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Herron v. State

Court of Appeals of Indiana

September 30, 2016

Duane Herron, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal 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, Indiana

          Crone, Judge.

         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 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 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 ...


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