from the St. Joseph Superior Court The Honorable Elizabeth C.
Hurley, Judge Trial Court Cause No. 71D08-1507-F6-480
ATTORNEY FOR APPELLANT Donald J. Berger Law Office of Donald
J. Berger South Bend, Indiana
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of
Indiana Caryn N. Szyper Deputy Attorney General Indianapolis,
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
and Procedural History
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
indirectly…." State's Ex. 2. On January, 27,
2015, Herron's criminal trial was set for March 26, 2015.
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."
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.
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.
On July 7, 2015, Herron telephoned Goble from jail and
discussed his upcoming trial. During that conversation,
because Goble would not really talk 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.
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 ...