Thaddaus Scott v. State of Indiana

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.

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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.

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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.

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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

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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.

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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

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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

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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

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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

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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:

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(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

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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.

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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

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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.

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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

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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.

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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.

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