MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Sep 16 2016, 7:10 am
regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General
Brooklyn, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jay E. Millen,                                           September 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A04-1602-CR-256
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1410-MR-2583



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 1 of 7
                                       Statement of the Case
[1]   Jay Millen appeals his conviction for obstruction of justice, a Class D felony,

      following a jury trial. Millen presents a single issue for our review, namely,

      whether the State presented sufficient evidence to support his conviction. We

      affirm.


                                 Facts and Procedural History
[2]   On June 8, 2014, a boater found a headless human corpse in the Wabash River

      in Terre Haute. An autopsy revealed that, in addition to the decapitation, the

      corpse had sustained four stab wounds and a large abdominal incision. And the

      results of the autopsy indicated that the cause of death was homicide. The dead

      man was subsequently identified as Michael Pollack.


[3]   On June 11, while investigating Pollack’s murder, Vigo County Sheriff’s

      Detective Jim Palmer spoke with a friend of Pollack’s, Jeffrey Thomas, who

      said that, prior to his death, Pollack had been staying at a makeshift camp near

      the river. Thomas also told Detective Palmer that a man at that makeshift

      camp had “made advances” towards Pollack. Tr. at 843. Based on the

      information provided by Thomas, including a physical description of the man,

      detectives found Millen living in a makeshift camp along the river and

      questioned him about Pollack.


[4]   Detectives told Millen that they were investigating the death of a man found in

      the river, and they showed Millen a photograph of Pollack. Millen denied ever

      having seen, met, or known Pollack. Detectives also asked Millen whether he

      Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 2 of 7
      had any weapons, such as knives, and Millen denied having any weapons at his

      campsite. Detective Jason Fischer asked Millen again whether he had any

      knives, and Millen responded that “he did not like edged weapons [and he] had

      nothing in the camp that had an edge to it.” Id. at 475.


[5]   Detective Fischer asked Millen to come to the Sheriff’s Department to give a

      recorded interview, and Millen agreed. During the interview, detectives told

      Millen that Pollack’s body was found in the river just south of Millen’s

      campsite, and they again showed Millen a photograph of Pollack. Millen

      repeatedly stated that he did not recognize or know Pollack. However,

      subsequent investigation turned up surveillance video of Millen using Pollack’s

      EBT1 card and PIN to make purchases at a nearby Dollar General store on June

      1. When confronted with that video evidence, Millen said

                 that he . . . did in fact remember Mr. Pollack. . . . [Millen had
                 seen Pollack] as he was on his way to the Dollar General. He
                 said Mr. Pollack looked sick. Mr. Pollack gave him his EBT card
                 and the PIN to go get him a drink at the . . . Dollar General and
                 bring it back to him.


      Id. at 484. On June 17, detectives interviewed Millen again and collected

      buccal swabs from him. Detectives then drove Millen to his girlfriend’s

      daughter’s house and “instructed [him] to stay away from the camp” because




      1
          “EBT” stands for electronic benefits transfer.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 3 of 7
      they were conducting an investigation using “luminol” 2 and they did not want

      “somebody walking up behind” them during that investigation. Id. at 530.

      Despite those instructions, detectives later found Millen at a location near the

      campsite watching the detectives’ search.


[6]   During the search of Millen’s campsite, detectives found a folding pocket knife

      and a “filet-type knife or letter opener” with a “decorative handle” (“decorative

      knife”). Id. at 405. Detectives tested the knives for the presence of blood and

      found none. Accordingly, while detectives removed some items that revealed

      the presence of blood from the campsite, they left the pocket knife and

      decorative knife where they had found them.


[7]   On June 30 and July 1, detectives with canine units conducted searches of

      Millen’s campsite and surrounding areas. At some point, Millen spoke to Kora

      Coffin, a recent acquaintance, and told her that he was being investigated for

      possible involvement with Pollack’s murder. And sometime in July, Millen

      gave Coffin and her fiancé, Jamar Wade, the decorative knife, which Millen

      referred to as a “letter opener,”3 and Millen asked Coffin and Wade to “hold

      onto it for him.” Id. at 387. Millen did not tell Coffin why he was asking them




      2
        Luminol is a substance used to conduct certain types of investigations at night and causes things like blood
      to “luminesce.” Tr. at 407.
      3
          Our review of the photograph of the “letter opener” indicates that it is, indeed, a knife.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016           Page 4 of 7
       to hold onto the decorative knife, and he did not tell her when he would need it

       back.


[8]    Coffin took the decorative knife to her friend Jeffrey Thomas, and she told

       Thomas that Millen had given it to her. Thomas contacted the Sheriff’s

       Department, and Detective Fischer met Coffin and Thomas at a nearby

       location. Coffin gave the decorative knife to Detective Fischer. Forensic

       testing revealed no blood on the knife and an insufficient amount of DNA to be

       used in further analysis.


[9]    On October 2, the State charged Millen with murder; abuse of a corpse, a Class

       D felony; two counts of obstruction of justice, Class D felonies; possession of

       methamphetamine, as a Class D felony; possession of paraphernalia, as a Class

       A misdemeanor; and false informing, as a Class B misdemeanor. Prior to trial,

       the State dismissed the two possession charges and amended the charging

       information to allege that Millen was a habitual offender. A jury found Millen

       guilty of obstruction of justice and false informing and adjudicated him to be a

       habitual offender and acquitted Millen of the remaining charges. The trial court

       entered judgment of conviction accordingly and sentenced Millen to an

       aggregate sentence of seven and one-half years executed. This appeal ensued.


                                      Discussion and Decision
[10]   Millen contends that the State presented insufficient evidence to prove that he

       committed obstruction of justice. In reviewing a sufficiency of the evidence

       claim, we do not reweigh the evidence or assess the credibility of the witnesses.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 5 of 7
       Sharp v. State, 42 N.E.3d 512, 516 (Ind. 2015). Rather, we look to the evidence

       and reasonable inferences drawn therefrom that support the verdict, and we will

       affirm the conviction if there is probative evidence from which a reasonable jury

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


[11]   To prove obstruction of justice, the State had to show that Millen altered,

       damaged, or removed the decorative knife with intent to prevent it from being

       produced or used as evidence in any official proceeding or investigation. Ind.

       Code § 35-44.1-2-2(a)(3) (2013). On appeal, Millen concedes that the evidence

       shows that he removed the decorative knife from the campsite, but he maintains

       that the evidence is insufficient to prove that his “intent to remove the [knife]

       was to prevent it from being produced or used as evidence in an official

       investigation.” Appellant’s Br. at 10. In particular, Millen asserts that, given

       his testimony that he gave the decorative knife to Coffin’s fiancé in exchange

       for money, and given that the decorative knife “had already been inspected and

       analyzed by police and then returned to his possession” and “it appeared that

       [Millen] was no longer a person of interest in the investigation” at the time, the

       evidence is insufficient to prove the intent element. Id. at 11. We cannot agree.


[12]   The intent element may be established by circumstantial evidence and may be

       inferred from the actor’s conduct and the natural and usual sequence to which

       such conduct usually points. McElfresh v. State, 51 N.E.3d 103, 109 (Ind. 2016).

       Here, the State presented evidence that: Millen repeatedly denied having

       recognized or known Pollack and only admitted to knowing him after

       detectives found surveillance video of Millen using Pollack’s EBT card; Millen

       Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 6 of 7
       denied having any weapons, including knives, at the campsite, but detectives

       found two knives there in their search; shortly after detectives searched Millen’s

       campsite, Millen told Coffin, a recent acquaintance, that Millen was being

       investigated in relation to Pollack’s murder and, giving no reason, asked Wade

       and Coffin to keep for him indefinitely the decorative knife; and the evidence

       shows that the detectives had conducted a canine search of Millen’s campsite

       within a few weeks of Millen’s giving the decorative knife to Wade and Coffin.


[13]   The evidence and reasonable inferences therefrom are sufficient to prove that

       Millen knew that he was still under investigation for Pollack’s murder when he

       gave the decorative knife to Wade and Coffin in an effort to prevent it from

       being produced or used as evidence in the criminal investigation. Millen’s

       contentions on appeal amount to a request that we reweigh the evidence, which

       we will not do. The State presented sufficient evidence to prove that Millen

       committed obstruction of justice.


[14]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1602-CR-256 | September 16, 2016   Page 7 of 7
