MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 20 2020, 9:46 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deborah K. Smith                                          Curtis T. Hill, Jr.
Sugar Creek Law                                           Attorney General of Indiana
Thorntown, Indiana
                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elizabeth K. Cote,                                        July 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2942
        v.                                                Appeal from the Boone Circuit
                                                          Court
State of Indiana,                                         The Honorable J. Jeffrey Edens,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          06C01-1709-CM-1744



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020                  Page 1 of 6
[1]   Elizabeth Cote appeals her conviction of Class B misdemeanor harassment. 1

      Elizabeth argues the State did not present sufficient evidence that she had no

      intent of legitimate conversation with the victim of her offense, Julia Cote. We

      affirm.



                                Facts and Procedural History
[2]   Elizabeth Cote is Andrew Cote’s mother. Andrew is married to Julia. On June

      1, 2017, Elizabeth sent Andrew a series of voicemails and text messages about

      Elizabeth’s car, which Andrew had in his possession, and about an alleged debt

      Andrew owed to Elizabeth. Andrew called Elizabeth, but the conversation

      ended in an argument and Andrew hung up on Elizabeth. Julia was present

      during the call and could hear the call. Julia also heard the voicemails and read

      the text messages.


[3]   Later in the day, Julia sent Elizabeth a text message telling Elizabeth to “[l]eave

      [her and Andrew] alone!!!” (State’s Ex. 1.) Elizabeth responded to Julia’s text

      with a series of texts containing multiple obscenities regarding an alleged debt

      that Andrew and Julia owed to Elizabeth. Later in the conversation, Elizabeth

      sent Julia a text message that said, “No You got PREGNANT BY A BIGGER

      AND YOUR A WET BACK SAY SOMETHING AT LEAST I PAY MY

      BILLS AND CAN TAKE CARE I’D MYSELF YOU FUCK ING




      1
          Ind. Code § 35-45-2-2(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020   Page 2 of 6
      PARASITE…….WHORE[.]” (State’s Ex. 3) (errors and emphasis in original).

      Julia responded, and Elizabeth sent a text message stating, “Text Me again find

      out what happens YOU DIRTY FUCK ING MEXICAN YEAH YOUR

      FUCK ING FILTHY[.]” (State’s Ex. 4) (errors and emphasis in original).


[4]   Julia sent Elizabeth two text messages saying, “Are you threatening me? And

      I’m not a Mexican bro.” (Id.) Elizabeth responded,


              You are A FUCK ING IDIOT AND YEAH YOU ARE A WET
              BACK MEXICAN…..AGAIN TALKING SHIT YOU KNOW
              NOTHING ABOUT …..RETARDED…..YOU FUCK OVER
              EVERYONE YOU COME IN CONTACT WITH……THAT’S
              WHY YOUR CREDIT SUCKS…….YOU FILTHY
              P.O.S…….YOU KNOW NOTHING ABOUT ANDREW. HE
              WILL TIRE OF YOUR BULLSHIT AND KEEPING THAT’S
              HOW YOU TRY TO GET OUT OF PAYING
              PEOPLE…….THAT’S, BECAUSE YOU ARE NASTY
              DIRTY FUCKING MEXICAN…….AND EVERYBODY IN
              LEBANON SAYS YOU ARE…..”


      (State’s Ex. 4-6) (errors and emphasis in original). Elizabeth then sent Julia a

      text threatening to file charges against Julia for stalking and blocked Julia’s

      telephone number from Elizabeth’s cell phone.


[5]   Andrew and Julia reported the messages to the police because “Andrew[] was

      getting ready to leave for the military for A-T for two weeks, and [Julia] had his

      nephews over and our concern was that [Elizabeth] may have um would’ve

      done something that would have injured us or the kids[.]” (Tr. Vol. II at 14.)

      On September 18, 2017, the State charged Elizabeth with Class B misdemeanor


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020   Page 3 of 6
      harassment. On October 26, 2018, the trial court conducted a bench trial, and

      on November 6, 2018, the trial court issued its order finding Elizabeth guilty of

      Class B misdemeanor harassment. In its order, the trial court quoted the

      portion of the text conversation between Elizabeth and Julia from State’s

      Exhibits 3-6, quoted supra, and stated:


              23. [Julia] is not of a Mexican heritage.


              24. [Julia] did not inject her heritage into the conversation.


              25. Without question, that part of the conversation quoted above
              was not legitimate communication on the part of [Elizabeth].


              26. [Julia] was alarmed by the tone of the conversation.


                                                    *****


              29. The only reasonable conclusion the Court can make is that
              [Elizabeth] made the comments quoted above with the intent to
              harass annoy or alarm [Julia].


      (App. Vol. I at 13-4.) At the sentencing hearing on November 29, 2018, the

      trial court ordered Elizabeth to pay $185 in court costs but did not sentence her

      to jail time or probation.



                                 Discussion and Decision
[6]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020   Page 4 of 6
      fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the fact-finder’s verdict. Id. We affirm a

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Id. It is therefore not necessary that the

      evidence overcome every reasonable hypothesis of innocence; rather, the

      evidence is sufficient if an inference reasonably may be drawn from it to support

      the fact-finder’s decision. Id. at 147.


[7]   To prove Elizabeth committed Class B misdemeanor harassment, the State was

      required to present evidence that she “with intent to harass, annoy, or alarm

      another person but with no intent of legitimate communication . . .

      communicates with a person by telegraph, mail, or other form of written

      communication[.]” Ind. Code § 35-42-2-2(a)(2). Elizabeth argues the State did

      not prove she had “no intent of legitimate communication” because “the theme

      of the conversation references the debt owed to [Elizabeth] and the lack of effort

      on the part of Andrew and Julia to repay the money.” (Br. of Appellant at 11.)


[8]   However, the trial court provided a very detailed order in which it specifically

      stated that it considered Elizabeth’s comments regarding Julia’s alleged heritage

      when it found Elizabeth guilty of Class B misdemeanor harassment. The trial

      court referenced the portions of the conversation in which Elizabeth told Julia

      that Julia and Andrew owed Elizabeth money, but the trial court explicitly

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020   Page 5 of 6
       stated that it did not base Elizabeth’s conviction on that portion of the

       conversation. Elizabeth’s argument asks us to consider the conversation as a

       whole, instead of relying on the portion of the conversation the trial court found

       to be harassment. We cannot reweigh evidence or judge the credibility of a

       witness on appeal, Drane, 867 N.E.2d at 146, and thus we decline her invitation

       to do so.


[9]    Further, this case was tried to the bench, and we presume the judge knows and

       properly applies the relevant law to the facts of the case. Laughlin v. State, 101

       N.E.3d 827, 830 (Ind. Ct. App. 2018). Based thereon, we conclude the State

       presented sufficient evidence that Elizabeth committed Class B misdemeanor

       harassment. See Kinney v. State, 404 N.E.2d 49, 50 (Ind. Ct. App. 1980)

       (affirming Kinney’s conviction of Class B misdemeanor harassment based on a

       series of calls in which Kinney accused the victim of “promiscuous sexual

       behavior” and “[n]o personal or business transactions occurred during these

       phone calls”).



                                               Conclusion
[10]   The State presented sufficient evidence that Elizabeth committed Class B

       misdemeanor harassment. Accordingly, we affirm.


[11]   Affirmed.


       Mathias, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020   Page 6 of 6
