                                                                       FILED
                                                                  Sep 30 2016, 9:22 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald J. Berger                                           Gregory F. Zoeller
Law Office of Donald J. Berger                             Attorney General of Indiana
South Bend, Indiana
                                                           Caryn N. Szyper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Duane Herron,                                              September 30, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A04-1602-CR-306
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable Elizabeth C.
Appellee-Plaintiff                                         Hurley, Judge
                                                           Trial Court Cause No.
                                                           71D08-1507-F6-480



Crone, Judge.




Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016               Page 1 of 11
                                              Case Summary
[1]   Duane Herron appeals his conviction for level 6 felony attempted obstruction of

      justice, following a jury trial. Herron’s central assertion on appeal is that the

      State was unable to present sufficient evidence to establish that he committed

      attempted obstruction of justice as charged because the State charged him under

      the wrong part of the obstruction of justice statute. We restate the dispositive

      issue as whether the trial court erred in denying Herron’s motion for directed

      verdict on that basis. Concluding that the trial court erred, we reverse Herron’s

      conviction for attempted obstruction of justice. 1


                                  Facts and Procedural History
[2]   The relevant facts indicate that in January 2015, the State charged Herron with

      level 6 felony battery and class A misdemeanor interference with reporting a

      crime under cause number 71D08-1501-F6-000017. Jennifer Goble, the woman

      Herron was dating and living with at the time, was the alleged victim of

      Herron’s crimes and was “listed as the State’s witness on the charges filed with

      the Court.” Appellant’s App. at 153. Accordingly, the trial court issued a no-

      contact order preventing Herron from contacting Goble “in person, by

      telephone or letter, through an intermediary, or any other way, directly or




      1
       We note that Herron was also convicted of three counts of class A misdemeanor invasion of privacy, but he
      does not challenge those convictions on appeal. Therefore, those convictions stand.

      Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016                  Page 2 of 11
      indirectly….” State’s Ex. 2. On January, 27, 2015, Herron’s criminal trial was

      set for March 26, 2015.


[3]   On February 11, 2015, Herron contacted Goble by telephone from the St.

      Joseph County Jail. During that conversation, Herron begged Goble that, if

      she was subpoenaed to testify at his trial, to just not “remember what

      happened” and to “please just forget.” State’s Ex. 3B. Two days later, Herron

      again telephoned Goble and told her “all you gotta do is not show up for trial”

      because “if they don’t have no witness or no victim, then there’s nothing they

      can charge me with … they don’t have no choice but to dismiss the charges.”

      Id.


[4]   Herron also telephoned Dawn Dalgarn, the mother of his daughter. He

      directed Dalgarn to go to Goble’s house, which she did, to try to get Goble to

      not testify against him. He instructed Dalgarn, “If you gotta sit there and

      f**king cry to that girl …. If you gotta pay … whatever … do what you have to

      do …. Just be nice. Talk to her on a regular basis …. And just, just try to get

      me out of here man.” State’s Ex. 4.


[5]   On February 24, 2015, the State served Goble with a subpoena to testify at

      Herron’s trial set for March 2015. The trial was subsequently continued and,

      on June 18, 2015, the trial was reset for August 2015. The State again served

      Goble with a subpoena to testify.


[6]   On July 7, 2015, Herron telephoned Goble from jail and discussed his

      upcoming trial. During that conversation, because Goble would not really talk

      Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 3 of 11
      about the trial, Herron attempted to convince her to take him back, telling her

      that is was not too late to “fix” this, referring to their relationship. State’s Ex.

      3C. Following that call, Goble received several more calls from the St. Joseph

      County Jail, but she did not answer those calls.


[7]   Thereafter, the State charged Herron with three counts of class A misdemeanor

      invasion of privacy based upon his phone calls to Goble in violation of the no-

      contact order, and one count of level 6 felony attempted obstruction of justice

      based on his attempts to dissuade Goble from testifying as a witness at his

      criminal trial. A jury trial was held on December 10, 2015. Following the

      State’s presentation of evidence, the defense moved for a directed verdict on the

      attempted obstruction of justice charge. Specifically, defense counsel argued

      that the State charged Herron pursuant to the wrong part of the obstruction of

      justice statute, and therefore the State could not prove its case as charged. The

      trial court denied the motion. At the conclusion of trial, the jury found Herron

      guilty on all counts. Herron now appeals his attempted obstruction of justice

      conviction.


                                      Discussion and Decision
[8]   Herron argues that the State was unable to present sufficient evidence to

      establish that he committed attempted obstruction of justice as charged because

      the State charged him under the wrong part of the obstruction of justice statute.

      Although Herron frames the issue on appeal as a challenge to the sufficiency of

      the evidence to sustain his conviction, we think that the issue is more properly


      Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 4 of 11
       framed as whether the trial court erred in denying his motion for a directed

       verdict.


[9]    Indiana Trial Rule 50(A) governs motions for directed verdict, which are also

       called motions for judgment on the evidence, and provides:

               Where all or some of the issues in a case tried before a jury ... are
               not supported by sufficient evidence or a verdict thereon is clearly
               erroneous as contrary to the evidence because the evidence is
               insufficient to support it, the court shall withdraw such issues
               from the jury and enter judgment thereon or shall enter judgment
               thereon notwithstanding a verdict.


       When a defendant moves for judgment on the evidence, the trial court is

       required to withdraw the issues from the jury if: (1) the record is devoid of

       evidence on one or more elements of the offense; or (2) the evidence presented

       is without conflict and subject to only one inference, which is favorable to the

       defendant. Garcia v. State, 979 N.E.2d 156, 157 (Ind. Ct. App. 2012).


[10]   Our standard of review on appeal is the same as the trial court in determining

       the propriety of a judgment on the evidence. Id. at 158. We must view the

       evidence in a light most favorable to the party against whom judgment on the

       evidence would be entered, and we may not invade the province of the jury by

       weighing the evidence presented or the credibility of witnesses. Id. A

       defendant’s motion for judgment on the evidence should not be granted if the

       State presents a prima facie case. Id.




       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 5 of 11
[11]   The relevant portions of the obstruction of justice statute, Indiana Code Section

       35-44.1-2-2, provide as follows:

               (a) A person who:

               (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;

                        (B) avoid legal process summoning the person to testify or
                        supply evidence; or

                        (C) absent the person from a proceeding or investigation to
                        which the person has been legally summoned;

               (2) knowingly or intentionally in an official criminal proceeding
               or investigation:

                        (A) withholds or unreasonably delays in producing any
                        testimony, information, document, or thing after a court
                        orders the person to produce testimony, information,
                        document, or thing;

                        (B) avoids legal process summoning the person to testify or
                        supply evidence; or

                        (C) absents the person from a proceeding or investigation
                        to which the person has been legally summoned;

               …

               commits obstruction of justice, a Level 6 felony.


       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 6 of 11
[12]   Here, the State charged Herron with attempted obstruction of justice pursuant

       to Indiana Code Section 35-44.1-2-2(a)(2)(C). Specifically, the charging

       information alleged:

               On or between January 12, 2015 through July 10, 2015 in St.
               Joseph County, State of Indiana, [Herron] in an official
               proceeding, cause 71D08-1501-F6-000017, did knowingly engage
               in conduct of calling Jennifer Goble and that conduct constituted
               a substantial step toward absenting Jennifer Goble from a
               proceeding to which she had been legally summoned. All of
               which is contrary to the form of the statutes in such cases made
               and provided by I.C. 35-44.1-2-2(a)(2)(C) and I.C. 35-41-5-1 ….


       Appellant’s App. at 151. 2


[13]   Herron argues that subpart (a)(2)(C) of the obstruction of justice statute clearly

       refers to a defendant in an official criminal proceeding or investigation

       absenting himself or herself from a proceeding or investigation to which he or

       she has been legally summoned, while subpart (a)(1)(C) refers to a person

       inducing a witness or informant in an official proceeding or investigation to

       absent himself or herself from a proceeding or investigation to which the

       witness or informant has been legally summoned. Because the State chose to

       charge him under subpart (a)(2)(C), and because there is no evidence that he

       attempted to absent himself from his criminal proceeding, he argues that the




       2
         “A person attempts to commit a crime when, acting with the culpability required for commission of the
       crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.”
       Ind. Code § 35-41-5-1.

       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016                     Page 7 of 11
       record is devoid of evidence on one or more elements of the offense as charged.

       Thus, he argues, the trial court should have granted his motion for directed

       verdict.


[14]   The State counters that both statutory provisions simply refer to absenting “the

       person” from a proceeding or investigation to which the person has been legally

       summoned, and that “Goble, as a person, clearly fits within the statutory

       meaning of ‘the person’ that Herron attempted to absent” pursuant to either

       subpart. Appellee’s Br. at 10-11. The State further asserts that the meaning of

       the phrase “the person” cannot be limited to a witness or informant in subpart

       (a)(1)(C) and to the defendant in subpart (a)(2)(C) as Herron suggests, because

       it would be illogical to presume that the legislature intended for the phrase “the

       person” to have two different meanings within the same statute. Id.


[15]   We note that the interpretation of a statute is a question of law reserved for the

       courts. Garcia, 979 N.E.2d at 158. A statute with clear and unambiguous

       language is not subject to judicial interpretation. Id. We simply give effect to

       the plain and ordinary meaning of the statute’s language, heeding both what it

       “does say” and what it “does not say.” State v. Dugan, 793 N.E.2d 1034, 1036

       (Ind. 2003).


[16]   We find the statutory language at issue here, when read as a whole and in

       context, to be unambiguous. Indiana Code Section 35-44.1-2-2(a)(1)(C)

       provides that a person who knowingly or intentionally induces, by threat,

       coercion, or other listed means, “a witness or informant in an official


       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 8 of 11
       proceeding or investigation to … absent the person from a proceeding or

       investigation to which the person has been legally summoned” commits

       obstruction of justice. (Emphasis added.) Subpart (a)(2)(C) makes no similar

       reference to a witness or informant, but provides that a person who knowingly

       or intentionally in an official criminal proceeding or investigation “absents the

       person from a proceeding or investigation to which the person has been legally

       summoned” commits the same crime. Ind. Code § 35-44.1-2-2(a)(2)(C)

       (emphasis added). The phrase “the person” as used in subpart (a)(1)(C) clearly

       refers to absenting a witness or informant from a proceeding or investigation to

       which the witness or informant has been legally summoned, while the same

       phrase used in subpart (a)(2)(C) clearly refers to a person absenting himself or

       herself from a proceeding or investigation to which he or she has been legally

       summoned. 3


[17]   In asserting that it would be illogical to presume that the legislature intended for

       the phrase “the person” to have two different meanings within the same statute,

       the State ignores what part (a)(1) “does say” and what part (a)(2) “does not

       say.” As noted above, part (a)(1) specifically refers to a witness or informant,

       and part (a)(2) does not. Certainly, our legislature would have included a

       reference to a witness or informant in part (a)(2) if it intended for that part to

       also apply to a witness or informant. In short, the plain language of subpart




       3
         Our pattern criminal jury instructions regarding obstruction of justice lend ample support to this meaning of
       the above-referenced statutory language. See Ind. Pattern Criminal Jury Instructions Nos. 5.1600 and 5.1620.

       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016                      Page 9 of 11
       (a)(1)(C) criminalizes the act of coercing a witness or informant to be absent

       from a proceeding, while the plain language of subpart (a)(2)(C) criminalizes

       the personal act of being absent from a proceeding. These are two distinct

       crimes. 4


[18]   Accordingly, we agree with Herron that “the person” as used in Indiana Code

       Section 35-44.1-2-2(a)(2)(C) refers only to a person absenting himself or herself

       from a proceeding or investigation to which the person has been legally

       summoned. Because the State chose to charge Herron pursuant to subpart

       (a)(2)(C), and because there is no evidence that Herron attempted to absent

       himself from his criminal proceeding, the record is devoid of evidence on one or

       more elements of the charged offense. 5 Therefore, the trial court erred in

       denying Herron’s motion for a directed verdict. His conviction for attempted

       obstruction of justice is reversed.




       4
         On a similar note, when considering a prior version of our criminal confinement statute, Indiana Code
       Section 35-42-3-3, our supreme court held that the State could not charge a defendant under part (a)(1) of the
       statute but obtain a conviction based solely on proof under part (a)(2), or vice versa, because the two parts
       state two different crimes. Kelly v. State, 535 N.E.2d 140, 141-42 (Ind. 1989) (citing Addis v. State, 404 N.E.2d
       59, 60-61 (Ind. Ct. App. 1980)).
       5
         Even had the State charged Herron with attempted obstruction of justice for attempting to absent Goble
       pursuant to subpart (a)(1)(C) of the statute, a directed verdict still would have been warranted. The record is
       devoid of evidence that Herron attempted to induce Goble by “threat, coercion or false statement” to be
       absent from his criminal trial to which she had been legally summoned. See Brown v. State, 859 N.E.2d 1269,
       1271 (Ind. Ct. App. 2007) (explaining the definition of threat or coercion in the context of obstruction of
       justice), trans. denied.

       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016                       Page 10 of 11
[19]   Reversed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 71A04-1602-CR-306 | September 30, 2016   Page 11 of 11
