MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                   Aug 21 2020, 9:40 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
James H. Voyles, Jr.                                     Tiffany A. McCoy
Tyler D. Helmond                                         Deputy Attorney General
Voyles Vaiana Lukemeyer Baldwin &                        Indianapolis, Indiana
Webb
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Cook,                                           August 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3058
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1711-F6-6183



Crone Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020                  Page 1 of 16
                                             Case Summary
[1]   A jury convicted Jennifer Cook of two counts of level 6 felony stalking and

      ordered her to pay $800 in restitution to her victims, Brian and Katrina Brumley

      (collectively the Brumleys). Cook appeals, contending that the trial court

      abused its discretion in admitting certain testimony and that the evidence is

      insufficient to support her convictions. She also challenges the trial court’s

      restitution order. We affirm Cook’s convictions and remand with instructions

      to correct the restitution order.


                                 Facts and Procedural History
[2]   The facts most favorable to the jury’s verdict are as follows. For nearly a

      decade, the Brumleys have lived in their rural Bartholomew County home with

      their teenage daughter (Daughter), who suffers from uncontrollable,

      unsustainable epilepsy and has the cognitive function of a fifth grader. The

      family has historically owned Great Pyrenees dogs to protect their goats, ducks,

      chickens, miniature donkey, and miniature horse from predators such as

      coyotes, foxes, and bobcats. A few years after the Brumleys moved in, Cook

      and her husband moved into the large house across the road and erected an iron

      and brick fence around the house. At first, the relationship between Cook and

      the Brumleys was amicable, but it began to deteriorate in late 2016, shortly after

      the Brumleys purchased their most recent Great Pyrenees dog (the Dog). Cook

      complained about the Dog running loose on the Brumleys’ property and

      defecating in the corner of her lot outside the fence. The Brumleys responded

      by cleaning up the Dog’s feces and attempting to keep the Dog confined. The

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 2 of 16
      Dog barked when confined and sometimes broke free of its restraints, and Cook

      continued to complain. In an effort to muffle the sound, the Brumleys tried

      moving the Dog to various areas on the property farther from Cook’s house. At

      no time did the Dog bite or act aggressively toward any person.


[3]   In April 2017, Cook set up loudspeakers and pointed them toward the

      Brumleys’ house. She began playing recordings of animal noises, including

      barking, goat sounds, and animal call noises designed to attract predators. She

      often played the recordings throughout the night until dawn. The first time she

      did this, Daughter woke up in a panic, thinking that her baby goat, which she

      showed at the 4-H fair, had escaped from its pen. She woke up Mrs. Brumley,

      and the two searched outside and determined that the loud goat noises were

      coming from Cook’s yard. When they peered through the shrubs to see if the

      baby goat was there, a deep voice warned, “[D]on’t move or I am going to

      shoot you[.]” Tr. Vol. 2 at 149. When the panicked Daughter asked for her

      goat, Cook replied that she did not have it. The Brumleys phoned 911. A few

      minutes later, a police officer arrived, and Cook refused to open her gate for the

      officer. It was discovered that the goat noises had been a recording emanating

      from Cook’s loudspeakers and that Daughter’s baby goat had not gotten loose.

[4]   Cook continued this pattern of blasting the animal noises throughout the

      summer and through October 2017. She posted a sign on her fence stating that

      animal sounds would be played from 9:00 p.m. to 9:00 a.m. as part of a study

      and notifying readers not to contact her about the noises. State’s Ex. 11. The

      noises agitated the Brumleys’ animals. On one occasion, Cook blasted the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 3 of 16
      animal noises for seventy-two consecutive hours. Between April and October

      2017, the Brumleys lost fifteen to twenty animals to predators. The Brumleys

      (and other neighbors who heard the loud noises) called 911, which precipitated

      regular visits from law enforcement, sometimes multiple visits in a single day.

      Each time, Cook refused to speak to police. When she finally spoke to Captain

      David Steinkoenig, he warned her to stop playing the recordings or risk a

      disorderly conduct charge. She told him that she began playing the recordings

      because the Brumleys’ animals had irritated her for years and that when she

      learned that the recordings were agitating the animals, she continued to play

      them for revenge.


[5]   Cook also installed surveillance cameras, several of which she positioned

      directly toward the Brumleys’ house. When the cameras picked up any outdoor

      activity by the Brumleys or showed them arriving home from work, Cook

      would begin blasting the animal noises. When the animal noises were not

      playing and Cook saw any of the Brumleys outside, she yelled profanities,

      ridiculed them for their economic status, and made remarks about Daughter’s

      seizures. When she did not see them, she sent them text messages, insulting

      them and calling them pathetic pieces of excrement. In August 2017, she sent

      text messages warning them that she had made arrangements to buy their house

      in foreclosure so she could bulldoze it to make room for a pole barn. State’s

      Ex. 46. Daughter’s epileptic seizures increased in severity and frequency due to

      lack of sleep and her fear of going outside. On at least one occasion, Cook flew




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 4 of 16
      a drone over the Brumleys’ goat pens, low enough that it frightened and

      antagonized the goats and the Dog.


[6]   Police obtained a search warrant for Cook’s property and recovered

      surveillance cameras, monitors, computers, cell phones, and speakers/audio

      devices. The State charged Cook with one count of level 6 felony stalking of

      Mrs. Brumley and one count of level 6 felony stalking of Mr. Brumley. The

      jury convicted her as charged, and the trial court sentenced her to concurrent

      two-year terms, with four months executed and twenty months suspended to

      probation. The court also ordered her to pay the Brumleys $800 as restitution.

      Cook now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

            Section 1 – The trial court acted within its discretion in
                      admitting the challenged testimony.
[7]   Cook contends that the trial court erred in admitting certain testimony by Mr.

      Brumley. We review evidentiary rulings for an abuse of discretion resulting in

      prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of

      discretion occurs when the trial court’s ruling is either clearly against the logic

      and effect of the facts and circumstances before it or the court misinterprets the

      law. Id.


[8]   Cook asserts that certain testimony by Mr. Brumley allegedly amounted to an

      inadmissible opinion on the ultimate question of her guilt. See Ind. Evidence

      Rule 704(b) (prohibiting witness from giving “opinions concerning intent, guilt,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 5 of 16
      or innocence in a criminal case.”). Cook was convicted of two counts of level 6

      felony stalking, which required the State to prove that she (1) knowingly or

      intentionally; (2) engaged in a course of conduct involving repeated or

      continuing harassment of another person; (3) that would cause a reasonable

      person to feel terrorized, frightened, intimidated, or threatened; and (4) that

      actually caused the victim to feel terrorized, frightened, intimidated, or

      threatened. Ind. Code § 35-45-10-1.

[9]   Cook challenges the admissibility of the following testimony provided by Mr.

      Brumley during direct examination:

              A: There, there was an incident where I was, I had been fishing,
              and I was cleaning fish and kind of heard something and looked
              around, I thought my wife was calling me. And uh, first time
              and then it happened again, I mean, looking around and uh I can
              … then I finally recognized the defendant and she was in
              between the brick uh support for the fence and her shrub, and she
              was saying something to me. I could hear some, but I tried not
              to pay attention. And uh I just shook my head, uh probably said
              you’re crazy, or something like that and uh went on. And then
              went on cleaning my fish and then, at a point where I wasn’t
              mak[ing] noise of something I heard her say you’re going to need
              one.

              Q: You had no idea what that was referring to?

              A: Uh, no. I mean it was a threat of some kind.


      Tr. Vol. 3 at 230-31. Defense counsel objected on grounds of Indiana Evidence

      Rule 704(b), but the objection was overruled. Mr. Brumley went on to state

      that Cook had said, “you are going to need one. I took that as a threat.” Id. at

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 6 of 16
       231. When asked if that caused him to feel threatened, Mr. Brumley said that it

       did. Id. at 232.


[10]   Cook claims that the foregoing testimony amounted to an opinion by Mr.

       Brumley that she was guilty of stalking him. In support of her argument, Cook

       cites Williams, where an officer testified that he observed what he characterized

       as a “transaction for cocaine.” 43 N.E.3d at 582. The Williams court found the

       characterization to be an improper statement that invaded the province of the

       jury by establishing the ultimate issue of the defendant’s guilt for dealing in

       cocaine. Id.


[11]   Cook’s argument is misplaced. Mr. Brumley simply described Cook’s conduct

       and then said that he interpreted it as a threat. In other words, Cook’s conduct

       actually caused him to feel threatened. This speaks to only one of the four

       elements of the offense, i.e., that the defendant’s conduct actually caused the

       victim to feel terrorized, frightened, intimidated, or threatened. Proof of this

       element requires resort to the thoughts and impressions of the victim. Mr.

       Brumley’s testimony does not amount to an opinion on the ultimate issue of

       Cook’s guilt. As such, the trial court acted within its discretion in admitting the

       testimony.


             Section 2 - The evidence is sufficient to support Cook’s
                                  convictions.
[12]   Cook also challenges the sufficiency of the evidence to support her convictions.

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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 7 of 16
       evidence nor judge witness credibility. Moore v. State, 27 N.E.3d 749, 754 (Ind.

       2015). Rather, we consider only the evidence and reasonable inferences most

       favorable to the verdict and will affirm the conviction unless no reasonable

       factfinder could find the elements of the crime proven beyond a reasonable

       doubt. Id. Reversal is appropriate only when reasonable persons would be

       unable to form inferences as to each material element of the offense. McCray v.

       State, 850 N.E.2d 998, 1000 (Ind. Ct. App. 2006), trans. denied. The evidence

       need not “overcome every reasonable hypothesis of innocence.” Dalton v. State,

       56 N.E.3d 644, 647 (Ind. Ct. App. 2016) (citation omitted), trans. denied.


[13]   Cook was convicted of two counts of level 6 felony stalking. As stated, stalking

       is a

               knowing or intentional course of conduct involving repeated or
               continuing harassment of another person that would cause a
               reasonable person to feel terrorized, frightened, intimidated, or
               threatened and that actually causes the victim to feel terrorized,
               frightened, intimidated, or threatened. The term does not
               include statutorily or constitutionally protected activity.


       Ind. Code § 35-45-10-1. Harassment is “conduct directed toward a victim that

       includes but is not limited to repeated or continuing impermissible contact that

       would cause a reasonable person to suffer emotional distress and that actually

       causes the victim to suffer emotional distress. Harassment does not include

       statutorily or constitutionally protected activity[.]” Ind. Code § 35-45-10-2.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 8 of 16
       “Impermissible contact includes but is not limited to knowingly or intentionally

       following or pursuing the victim.” Ind. Code 35-45-10-3 (2017).1


[14]   For the first time on appeal, Cook raises as part of her sufficiency argument a

       claim that her conduct amounted to constitutionally protected speech. A

       constitutional claim is waived if it is not first presented below. Pava v. State, 142

       N.E.3d 1071, 1075 (Ind. Ct. App. 2020), trans. denied. Cook failed to raise this

       issue in the trial court and therefore has waived review of it. Even so, we note

       that surveilling the Brumleys through cameras pointed directly at their house

       and through the use of a drone cannot be considered speech at all, let alone

       constitutionally protected speech. Moreover, police officers had specifically

       warned Cook that her conduct amounted to criminal conduct, and her text

       messages confirm that she knew that she was crossing the line between

       exercising her free speech right to play animal noises and engaging in illegal

       conduct. State’s Ex. 43. 2




       1
         In 2019, the legislature amended Indiana Code Section 35-45-10-3 to expressly include communications in
       person, in writing, by telephone, by electronic means, or through social media. Both versions of the statute
       clearly state that the list of acts constituting impermissible contact is nonexclusive.
       2
         Cook also claims that the offenses were imprecisely charged in the information and that, as a result, she
       was not put on notice concerning the specific conduct that served as the basis for the charges against her.
       The proper method for challenging deficiencies in a charging information is by filing a motion to dismiss the
       information no later than twenty days before the omnibus date, in cases involving felony charges. Leggs v.
       State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012); Ind. Code § 35-34-1-4(a)(4), -(b)(1). Cook did not do so.
       Thus, absent a showing of fundamental error, she has waived this issue for consideration on appeal. Truax v.
       State, 856 N.E.2d 116, 123 (Ind. Ct. App. 2006). Cook did not allege fundamental error, so we need not
       resolve the issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020                  Page 9 of 16
[15]   Although Cook alleges that the evidence was insufficient as to both of her

       stalking convictions, she focuses her argument on the count involving Mr.

       Brumley. She essentially claims that the evidence was insufficient to establish

       at least two incidents of conduct, aimed at Mr. Brumley, that would cause a

       reasonable person to feel threatened. We disagree. In addition to the fish-

       cleaning incident discussed in Section 1 of this decision, Mr. Brumley recalled

       another specific incident in which he was working on his motorcycle and Cook

       said, “[W]hy don’t you be a little bit louder, so that the IRS can hear you and

       come take your, come take your property.” Tr. Vol. 3 at 234. 3 This was

       especially significant to Mr. Brumley when considered in conjunction with

       other economic threats that Cook made to the Brumleys in a series of text

       messages, declaring her intention to buy his family’s home out from under them

       at an upcoming foreclosure sale. See, e.g., Id. at 235 (Mr. Brumley’s testimony

       describing text from Cook stating that “a pole barn was going to look nice on

       her property, after she owns our house and bulldozes it to the ground”). We

       also note that both instances involved an element of surprise, where

       unbeknownst to Mr. Brumley, Cook had been watching him and suddenly

       broke into his presumed solitude and made him feel threatened with her

       warnings and admonitions.




       3
         One or two days later, the Brumleys unexpectedly received correspondence in the mail from the IRS.
       Although the correspondence was later determined to have been sent by mistake, it seemed a startling
       coincidence to receive it so quickly after Cook had warned Mr. Brumley about the IRS coming to take their
       property.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020               Page 10 of 16
[16]   Overall, Mr. Brumley’s testimony shows a protracted pattern of daily/nightly

       conduct by Cook, aimed directly at him (and his wife), where the cumulative

       effect of the conduct was greater than the sum of a couple isolated parts.

       Cook’s barrage of harassment made him feel frightened and intimidated to the

       point that he purchased a concealed carry permit. He testified that he dreaded

       coming home from work each evening because he knew that he would be

       constantly watched and that the animal noises would begin. He described the

       effect of Cook’s behavior as follows: “You’re constantly looking over your

       shoulder … glancing to see if someone is there, you’re watched.” Tr. Vol. 3 at

       229. He testified that he had experienced prolonged sleep deprivation due to

       Cook’s persistent “daytime and nighttime” conduct. Id. at 227. He also

       experienced an increase in parental fear for the life of his seriously ill teenager,

       whose seizures had increased in frequency and severity during Cook’s six-

       month onslaught. The evidence and inferences support the jury’s conclusion

       that a reasonable person would have felt threatened by Cook’s persistent,

       intentional conduct toward Mr. Brumley.


[17]   Cook’s conduct toward Mrs. Brumley was equally egregious and even more

       persistent. Because the Brumleys have livestock and a vegetable garden, they

       regularly must spend time outdoors to tend to them. Mrs. Brumley described

       Cook’s conduct toward her as a “complete nightmare of sounds being played

       over a loud system, every night. Someone [i.e., Cook] yelling at you every day,

       when you are trying to feed your animals, sending you text messages

       constantly, calling you white trash, you’re poor, you have to sell vegetables.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 11 of 16
Where are you going to live[?]” Tr. Vol. 2 at 152. She testified that she had

come to the conclusion that Cook had installed motion sensors on the

surveillance cameras to alert her as to their presence and movement, because

Cook’s view of their property was otherwise obscured by the fence, shrubs, and

distance of about a football field. She said that it seemed like she was scarcely

out the door when Cook would promptly come outside her gate to accost her or

would yell at her from behind the shrubs. According to Mrs. Brumley, Cook

berated her in person “more than forty” times. Id. at 228. When she was not

berating her in person, Cook often sent Mrs. Brumley text or phone messages

insulting, berating, or threatening her. In one text, she said that she was in

negotiations with the Brumleys’ bank to buy their property. State’s Ex. 13.

Mrs. Brumley summed up the effects of Cook’s conduct as follows:


        When someone can come out of the gate, or shrub without you
        seeing them coming at you, and you know that they have been
        watching you, they know when you are home, they know when
        you are outside, it’s a little creepy. And to know that they have
        all of these camera pictures, of you, they know private things
        about your financial matters that, your neighbor probably,
        doesn’t usually know about your neighbor, and they tell you that
        they are going to own your house, different things like that, that
        is scary, it is very scary …. It caused me to feel very intimidated.


Tr. Vol. 2 at 167. A reasonable person would have felt harassed, frightened, or

intimidated by the constant surveillance and onslaught of threats and insults

that Mrs. Brumley endured.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 12 of 16
[18]   Cook claims that her case is similar to VanHorn v. State, where we reversed a

       stalking conviction because the evidence was insufficient to establish a course of

       improper conduct aimed directly at the victim. 889 N.E.2d 908, 910-11 (Ind.

       Ct. App. 2008), trans. denied. In VanHorn, the record showed that on four

       separate occasions the defendant sat in his parked vehicle, which was facing the

       wrong direction on the street outside the victim’s home, and looked at the

       victim’s home, sometimes through binoculars. Id. at 909-10. He never

       approached the house or even left his vehicle, and he never stepped onto the

       victim’s property or made any contact with the victim, whether in person, by

       phone, or by a note. Id. at 911. In contrast, here, Cook engaged in a

       protracted, multifaceted pattern of harassment, with her conduct (and cameras

       and loudspeakers) aimed directly at the Brumleys. She surveilled them,

       harassed them with loud animal noises designed to agitate their livestock and

       attract predators, and made direct contact with them via phone calls, text

       messages, and verbal threats and tongue lashings. VanHorn is clearly

       distinguishable.


[19]   Cook downplays her conduct, characterizing it as simply annoying, nuisance-

       type behavior that a reasonable person would not view as criminal behavior,

       particularly in the absence of a noise ordinance. The jury did not see it that

       way. With respect to the Brumleys, Cook was not simply an annoying and

       boisterous neighbor; rather, she engaged in a daily (and nightly) barrage of

       threats and harassment for more than six months. Text messages recovered

       from Cook’s cell phone reflect an attitude that was almost gleeful as she


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 13 of 16
       bragged to a friend about how she would not stop until she had driven the

       Brumleys out of their home, about her contribution to the Brumleys’ loss of

       several animals to predators, and even about the exacerbation of Daughter’s

       epileptic episodes. State’s Ex. 43. The Brumleys knew enough about Cook to

       take her seriously when she said that she was negotiating with their lender or

       suggested that they had better be careful or the IRS would come after them.

       Mrs. Brumley testified that she believed that Cook had the means and the

       resources to follow through and buy their home out from under them because

       “that’s what she does, she buys and sells homes.” Tr. Vol. 2 at 168; see also

       State’s Ex. 42 (Cook’s text message that Brumley house “will be my 11[th]

       home that I will own outright.!”). In short, the record supports a reasonable

       inference that Cook possessed both the ability and the will to make good on her

       threats, and the Brumleys understood this all too well. Cook’s attempts to

       characterize the Brumleys’ fear as unreasonable is a self-serving invitation to

       reweigh evidence and reassess witness credibility, which we may not do.

[20]   That said, we acknowledge that Cook’s repeated blasting of animal noises was a

       nuisance to all the surrounding neighbors, many of whom called 911 on her.

       But her conduct in surveilling the Brumleys, making threats to them in person,

       by phone, and by text message, and in some cases following up on those

       threats, went well beyond annoyance. For six months, she watched and studied

       their daily activities and harassed them relentlessly, causing them to feel

       frightened, intimidated, and threatened. She was nothing if not persistent. The

       Brumleys suffered emotional harm and economic harm, as well as the physical


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 14 of 16
       effects of prolonged sleep deprivation and the angst and heartache of watching

       Daughter suffer an increase in grand mal seizures, all as a result of Cook’s

       persistent harassment. Simply put, Cook was a nuisance to the neighborhood,

       but to the Brumleys, she was a stalker. The evidence is sufficient to support her

       convictions.


              Section 3 – The restitution order includes an incorrect
                    calculation of Mrs. Brumley’s lost wages.
[21]   Finally, Cook asserts that the amount of restitution is inaccurate and does not

       reflect the actual amount of lost wages sustained by Mrs. Brumley. Generally,

       we review restitution orders for an abuse of discretion, which occurs when the

       trial court misinterprets or misapplies the law. Akehurst v. State, 115 N.E.3d

       515, 518 (Ind. Ct. App. 2018). “A restitution order must be supported by

       sufficient evidence of actual loss sustained by the victim of a crime.” Id.


[22]   Cook argues that Mrs. Brumley failed to provide sufficient documentation

       concerning her lost wages. The trial court ordered Cook to pay the Brumleys

       $800 in restitution. Appellant’s App. Vol. 2 at 67. This figure was based on

       information that Mrs. Brumley included in the victim impact statement and

       restitution claim form. On that form, she claimed $100 in unreimbursed

       insurance claims plus $700 in lost wages. However, she handwrote the

       following on the form by the line for lost wages: “16 hrs work at 20.00 hr.” Id.

       at 168. The product of sixteen times twenty is $320, not $700. We

       acknowledge the State’s assertion that Cook failed to object to the amount of

       the restitution order below, which generally results in waiver. Gil v. State, 988

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 15 of 16
       N.E.2d 1231, 1235 (Ind. Ct. App. 2013). However, the document submitted by

       Mrs. Brumley includes an incorrect calculation of lost wages that is plain and

       obvious. We therefore may treat it as an improper sentence, which is a form of

       fundamental error, and correct it even though it was not raised in the trial court.

       Id.; Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004). Accordingly, we

       remand for the trial court to enter a corrected victim restitution order.


[23]   Affirmed and remanded.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020   Page 16 of 16
