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FOR PUBLICATION

Dec 09 2009, 9:37 am

FILED
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ROBERT D. KING, JR. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEFF HOWELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0903-CR-172

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge Cause No. 49G03-0811-FD-270239

December 9, 2009

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Jeff Howell appeals his conviction for Obstruction of Justice, as a Class D felony. Howell presents a single issue for review, namely, whether the evidence is sufficient to support his conviction. We affirm. FACTS AND PROCEDURAL HISTORY On April 30, 2008, Detective Darin Odier of the Indianapolis Metropolitan Police Department ("IMPD") was investigating online solicitation in Yahoo! chat rooms. Detective Odier posed as a female minor using the screen name "indydiamondgirl08." Transcript 20. On May 1, Detective Odiers undercover account received an instant message from someone with the screen name "john_doe8238." Id. Via the Internet, the detective had a "lengthy chat" with "john_doe8238" and another chat with the same user on May 1. Id. Detective Odier subpoenaed Yahoo!s records and, from those records, learned that the account of "john_doe8238" belonged to J. Howell or Jeff E. Howell of New Albany, Indiana.1 On June 30, 2008, Detective Odier executed a warrant at Howells address, and Howell was arrested the same day. Following the arrest, Detective Odier interviewed Howell, who admitted that he had "chatted on Yahoo! using the screen name ,,john_doe8238[.]" Appellants App. at 16. Howell also stated that, "to his knowledge, no one else had access to his password." Id. The State charged him with child

The record is devoid of the specific conduct that led to the State seeking a warrant or to the subsequent charge of child solicitation.

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solicitation, as a Class C felony, and his subsequent release from custody on bond was conditioned on his agreement not to use the Internet. A few days following Howells release on bond, Detective Odier began receiving online messages addressed to "indydiamondgirl08" from "john_doe8238." Detective Odier subpoenaed Internet records and learned that those online messages had been sent from an account registered to a woman in Great Falls, Montana.2 Photographs of the womans minor daughter, C.C., found on an Internet networking website matched photographs that had been found posted on Howells refrigerator when officers had executed the warrant at his home. On November 21, Officer Odier interviewed C.C. by telephone. During the

interview, C.C. stated that she knew Howell and had first "met" him online three to four years earlier. She stated that in May 2008 Howell had sent her a cell phone and that she had communicated with him via that phone during the summer of 2008. At some point after his arrest for child solicitation, Howell had given C.C. his screen name and password, asked her to send instant messages to indydiamondgirl08, and asked her to change his password to "something of his choosing." Id. at 18. C.C. also stated that "she only logged on as ,,john_doe8238 at the direction of Howell and only on the days and times he told her." App. at 17. In particular, C.C. reported that, per Howells

instructions, she had logged on using his screen name on a date he requested, sent a message to indydiamondgirl08, and stayed online until Howell had phoned her. "Howell

Each computer attached to the Internet has an internet protocol address, or I.P. address, which identifies its location to the Internet network. The records that Officer Odier subpoenaed from Yahoo! showed the I.P. address of the computer that sent the online messages from "john_doe8238" to "indydiamondgirl08."

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told [C.C.] that this would help his pending criminal case by showing that someone else was using his screen name, it wasnt him." Id. at 17. Howell directed C.C. to send offline messages to indydiamondgirl08 on July 17, 20, 22, and 25 and August 4. On July 25, the message was sent at a time that Howell and Detective Odier were attending the same court hearing. The State charged Howell with obstruction of justice, as a Class D felony, and false reporting, as a Class A misdemeanor. Following a bench trial, the court entered judgment convicting him of obstruction of justice. The court sentenced Howell to one and one-half years executed, to run consecutive to the sentence imposed in the child solicitation case. Howell now appeals. DISCUSSION AND DECISION Howell contends that the evidence is insufficient to support his conviction for obstruction of justice, as a Class D felony. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. Indiana Code Section 35-44-3-4(a)(4) defines obstruction of justice, as a Class D felony as "mak[ing], present[ing], or us[ing] a false record, document, or thing with intent that the record, document, or thing, material to the point in question, appear in
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evidence in an official proceeding or investigation to mislead a public servant[.]" Howell alleges that the State did not prove (1) the existence of a false record, document or thing or (2) his intent to mislead a public servant. We address each contention in turn. False Record, Document, or Thing We first address Howells contention that no false record, document or thing was involved in this case. In essence, Howell contends that, because the content of the messages contained no false information, the messages sent to "indydiamondgirl08" from "john_doe8238" were not false. We cannot agree. The offline messages sent from "john_doe8238" to "indydiamondgirl08" contained inquiries to engage in conversation. The July 17 message states "hey i havent heard from you. how have you been?" Exh. 6. The July 20 message states "hey how r u." Exh. 7. The July 22 message provides "hey its ok how have you been." Exh. 8. Detective Odier answered that message through "indydiamondgirl08" with "good u[.]" Id. On July 25, the following exchange took place: john_doe8238: hey r u around

indydiamondgirl08: im here now john_doe8238: hey r u around

Exh. 9. And on August 4, "john_doe8238" sent the following two messages: "hey havent spoken to u" and "whats been happening?" Exh. 10. The content of these messages expresses mere inquiries into the receivers wellbeing or requests to engage in further conversation. But analysis of the content of the messages does not end our review. The messages purport to come from "john_doe8238,"
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and Officer Odier knew when he received these messages that that was a screen name created and used by Howell. Howell had not sent those messages. Instead, on Howells instructions, C.C. had sent those messages to "indydiamondgirl08" using Howells screen name. Upon his arrest for child solicitation, Howell had told Detective Odier that he had no reason to believe that anyone else had the password to "john_doe8238." And on appeal, he concedes as "fact" that someone other than him, namely C.C., logged on and sent the messages in July and August 2008. Appellants Brief at 15. But the messages sent from "john_doe8238" to "indydiamondgirl08" following Howells arrest for child solicitation were false in that they had not been sent by Howell, the owner of the "john_doe8238" screen name. We conclude that the messages sent by C.C. using

Howells screen name constitute false records, documents, or things. Intent to Mislead Howell also argues that there is "no evidence that [he] intended to mislead a public official with a knowingly false record, document, or thing." Id. at 11. Specifically, he contends that he asked C.C. to send the messages "not to mislead, but to formulate a defense to his charge of child solicitation by showing that someone other than himself could have used his screen name." Id. at 12. Further, he points out that he "did not use any of the recorded online conversations between the detective and [C.C.]" at his child solicitation trial, nor did he ever deny having given his screen name and password to anyone or having asked C.C. to communicate with the detective using Howells screen

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name. Thus, he argues, he did not commit the offense of obstruction of justice. We cannot agree. Again, to prove an obstruction of justice, the State must show that Howell made, presented or used a false record, document or thing, material to the point in question, with the intent that the record, document, or thing appear in evidence in an official proceeding or investigation to mislead a public servant. Ind. Code

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