Newland McElfresh v. State of Indiana ( 2015 )

Aug 07 2015, 9:30 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan W. Tanselle Gregory F. Zoeller
Capper Tulley & Reimondo Attorney General of Indiana
Brownsburg, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Newland McElfresh, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
32A01-1411-CR-514
v. Appeal from the Hendricks Superior
Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff. Judge
Cause No. 32D03-1305-FD-487
Baker, Judge.
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[1] Newland McElfresh appeals his convictions for Class D Felony Attempted
Obstruction of Justice1 and Class A Misdemeanor Invasion of Privacy,2 arguing
that there is insufficient evidence to support the convictions and that the trial
court erred in sentencing him. We find insufficient evidence supporting the
attempted obstruction of justice conviction and reverse that conviction. We
find insufficient evidence supporting the invasion of privacy conviction and
reverse, but find sufficient evidence supporting the lesser-included offense of
attempted invasion of privacy. We therefore remand to the trial court with
directions to enter judgment against McElfresh on one count of attempted
invasion of privacy and to sentence him accordingly.
Facts
[2] On November 11, 2012, the State charged McElfresh with twelve counts of
sexual offenses against three children, including T.W., in Cause No. 32D03-
1211-FC-144 (“FC-144”). Pending a trial in that case, McElfresh signed two
no-contact orders barring him from having any contact with the alleged victims.
In April 2013, McElfresh pleaded guilty to three counts of child molesting
involving T.W. and the two other victims.
1
Ind. Code § 35-44.1-2-2; Ind. Code § 35-41-5-1.
2
Ind. Code § 35-46-1-15.1.
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[3] On May 3, 2013, after entering a plea agreement with the State but prior to his
guilty plea hearing and sentencing, McElfresh wrote a four-page letter to T.W.’s
mother stating in relevant part as follows:
I would like for you to ask [T.W.] about the whole incident.
Why? Because it never happened!!! I never touched [T.W., K.,
or A.]!! I want to know why they said that happened, and how
their statements were exactly the same. I know you will be able
to get the truth out of [T.W.]
For something that NEVER happened, I want to know how they
stated in their deposition[3] something word for word as to what
happened. I know they talked to one another before they gave
their depositions. But, I also know that [K. and T.W.] are not
smart enough to have thought of this by themselves. Someone
told them what to say! . . . They were coached as [sic] what to
say, and I know if anyone could find out the truth, it would be
you!
You don’t have to reply and tell me what you find out, and in
truth you don’t even have to ask [T.W.], that would be up to you.
But, if I was you, I would really like to know the truth. . . .
I will be honest with you. I really wanted to take this to trial. I
know that I did not live in the house at the time of this allegation,
and if I could have gotten either [T.W. or K.] to admit it never
happened, they would have been charged with a “D” felony of
“False Informing.” They would have been charged with a felony
for it. More than likely they would have been put on probation
only, but they would have gotten themselves in serious trouble. I
am pretty sure my attorney would have made one of the girls tell
the truth. But, I told him I was guilty of other things and I really
3
While McElfresh refers to T.W.’s “deposition,” there is nothing in the record to indicate whether she gave
a deposition or merely gave a statement to police in the course of the child molest investigation.
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didn’t want to go after the girls, I just wanted to find out who
told them that. To me it is just amazing that I did things on the
31st of August. [A.] stated she was with [T.W.] when I did
things with [T.W.], but she said they were on the 31st. To me,
that is another reason I believe the girls all talked, and that was
something else my attorney wanted to go after the girls with
Conspiracy. That is another charge. They all would have had
talked to each other about different instances she said they
happened on the 31st of August. . . .
I would rather you not talk to the Prosecutor about this. I would
hope that [T.W.] would tell you the truth, that [K.] told her what
to say. . . .
State’s Ex. 5.
[4] After receiving the letter, T.W.’s mother, A.W., contacted the Hendricks
County Prosecutor’s Office and Avon Police Detective Brian Nugent. And on
May 9, 2013, the State charged McElfresh with obstruction of justice, a Class D
felony, and invasion of privacy, as a Class A misdemeanor. On July 16, the
State moved to dismiss the obstruction of justice count and to add a new count
of attempted obstruction of justice, a Class D felony, which the trial court
granted. Following a bench trial, the trial court found McElfresh guilty as
charged, entered judgment of conviction, and sentenced him to an aggregate
term of 600 days at the Department of Correction. McElfresh now appeals.
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Discussion and Decision
[5] McElfresh contends that the State presented insufficient evidence to support his
convictions. Our standard of review for sufficiency of the evidence claims is
well settled:
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence
most favorable to the trial court ruling and affirm the conviction
unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)
(internal quotation marks omitted).
I. Attempted Obstruction of Justice
[6] To convict McElfresh of attempted obstruction of justice, the State was required
to prove beyond a reasonable doubt that McElfresh took a substantial step
toward committing obstruction of justice, that is, knowingly or intentionally
inducing, by threat or coercion, T.W. to withhold or unreasonably delay in
producing any testimony. Ind. Code §§ 35-41-5-1, 35-44.1-2-2(a)(1)(A).
[7] At trial, the State presented evidence that McElfresh mailed the May 3 letter to
A.W. regarding her daughter T.W., a witness in the pending criminal
proceeding against him. The State argued that the letter was an effort to
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convince T.W. to change or withhold her testimony against him by threatening
prosecution against her for false informing and/or conspiracy. We note that
the trial court had not yet accepted McElfresh’s plea agreement at the time he
wrote the letter. Thus, there was still a possibility that he would face a trial and
T.W. would testify against him.
[8] In McElfresh’s letter, he accused T.W. of lying, contended that K. and T.W
were coached, that K. told T.W “what to say,” and that the girls conspired to
give false testimony. State’s Ex. 5. He contended that at trial his attorney
“would have made one of the girls tell the truth,” in which case, according to
McElfresh, the girls would have been charged with false informing. Id. And
McElfresh stated that his attorney “wanted to go after the girls with
Conspiracy. That is another charge.” Id. He contended that if T.W. will tell
the truth now there would be no consequences and that she would not face
“serious trouble.” Id. On the other hand, if she continued to lie and his case
were to be tried, her lies would be exposed and she would run the risk of
criminal liability. Finally, he implied that if she did not recant her statement to
law enforcement and tell “the truth” as he sees it, it would still be possible to
take the case to trial, in which event T.W. would suffer legal consequences for
having made false statements. Id.
[9] In other words, McElfresh essentially told T.W.’s mother that if T.W. intended
to lie under oath, she would face legal consequences for the dishonesty. That is
simply the truth. We cannot believe that in the State of Indiana it can
constitute a crime to make a true statement, even if the subject matter of the
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true statement involves the future testimony of a witness in a criminal
proceeding. There are certainly circumstances in which this crime is committed
when an individual writes a letter to someone with instructions to pass threats
or coercive statements onto a third party. But those circumstances are not
present in this case. We find that there is insufficient evidence supporting the
attempted obstruction of justice conviction, and reverse that conviction.
II. Invasion of Privacy
[10] To convict McElfresh of invasion of privacy as a Class A misdemeanor, the
State was required to prove beyond a reasonable doubt that McElfresh
knowingly or intentionally violated a no contact order. I.C. § 35-46-1-15.1(5).
McElfresh contends that, because the no contact order only applied to any
contact with T.W., his letter to A.W. did not constitute a violation of that
order.4
[11] But the State contends that McElfresh’s letter constituted an attempt to
indirectly contact T.W., which is sufficient to support his conviction. In
C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997), this Court noted
that “contact” may include communication that is “either direct or indirect and
is not limited by the means in which it is made known to another person.”
4
McElfresh contends that the letter did not ask A.W. to contact T.W. We disagree, inasmuch as it begins, “I
would like for you to ask [T.W.] about the whole incident.” State’s Ex. 5.
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Therefore, the mere fact that McElfresh’s attempted communication with T.W.
was indirect—via a third party—does not vitiate the conviction.
[12] Our inquiry does not end there, however, given that the contact between
McElfresh and T.W. was incomplete. In Huber v. State, this Court considered a
case in which there was an order of protection preventing Huber from
contacting his wife, Julie. 805 N.E.2d 887 (Ind. Ct. App. 2004). Huber
reached out to a domestic violence advocate and asked her to contact Julie on
his behalf. The domestic violence advocate refused, and no contact was made.
The State charged Huber with class B misdemeanor invasion of privacy, and
after he was convicted, he appealed. This Court reversed the conviction,
finding that while indirect communication can support an invasion of privacy
conviction, it must be a completed communication:
. . . [W]e find that the State failed to carry its burden on the material
element of Huber violating a Protective Order by contacting Julie,
either directly or indirectly. [The advocate] specifically told Huber
that she could not convey the message; therefore, Huber’s attempt to
contact Julie indirectly through [the advocate] was incomplete.
Accordingly, we must reverse[.]
[13] Id. at 892.
[14] In this case, likewise, while McElfresh may have made an attempt at indirect
communication with T.W., the contact was incomplete. There is no evidence
in the record that A.W. ever actually spoke to T.W. on behalf of McElfresh.
Therefore, we find insufficient evidence supporting the class A misdemeanor
invasion of privacy conviction.
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[15] When a conviction is reversed because of insufficient evidence, we may remand
to the trial court with instructions to enter a judgment of conviction on a lesser-
included offense if the evidence is sufficient to support the lesser offense.
Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006). Attempted
invasion of privacy is an inherently lesser-included offense of invasion of
privacy. We find that McElfresh’s conduct in this case—writing a letter to
T.W.’s mother with a request to communicate with T.W. on his behalf—
constituted a substantial step towards committing the crime of class A
misdemeanor invasion of privacy. Accordingly, we reverse McElfresh’s
invasion of privacy conviction and remand with instructions to enter judgment
for attempted invasion of privacy as a class A misdemeanor.
[16] Given that we have reversed both of McElfresh’s convictions and remand with
instructions for entry of judgment on a lesser-included offense, we need not
address his sentencing arguments. Instead, we instruct the trial court to
sentence McElfresh on the class A misdemeanor attempted invasion of privacy
conviction.
[17] The judgment of the trial court is reversed and remanded with instructions to
enter judgment for class A misdemeanor attempted invasion of privacy and to
resentence McElfresh accordingly.
Najam, J., and Friedlander, J., concur.
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