Elizabeth K. Cote v. State of Indiana (mem. dec.) ( 2020 )

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).
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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
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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
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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.
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