Vandivier v. State

• Decision Date: 24 February 2005
• Docket Number: No. 83A05-0408-CR-419.,83A05-0408-CR-419.
• Citation: 822 N.E.2d 1047
• Parties: Andrew N. VANDIVIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

822 N.E.2d 1047

Andrew N. VANDIVIER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 83A05-0408-CR-419.

Court of Appeals of Indiana.

February 24, 2005.

Transfer Denied April 28, 2005.

Edward A. McGlone, Terre Haute, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Following a jury trial, Andrew N. Vandivier was convicted of Obstruction of Justice, as a Class A misdemeanor. Vandivier now appeals and presents the following issues for our review:

1. Whether the trial court erred when it ruled that a false witness statement made by Vandivier's friend was admissible evidence.

2. Whether the State presented sufficient evidence to support the conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 2, 2002, Vandivier's wife, Christina Vandivier ("Christina"), filed for dissolution of their marriage. The court awarded temporary custody of their two young children to Christina and granted visitation rights to Vandivier. On August 28, during Vandivier's first scheduled three-hour visit, he took the children and fled to Canada. Thereafter, on September 16, 2002, the court terminated Vandivier's visitation rights. A few weeks later, as Vandivier attempted to re-enter the United States from Canada, he was arrested at the Montana border, and in December 2002, Vandivier was convicted of Interference with Custody, as a Class B misdemeanor.

On April 8, 2003, Vandivier was driving his friend Katti Clay to a local Kwik Stop to purchase some cigarettes. On the way, they began discussing his pending dissolution, and Vandivier informed Clay that he was having difficulty obtaining custody of his children. He then asked Clay to make a statement to the police indicating that Christina had falsely accused him of breaking into Christina's house to prevent him from seeing their children.¹ After Clay agreed to his request, Vandivier drove her to the Vermillion County Sheriff's Department, where she made the following sworn, written statement:

I flag [sic] Christina Vandiv[ie]r down at Casey's ga[s] station on Sunday the 6 of April. I had asked her where [Vandivier] was because she had another guy with her. Christina said [Vandivier] was gone away for good. Christina said they were getting a divorce. I ask[ed] why [and] Christina said that he was no good. We talked a little while longer. Christina said that he was in jail. When I asked her what for[,] she had said that he was ac[c]used of breaking into her house. Christina said that she had [a] gun and her boyfriend had [fired] it off a couple of times. When I asked her if [Vandivier] had really been there she said no. But he was gone for good[,] and he couldn't have the kids. After that I asked if Christina was still living in town. Christina didn't answer. I gave Christina my number and left.

Appellant's App. at 50-51. When Clay returned to Vandivier's car, she gave him the copies of her signed statement, and he drove her home.

On April 21, 2003, Vandivier filed a petition for an emergency hearing seeking custody of his children. The next day, the State deposed Clay, and she admitted that she had fabricated the entire police statement. On June 24, 2003, the State charged Vandivier with obstruction of justice, as a Class D felony, under a theory of accomplice liability and Conspiracy to Commit Obstruction of Justice, as a Class D felony.² Prior to trial, the State requested a ruling on the admissibility of Clay's statement. After a hearing, the trial court ruled that Clay's statement was "material to the point in question," i.e., the ongoing custody battle, and, thus, constituted admissible, relevant evidence in the instant criminal case. Following trial, a jury found Vandivier guilty of obstruction of justice. Thereafter, the trial court entered judgment of conviction and sentenced him accordingly.³ This appeal ensued.

DISCUSSION AND DECISION

Vandivier asserts that Clay's statement is "not material to the point in question," i.e., the issue of child custody. Brief of Appellant at 5-6. But it is not clear whether Vandivier is arguing that there was insufficient evidence of materiality to sustain his conviction or that the trial court erred as a matter of law in its determination that the statement was admissible. The State argues that Vandivier waived any error in the admission of Clay's statement for failing to raise an objection to its admission at trial. We agree. "It is settled law that a party waives any objection to the admission of evidence if a contemporaneous objection was not made at trial, even if the court had made a pre-trial ruling on the admissibility of the evidence." Reynolds/Herr v. State, 582 N.E.2d 833, 836 (Ind.Ct.App.1991). Waiver notwithstanding, we choose to address the merits of both of Vandivier's arguments to clarify the roles of the judge and jury in making determinations of materiality in obstruction of justice cases.

Before we reach the substance of Vandivier's claims, we note that "[c]ourts and text-writers have experienced difficulty in formulating a rule by which materiality may be determined," Davis v. State, 218 Ind. 506, 34 N.E.2d 23, 24 (1941), and this court has never defined "materiality" in the context of an obstruction of justice case. But that term has been defined in several of our perjury cases, which are instructive.⁴ Those cases have defined materiality in this context as "that which is reasonably calculated to mislead an investigation." See Daniels v. State, 658 N.E.2d 121, 123 (Ind.Ct.App.1995)

; State v. Fields, 527 N.E.2d 218, 220 (Ind.Ct.App.1988); Wilke v. State, 496 N.E.2d 616, 618 (Ind.Ct.App.1986). Further, we have consistently held that the issue of materiality is an issue for the court to decide as a matter of law. See e.g., Fields, 527 N.E.2d at 220; Wilke, 496 N.E.2d at 618. But an examination of United States v. Gaudin, 515 U.S. 506, 511-14, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), leads us to the conclusion that the issue of materiality is, instead, a mixed question of law and fact.

In Gaudin, the United States Supreme Court held that federal constitutional law requires materiality to be submitted to the jury, provided it is an essential element of the crime of perjury. Id. at 522-23, 115 S.Ct. 2310; see People v. Lively, 470 Mich. 248, 680 N.W.2d 878, 880 (2004)

(discussing Gaudin).⁵ "The jury's constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence." Gaudin, 515 U.S. at 514, 115 S.Ct. 2310. But as the Gaudin Court explained, "[i]t is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another." Gaudin, 515 U.S. at 521,

115 S.Ct. 2310 (emphasis added). Our supreme court has recognized the voluntariness of a confession as one such example:

[T]he trial court must make a preliminary factual determination of voluntariness when assessing the statement's admissibility. The jury, however, remains the final arbiter of all factual issues under Article 1, Section 19 of the Indiana Constitution. Even if the court preliminarily determines that the statement is voluntary and admits it for the jury's consideration, then the defendant is still entitled to dispute the voluntariness of the statement once it is presented to the jury. Although the court has previously determined voluntariness in connection with the statement's admissibility, the jury may find that the statement was involuntarily given. If the jury makes such a determination, then it should give the statement no weight in deciding the defendant's guilt or innocence.

Miller v. State, 770 N.E.2d 763, 772-73 (Ind.2002); see also Gaudin, 515 U.S. at 525-26,

115 S.Ct. 2310 (Rehnquist, C.J., concurring).

Materiality is an essential element of the offense of perjury, see Wilke, 496 N.E.2d at 618,

and, here, the parties have conceded that it is an essential element of the offense of obstruction of justice that the State must prove beyond a reasonable doubt. Thus, in light of Gaudin, we conclude that a framework similar to the one used to determine voluntariness of confessions should be applied when making determinations of materiality in obstruction of justice cases. That is, the trial court must first make a preliminary determination of materiality when assessing the admissibility of the evidence. See Miller, 770 N.E.2d at 772; State v. Fodor, 179 Ariz. 442, 880 P.2d 662, 674 (1994) (citing Franzi v. Superior Court, 139 Ariz. 556, 679 P.2d 1043, 1049 (1984)). If it finds the evidence admissible, it must then submit the issue to the jury for the jury to weigh the evidence and determine whether the State proved materiality beyond a reasonable doubt. See Gaudin, 515 U.S. at 522-23,

115 S.Ct. 2310; Fodor, 880 P.2d at 674. If, on the other hand, the trial court finds that the evidence is immaterial and, thus, inadmissible, the obstruction of justice charge must be dismissed. See Richardson v. State, 255 Ind. 655, 266 N.E.2d 51, 52 (1971) ("This Court has long recognized that if testimony alleged to be false is of no importance and immaterial it cannot be made the basis for a charge of perjury."); see also Fields, 527 N.E.2d at 220-21; Fodor, 880 P.2d at 674. With this law as our guide, we now turn to Vandivier's substantive arguments.

Issue One: Admissibility of Clay's Statement

Vandivier first contends that the trial court erred by admitting Clay's statement at trial. Generally speaking, relevant evidence is admissible, and irrelevant evidence is inadmissible. Ind. Evidence Rule 402; see Majors v. State, 748 N.E.2d 365, 368 (Ind.2001)

. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be...