Charge under wrong part of statute reverses conviction

A man’s conviction of attempted obstruction of justice was reversed Friday by the Indiana Court of Appeals because the state charged him under the wrong part of the statute.

Duane Herron was convicted of the Level 5 felony as well as Level 6 battery, three misdemeanor invasion of privacy counts and misdemeanor interference with the reporting of a crime in St. Joseph Superior Court.

Herron was issued no-contact orders against his alleged victim, but he called her from jail and begged her not to testify against him, and he also called others and urged them to persuade the victim not to testify or appear at his trial.

The state charged Herron with attempted obstruction under Indiana Code 35-44.1-2-2(a)(2)(C), which refers to a defendant absenting himself from a proceeding or investigation to which he has been summoned rather than subpart (a)(1)(C), which criminalizes attempts to induce a witness to absent herself from  a proceeding or investigation to which they’ve been summoned.

"Because the State chose to charge Herron pursuant to subpart (a)(2)(C), and because there is no evidence that Herron attempted to absent himself from his criminal proceeding, the record is devoid of evidence on one or more elements of the charged offense. Therefore, the trial court erred in denying Herron’s motion for a directed verdict," on the attempted obstruction charge, Judge Terry Crone wrote for the panel. "His conviction for attempted obstruction of justice is reversed."

The case is Duane Herron v. State of Indiana, 71A04-1602-CR-306. Herron’s other convictions were not challenged in this appeal.