Shane M. Hester-Spann, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] While Shane Hester-Spann was awaiting trial for battering his pregnant wife M.H., he repeatedly contacted her despite an active no-contact order. In these communications, Hester-Spann encouraged M.H. not to cooperate with the State, instructed her to invoke her Fifth Amendment right to remain silent, and threatened to leave her and withdraw financial support if she testified against him at trial. Hester-Spann was charged with and convicted of obstruction of justice and invasion of privacy. Hester-Spann now appeals, raising two issues for our review:

1. Whether the State presented sufficient evidence to support his obstruction of justice conviction; and

2. Whether his obstruction of justice conviction violates his alleged right to marital privacy.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] In 2020, Hester-Spann battered M.H.—who was then his ex-girlfriend—while she was pregnant. In March 2021, Hester-Spann pled guilty in Cause 35C01-2006-F5-000214 (the “2020 Battery Cause”) to domestic battery as a Level 5 felony. The trial court sentenced Hester-Spann to three years of incarceration, with two years suspended to probation.

[4] In February 2023, Hester-Spann was still on probation in the 2020 Battery Cause; he had married M.H.; the two were living together in Huntington County, Indiana; and M.H. was pregnant with her and Hester-Spann's child. On February 11, 2023, Hester-Spann “picked [M.H.] up, threw her down, got on top of her, grabbed her hair, and pulled her head back by her hair,” Hester-Spann v. State, 241 N.E.3d 629, No. 24A-CR-410, slip op. at ¶ 2 (Ind. Ct. App. July 29, 2024) (mem.), trans. not sought. M.H. called 911 and reported the incident.

[5] In April 2023, the State charged Hester-Spann in Cause 35C01-2304-F5-000120 (the “2023 Battery Cause”) with three counts of domestic battery. Consequently, the State filed a petition to revoke Hester-Spann's probation in the 2020 Battery Cause. On April 25, 2023, the trial court issued a no-contact order in the 2023 Battery Cause, prohibiting Hester-Spann from contacting M.H. “in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial. This includes, but is not limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.” Tr. Vol. III at 38–40. Hester-Spann was served the no-contact order in jail.

[6] On August 9, 2023, Hester-Spann took M.H.’s deposition in the 2023 Battery Cause. Shortly after the deposition ended, Hester-Spann called M.H. from jail twice and began exchanging messages with her through the jail's Chirp system. In the August 9 phone calls and most of the messages Hester-Spann and M.H. exchanged, they referred to M.H. in the third person in an effort to disguise with whom Hester-Spann was communicating.

[7] During the second phone call on August 9, Hester-Spann told M.H. she should have “pled the Fifth,” St.’s Ex. 1 – Track 3 at 02:35–02:38, 03:11–03:14, and should have said Hester-Spann “didn't hurt her,” id. at 03:14–03:17. Hester-Spann also told M.H. that she only needed to say “three simple things”: “He didn't hurt me. I plead the Fifth. Have a good day.” Id. at 03:58–04:06. Before his trial in the 2023 Battery Cause, Hester-Spann repeatedly reiterated these instructions in his messages to M.H., and he told M.H. numerous times to write a letter to the prosecutor stating she was going to testify on Hester-Spann's behalf and that she was not a victim. Hester-Spann also sent the following messages to M.H.:

• August 31 – “why everyting your way and why you do sh[*]t to hurt me if you dont quit your bullsh[*]tting lying and destroying my life im going to leave you,” Tr. Vol. III at 13 (errors in original);

• September 4 – “Well all she gotta do is NOT say ANYTHING PLEA THE 5th! IM NOT A VICTEM absoulty nothing else NO ․ NO KEYS NO NOTHING 3 things,” id. at 19 (errors in original);

• November 7 – “Oh shot who always saves your [*]ss??? Hmm who always makes sure you got money who makes sure the kids are good who? Me you d[*]ck f[*]ck you dont give me credit for sh[*]t and you know what you congrats you told a lie and set us back further in life ․ ,” id. at 28 (errors in original);

• November 9 – “im going to do what I need to do to go home dont f[*]ck it up for me again[.] ․ Iloveyou and i hope you understand man i gotta do what i gotta do so nobody gets in trouble,” id. at 30 (errors in original).

[8] In November 2023, the State met with M.H. and the lead investigator to prepare M.H. to testify at Hester-Spann's upcoming trial in the 2023 Battery Cause. After that meeting, the investigator began looking into Hester-Spann's communications, and discovered the calls and messages between him and M.H. For the communication Hester-Spann had with M.H. between August 9 and September 4, 2023, the State charged Hester-Spann in Cause 35C01-2311-F5-000334 (the “Obstruction Cause”) with obstruction of justice as a Level 5 felony ¹ and invasion of privacy as a Level 6 felony ² . For the communication Hester-Spann had with M.H. between October 7 and December 1, 2023, the State charged Hester-Spann in Cause 35C01-2401-F6-000002 (the “Invasion Cause”) with invasion of privacy as a Level 6 felony ³ . As a result of these two new causes, among other things, the State filed an amended petition to revoke Hester-Spann's probation in the 2020 Battery Cause.

[9] On December 19 and 20, 2023, Hester-Spann had his jury trial in the 2023 Battery Cause, and M.H. testified under subpoena from the State. The jury found Hester-Spann guilty as charged, and the trial court entered judgment of conviction and sentenced him on one count of domestic battery as a Level 5 felony. On appeal, this court affirmed that conviction. Hester-Spann, No. 24ACR-410, slip op. at ¶¶ 2–3.

[10] On May 29, 2024, Hester-Spann had a combined jury trial in the Obstruction and Invasion Causes. During this trial, M.H. testified under subpoena from the State, and recordings of Hester-Spann's and M.H.’s phone calls and records of their messages were admitted as evidence. The jury found Hester-Spann guilty as charged. Thereafter, the trial court found that Hester-Spann had violated his probation in the 2020 Battery Cause by committing the offenses for which he had been convicted in the 2023 Battery Cause, the Obstruction Cause, and the Invasion Cause.

[11] On June 17, 2024, the trial court held a combined sentencing hearing in all three cases. In the 2020 Battery Cause, the trial court executed the remainder of Hester-Spann's sentence. In the Obstruction Cause, the trial court sentenced Hester-Spann to a total of five years of incarceration. In the Invasion Cause, the trial court sentenced Hester-Spann to one year of incarceration. This appeal ensued.⁴

Discussion and Decision

1. The State Presented Sufficient Evidence to Support a Conviction for Attempted Obstruction

[12] Hester-Spann argues that the State presented insufficient evidence at trial to support his conviction for obstruction of justice as a Level 5 felony. Our Supreme Court has explained our standard of review for such a claim as follows:

Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). A conviction is supported by sufficient evidence if “there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).

Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024).

[13] The State charged Hester-Spann with obstruction of justice under Indiana Code section 35-44.1-2-2(a)(1)(C) and (b)(3). To convict Hester-Spann of this charge, the State had to prove the elements in subsection (a)(1)(C) plus the elements in subsection (b)(3). See Scott v. State, 139 N.E.3d 1148, 1158 (Ind. Ct. App. 2020). The basic crime of obstruction of justice—a Level 6 felony—as set forth in subsection (a)(1)(C) is committed when a person “knowingly or intentionally induces, by threat, coercion, false statement, or offer of goods, services, or anything of value, a witness or informant in an official proceeding or investigation to ․ absent the person from a proceeding or investigation to which the person has been legally summoned ․” Ind. Code § 35-44.1-2-2(a)(1)(C). The offense is a Level 5 felony if:

(b) [D]uring the investigation or pendency of a domestic violence or child abuse case ․ , a person knowingly or intentionally: ․

(3) intimidates, unlawfully influences, or unlawfully persuades ․

any witness to abstain from attending or giving testimony at any hearing, trial, deposition, probation, or other criminal proceeding or from giving testimony or other statements to a court or law enforcement officer ․

Id. § 35-44.1-2-2(b)(3).

[14] To convict Hester-Spann under subsection (a)(1)(C) as charged, the State had to prove beyond a reasonable doubt that Hester-Spann (1) knowingly or intentionally; (2) induced by threat, coercion, false statement, or offer of goods, services, or anything of value; (3) M.H., a witness in an official proceeding; (4) to not attend or not testify at Hester-Spann's trial in the 2023 Battery Cause. See I.C. § 35-44.1-2-2(a)(1)(C); Appellant's App. Vol. II at 190. Hester-Spann specifically argues that he did not absent M.H. from his trial in the 2023 Battery Cause and that he did not coerce her.

[15] Regarding Hester-Spann's first argument, the State contends that M.H.’s attendance and testimony at Hester-Spann's trial in the 2023 Battery Cause is irrelevant because Hester-Spann's “obstruction of justice was complete when [he] made the coercive statements to M.H. to persuade her not to testify.” Appellee's Br. at 14. In support, the State argues that “obstruction of justice is a conduct-based crime, as opposed to a result-based crime.” Id. (citing Powell v. State, 151 N.E.3d 256, 266–67 (Ind. 2020)).

[16] We need not decide whether subsection (a)(1)(C) is a conduct- or result-based offense—an issue of first impression. Assuming arguendo that subsection (a)(1)(C) is a result-based offense, Hester-Spann cannot show that the evidence was insufficient to prove attempt—an offense that carries the same penalty. And, we conclude the State presented sufficient evidence to support convicting Hester-Spann of the lesser-included offense of attempted obstruction of justice.

[17] “[W]hen we reverse a conviction for insufficient evidence, we may remand to the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense.” W.H. v. State, 231 N.E.3d 900, 905 n.2 (Ind. Ct. App. 2024) (quoting Alexander v. State, 13 N.E.3d 917, 922 (Ind. Ct. App. 2014)), trans. not sought. “Included offense” means in relevant part an offense that “consists of an attempt to commit the offense charged.” I.C. § 35-31.5-2-168(2). Generally, a “person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.” Id. § 35-41-5-1(a).

[18] Aside from the absence element of Indiana Code section 35-44.1-2-2(a)(1)(C), the only other element of either subsection (a)(1)(C) or (b)(3) that Hester-Spann challenges is the coercion element of subsection (a)(1)(C). Our Supreme Court has explained “coercion” in this context as follows:

Under the obstruction of justice statute, the term “coercion” “carries with it, at a minimum, the sense of some form of pressure or influence being exerted on the will or choice of another.” Sheppard v. State, 484 N.E.2d 984, 988 (Ind. Ct. App. 1985). The form of pressure or influence “may vary widely—and certainly includes harassment, physical force, intimidation, and threats—as long as it is exerted knowingly or intentionally to induce conduct by a witness or informant that is proscribed” by the obstruction of justice statute. Id. In addition, the failure to comply must be accompanied by a consequence. Brown v. State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007). If there is no consequence, the “statement is not coercive, but is merely a request.” Id.

McElfresh v. State, 51 N.E.3d 103, 108 (Ind. 2016).

[19] Hester-Spann specifically contends that he “did not threaten any consequences would happen if” M.H. did not comply with his “requests” for “her to invoke her Fifth Amendment privilege and the marital communications privilege, to request the no-contact order be vacated, and to inform the prosecutor that she would be testifying on her husband's behalf.” Appellant's Br. at 12. The record does not support this argument.

[20] In one message to M.H., Hester-Spann threatened to “leave” M.H. if she did not “quit ․ lying and destroying [his] life,” Tr. Vol. III at 13. In another message to M.H., Hester-Spann implicitly threatened to withhold financial support from M.H. and M.H.’s children by saying, “who always makes sure you got money who makes sure the kids are good who? Me ․” Id. at 28 (errors in original). As demonstrated by these messages,⁵ Hester-Spann clearly tied consequences to M.H.’s failure to comply with his frequent “requests” for her to not testify against him in the 2023 Battery Cause. See McElfresh, 51 N.E.3d at 109; Cook v. State, 143 N.E.3d 1018, 1022–23 (Ind. Ct. App.), trans. denied, 149 N.E.3d 611 (Ind. 2020). Therefore, the evidence established that Hester-Spann coerced M.H. within the meaning of subsection (a)(1)(C); Hester-Spann does not argue the State failed to present sufficient evidence regarding the elements in subsection (b)(3). We thus conclude that Hester-Spann took a substantial step toward committing the offense of obstruction of justice as a Level 5 felony, so the State presented sufficient evidence to support convicting Hester-Spann of attempted obstruction of justice as a Level 5 felony ⁶ .

2. Hester-Spann Waived his Marital Privacy Argument by Failing to Raise it Below

[21] Hester-Spann argues that his obstruction of justice conviction—and by implication his new conviction for attempted obstruction of justice—should be reversed because admitting evidence of his communications with M.H. violated “his marital privacy right.” Appellant's Br. at 12. Hester-Spann acknowledges that he did not raise this claim below, and that neither he nor M.H. invoked the marital communications privilege during his trial in the Obstruction and Invasion Causes. We also note that Hester-Spann does not claim the fundamental error doctrine applies.

[22] Nevertheless, Hester-Spann asks us to consider his marital privacy argument because “constitutional challenges to statutes may be raised at any time, including on appeal by this Court.” Appellant's Br. at 12 (citing Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992)). But Hester-Spann does not identify the statute he challenges on constitutional grounds; in fact, his constitutional challenge concerns only the admission of evidence regarding his communications with M.H. Based on the foregoing, we must conclude Hester-Spann has waived his marital privacy argument for our review, see Oberhansley v. State, 208 N.E.3d 1261, 1269 (Ind. 2023) (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005)), and we decline to exercise our discretion to review it, see Layman v. State, 42 N.E.3d 972, 976 (Ind. 2015) (“[J]udicial intervention to address constitutional claims for the first time at the appellate level is not appropriate ․”).

Conclusion

[23] In sum, the State presented sufficient evidence to support convicting Hester-Spann of attempted obstruction of justice as a Level 5 felony, and Hester-Spann has waived for our review his claim that his obstruction of justice conviction violated his alleged right to marital privacy. We reverse Hester-Spann's conviction for obstruction of justice as a Level 5 felony. We remand with instructions for the trial court to vacate Hester-Spann's conviction for obstruction of justice as a Level 5 felony and enter judgment of conviction on attempted obstruction of justice as a Level 5 felony.⁷ We affirm the trial court on all other issues raised.

[24] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Ind. Code § 35-44.1-2-2(a)(1)(C), (b)(3).

2.   Id. § 35-46-1-15.1(a)(5).

3.   Id. § 35-46-1-15.1(a)(5).

4.   We observe that Hester-Spann challenges only his conviction for obstruction of justice as a Level 5 felony; he does not challenge his two convictions for invasion of privacy as Level 6 felonies, he does not challenge the revocation of his probation, and he does not challenge the trial court's decision to execute the remainder of his sentence due to that revocation.

5.   Although not advanced by the State, another one of Hester-Spann's messages to M.H. appears to threaten that Hester-Spann will take keys and other unidentified items from M.H. if she does not comply: “Well all she gotta do is NOT say ANYTHING PLEA THE 5th! IM NOT A VICTEM absoulty nothing else NO ․ NO KEYS NO NOTHING 3 things,” Tr. Vol. III at 19 (errors in original).

6.   See I.C. § 35-41-5-1(a) (“An attempt to commit a crime is a felony ․ of the same level ․ as the crime attempted.”).

7.   Because Hester-Spann's new conviction for attempted obstruction of justice and his prior conviction for obstruction of justice are both Level 5 felonies, see I.C. § 35-41-5-1, we do not discern a reason to resentence Hester-Spann; his sentence on the new conviction is the same as for his prior conviction. Additionally, because Hester-Spann does not challenge the revocation of his probation and because that revocation was based on more than his conviction for obstruction of justice, the trial court need not revisit that revocation on remand.

Felix, Judge.

Judges Pyle and Weissmann concur. Pyle, J., and Weissmann, J., concur.