Jennifer Cook v. State of Indiana

FILED Mar 31 2020, 10:12 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE James H. Voyles, Jr. F. Aaron Negangard Tyler D. Helmond Chief Deputy Attorney General Voyles Vaiana Lukemeyer Baldwin & Evan Matthew Comer Webb Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jennifer Cook, March 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2225 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1805-F6-2921

Brown, Judge. Court of Appeals of Indiana | Opinion 19A-CR-2225 | March 31, 2020 Page 1 of 13 [1] Jennifer Cook appeals her conviction for attempted obstruction of justice as a

level 6 felony. We affirm.

Facts and Procedural History [2] Darren Collins lived at a residence in Ogilville in Bartholomew County for

close to fifty years. Collins became aware of a dispute between Cook and the

Brumleys regarding noise coming from Cook’s house. Collins lived less than a

quarter mile from Cook’s residence, the noise bothered him, and he called and

made reports about it. At some point, a court proceeding was initiated as a

result of the dispute, and Collins was subpoenaed to provide a deposition for

the trial. [3] On April 26, 2018, Collins was mowing his cousin’s property, and Cook, whom

he had not previously met, stood in the path of the mower and motioned for

him to stop. Collins stopped the mower and removed his earplugs so he could

hear what she was saying. Cook told him she wanted to meet him and he was

one of the persons suing her, even though he had not sued her. She stated she

wanted to know why he “was doing this” and asked what he “had to gain from

this.” Transcript Volume II at 25. Collins said he did not know he was suing

her, and she said, “well you are one of the persons that is involved with this.”

Id. Collins believed she was referring to the case with the Brumleys. Cook said

he had made numerous reports and she had a “document file of all of the times

that [he had] called in.” Id. at 26. Cook told him he “needed to consider what

was going on and take this opportunity to bow out of the proceedings so that . .

. [he] wouldn’t be further involved and . . . that [he] wouldn’t lose anything in Court of Appeals of Indiana | Opinion 19A-CR-2225 | March 31, 2020 Page 2 of 13

the end.” Id. She also said that she was a successful woman and “she had uh,

the proof of that, by her home, and her cars and all of that, that she was a

winner” and he “could stand to lose everything, and that [he] would wind up

with nothing.” Id. She also told him he “needed to make the right decision.”

Id. at 28. After the conversation, Collins was a “nervous wreck,” started

parking his car differently, did not stay at home “a lot,” and was “just tore up.”

Id. at 29. [4] At some point, Collins made a complaint with the prosecutor’s office, and

Bartholomew County Sheriff’s Detective William Kinman obtained a recorded

statement from Collins. [5] On May 25, 2018, the State charged Cook with attempted obstruction of justice

and intimidation as level 6 felonies related to her alleged conduct on April 26,

2018, and attempted obstruction of justice and intimidation as level 6 felonies

related to other alleged conduct on May 17, 2018. On January 31, 2019, the

court granted the State’s motion to dismiss the two charges of intimidation. [6] On July 24, 2019, the court held a bench trial. Detective Kinman and Collins

testified. On cross-examination, Cook’s counsel stated: “[Y]ou told the

Detective that you didn’t hear much that she said, because you had your

headset on, your ear plugs on and the mower was running?” Id. at 42. Collins

answered: “Initially.” Id. When asked at what point he removed the earplugs,

he answered “[a]s soon as she started to talk.” Id. When asked if he told

Detective Kinman that he did not remember what Cook said because he was on

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the mower with earplugs on, he answered affirmatively. The court admitted a

transcript of his statement to Detective Kinman in which Collins at one point

stated that he did not remember what Cook said because he was on the mower

and had his earplugs in half the time, but also detailed Cook’s statements to

him. [7] After the State rested, Cook’s counsel moved for a dismissal pursuant to Ind.

Trial Rule 41(B), which the court denied. Cook testified that a dispute arose

over noise coming from her house, she knew Collins made some police reports,

she was facing criminal charges related to the noise, she never said anything

about suing him or that he would lose anything, she believed she had been

falsely charged over the noise, and she did not threaten him or try to intimidate

him. [8] The court found Cook guilty of attempted obstruction of justice as a level 6

felony relating to April 26, 2018, and not guilty of attempted obstruction of

justice related to May 17, 2018. The court sentenced Cook to one year all

suspended to probation.

Discussion [9] Cook argues the State failed to prove threat or coercion regarding a specific

official proceeding or investigation because the content of the communication

between Collins and Cook is unclear. She asserts the essence of the

communication between them was that they should solve any differences they

had as neighbors and without the need for the intervention of others. She also

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relies upon the rule of lenity and asserts the conviction is grounded in an

ambiguous interpretation of obstruction of justice. The State asserts Cook’s

conviction rests on substantial evidence. [10] When reviewing the sufficiency of the evidence to support a conviction,

appellate courts must consider only the probative evidence and reasonable

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). It is the factfinder’s role, not that of appellate courts, to assess witness

credibility and weigh the evidence to determine whether it is sufficient to

support a conviction. Id. Appellate courts, when confronted with conflicting

evidence, must consider the evidence most favorable to the trial court’s ruling.

Id. We will affirm unless no reasonable factfinder 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. [11] Ind. Code § 35-44.1-2-2 governs obstruction of justice and provides that “[a]

person who . . . 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 . . . withhold or

unreasonably delay in producing any testimony, information, document, or

thing . . . commits obstruction of justice, a Level 6 felony . . . .” An “‘[o]fficial

proceeding’ means a proceeding held or that may be held before a legislative,

judicial, administrative, or other agency or before an official authorized to take

evidence under oath, including a referee, hearing examiner, commissioner,

notary, or other person taking evidence in connection with a proceeding.” Ind.

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Code § 35-31.5-2-218. The State alleged that Cook “did knowingly or

intentionally attempt to induce by threat or coercion Darren L. Collins, a

witness in an official proceeding or investigation, to withhold testimony.”

Appellant’s Appendix Volume II at 15. [12] 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. A

“substantial step” for purposes of the crime of attempt, is any overt act beyond

mere preparation and in furtherance of intent to commit an offense. Hughes v.

State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992). Whether a defendant has

taken a substantial step toward the commission of the crime is a question of fact

to be decided by the trier of fact based on the particular circumstances of the

case. Id. When determining whether the defendant has taken a substantial step

toward a crime, the focus is on what has been completed, not on what remains

to be done. Id. at 132. [13] “Under the obstruction of justice statute, the term ‘coercion’ ‘carries with it, at a

minimum, the sense of some form of pressure or influence being exerted on the

will or choice of another.’” McElfresh v. State, 51 N.E.3d 103, 108 (Ind. 2016)

(quoting Sheppard v. State, 484 N.E.2d 984, 988 (Ind. Ct. App. 1985), reh’g

denied, trans. denied) (italics omitted). “The form of pressure or influence ‘may

vary widely—and certainly includes harassment, physical force, intimidation,

and threats—as long as it is exerted knowingly or intentionally to induce

conduct by a witness or informant that is proscribed’ by the obstruction of

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justice statute.” Id. (quoting Sheppard, 484 N.E.2d at 988). In addition, the

failure to comply must be accompanied by a consequence. Id. (citing Brown v.

State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007), trans. denied). “If there is no

consequence, the ‘statement is not coercive, but is merely a request.’” Id.

(quoting Brown, 859 N.E.2d at 1271). The Indiana Supreme Court has held

that “true statements may still be coercive and sufficient to support an

obstruction of justice conviction.” Id. at 106. [14] The record reveals that Collins became aware of a dispute between Cook and

the Brumleys regarding noise coming from Cook’s house which resulted in a

court proceeding. At some point, Collins was subpoenaed to provide a

deposition for the trial. Collins testified that Cook told him he “needed to

consider what was going on and take this opportunity to bow out of the

proceedings so that . . . [he] wouldn’t be further involved and . . . that [he]

wouldn’t lose anything in the end.” Transcript Volume II at 26. She also said

that she was a successful woman and “she had uh, the proof of that, by her

home, and her cars and all of that, that she was a winner” and he “could stand

to lose everything, and that [he] would wind up with nothing.” Id. We

respectfully disagree with the dissenting opinion’s characterization of the

statements by Cook to Collins, who was a witness subpoenaed to provide a

deposition, that he needed to take the opportunity to bow out of the

proceedings so that he would not lose anything in the end, that he could stand

to lose everything, and that he would wind up with nothing, as merely a

standard conversation between neighbors. When asked if he believed she was

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threatening him with something, he answered affirmatively. To the extent

Cook asserts that Collins admitted he was initially wearing ear protection and

did not understand much of what was said, Collins testified that he removed his

earplugs “[a]s soon as she started to talk.” Id. at 42. [15] Based upon the record, we conclude the State presented evidence of probative

value from which the trier of fact could find beyond a reasonable doubt that

Cook committed attempted obstruction of justice as a level 6 felony. 1 See

McElfresh, 51 N.E.3d at 109-111 (holding that a reasonable fact finder could

conclude that the letter sent by defendant was coercive within the meaning of

the obstruction of justice statute and that defendant was guilty of attempted

obstruction of justice). [16] To the extent Cook relies upon the rule of lenity, the Indiana Supreme Court

has held that if we conclude a statute is ambiguous, then we resort to the rules

of statutory interpretation to fulfill the legislature’s intent, which includes the

rule of lenity, which requires interpreting the statute in the defendant’s favor as

1 To the extent Cook cites Robinson v. State, 126 N.E.3d 807 (Ind. Ct. App. 2019), and Brown v. State, 859 N.E.2d 1269 (Ind. Ct. App. 2007) trans. denied, we find those cases distinguishable. In Robinson, the court held that, “although there is no doubt that Robinson attempted to induce K.R. to withhold testimony, none of Robinson’s statements explicitly or implicitly indicate any consequence to K.R. if she failed to comply” and that “Robinson’s statements amount only to requests that are not sufficient to constitute coercion.” Robinson, 126 N.E.3d at 810. In Brown, the court held that the defendant’s statements “were only promises with no declaration of consequences for failure to comply” and “[w]ithout a declaration of a consequence for failure to comply, these statements cannot be coercive.” Brown, 859 N.E.2d at 1271. The court also held that the defendant’s statement of a promise to perform sexual acts was a promise with a declaration of a consequence but “the standard for coercive behavior is a declaration of consequences that would follow for failure to comply” and because the statement “had no indication of what would happen if she did not comply, the statement was not coercive.” Id. In light of Collins’s testimony regarding Cook’s statements that he could stand to lose everything and that he would wind up with nothing, we find Robinson and Brown distinguishable.

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far as the language can reasonably support. Day v. State, 57 N.E.3d 809, 813

(Ind. 2016). In Gomillia v. State, which is cited by Cook, the Court discussed the

obstruction of justice statute, observed that penal statutes should be construed

strictly against the State and ambiguities should be resolved in favor of the

accused, noted that the State was required to prove that Gomillia knew the

statements were false when he communicated them to a witness and not just

that the statements were in fact false, and held that there was no evidence that

Gomillia knew the statements were false. 27 N.E.3d 1175, 1178 (Ind. Ct. App.

2015). We note that the State did not allege Cook provided a false statement.

Further, Cook does not specifically suggest what is ambiguous about the

statute. We cannot say that the rule of lenity requires reversal. [17] For the foregoing reasons, we affirm Cook’s conviction. [18] Affirmed.

Riley, J., concurs.

Baker, J. dissents with opinion.

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IN THE COURT OF APPEALS OF INDIANA

Jennifer Cook, Court of Appeals Case No. 19A-CR-2225 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Baker, Judge, dissenting. [19] I respectfully dissent. [20] According to Darren Collins, on April 26, 2018, Jennifer Cook approached him

while he was mowing his lawn and said the following:

Yeah, she told me there that uh, you know, that I needed to consider what was going on and take this opportunity to bow out of the proceedings so that, you know, that, that way with that I wouldn’t be further involved and you know that, that I wouldn’t lose anything in the end. Uh she said that she is a successful women [sic] and that she had uh, the proof of that, by her home, and her cars and all of that, that she was a winner and said that,

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you know, I could stand to lose everything, and that I would wind up with nothing.

Tr. Vol. II p. 26. It is based on this testimony that the jury found Cook guilty of

Level 6 felony attempted obstruction of justice. And here, the majority affirms

that conviction, finding that a reasonable trier of fact could have convicted

Cook of the underlying criminal offense based on this evidence alone. [21] However, I believe that this result ventures into questionable territory. Though

we are not triers of fact and it is not our job to reweigh evidence on appeal, see

Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005), in my view, this testimony,

viewed in a light most favorable to the trial court’s judgment, does not establish

an attempted threat or coercion from Cook, a required showing under the

obstruction of justice statute. 2 [22] Under First Amendment principles, it is well established that “[s]tatutes which

threaten to inhibit the exercise of constitutional rights or which impose criminal

penalties are subjected to greater scrutiny and less vagueness is tolerated in

them than in other types of laws.” Helton v. State, 624 N.E.2d 499, 506 (Ind. Ct.

App. 1993). Though I do not question the constitutionality of the obstruction of

justice statute, I note that we must evaluate these types of statutes with greater

scrutiny, as they can chill ordinary speech between private individuals. And in

my opinion, this colloquy between Cook and Collins amounts to a standard

2 See generally Ind. Code § 35-44.1-2-2(a)(1).

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conversation between neighbors, plain and simple. Cook approached Collins

while he was mowing his lawn, Collins was wearing earbuds and listening to

music, and beyond Collins testifying that he “started parking the car differently

and . . . didn’t stay home a lot,” tr. vol. ii p. 29, he did not testify that he

thought Cook would actually come through on anything she said. [23] It is true that Collins had previously given a deposition for a court proceeding

involving Cook. But to convict Cook of attempted obstruction of justice for the

aforementioned language is concerning and, quite frankly, a bit of a stretch.

Nothing in this criminal statute precludes Cook from discussing the case with

her friends, family, or even random strangers. And going forward, it is worth

wondering what other “threatening” or “coercive” language might be

proscribed under this statute and under the analysis employed by the majority. [24] In other words, should a conviction like this be upheld, I am worried that other

individuals might be caught in the crosshairs of criminal prosecution for

attempted obstruction of justice should they engage in similar conversations. If

anything, we would encourage friends and neighbors to resolve disputes

amongst themselves without any court involvement; allowing Cook’s

conviction to stand could discourage these very resolutions from taking place.

In my view, the evidence here is insufficient to support a conviction for

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attempted obstruction of justice, and no reasonable factfinder could find the

elements of this crime proved beyond a reasonable doubt. 3 [25] For the foregoing reasons, I would reverse Cook’s conviction. I respectfully

dissent.

3 I also take issue with the majority’s outright dismissal of Robinson v. State, 126 N.E.3d 807 (Ind. Ct. App. 2019), and Brown v. State, 859 N.E.2d 1269 (Ind. Ct. App. 2007) as persuasive. Instead of contrasting the substance of Cook’s alleged “threats” with the language found by the Robinson and Brown Courts to be non- coercive, the majority simply declares that Cook’s statements about how Collins “could stand to lose everything” and “would wind up with nothing,” tr. vol. ii p. 26, are distinguishable. Nothing in the majority’s analysis explains why Cook’s statements are any different or more threatening, and, in lieu of probing further, the majority shifts to a discussion on the rule of lenity.

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