MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 21 2020, 9:40 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE James H. Voyles, Jr. Tiffany A. McCoy Tyler D. Helmond Deputy Attorney General Voyles Vaiana Lukemeyer Baldwin & Indianapolis, Indiana Webb Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jennifer Cook, August 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3058 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff Judge Trial Court Cause No. 03D01-1711-F6-6183
Crone Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 1 of 16 Case Summary [1] A jury convicted Jennifer Cook of two counts of level 6 felony stalking and
ordered her to pay $800 in restitution to her victims, Brian and Katrina Brumley
(collectively the Brumleys). Cook appeals, contending that the trial court
abused its discretion in admitting certain testimony and that the evidence is
insufficient to support her convictions. She also challenges the trial court’s
restitution order. We affirm Cook’s convictions and remand with instructions
to correct the restitution order.
Facts and Procedural History [2] The facts most favorable to the jury’s verdict are as follows. For nearly a
decade, the Brumleys have lived in their rural Bartholomew County home with
their teenage daughter (Daughter), who suffers from uncontrollable,
unsustainable epilepsy and has the cognitive function of a fifth grader. The
family has historically owned Great Pyrenees dogs to protect their goats, ducks,
chickens, miniature donkey, and miniature horse from predators such as
coyotes, foxes, and bobcats. A few years after the Brumleys moved in, Cook
and her husband moved into the large house across the road and erected an iron
and brick fence around the house. At first, the relationship between Cook and
the Brumleys was amicable, but it began to deteriorate in late 2016, shortly after
the Brumleys purchased their most recent Great Pyrenees dog (the Dog). Cook
complained about the Dog running loose on the Brumleys’ property and
defecating in the corner of her lot outside the fence. The Brumleys responded
by cleaning up the Dog’s feces and attempting to keep the Dog confined. The
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 2 of 16 Dog barked when confined and sometimes broke free of its restraints, and Cook
continued to complain. In an effort to muffle the sound, the Brumleys tried
moving the Dog to various areas on the property farther from Cook’s house. At
no time did the Dog bite or act aggressively toward any person.
[3] In April 2017, Cook set up loudspeakers and pointed them toward the
Brumleys’ house. She began playing recordings of animal noises, including
barking, goat sounds, and animal call noises designed to attract predators. She
often played the recordings throughout the night until dawn. The first time she
did this, Daughter woke up in a panic, thinking that her baby goat, which she
showed at the 4-H fair, had escaped from its pen. She woke up Mrs. Brumley,
and the two searched outside and determined that the loud goat noises were
coming from Cook’s yard. When they peered through the shrubs to see if the
baby goat was there, a deep voice warned, “[D]on’t move or I am going to
shoot you[.]” Tr. Vol. 2 at 149. When the panicked Daughter asked for her
goat, Cook replied that she did not have it. The Brumleys phoned 911. A few
minutes later, a police officer arrived, and Cook refused to open her gate for the
officer. It was discovered that the goat noises had been a recording emanating
from Cook’s loudspeakers and that Daughter’s baby goat had not gotten loose.
[4] Cook continued this pattern of blasting the animal noises throughout the
summer and through October 2017. She posted a sign on her fence stating that
animal sounds would be played from 9:00 p.m. to 9:00 a.m. as part of a study
and notifying readers not to contact her about the noises. State’s Ex. 11. The
noises agitated the Brumleys’ animals. On one occasion, Cook blasted the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 3 of 16 animal noises for seventy-two consecutive hours. Between April and October
2017, the Brumleys lost fifteen to twenty animals to predators. The Brumleys
(and other neighbors who heard the loud noises) called 911, which precipitated
regular visits from law enforcement, sometimes multiple visits in a single day.
Each time, Cook refused to speak to police. When she finally spoke to Captain
David Steinkoenig, he warned her to stop playing the recordings or risk a
disorderly conduct charge. She told him that she began playing the recordings
because the Brumleys’ animals had irritated her for years and that when she
learned that the recordings were agitating the animals, she continued to play
them for revenge.
[5] Cook also installed surveillance cameras, several of which she positioned
directly toward the Brumleys’ house. When the cameras picked up any outdoor
activity by the Brumleys or showed them arriving home from work, Cook
would begin blasting the animal noises. When the animal noises were not
playing and Cook saw any of the Brumleys outside, she yelled profanities,
ridiculed them for their economic status, and made remarks about Daughter’s
seizures. When she did not see them, she sent them text messages, insulting
them and calling them pathetic pieces of excrement. In August 2017, she sent
text messages warning them that she had made arrangements to buy their house
in foreclosure so she could bulldoze it to make room for a pole barn. State’s
Ex. 46. Daughter’s epileptic seizures increased in severity and frequency due to
lack of sleep and her fear of going outside. On at least one occasion, Cook flew
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 4 of 16 a drone over the Brumleys’ goat pens, low enough that it frightened and
antagonized the goats and the Dog.
[6] Police obtained a search warrant for Cook’s property and recovered
surveillance cameras, monitors, computers, cell phones, and speakers/audio
devices. The State charged Cook with one count of level 6 felony stalking of
Mrs. Brumley and one count of level 6 felony stalking of Mr. Brumley. The
jury convicted her as charged, and the trial court sentenced her to concurrent
two-year terms, with four months executed and twenty months suspended to
probation. The court also ordered her to pay the Brumleys $800 as restitution.
Cook now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in admitting the challenged testimony. [7] Cook contends that the trial court erred in admitting certain testimony by Mr.
Brumley. We review evidentiary rulings for an abuse of discretion resulting in
prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of
discretion occurs when the trial court’s ruling is either clearly against the logic
and effect of the facts and circumstances before it or the court misinterprets the
law. Id.
[8] Cook asserts that certain testimony by Mr. Brumley allegedly amounted to an
inadmissible opinion on the ultimate question of her guilt. See Ind. Evidence
Rule 704(b) (prohibiting witness from giving “opinions concerning intent, guilt,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 5 of 16 or innocence in a criminal case.”). Cook was convicted of two counts of level 6
felony stalking, which required the State to prove that she (1) knowingly or
intentionally; (2) engaged in a course of conduct involving repeated or
continuing harassment of another person; (3) that would cause a reasonable
person to feel terrorized, frightened, intimidated, or threatened; and (4) that
actually caused the victim to feel terrorized, frightened, intimidated, or
threatened. Ind. Code § 35-45-10-1.
[9] Cook challenges the admissibility of the following testimony provided by Mr.
Brumley during direct examination:
A: There, there was an incident where I was, I had been fishing, and I was cleaning fish and kind of heard something and looked around, I thought my wife was calling me. And uh, first time and then it happened again, I mean, looking around and uh I can … then I finally recognized the defendant and she was in between the brick uh support for the fence and her shrub, and she was saying something to me. I could hear some, but I tried not to pay attention. And uh I just shook my head, uh probably said you’re crazy, or something like that and uh went on. And then went on cleaning my fish and then, at a point where I wasn’t mak[ing] noise of something I heard her say you’re going to need one.
Q: You had no idea what that was referring to?
A: Uh, no. I mean it was a threat of some kind.
Tr. Vol. 3 at 230-31. Defense counsel objected on grounds of Indiana Evidence
Rule 704(b), but the objection was overruled. Mr. Brumley went on to state
that Cook had said, “you are going to need one. I took that as a threat.” Id. at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 6 of 16 231. When asked if that caused him to feel threatened, Mr. Brumley said that it
did. Id. at 232.
[10] Cook claims that the foregoing testimony amounted to an opinion by Mr.
Brumley that she was guilty of stalking him. In support of her argument, Cook
cites Williams, where an officer testified that he observed what he characterized
as a “transaction for cocaine.” 43 N.E.3d at 582. The Williams court found the
characterization to be an improper statement that invaded the province of the
jury by establishing the ultimate issue of the defendant’s guilt for dealing in
cocaine. Id.
[11] Cook’s argument is misplaced. Mr. Brumley simply described Cook’s conduct
and then said that he interpreted it as a threat. In other words, Cook’s conduct
actually caused him to feel threatened. This speaks to only one of the four
elements of the offense, i.e., that the defendant’s conduct actually caused the
victim to feel terrorized, frightened, intimidated, or threatened. Proof of this
element requires resort to the thoughts and impressions of the victim. Mr.
Brumley’s testimony does not amount to an opinion on the ultimate issue of
Cook’s guilt. As such, the trial court acted within its discretion in admitting the
testimony.
Section 2 - The evidence is sufficient to support Cook’s convictions. [12] Cook also challenges the sufficiency of the evidence to support her convictions.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 7 of 16 evidence nor judge witness credibility. Moore v. State, 27 N.E.3d 749, 754 (Ind.
2015). Rather, we consider only the evidence and reasonable inferences most
favorable to the verdict and will affirm the conviction unless no reasonable
factfinder could find the elements of the crime proven beyond a reasonable
doubt. Id. Reversal is appropriate only when reasonable persons would be
unable to form inferences as to each material element of the offense. McCray v.
State, 850 N.E.2d 998, 1000 (Ind. Ct. App. 2006), trans. denied. The evidence
need not “overcome every reasonable hypothesis of innocence.” Dalton v. State,
56 N.E.3d 644, 647 (Ind. Ct. App. 2016) (citation omitted), trans. denied.
[13] Cook was convicted of two counts of level 6 felony stalking. As stated, stalking
is a
knowing or intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened. The term does not include statutorily or constitutionally protected activity.
Ind. Code § 35-45-10-1. Harassment is “conduct directed toward a victim that
includes but is not limited to repeated or continuing impermissible contact that
would cause a reasonable person to suffer emotional distress and that actually
causes the victim to suffer emotional distress. Harassment does not include
statutorily or constitutionally protected activity[.]” Ind. Code § 35-45-10-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 8 of 16 “Impermissible contact includes but is not limited to knowingly or intentionally
following or pursuing the victim.” Ind. Code 35-45-10-3 (2017).1
[14] For the first time on appeal, Cook raises as part of her sufficiency argument a
claim that her conduct amounted to constitutionally protected speech. A
constitutional claim is waived if it is not first presented below. Pava v. State, 142
N.E.3d 1071, 1075 (Ind. Ct. App. 2020), trans. denied. Cook failed to raise this
issue in the trial court and therefore has waived review of it. Even so, we note
that surveilling the Brumleys through cameras pointed directly at their house
and through the use of a drone cannot be considered speech at all, let alone
constitutionally protected speech. Moreover, police officers had specifically
warned Cook that her conduct amounted to criminal conduct, and her text
messages confirm that she knew that she was crossing the line between
exercising her free speech right to play animal noises and engaging in illegal
conduct. State’s Ex. 43. 2
1 In 2019, the legislature amended Indiana Code Section 35-45-10-3 to expressly include communications in person, in writing, by telephone, by electronic means, or through social media. Both versions of the statute clearly state that the list of acts constituting impermissible contact is nonexclusive. 2 Cook also claims that the offenses were imprecisely charged in the information and that, as a result, she was not put on notice concerning the specific conduct that served as the basis for the charges against her. The proper method for challenging deficiencies in a charging information is by filing a motion to dismiss the information no later than twenty days before the omnibus date, in cases involving felony charges. Leggs v. State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012); Ind. Code § 35-34-1-4(a)(4), -(b)(1). Cook did not do so. Thus, absent a showing of fundamental error, she has waived this issue for consideration on appeal. Truax v. State, 856 N.E.2d 116, 123 (Ind. Ct. App. 2006). Cook did not allege fundamental error, so we need not resolve the issue.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 9 of 16 [15] Although Cook alleges that the evidence was insufficient as to both of her
stalking convictions, she focuses her argument on the count involving Mr.
Brumley. She essentially claims that the evidence was insufficient to establish
at least two incidents of conduct, aimed at Mr. Brumley, that would cause a
reasonable person to feel threatened. We disagree. In addition to the fish-
cleaning incident discussed in Section 1 of this decision, Mr. Brumley recalled
another specific incident in which he was working on his motorcycle and Cook
said, “[W]hy don’t you be a little bit louder, so that the IRS can hear you and
come take your, come take your property.” Tr. Vol. 3 at 234. 3 This was
especially significant to Mr. Brumley when considered in conjunction with
other economic threats that Cook made to the Brumleys in a series of text
messages, declaring her intention to buy his family’s home out from under them
at an upcoming foreclosure sale. See, e.g., Id. at 235 (Mr. Brumley’s testimony
describing text from Cook stating that “a pole barn was going to look nice on
her property, after she owns our house and bulldozes it to the ground”). We
also note that both instances involved an element of surprise, where
unbeknownst to Mr. Brumley, Cook had been watching him and suddenly
broke into his presumed solitude and made him feel threatened with her
warnings and admonitions.
3 One or two days later, the Brumleys unexpectedly received correspondence in the mail from the IRS. Although the correspondence was later determined to have been sent by mistake, it seemed a startling coincidence to receive it so quickly after Cook had warned Mr. Brumley about the IRS coming to take their property.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 10 of 16 [16] Overall, Mr. Brumley’s testimony shows a protracted pattern of daily/nightly
conduct by Cook, aimed directly at him (and his wife), where the cumulative
effect of the conduct was greater than the sum of a couple isolated parts.
Cook’s barrage of harassment made him feel frightened and intimidated to the
point that he purchased a concealed carry permit. He testified that he dreaded
coming home from work each evening because he knew that he would be
constantly watched and that the animal noises would begin. He described the
effect of Cook’s behavior as follows: “You’re constantly looking over your
shoulder … glancing to see if someone is there, you’re watched.” Tr. Vol. 3 at
229. He testified that he had experienced prolonged sleep deprivation due to
Cook’s persistent “daytime and nighttime” conduct. Id. at 227. He also
experienced an increase in parental fear for the life of his seriously ill teenager,
whose seizures had increased in frequency and severity during Cook’s six-
month onslaught. The evidence and inferences support the jury’s conclusion
that a reasonable person would have felt threatened by Cook’s persistent,
intentional conduct toward Mr. Brumley.
[17] Cook’s conduct toward Mrs. Brumley was equally egregious and even more
persistent. Because the Brumleys have livestock and a vegetable garden, they
regularly must spend time outdoors to tend to them. Mrs. Brumley described
Cook’s conduct toward her as a “complete nightmare of sounds being played
over a loud system, every night. Someone [i.e., Cook] yelling at you every day,
when you are trying to feed your animals, sending you text messages
constantly, calling you white trash, you’re poor, you have to sell vegetables.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 11 of 16 Where are you going to live[?]” Tr. Vol. 2 at 152. She testified that she had
come to the conclusion that Cook had installed motion sensors on the
surveillance cameras to alert her as to their presence and movement, because
Cook’s view of their property was otherwise obscured by the fence, shrubs, and
distance of about a football field. She said that it seemed like she was scarcely
out the door when Cook would promptly come outside her gate to accost her or
would yell at her from behind the shrubs. According to Mrs. Brumley, Cook
berated her in person “more than forty” times. Id. at 228. When she was not
berating her in person, Cook often sent Mrs. Brumley text or phone messages
insulting, berating, or threatening her. In one text, she said that she was in
negotiations with the Brumleys’ bank to buy their property. State’s Ex. 13.
Mrs. Brumley summed up the effects of Cook’s conduct as follows:
When someone can come out of the gate, or shrub without you seeing them coming at you, and you know that they have been watching you, they know when you are home, they know when you are outside, it’s a little creepy. And to know that they have all of these camera pictures, of you, they know private things about your financial matters that, your neighbor probably, doesn’t usually know about your neighbor, and they tell you that they are going to own your house, different things like that, that is scary, it is very scary …. It caused me to feel very intimidated.
Tr. Vol. 2 at 167. A reasonable person would have felt harassed, frightened, or
intimidated by the constant surveillance and onslaught of threats and insults
that Mrs. Brumley endured.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 12 of 16 [18] Cook claims that her case is similar to VanHorn v. State, where we reversed a
stalking conviction because the evidence was insufficient to establish a course of
improper conduct aimed directly at the victim. 889 N.E.2d 908, 910-11 (Ind.
Ct. App. 2008), trans. denied. In VanHorn, the record showed that on four
separate occasions the defendant sat in his parked vehicle, which was facing the
wrong direction on the street outside the victim’s home, and looked at the
victim’s home, sometimes through binoculars. Id. at 909-10. He never
approached the house or even left his vehicle, and he never stepped onto the
victim’s property or made any contact with the victim, whether in person, by
phone, or by a note. Id. at 911. In contrast, here, Cook engaged in a
protracted, multifaceted pattern of harassment, with her conduct (and cameras
and loudspeakers) aimed directly at the Brumleys. She surveilled them,
harassed them with loud animal noises designed to agitate their livestock and
attract predators, and made direct contact with them via phone calls, text
messages, and verbal threats and tongue lashings. VanHorn is clearly
distinguishable.
[19] Cook downplays her conduct, characterizing it as simply annoying, nuisance-
type behavior that a reasonable person would not view as criminal behavior,
particularly in the absence of a noise ordinance. The jury did not see it that
way. With respect to the Brumleys, Cook was not simply an annoying and
boisterous neighbor; rather, she engaged in a daily (and nightly) barrage of
threats and harassment for more than six months. Text messages recovered
from Cook’s cell phone reflect an attitude that was almost gleeful as she
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 13 of 16 bragged to a friend about how she would not stop until she had driven the
Brumleys out of their home, about her contribution to the Brumleys’ loss of
several animals to predators, and even about the exacerbation of Daughter’s
epileptic episodes. State’s Ex. 43. The Brumleys knew enough about Cook to
take her seriously when she said that she was negotiating with their lender or
suggested that they had better be careful or the IRS would come after them.
Mrs. Brumley testified that she believed that Cook had the means and the
resources to follow through and buy their home out from under them because
“that’s what she does, she buys and sells homes.” Tr. Vol. 2 at 168; see also
State’s Ex. 42 (Cook’s text message that Brumley house “will be my 11[th]
home that I will own outright.!”). In short, the record supports a reasonable
inference that Cook possessed both the ability and the will to make good on her
threats, and the Brumleys understood this all too well. Cook’s attempts to
characterize the Brumleys’ fear as unreasonable is a self-serving invitation to
reweigh evidence and reassess witness credibility, which we may not do.
[20] That said, we acknowledge that Cook’s repeated blasting of animal noises was a
nuisance to all the surrounding neighbors, many of whom called 911 on her.
But her conduct in surveilling the Brumleys, making threats to them in person,
by phone, and by text message, and in some cases following up on those
threats, went well beyond annoyance. For six months, she watched and studied
their daily activities and harassed them relentlessly, causing them to feel
frightened, intimidated, and threatened. She was nothing if not persistent. The
Brumleys suffered emotional harm and economic harm, as well as the physical
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 14 of 16 effects of prolonged sleep deprivation and the angst and heartache of watching
Daughter suffer an increase in grand mal seizures, all as a result of Cook’s
persistent harassment. Simply put, Cook was a nuisance to the neighborhood,
but to the Brumleys, she was a stalker. The evidence is sufficient to support her
convictions.
Section 3 – The restitution order includes an incorrect calculation of Mrs. Brumley’s lost wages. [21] Finally, Cook asserts that the amount of restitution is inaccurate and does not
reflect the actual amount of lost wages sustained by Mrs. Brumley. Generally,
we review restitution orders for an abuse of discretion, which occurs when the
trial court misinterprets or misapplies the law. Akehurst v. State, 115 N.E.3d
515, 518 (Ind. Ct. App. 2018). “A restitution order must be supported by
sufficient evidence of actual loss sustained by the victim of a crime.” Id.
[22] Cook argues that Mrs. Brumley failed to provide sufficient documentation
concerning her lost wages. The trial court ordered Cook to pay the Brumleys
$800 in restitution. Appellant’s App. Vol. 2 at 67. This figure was based on
information that Mrs. Brumley included in the victim impact statement and
restitution claim form. On that form, she claimed $100 in unreimbursed
insurance claims plus $700 in lost wages. However, she handwrote the
following on the form by the line for lost wages: “16 hrs work at 20.00 hr.” Id.
at 168. The product of sixteen times twenty is $320, not $700. We
acknowledge the State’s assertion that Cook failed to object to the amount of
the restitution order below, which generally results in waiver. Gil v. State, 988
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 15 of 16 N.E.2d 1231, 1235 (Ind. Ct. App. 2013). However, the document submitted by
Mrs. Brumley includes an incorrect calculation of lost wages that is plain and
obvious. We therefore may treat it as an improper sentence, which is a form of
fundamental error, and correct it even though it was not raised in the trial court.
Id.; Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004). Accordingly, we
remand for the trial court to enter a corrected victim restitution order.
[23] Affirmed and remanded.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3058 | August 21, 2020 Page 16 of 16