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McElfresh v. State

Supreme Court of Indiana

March 3, 2016

NEWLAND MCELFRESH, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below)

          Appeal from the Hendricks Superior Court, No. 32D03-1305-FD-00487. The Honorable Karen Love, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 32A01-1411-CR-00514.

         ATTORNEYS FOR APPELLANT: Ryan W. Tanselle, Capper Tulley & Reimondo, Brownsburg, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, Indiana.

         David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.

          OPINION

         David, Justice.

         While Newland McElfresh was in jail awaiting his guilty plea hearing, he wrote an intimidating and coercive letter to the mother of the child victim who was the subject of the child molestation charges McElfresh was intending to plead guilty to. The letter and the surrounding circumstances provided sufficient evidence to support a conviction for attempted obstruction of justice. A reasonable trier of fact could have concluded that McElfresh's intent in sending the letter was an attempt to influence the child into changing her prior allegations against him before the court accepted his guilty plea. Regardless of whether some of the statements within the letter were true, true statements may still be coercive and sufficient to support an obstruction of justice conviction. We also hold that the trial court should have considered McElfresh's participation in various programs while incarcerated as a mitigating factor, but any error was harmless. As such, McElfresh's conviction for attempted obstruction of justice and sentence are affirmed.

         Facts and Procedural History

         In November 2011, Newland McElfresh was charged with twelve counts of various sex offenses, including: child molesting, performing sexual conduct in the presence of a minor, vicarious sexual gratification, and attempted child solicitation. These charges arose from allegations made by three young girls, A.S., K.S., and T.W., each of whom was under the age of fourteen at the time the alleged incidents occurred. At the time of his arrest, McElfresh was served with a no-contact order in relation to each of the child victims. McElfresh was advised that he was not to have any direct or indirect contact with the victims.

         On April 24, 2013, McElfresh filed a plea agreement, in which he agreed to plead guilty to three counts of Class C Felony Child Molesting. On May 1st, the trial court set McElfresh's plea hearing for June 3rd.[1] Before the plea hearing, on May 3rd, McElfresh wrote a letter to A.W., T.W.'s mother, from jail. Prior to this incident, A.W. and McElfresh had known one another for several years, and the two had been neighbors since 2002. The letter spanned four pages, and began with McElfresh claiming that he was " embarrassed and ashamed of what [he had] done," and he " accept[ed] full responsibility for [his] actions and blame[d] no one but [himself]." (Exhib. 5, at 1.) However, McElfresh then attempted to explain how he could not be guilty of the child molesting allegations. He stated, " I would like for you to ask [T.W.] about the whole incident. Why? Because it never happened!!! I never touched [T.W., K.S., or A.S.]!! I want to know why they said that happened. . . . I know you will be able to get the truth out of [T.W.]." (Id. at 2.) McElfresh believed " [s]omeone told them what to say!" and " [t]hey were coached on what to say, and I know if anyone could find out the truth, it would be you!" (Id.)

         As the letter went on, McElfresh explained " [y]ou 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." (Id.) But then, he stated he had wanted to go to trial, and " [i]f [he] had gotten either [T.W.] or [K.S.] 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 into serious trouble." (Id. at 3.) In addition, McElfresh pointed out that the girls could also have been exposed to additional criminal charges, such as conspiracy. As the letter concluded, McElfresh asked that A.W. " not talk to the Prosecutor about this." (Id. at 4.)

         After receiving the letter, A.W. immediately contacted the prosecutor, and a couple of days later, she also contacted Detective Brian Nugent, who had been the investigating detective on the case. As a result of this letter, McElfresh was charged with Count I, Class D Felony Obstruction of Justice[2] and Count II, Class A Misdemeanor Invasion of Privacy.[3] Count I was subsequently dismissed, and Count III, Class D Felony Attempted Obstruction of Justice,[4] was added. McElfresh waived his right to a jury trial, and a bench trial proceeded. After presentation of the evidence, the trial court found McElfresh guilty on both counts and sentenced him to an aggregate term of 600 days executed in the Department of Correction, to be served consecutively to his sentence in the child molesting cause.

         McElfresh appealed his convictions and sentence. The Court of Appeals held that there was insufficient evidence to support McElfresh's conviction for attempted obstruction of justice, explaining that " 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 true statement involves the future testimony of a witness in a criminal proceeding." McElfresh v. State, 40 N.E.3d 1259, 1262 (Ind.Ct.App. 2015), vacated. The court also held that because there was no evidence that A.W. talked to T.W. upon McElfresh's direction, the communication was incomplete. Id. at 1263-64. The invasion of privacy conviction was vacated, and the case remanded with instructions to enter a judgment for attempted invasion of privacy. Id. The court did not address McElfresh's sentencing argument, but rather instructed the trial court to enter a new sentence based only on the conviction for attempted invasion of privacy. Id. at 1264.

         This Court granted transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals only on the issue of vacating the invasion of privacy conviction and ordering a judgment of Class A Misdemeanor Attempted Invasion of Privacy be entered. See Ind. Appellate Rule 58(A)(2).

         Standard of Review

          When the sufficiency of the evidence supporting a conviction is challenged, this Court will " neither reweigh the evidence nor judge the credibility of the witnesses." Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005) (internal quotation and citations omitted). The conviction will be affirmed " if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. at 906. " [W]e consider conflicting evidence most favorably to the trial court's ruling." Id.

          Sentencing decisions " rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). " An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and ...


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