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.
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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.
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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
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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
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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.
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[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.
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[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.
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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
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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.
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(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.
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[19] Reversed.
Kirsch, J., and May, J., concur.
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