the consequences for failing to comply with the

      defendant’s instructions, the defendant’s statements are not coercive but rather

      merely requests. Id. at 988-89.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 5 of 8
[10]   Robinson relies on two cases from this Court to support his argument: Sheppard

       and Brown v. State, 859 N.E.2d 1269 (Ind. Ct. App. 2007), trans. denied. In the

       first case, Sheppard was arrested for a robbery. While in jail, he had at least

       two phone conversations with and wrote one letter to Jean Patton, an

       acquaintance of his and a witness to the robbery. In those communications,

       Sheppard told Patton where he would be standing in a lineup and not to pick

       him. Sheppard was charged with attempted obstruction of justice based on only

       one of the telephone conversations. At trial, the letter was introduced and

       neither the letter nor the charged phone call contained any threatening

       statements.


[11]   On appeal, we reiterated that our obstruction of justice statute required a threat,

       coercion, or false statement. In light of that, the panel determined that, absent

       any indication to Patton of a consequence that would result from her failure to

       obey Sheppard’s instructions, his statements to her amounted to nothing more

       than requests. Thus, with no evidence of coercion, the Court reversed

       Sheppard’s conviction of attempted obstruction of justice.


[12]   More recently in Brown, another panel of this Court also reversed a conviction

       of attempted obstruction of justice. There, Brown was arrested and charged

       with battery against his fiancée, Danika Edwards. While in jail, Brown made

       calls to Edwards. During one such call, Brown asked Edwards to testify on his

       behalf and not to testify for the State, to tell the State that she was not scared of

       him and that he did not commit battery against her, and not to come to trial.

       Brown was found guilty of attempted obstruction of justice based upon that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 6 of 8
       phone call. On appeal, this Court, citing Sheppard, determined that Brown’s

       statements were not coercive because none of his statements indicated a

       consequence for Edwards’ failure to comply.


[13]   In response, the State ignores Brown and cites McElfresh v. State, 51 N.E.3d 103

       (Ind. 2016). There, McElfresh wrote a letter to the mother of one of the victims

       in his child molestation case. The court determined that McElfresh’s

       statements in the letter constituted an attempt to pressure and influence the

       mother to find out what he considered to be the truth about the allegations and

       a threatened consequence of criminal prosecution of the child for lying and

       participating in a conspiracy if she did not come forward with the truth. The

       court found there was sufficient evidence to sustain McElfresh’s conviction of

       attempted obstruction of justice.


[14]   The facts in the present case are almost identical to those in Brown and are

       distinguishable from those in McElfresh. Here, although there is no doubt that

       Robinson attempted to induce K.R. to withhold testimony, none of Robinson’s

       statements explicitly or implicitly indicate any consequence to K.R. if she failed

       to comply. Thus, Robinson’s statements amount only to requests that are not

       sufficient to constitute coercion.


                                                 Conclusion
[15]   For the reasons stated, we conclude the evidence was insufficient to support a

       conviction of attempted obstruction of justice. Accordingly, Robinson’s

       conviction for attempted obstruction of justice must be reversed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 7 of 8
[16]   Reversed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1409 | April 24, 2019   Page 8 of 8
