Elizabeth K. Cote v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2020
• Docket: 18A-CR-2942
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 20 2020, 9:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah K. Smith Curtis T. Hill, Jr. Sugar Creek Law Attorney General of Indiana Thorntown, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elizabeth K. Cote, July 20, 2020 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2942 v. Appeal from the Boone Circuit Court State of Indiana, The Honorable J. Jeffrey Edens, Appellee-Plaintiff Judge Trial Court Cause No. 06C01-1709-CM-1744

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 1 of 6 [1] Elizabeth Cote appeals her conviction of Class B misdemeanor harassment. 1

Elizabeth argues the State did not present sufficient evidence that she had no

intent of legitimate conversation with the victim of her offense, Julia Cote. We

affirm.

Facts and Procedural History [2] Elizabeth Cote is Andrew Cote’s mother. Andrew is married to Julia. On June

1, 2017, Elizabeth sent Andrew a series of voicemails and text messages about

Elizabeth’s car, which Andrew had in his possession, and about an alleged debt

Andrew owed to Elizabeth. Andrew called Elizabeth, but the conversation

ended in an argument and Andrew hung up on Elizabeth. Julia was present

during the call and could hear the call. Julia also heard the voicemails and read

the text messages.

[3] Later in the day, Julia sent Elizabeth a text message telling Elizabeth to “[l]eave

[her and Andrew] alone!!!” (State’s Ex. 1.) Elizabeth responded to Julia’s text

with a series of texts containing multiple obscenities regarding an alleged debt

that Andrew and Julia owed to Elizabeth. Later in the conversation, Elizabeth

sent Julia a text message that said, “No You got PREGNANT BY A BIGGER

AND YOUR A WET BACK SAY SOMETHING AT LEAST I PAY MY

BILLS AND CAN TAKE CARE I’D MYSELF YOU FUCK ING

1 Ind. Code § 35-45-2-2(a)(2).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 2 of 6 PARASITE…….WHORE[.]” (State’s Ex. 3) (errors and emphasis in original).

Julia responded, and Elizabeth sent a text message stating, “Text Me again find

out what happens YOU DIRTY FUCK ING MEXICAN YEAH YOUR

FUCK ING FILTHY[.]” (State’s Ex. 4) (errors and emphasis in original).

[4] Julia sent Elizabeth two text messages saying, “Are you threatening me? And

I’m not a Mexican bro.” (Id.) Elizabeth responded,

You are A FUCK ING IDIOT AND YEAH YOU ARE A WET BACK MEXICAN…..AGAIN TALKING SHIT YOU KNOW NOTHING ABOUT …..RETARDED…..YOU FUCK OVER EVERYONE YOU COME IN CONTACT WITH……THAT’S WHY YOUR CREDIT SUCKS…….YOU FILTHY P.O.S…….YOU KNOW NOTHING ABOUT ANDREW. HE WILL TIRE OF YOUR BULLSHIT AND KEEPING THAT’S HOW YOU TRY TO GET OUT OF PAYING PEOPLE…….THAT’S, BECAUSE YOU ARE NASTY DIRTY FUCKING MEXICAN…….AND EVERYBODY IN LEBANON SAYS YOU ARE…..”

(State’s Ex. 4-6) (errors and emphasis in original). Elizabeth then sent Julia a

text threatening to file charges against Julia for stalking and blocked Julia’s

telephone number from Elizabeth’s cell phone.

[5] Andrew and Julia reported the messages to the police because “Andrew[] was

getting ready to leave for the military for A-T for two weeks, and [Julia] had his

nephews over and our concern was that [Elizabeth] may have um would’ve

done something that would have injured us or the kids[.]” (Tr. Vol. II at 14.)

On September 18, 2017, the State charged Elizabeth with Class B misdemeanor

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 3 of 6 harassment. On October 26, 2018, the trial court conducted a bench trial, and

on November 6, 2018, the trial court issued its order finding Elizabeth guilty of

Class B misdemeanor harassment. In its order, the trial court quoted the

portion of the text conversation between Elizabeth and Julia from State’s

Exhibits 3-6, quoted supra, and stated:

23. [Julia] is not of a Mexican heritage.

24. [Julia] did not inject her heritage into the conversation.

25. Without question, that part of the conversation quoted above was not legitimate communication on the part of [Elizabeth].

26. [Julia] was alarmed by the tone of the conversation.

*****

29. The only reasonable conclusion the Court can make is that [Elizabeth] made the comments quoted above with the intent to harass annoy or alarm [Julia].

(App. Vol. I at 13-4.) At the sentencing hearing on November 29, 2018, the

trial court ordered Elizabeth to pay $185 in court costs but did not sentence her

to jail time or probation.

Discussion and Decision [6] When reviewing the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 4 of 6 fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

fact-finder’s role, and not ours, to assess witness credibility and weigh the

evidence to determine whether it is sufficient to support a conviction. Id. To

preserve this structure, when we are confronted with conflicting evidence, we

consider it most favorably to the fact-finder’s verdict. Id. We affirm a

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id. It is therefore not necessary that the

evidence overcome every reasonable hypothesis of innocence; rather, the

evidence is sufficient if an inference reasonably may be drawn from it to support

the fact-finder’s decision. Id. at 147.

[7] To prove Elizabeth committed Class B misdemeanor harassment, the State was

required to present evidence that she “with intent to harass, annoy, or alarm

another person but with no intent of legitimate communication . . .

communicates with a person by telegraph, mail, or other form of written

communication[.]” Ind. Code § 35-42-2-2(a)(2). Elizabeth argues the State did

not prove she had “no intent of legitimate communication” because “the theme

of the conversation references the debt owed to [Elizabeth] and the lack of effort

on the part of Andrew and Julia to repay the money.” (Br. of Appellant at 11.)

[8] However, the trial court provided a very detailed order in which it specifically

stated that it considered Elizabeth’s comments regarding Julia’s alleged heritage

when it found Elizabeth guilty of Class B misdemeanor harassment. The trial

court referenced the portions of the conversation in which Elizabeth told Julia

that Julia and Andrew owed Elizabeth money, but the trial court explicitly

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 5 of 6 stated that it did not base Elizabeth’s conviction on that portion of the

conversation. Elizabeth’s argument asks us to consider the conversation as a

whole, instead of relying on the portion of the conversation the trial court found

to be harassment. We cannot reweigh evidence or judge the credibility of a

witness on appeal, Drane, 867 N.E.2d at 146, and thus we decline her invitation

to do so.

[9] Further, this case was tried to the bench, and we presume the judge knows and

properly applies the relevant law to the facts of the case. Laughlin v. State, 101

N.E.3d 827, 830 (Ind. Ct. App. 2018). Based thereon, we conclude the State

presented sufficient evidence that Elizabeth committed Class B misdemeanor

harassment. See Kinney v. State, 404 N.E.2d 49, 50 (Ind. Ct. App. 1980)

(affirming Kinney’s conviction of Class B misdemeanor harassment based on a

series of calls in which Kinney accused the victim of “promiscuous sexual

behavior” and “[n]o personal or business transactions occurred during these

phone calls”).

Conclusion [10] The State presented sufficient evidence that Elizabeth committed Class B

misdemeanor harassment. Accordingly, we affirm.

[11] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2942 | July 20, 2020 Page 6 of 6