Duane Herron v. State of Indiana, 2016 Ind. App. LEXIS 360

Duane Herron was charged with multiple counts after contacting his girlfriend, Jennifer Goble, from jail despite a no-contact order; calls included requests that she not remember events or not show up to his trial.
State charged Herron with three counts of class A misdemeanor invasion of privacy and one count of Level 6 felony attempted obstruction of justice.
The obstruction charge alleged attempted absenting of a person from a proceeding under Ind. Code § 35-44.1-2-2(a)(2)(C) (i.e., that Herron engaged in conduct constituting a substantial step toward absenting Goble from a legally summoned proceeding).
At trial Herron moved for a directed verdict on the attempted obstruction count, arguing the State charged the wrong statutory subsection and presented no evidence of the elements as charged; the trial court denied the motion and the jury convicted him.
On appeal Herron argued the record was devoid of evidence supporting the elements of the crime as charged because (a)(2)(C) criminalizes a defendant’s own absence, not inducing a witness’s absence; the Court of Appeals considered whether denial of the directed verdict was error.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Herron)	Held
Whether the trial court erred in denying Herron’s motion for directed verdict on attempted obstruction of justice where the charging subsection was (a)(2)(C)	The statute’s phrase “the person” is broad; Goble qualifies as “the person” under (a)(2)(C), so the State presented sufficient evidence that Herron took substantial steps to absent her	(Herron) Subsection (a)(2)(C) applies to a person absenting himself/herself; (a)(1)(C) covers inducing a witness to be absent; State proved inducement of a witness, not the defendant’s own absence, so no evidence supports the elements of the charged subsection	The court held the statute is unambiguous: (a)(1)(C) targets inducing a witness/informant’s absence, (a)(2)(C) targets a person’s own absence; because the State charged (a)(2)(C) and presented no evidence Herron attempted to absent himself, the directed verdict should have been granted and the conviction reversed.

Garcia v. State, 979 N.E.2d 156 (Ind. Ct. App. 2012) (standard for judgment on the evidence/directed verdict)
State v. Dugan, 793 N.E.2d 1034 (Ind. 2003) (statutory interpretation—give plain meaning to unambiguous text)
Kelly v. State, 535 N.E.2d 140 (Ind. 1989) (different statutory subsections may define distinct crimes; State cannot charge under one part and convict under another)
Brown v. State, 859 N.E.2d 1269 (Ind. Ct. App. 2007) (definition of threat or coercion in obstruction-of-justice context)
Addis v. State, 404 N.E.2d 59 (Ind. Ct. App. 1980) (precedent cited on distinctness of statutory subsections)