                                                                          FILED
                                                                      Jan 31 2020, 5:42 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Susan D. Rayl                                             Curtis T. Hill, Jr.
Hand Ponist                                               Attorney General of Indiana
Horvath Smith & Rayl, LLC
                                                          Courtney Staton
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Thaddaus Scott,                                           January 31, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-516
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Grant Hawkins,
Appellee-Plaintiff,                                       Judge
                                                          Trial Court Cause No.
                                                          49G05-1712-F5-47949



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                           Page 1 of 20
                                 Case Summary and Issues
[1]   Following a jury trial, Thaddaus Scott was convicted of battery resulting in

      bodily injury to a pregnant woman and obstruction of justice, both Level 5

      felonies, and thirty counts of invasion of privacy, all Class A misdemeanors.

      The trial court sentenced Scott to an aggregate sentence of ten years and six

      months to be served in the Indiana Department of Correction, with two years

      suspended to probation.1 On appeal, Scott raises two issues for our review: 1)

      whether the admission of the victim’s prior statements to two law enforcement

      officers violated his Sixth Amendment confrontation rights, and 2) whether the

      State presented sufficient evidence to support his obstruction of justice

      conviction. Concluding that Scott forfeited his Sixth Amendment right to

      confrontation due to his own wrongdoing and the State presented sufficient

      evidence to support Scott’s conviction of obstruction of justice, we affirm.



                              Facts and Procedural History
[2]   Scott and his pregnant girlfriend, Maria Cook, lived together with Cook’s son.

      On December 6, 2017, Officer Phillip Short of the Indianapolis Metropolitan

      Police Department (“IMPD”) was dispatched to their house regarding a




      1
        The trial court’s statements at the sentencing hearing conflict with each other and with what is reflected in
      the abstract of judgment as to Scott’s sentences on the invasion of privacy counts. The abstract of judgment
      also appears to leave out one count of invasion of privacy. Despite the confusion, the parties agree that Scott
      was sentenced to ten years and six months. Because Scott’s sentence is not at issue, we need not resolve the
      conflict.

      Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                                Page 2 of 20
      domestic disturbance. Upon arrival, Officer Short noticed that the house was in

      “disarray[.]” Transcript of Evidence, Volume 2 at 145. Scott was not present at

      the house. Officer Short noticed that Cook’s face was swollen and covered in

      blood. See id. at 145-46. Cook explained to Officer Short that she and Scott had

      an argument and she threw a flower pot off the balcony. Angered by this, Scott

      struck Cook multiple times with his fist until she fell down. After Cook fell,

      Scott continued to strike her and eventually grabbed her by the hair and

      dragged her from the balcony inside the house. Despite Cook’s multiple pleas

      for him to stop, Scott continued to strike Cook and threatened to kill her.


[3]   The next day, IMPD Detective Jason Ross took a recorded statement from

      Cook in which she identified Scott as the person who caused her injuries. Cook

      also told Detective Ross that Scott had reached out to her through text

      messages apologizing and promising to give Cook money to fix what he had

      done. See id. at 183-84; see also Exhibit Index (“Exhibits”), Volume 1, Exhibit 26

      at 124. At this stage of the investigation, Cook cooperated with law

      enforcement by giving them information about Scott and the incident.


[4]   On December 13, 2017, the State charged Scott with multiple offenses: battery

      resulting in bodily injury to a pregnant woman, battery resulting in serious

      bodily injury, and kidnapping, all Level 5 felonies; domestic battery in the

      presence of a child, battery resulting in moderate bodily injury, and

      intimidation, all Level 6 felonies; and domestic battery as a Class A

      misdemeanor, enhanced to a Level 6 felony due to a prior battery conviction.



      Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020       Page 3 of 20
[5]   Scott was arrested in February of 2018. In March, while incarcerated, he began

      contacting Cook from a jail telephone with a personal identification number

      assigned to him.2 During these calls, Scott repeatedly asked Cook to change her

      story so that his case could be dismissed. In one call, Scott urged Cook to

      contact his attorney, the prosecutor, and the judge to tell them “the truth” that

      she “over exaggerated” the incident to get him thrown in jail. Exhibits, Vol. 1,

      Ex. 27B (Call 2) at 128; see also Supplemental Transcript of Evidence (“Supp.

      Tr.”), Volume 2 at 34. Cook emailed the State requesting that it dismiss the

      case, but the State declined to do so. She also sent a letter to the presiding judge

      asking for the case to be dismissed.3


[6]   After hearing from Cook that his case was not going to be dismissed at her

      request, Scott came up with alternative ways to get his case dismissed. In a

      March 29 call, Scott told Cook she did not have to attend court if she did not

      want to and stated, “if nobody shows, then maybe it’ll get dismissed on me.”

      Exhibits, Vol. 1, Ex. 27B (Call 4) at 128; see also Supp. Tr., Vol. 2 at 40. Later in

      the call, Scott discussed with Cook ways to get cases dismissed by not attending

      depositions and Scott told Cook, “I’m going to have [my attorney schedule a

      deposition] . . . and you don’t . . . show. You know what I mean?” Exhibits,




      2
       A personal identification number is a number traceable to a particular person and both the callers and the
      called parties are advised that all phone calls made from the jail are recorded. See Exhibits, Vol. 1, Ex. 1b at
      14. The personal identification number allowed the State to verify that it was Scott making the phone calls.
      In turn, the number Scott called was the same number Detective Ross used to reach Cook.
      3
          The record is unclear how the trial court responded to Cook’s letter.


      Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                                  Page 4 of 20
      Vol. 1, Ex. 27B (Call 4) at 128; Supp. Tr., Vol. 2 at 42. Cook agreed to comply.

      Over the course of Scott’s repeated calls, he acknowledged that Cook was

      working long hours to take care of two children and reminded her that he

      would not be home to help with the children until his case was dismissed. Scott

      stated “I know you want me home right there, baby. [It] [t]akes time, man, but .

      . . they got to go about procedures[.]” Exhibits, Vol. 1, Ex. 29B (Call 4) at 142;

      Supp. Tr., Vol. 2 at 53.


[7]   On April 6, 2018, at the State’s request, the trial court entered a no-contact

      order that prohibited Scott from having further communication with Cook:


              in person, by telephone or letter, through an intermediary, or in
              any other way, directly or indirectly, except through an attorney
              of record, while released from custody pending trial. . . .


              This provision shall also be effective even if the defendant has not
              been released from lawful detention.


              ***


              This Order remains in effect until this case has been tried and the
              Defendant has been sentenced if found guilty.


      Appellant’s Appendix, Volume II at 116-17 (emphasis omitted). Scott’s trial

      was set for October 11, 2018. Despite the no-contact order, Scott continued to

      call Cook and talk with her about missing depositions and not attending court.

      At this point, Cook stopped cooperating with law enforcement and the

      prosecutor.

      Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020         Page 5 of 20
[8]   On June 28, 2018, the State filed a Notice of Intent to Offer Out-of-Court

      Statements and requested a hearing about whether Cook’s statements to two

      law enforcement officers would be admissible under the forfeiture by

      wrongdoing exception to the Confrontation Clause if Cook failed to appear at

      Scott’s trial.4 On September 26, 2018, the trial court held a forfeiture hearing to

      preliminarily hear evidence about whether Cook’s statements could be admitted

      into evidence through the officers’ testimony as a result of Scott’s wrongdoing.

      The parties agreed that the issue was not yet ripe, as it remained to be seen if

      Cook would appear for trial. However, because she had failed to appear for

      three scheduled depositions, the State requested the trial court hear the

      evidence, take the issue under advisement, and incorporate it at trial if

      necessary to avoid a lengthy hearing on the issue the day of trial. The State

      presented evidence supporting its position that Scott’s conduct in encouraging

      Cook not to attend court or depositions during numerous jail phone calls

      forfeited his right to confront and cross-examine Cook about statements she

      made to law enforcement. The trial court took the issue under advisement until

      trial.


[9]   On October 11, the first scheduled trial date, Cook failed to appear. The State

      therefore renewed its motion to admit Cook’s statements through the officers’

      testimony because of Scott’s alleged forfeiture by wrongdoing and presented




      4
       The Notice also raised the issue of whether Cook’s statements would be admissible under a hearsay
      exception, but Scott does not advance an argument under the Indiana Rules of Evidence on appeal.

      Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                           Page 6 of 20
       additional evidence, including Scott’s phone calls to Cook since the forfeiture

       hearing and the State’s efforts to procure Cook’s attendance at trial by hand

       serving Cook with a subpoena. The trial court found that the State had met its

       burden of showing by a preponderance of the evidence that Cook was not

       present because of Scott’s wrongdoing and therefore, ruled that it would allow

       Cook’s statements to law enforcement to be introduced into evidence through

       the testimony of Officer Short and Detective Ross. On the same day, the State

       filed a motion to amend Scott’s charges to include obstruction of justice, a

       Level 5 felony, and thirty counts of invasion of privacy, all Class A

       misdemeanors. These additional counts were based on information that

       between the date of the no-contact order and the October 11 trial, Scott tried to

       contact Cook by phone 373 times; 116 calls were completed. See Exhibits, Vol.

       1, Ex. 4 at 29-40, Ex. 7 at 49-50. The trial court granted the motion to amend

       and as a result, continued Scott’s trial so that his attorney could prepare a

       defense for the added counts.


[10]   Scott’s jury trial commenced on January 7, 2019 and again, Cook was not

       present. The State averred that Detective Ross attempted to serve Cook with a

       subpoena to attend the January 7 trial, but he was unsuccessful. The State tried

       to contact Cook but was also unsuccessful. During trial, the State questioned

       Officer Short and Detective Ross about Cook’s statements that identified Scott

       as the person who caused her injuries. In each instance, Scott objected, and the

       trial court overruled the objection. The jury found Scott guilty of battery

       resulting in bodily injury to a pregnant woman, obstruction of justice, and all


       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020       Page 7 of 20
       counts of invasion of privacy.5 The trial court sentenced Scott to an aggregate

       sentence of ten years and six months to be served in the Indiana Department of

       Correction, with two years suspended to probation.



                                    Discussion and Decision
                   I. Forfeiture of Right to Confront Witnesses
[11]   Scott first argues that the admission of Cook’s statements to Officer Short and

       Detective Ross violated his Sixth Amendment confrontation rights. In general,

       a trial court has broad discretion in ruling on the admissibility of evidence, and

       we disturb a trial court’s evidentiary rulings only upon an abuse of discretion.

       Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013), cert. denied, 134 S.Ct. 2299

       (2014). However, when a defendant contends that a constitutional violation has

       resulted from the admission of evidence, the standard of review is de novo. Id.


[12]   The Sixth Amendment’s Confrontation Clause provides, in relevant part, “[i]n

       all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

       with the witnesses against him.” U.S. Const. amend. VI. This right allows the

       admission of an absent witness’s testimonial out-of-court statement only if the

       witness is unavailable and the defendant has had a prior opportunity to cross-




       5
         The jury also found Scott guilty of battery resulting in serious bodily injury, domestic battery committed in
       the presence of a child, and battery resulting in moderate bodily injury. The trial court merged these findings
       with the battery resulting in bodily injury to a pregnant woman. The trial court entered judgment of
       conviction for battery resulting in bodily injury to a pregnant woman, obstruction of justice, and all counts of
       invasion of privacy. Scott was found not guilty of the remaining charges. See Abstract of Judgment at 1-2.

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                                 Page 8 of 20
       examine the witness. Crawford v. Washington, 541 U.S. 36, 59 (2004). However,

       a defendant may forfeit his right to confrontation where his own wrongdoing

       caused the declarant to be unavailable to testify at trial. Id. at 62 (relying on

       Reynolds v. United States, 98 U.S. 145, 158-59 (1879)). The forfeiture by

       wrongdoing doctrine protects the integrity of the judicial process. Davis v.

       Washington, 547 U.S. 813, 833 (2006) (noting that “when defendants seek to

       undermine the judicial process by procuring or coercing silence from witnesses

       and victims, the Sixth Amendment does not require courts to acquiesce”). In

       order for a defendant to have forfeited his confrontation rights by wrongdoing,

       the defendant must have had in mind the particular purpose of making the

       witness unavailable. Giles v. California, 554 U.S. 353, 367 (2008). The burden of

       proof for showing forfeiture by wrongdoing is a preponderance of the evidence

       standard. See Davis, 547 U.S. at 833 (declining to take a position on the burden

       of proving forfeiture but noting federal courts have held the government to the

       preponderance of the evidence standard).


[13]   Here, the trial court held a forfeiture hearing prior to trial to hear evidence to

       determine whether Cook’s statements could be admitted into evidence at trial

       through the testimony of law enforcement as a result of Scott’s wrongdoing.

       Based on that evidence plus additional evidence presented on the day of trial

       when Cook did not appear, the trial court determined the State had proven by a

       preponderance of the evidence that Scott forfeited his right to confront Cook

       and therefore, ruled that Cook’s statements were admissible. As our review is

       de novo, we consider the evidence from the forfeiture hearing and the trial to

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020         Page 9 of 20
       independently assess whether the State met its burden of proving by a

       preponderance of the evidence that Scott’s conduct warranted forfeiture of his

       confrontation rights.


[14]   The evidence in the record shows that after the incident, Cook cooperated with

       Officer Short and Detective Ross by providing information about the incident

       and about Scott. Even after Scott offered Cook money to fix their situation,

       Cook still cooperated with law enforcement. In March of 2018, Scott contacted

       Cook on multiple occasions in an attempt to convince her to tell the prosecutor

       that she exaggerated her initial story. Cook attempted to convince the court and

       the prosecutor to dismiss the case, but the prosecutor refused to do so. After

       Cook told Scott the State would not heed her request to dismiss his case, he

       continued to pressure her to keep trying.


[15]   In late March of 2018, Scott continued to pressure Cook not to show up to

       court – even though she had stopped all cooperation with the prosecutor – with

       the hope that his case would be dismissed for absence of the complaining

       witness. In one phone call, Scott told Cook not to attend the depositions his

       attorney scheduled and said, “I’m going to have [my attorney schedule a

       deposition] . . . you don’t . . . show. You know what I mean?” Exhibits, Vol. 1,

       Ex. 27B (Call 4) at 128. Between April 6, 2018 and the date of the first

       scheduled trial in October, Scott tried to contact Cook 373 times, reaching her

       on 116 occasions. In some of these calls, Scott continued to either ask Cook to

       change her story or try to convince her not to attend a deposition or trial. Cook

       failed to attend three scheduled depositions and did not attend trial, at which

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020        Page 10 of 20
       point the trial court allowed her statements to be admitted through other

       witnesses’ testimony because Scott had forfeited his right to cross-examine her

       by his own wrongdoing.


[16]   Scott argues that his case is different from other reported cases in Indiana

       finding forfeiture because his wrongdoing was not as egregious as the conduct

       in Carr v. State, 106 N.E.3d 546, 553 (Ind. Ct. App. 2018) (affirming the trial

       court’s admission of a prior statement under the forfeiture by wrongdoing

       doctrine where the defendant and his family offered a witness $20,000, the use

       of a car, and a place to live to not appear at trial), trans. denied; White v. State,

       978 N.E.2d 475, 481-82 (Ind. Ct. App. 2012) (affirming the trial court’s

       admission of a prior statement under the “forfeiture by wrongdoing” hearsay

       exception where the defendant killed his wife the day before a custody hearing),

       trans. denied; Roberts v. State, 894 N.E.2d 1018, 1026 (Ind. Ct. App. 2008)

       (affirming the trial court’s admission of a prior statement under the “forfeiture

       by wrongdoing” hearsay exception where the defendant murdered his girlfriend

       after she told her friends that the defendant threatened to kill her), trans. denied;

       and Boyd v. State, 866 N.E.2d 855, 857 (Ind. Ct. App. 2007) (affirming the trial

       court’s admission of a prior statement under the forfeiture by wrongdoing

       doctrine where the defendant murdered his wife after she gave statements to

       police that the defendant battered her), trans. denied.


[17]   Scott’s argument is unpersuasive in two ways. First, several of the cases he cites

       were decided under the hearsay exception for statements offered against a party

       that wrongfully caused the declarant’s unavailability. See Ind. Evidence Rule

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020           Page 11 of 20
       804(b)(5); White, 978 N.E.2d at 479; Roberts, 894 N.E.2d at 1026. Although the

       forfeiture by wrongdoing doctrine under the Confrontation Clause and the

       hearsay exception are very similar in theory, Scott fails to make the argument

       that the hearsay analysis is relevant here.


[18]   Second, although the defendants in Carr and Boyd engaged in more serious

       conduct than repeated phone calls to a witness (a significant bribe in Carr,

       murder in Boyd), the point of those cases is that the forfeiture by wrongdoing

       doctrine applies when the defendant engages in conduct designed to prevent the

       witness from testifying, regardless of its severity. Giles, 554 U.S. at 359-60

       (noting that forfeiture by wrongdoing rule required “the witness to have been

       ‘kept back’ or ‘detained’ by ‘means or procurement’ of the defendant”). The

       issue is not the severity of Scott’s conduct; it is whether Scott engaged in

       conduct that was designed to procure Cook’s absence and whether that conduct

       was of such significance that she has been “kept back” from attending

       depositions or trial. As noted above, the evidence shows that Scott’s ongoing

       harassment of Cook through the litany of phone calls was a campaign designed

       to prevent Cook from testifying against him. Scott continually and repeatedly

       encouraging her not to attend depositions or trial precludes Scott from reaping

       the benefits of his own wrongdoing and to hold otherwise would undermine the

       integrity of the judicial process.


[19]   We conclude that the State proved by a preponderance of the evidence that

       Scott’s conduct in repeatedly urging Cook to change her story and not attend

       depositions or trial was designed, at least in part, to keep her from testifying

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020       Page 12 of 20
       against him. Therefore, Scott’s wrongdoing forfeited his right to confront

       Cook’s statements to law enforcement and, as a result, his Sixth Amendment

       right to confrontation was not violated by the admission of Cook’s prior

       statements at trial.


                                   II. Sufficiency of Evidence
                                        A. Standard of Review
[20]   Our standard of review in this area is well-settled. When reviewing sufficiency

       claims, we do not assess witness credibility or reweigh the evidence, and we

       consider only the probative evidence supporting the verdict and reasonable

       inferences therefrom. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). When

       confronted with conflicting evidence, we consider it in a light most favorable to

       the verdict. Id. We affirm the conviction “unless no reasonable fact-finder could

       find the elements of the crime proven beyond a reasonable doubt.” Id. “The

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

       the verdict.” Id. at 147 (quotation omitted).


                                      B. Obstruction of Justice
[21]   Scott argues that the State failed to provide sufficient evidence to support his

       conviction for obstruction of justice. The crime of obstruction of justice is

       committed by:


               (a) A person who:




       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020      Page 13 of 20
             (1) knowingly or intentionally induces, by threat, coercion,
                 false statement, or offer of goods, services, or anything of
                 value, a witness or informant in an official proceeding or
                 investigation to:


                 (A) withhold or unreasonably delay in producing any
                    testimony, information, document, or thing[.]


Ind. Code § 35-44.1-2-2(a). The offense is a Level 6 felony if the State proves

the essential elements in subsection (a). The offense is a Level 5 felony if:


        (b) [D]uring the investigation or pendency of a domestic violence
            or child abuse case . . . , a person knowingly or intentionally:


             (1) offers, gives, or promises any benefit to . . .


        any witness to abstain from attending or giving testimony at any
        hearing, trial, deposition, probation, or other criminal proceeding
        or from giving testimony or other statements to a court or law
        enforcement officer[.]


Ind. Code § 35-44.1-2-2(b). The charging information for obstruction of justice

as a Level 5 felony in this case alleged:


        [B]etween March 27, 2018 and August 10, 2018, Thaddaus Scott
        knowingly or intentionally, during the investigation, official
        proceeding, or pendency, of a domestic violence or child abuse
        case, induce Maria Cook, a witness, by coercion and/or false
        statement to withhold or unreasonably delay in producing any
        testimony or information by offering, giving, or promising any
        benefit to; Maria K Cook to abstain from attending or giving
        testimony at any hearing, trial, deposition, or any proceeding or


Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020             Page 14 of 20
               from giving testimony or other statements to a court or law
               enforcement officer.


       Appellant’s App., Vol. II at 68.


[22]   To convict Scott of obstruction of justice under subsection (a) as charged, the

       State had to prove beyond a reasonable doubt that Scott: (1) knowingly or

       intentionally; (2) induced by coercion and/or false statement; (3) Maria Cook, a

       witness in an official proceeding; (4) to withhold or unreasonably delay in

       producing any testimony or information. Ind. Code § 35-44.1-2-2(a). Scott only

       disputes that the State proved beyond a reasonable doubt that he induced Cook

       to withhold her testimony by coercion or false statement. He argues that the

       number of calls from jail were not coercive, nor did he make any false

       statements.


[23]   In the context of obstruction of justice, the term “coercion” is 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). The form of pressure or

       influence “may vary widely” and may include harassment, physical force,

       intimidation, or threats. Id. However, in Sheppard, we further explained:


               We do not mean to imply that otherwise innocent conduct with
               the intent to induce a witness to act in a way prohibited by the
               obstruction of justice statute could never rise to the threshold of
               pressure necessary to constitute coercion. . . . [I]f the defendant
               were charged with making repeated, harassing contacts with the
               witness with such intent, the threshold of pressure might be
               reached.


       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020       Page 15 of 20
       Id. at 989. In addition, the failure to comply must also be accompanied by some

       consequence. Brown v. State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007), trans.

       denied. If no consequence exists, the “statement is not coercive, but merely a

       request.” Id. In other words, the pressure Scott exerted on Cook must have been

       for the purpose of inducing her to withhold her testimony, and he must have

       expressed some consequence potentially resulting from Cook’s failure to

       comply.


[24]   Scott argues that he did not indicate any consequence and therefore, his

       statements were not coercive. Scott compares his case to Brown. There, the

       defendant was charged with battery against his fiancée. While in jail, the

       defendant made calls to his fiancée during one of which he asked her to testify

       on his behalf and not testify for the State, to tell the State that she was not

       scared of him and that he did not commit the battery against her, and not to

       attend depositions or come to trial. The defendant said, “That’s all you got [to]

       say Boo. And when I get out man, I promise you, you don’t got to worry

       [a]bout this . . . no more[.]” Id. Referencing the three strikes law, defendant

       noted that if he got into any future trouble with the law, “it’s the third time

       [and] it’s over man.” The State characterized this as the defendant promising a

       “problem free relationship” if the fiancée did as he asked. Id. The defendant

       was found guilty of attempted obstruction of justice based on that phone call.

       Citing Sheppard, a panel of this court reversed, holding that the defendant’s

       statements were not coercive because they did not indicate any consequence to

       his fiancée if she failed to comply. Id. Instead, the defendant’s promise was

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020        Page 16 of 20
       merely an opinion that their relationship would get better and there was no

       indication that “something would or would not happen to [the victim] if she

       cooperated with the State or if she declined to testify on [the defendant’s]

       behalf.” Id.6


[25]   However, the facts in the present case are distinguishable from those in Brown.

       Here, there is a clear indication that something would happen if Cook failed to

       comply with Scott’s requests: namely, that he would not get out of jail and she

       would still be working tirelessly caring for two children without his help. Scott

       implicitly assured Cook that he would help take care of their family when he

       got out of jail. In one phone call in August, Scott told Cook, “I know you want

       me home right there, baby. [It] [t]akes time, man, but . . . they got to go about

       procedures[.]” Exhibits, Vol. 1, Ex. 29B (Call 4) at 142. Cook responded,

       “Yeah, because I’m working long hours, babe. . . . I’m there because I . . . need

       to feed two.” Id. The language Scott used in the August phone call clearly

       articulated a consequence.


[26]   In addition, we find McElfresh v. State, 51 N.E.3d 103 (Ind. 2016), persuasive. In

       McElfresh, the defendant wrote a four-page letter from jail to the mother of one

       of the victims in his child molestation case pressuring her to find out “the truth”

       about the incident before his plea hearing. Id. at 106. Our supreme court




       6
         In addition, the defendant promised to perform certain sexual acts if his fiancée did as he asked. Id.
       Although this was a promise with a consequence, the court noted it was a declaration of what would happen
       if the fiancée did comply with his requests. Id.

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                          Page 17 of 20
       determined that the defendant’s repeated statements in the letter constituted an

       attempt to pressure and influence the mother to act as the defendant insisted.

       The court found the drumbeat of pressure was sufficient evidence to sustain the

       defendant’s conviction of attempted obstruction of justice. The facts in

       McElfresh are similar to the instant case. Here, we have a much louder drumbeat

       of pressure – the sheer number of phone calls that clearly spell out the

       consequences if Cook failed to do as Scott demanded.


[27]   We acknowledge that the term “consequence” may be commonly associated

       with a negative outcome or an adverse result. But it is defined as “something

       produced by a cause or necessarily following from a set of conditions.”

       Consequence, Merriam-Webster Dictionary, http://www.merriam-

       webster.com/dictionary/consequence (last visited January 29, 2020). Thus, a

       consequence is synonymous with a certain result or outcome and does not

       necessarily indicate a negative result. Our case law addressing coercion in the

       context of obstruction of justice requires only that the defendant indicate,

       explicitly or implicitly, a consequence – not a particular kind of consequence,

       such as a positive or negative one. Under these circumstances, a reasonable

       fact-finder could conclude that the pressure from repeated phone calls and the

       statement made by Scott in this context was coercive. Therefore, the State




       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020        Page 18 of 20
       presented sufficient evidence to prove the required base elements of obstruction

       of justice.7


[28]   Because the State established the required base elements under subsection (a) of

       the obstruction of justice statute, we now turn our attention to subsection (b).8

       To enhance Scott’s obstruction of justice conviction to a Level 5 felony under

       this subsection, the State had to prove beyond a reasonable doubt that Scott: 1)

       during the investigation of a domestic violence case or while a domestic

       violence case was pending, 2) offered, gave, or promised a benefit to Cook, (3)

       to abstain from attending or giving testimony at any hearing, trial, or

       deposition.


[29]   Scott was charged with multiple counts of domestic violence against Cook.

       Because we have already determined that Scott offered Cook to help with the

       children if she would help him get out of jail and that Cook missed three

       depositions and two trial dates, there is sufficient evidence to support Scott’s

       obstruction of justice conviction as a Level 5 felony.




       7
         Scott also argues that he did not make any false statements. Subsection (a) of the obstruction of justice
       statute is written in the disjunctive. Ind. Code § 35-44.1-2-2(a)(1). Thus, the State was only required to
       establish the element of coercion or false statement. Because we hold that the State met its burden to prove
       beyond a reasonable doubt that Scott induced Cook by coercion to abstain from attending depositions or trial
       to satisfy the crime of obstruction of justice, we need not discuss whether the State also proved Scott made
       any false statements.
       8
        Scott does not challenge his obstruction of justice conviction under subsection (b). However, we will briefly
       address it.

       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020                              Page 19 of 20
                                                Conclusion
[30]   We conclude that Scott forfeited his right to confrontation as to Cook’s prior

       statements due to his own wrongdoing and therefore, his Sixth Amendment

       rights were not violated by the admission of those statements. We also conclude

       that the State presented sufficient evidence to support Scott’s obstruction of

       justice conviction. Accordingly, we affirm.


[31]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-516 | January 31, 2020      Page 20 of 20
