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Letter to victim’s mother supports lesser misdemeanor charge

August 7, 2015

A defendant’s rambling letter to a victim’s mother was not enough to uphold his convictions for attempted obstruction of justice and invasion of privacy, but it was sufficient to support a lesser charge.  

Newland McElfresh pleaded guilty to three counts of child molesting in April 2013. Prior to his hearing and sentencing, he wrote a four-page letter to the mother of one of the abused minors.

The state subsequently charged McElfresh with invasion of privacy, a Class A misdemeanor, and attempted obstruction of justice, a Class D felony. Following a bench trial, the Hendricks Superior Court found McElfresh guilty of these two charges and sentenced him to an aggregate term of 600 days in the Indiana Department of Correction.

On appeal, the Indiana Court of Appeals overturned the two convictions on the grounds the evidence was insufficient. However, in Newland McElfresh v. State of Indiana, 32A01-1411-CR-514, the appellate court found the evidence supported the lesser-included offense of attempted invasion of privacy.

The panel noted McElfresh was not threatening the child but simply telling the mother the truth that her child would face legal consequences for making false statements to police. That does not constitute trying to coerce the witness to change future testimony.

Also, the Court of Appeals found that although McElfresh may have attempted to indirectly communicate with the child, the contact was not completed. Under Huber V. State, 805 N.E. 2d 887 (Ind. Ct. App. 2004), this is a requirement to support an invasion of privacy charge.

Still, the appellate court found McElfresh’s writing of the letter and requesting the mother to talk to the minor child was a “substantial step” toward committing another crime. The Court of Appeals then remanded with instructions to enter judgment for attempted invasion of privacy, a Class A misdemeanor.

   
 

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