Opinion
24A-CR-186
08-21-2024
Brandi Michelle Holder, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
APPELLANT PRO SE Brandi M. Holder Boonville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Warrick Circuit Court The Honorable Greg A. Granger, Judge Trial Court Cause No. 87C01-2112-F6-642
APPELLANT PRO SE
Brandi M. Holder
Boonville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
Chief Judge Altice and Judge May concur.
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Brandi Michelle Holder appeals from her convictions of one count of Level 6 felony perjury and one count of Class B misdemeanor false informing, contending that (1) there is insufficient evidence to support her conviction for perjury and (2) the trial court abused its discretion by declining to give her requested jury instructions. We affirm.
Facts and Procedural History
[¶2] Holder has three children. Of those children, one was fathered by Colton Heck. In October 2021, Holder had three orders of protection preventing Heck from contacting her and her children.
[¶3] On October 27, Holder and Heck attended a court hearing about parenting time with their child. The hearing began at around 2:30 p.m. and lasted for about an hour. Surveillance video from the former courthouse located across the street from the Judicial Center revealed the following events. At 4:10 p.m. Heck parked his truck in the parking space next to his girlfriend's vehicle in a parking space across from the Judicial Center. Heck's girlfriend exited his truck and entered her vehicle after several minutes passed. Heck's girlfriend then backed her vehicle out of the parking space and left.
[¶4] Approximately twenty seconds after Heck's girlfriend left in her vehicle, Holder pulled her vehicle into that unoccupied parking space. Holder remained in her vehicle for three minutes prior to exiting. Heck started to back his vehicle out of the parking space as Holder walked in front of the truck. Holder reached for her phone and took a photograph of Heck. He took out his phone and photographed Holder before continuing to back out of the parking space. Heck then drove away.
[¶5] Thereafter, Holder called law enforcement officers to the scene. Boonville Police Department Officer Trevor Haynes responded to the call at around 4:20 p.m. and took Holder's report that Heck had violated the protective orders by following her. Holder signed a report form under penalty of perjury that Heck "followed [her] to gymnastics and pulled into a parking spot . . . and motioned me to come over to his vehicle." Appellant's Amended App. Vol. II, p. 2. Holder shared the photograph she had taken of Heck with Officer Haynes.
[¶6] Detective Adam Wilmes was assigned to investigate the allegation that Heck had violated the protective orders entered in favor of Holder. After speaking with Heck, Detective Wilmes retrieved surveillance footage from the Judicial Center.
[¶7] A week later, Holder spoke with Boonville Police Officer Justice Goeken, inquiring about the status of her complaint. She reiterated that she had been followed by Heck. She further explained that she was on her way home when she decided to go to the gymnastics building instead. She "guessed" that Heck must have followed her "the whole way" even though she did not see him. Tr. Vol. II, pp. 65, 81. She maintained that when she parked her vehicle, Heck pulled up next to her car.
[¶8] Due to the discrepancies between the surveillance video evidence and Holder's sworn statement, the State charged Holder with one count of Level 6 felony perjury and one count of Class B misdemeanor false informing.
[¶9] At trial, Holder testified that she left her parking spot, drove a friend to her vehicle, drove around the courthouse square, and then drove toward her house. After arriving home, she received a telephone call from her mother informing her that her mother had taken her oldest daughter to gymnastics. Holder then decided to drive to her daughter's gymnastics class. She claimed that after she arrived at the gymnasium, unbeknownst to her, she had pulled into a parking spot next to Heck's truck, which was not the vehicle he usually drove. She said she sat in her vehicle for three minutes while she was on the telephone with someone but could not remember with whom she spoke. Holder said she thought Heck had pulled into his parking spot after her because she did not notice him at first, but then he honked the horn at her. She also stated she filed the police report because she believed Heck followed her because he had done so in the past.
[¶10] Holder proposed two final instructions which the trial court declined to give. At the conclusion of the trial, the jury found Holder guilty as charged. The court sentenced Holder to one year for her perjury conviction and one hundred eighty days for false informing to be served concurrently, with all time suspended to probation.
Discussion and Decision
I. Sufficiency of the Evidence
[¶11] Holder contends the evidence is insufficient to support her conviction of Level 6 felony perjury. We cannot agree.
[¶12] "When reviewing the sufficiency of the evidence required to support a conviction, we do not reweigh the evidence or judge the credibility of the witnesses." Lawson v. State, 199 N.E.3d 829, 837 (Ind.Ct.App. 2022), trans. denied. "Rather, we consider only the evidence supporting the judgment and reasonable inferences that can be drawn therefrom." Id. "Where there is conflicting evidence, we must consider the evidence in the light most favorable to the conviction." Id. "We will affirm if there is substantial evidence of probative value from which the trier of fact could find guilt beyond a reasonable doubt." Id. "The evidence need not overcome every reasonable hypothesis of innocence; it is sufficient if an inference may be reasonably drawn from it to support the verdict." Id. "[W]hen determining whether an element exists, the jury may rely on its collective common sense and knowledge acquired through everyday experiences." Halsema v. State, 823 N.E.2d 668, 673 (Ind. 2005). A conviction may be based solely on circumstantial evidence. Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
[¶13] To convict Holder of perjury, the State was required to establish beyond a reasonable doubt that Holder made "a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true." See Ind. Code § 35-44.1-2-1 (2014). "An alleged false statement which gives rise to a charge of perjury must be a statement of fact and not a conclusion, opinion, or deduction from given facts." Blackburn v. State, 495 N.E.2d 806, 808 (Ind.Ct.App. 1986), trans. denied. "Materiality has been defined as that which is reasonably calculated to mislead an investigation." Daniels v. State, 658 N.E.2d 121, 123 (Ind.Ct.App. 1995). "The State is not required to prove actual impairment of the investigation." Wilke v. State, 496 N.E.2d 616, 618 (Ind.Ct.App. 1986). "'Mere potential influence with a line of inquiry is sufficient to establish materiality.'" Id. (quoting U.S. v. McComb, 744 F.2d 555, 563 (7th Cir. 1984)). And because knowledge is a mental state, the trier of fact must resort to reasonable inferences based on the surrounding circumstances to reasonably infer its existence. Goble v. State, 766 N.E.2d 1, 7 (Ind.Ct.App. 2002).
[¶14] Holder's statement that Heck followed her was a false statement. She called 911 to report that Heck had followed her and then completed a written statement alleging that Heck had "followed" her. Appellant's Amended App. Vol. II, p. 2. A week later, Holder inquired about the status of her complaint and stated to a different officer that Heck had followed her. During those three statements, Holder never varied in her description that Heck "followed" her. She provided a photograph of Heck that she took after she says he pulled into the parking space next to her. Surveillance footage categorically refuted Holder's statements that Heck had followed her. The jury reasonably concluded that Holder engaged in an intentional misrepresentation.
[¶15] On appeal, Holder claims that she was confused and that her statements should be taken in context. See Appellant's Br. pp. 13-14. However, the jury had the opportunity to observe the witnesses and judge their credibility. And the jury was not required to believe Holder's explanation of the events presented at trial. See Kimbrough v. State, 911 N.E.2d 621, 636 (Ind.Ct.App. 2009) ("jury was not required to credit [defendant's] self-serving version of events"). Her argument is an invitation to reweigh the evidence, a task we decline to undertake. See McHenry v. State, 820 N.E.2d 124, 126-27 (Ind. 2005) (improper to reweigh evidence and to substitute our judgment for that of jury).
[¶16] Next, we conclude that Holder's statement was material. Holder's use of the word "follow" caused the investigation into Heck's potential violation of protective orders entered against him. Detective Wilmes testified that Holder's use of the word "follow" was of great consequence because it described a criminal act supporting potential invasion of privacy charges against Heck. Nonetheless, Holder argues that the word "follow" is not material because "everything else [she] said was true[,]" Appellant's Br. p. 14, claiming that Heck also "honked his horn and motioned for her to come over to his vehicle . . . ." Reply Br. p. 7. However, Detective Wilmes testified that "[t]he word follow is a leading factor in the allegation." Tr. Vol. II, p. 79.
[¶17] For all of the reasons set forth above, we conclude there is sufficient evidence to support Holder's conviction for Level 6 felony perjury.
II. Jury Instructions
[¶18] Holder contends that she was entitled to an instruction "on any theory of defense which has some foundation in the evidence ...." Appellant's Br. p. 15. And she responded to the State's waiver argument by claiming that the trial court erred by refusing to give her tendered Defendant's Instructions Number 1 and 2 when the law stated in them "is still 'good law'" and by giving "no reason for denying [them]." Reply Br. p. 9.
[¶19] Potential waiver aside, "[t]he manner of instructing a jury is left to the sound discretion of the trial court." Albores v. State, 987 N.E.2d 98, 99 (Ind.Ct.App. 2013), trans. denied. "We review the trial court's decision only for an abuse of that discretion." Id. "On review of a trial court's decision to refuse a proposed jury instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence, and (3) is covered in substance by other instructions that are given." Id. "[J]ury instructions must be considered as a whole and in reference to each other." R.T. v. State, 848 N.E.2d 326, 332 (Ind.Ct.App. 2006), trans. denied. "Thus, the trial court's ruling will not be reversed unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the jury." Id. at 331-32.
[¶20] Holder's proposed instructions read as follows:
Defendant's Final Instruction 1
In prosecution for Perjury, evidence must not only show that Brandi Michelle Holder swore falsely in fact, but also that she did so willfully, corruptly and knowingly, and if she carelessly swore to a fact she later learned was false if she had been cautious, [sic] she is not guilty of Perjury.
Gardner v. State. 229 Ind. 368
Defendant's Final Instruction 2
Brandi Michelle Holder cannot be guilty of Perjury where her statement is according to her belief and conviction to its truth.
Gardner v. State. 229 Ind. 368Appellant's Amended App. Vol. 2, pp. 64-65 (formatting modified).
[¶21] The trial court properly declined to give both instructions because they are not correct statements of the law. Gardner v. State, 97 N.E.2d 921 (Ind. 1951), cited by Holder, was decided according to the terms of a former version of the perjury statute. The Court set out the version of the statute at the time, which was "Whoever willfully, corruptly and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily makes any false certificate, affidavit or statement of any nature, for any purpose, shall be deemed guilty of perjury ...." Id. at 373-374. However, that version of the statute has been codified and amended under Indiana Code section 35-44.1-2-1. The current version of the perjury statute no longer requires the State to prove the defendant willfully and corruptly swore falsely. See I.C. § 35-44.1-2-1. Consequently, the trial court did not abuse its discretion by refusing to give Holder's instructions, which contained misstatements of the law and likely would have confused the jury about its responsibility.
[¶22] Holder's argument that she was not citing to a prior version of the statute, but case law, fares no better. She claims that "[w]ithout other authority overturning Gardner v. State[,] 229 Ind. 368 (1951), the law stated in Defendant's Final Instructions 1 and 2 is still 'good law' in Indiana." Reply Br. p. 9. We cannot agree.
[¶23] Gardner was correctly decided based upon the statutory law in effect at the time it was decided. The statutory language of the perjury statute has significantly changed since 1951. And the trial court correctly declined to give an instruction which is covered by other instructions. Here, the trial court instructed the jury:
A person who makes a false, material statement under oath or affirmation knowing the statement to be false commits perjury, a Level 6 felony.
Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. made a false, material statement
3. under oath or affirmation
4. when the Defendant knew the statement was false.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of perjury, a Level 6 felony, as charged in Court 1.Appellant's Amended App. Vol. 2, p. 50. The jury was instructed that it could not convict Holder if the State failed to prove she knew her statement was false. Thus, the substance of Defendant's Final Instruction 2 was covered by the court's instruction. And the court's instruction was a correct statement of the law.
[¶24] We conclude that the trial court did not abuse its discretion by refusing to give Holder's instructions.
Conclusion
[¶25] In light of the foregoing, we affirm the trial court's judgment in all respects.
[¶26] Affirmed.
Altice, C.J., and May, J., concur.