Baker, J.
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I. Attempted Obstruction of Justice
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At trial, the State presented evidence that McElfresh mailed the May 3 letter to A.W. regarding her daughter T.W., a witness in the pending [child molestation] proceeding against him. The State argued that the letter was an effort to convince T.W. to change or withhold her testimony against him by threatening prosecution against her for false informing and/or conspiracy. …
In McElfresh’s letter, he * * * essentially told T.W.’s mother that if T.W. intended to lie under oath, she would face legal consequences for the dishonesty. That is simply the truth. We cannot believe that in the State of Indiana it can constitute a crime to make a true statement, even if the subject matter of the true statement involves the future testimony of a witness in a criminal proceeding. There are certainly circumstances in which this crime is committed when an individual writes a letter to someone with instructions to pass threats or coercive statements onto a third party. But those circumstances are not present in this case. We find that there is insufficient evidence supporting the attempted obstruction of justice conviction, and reverse that conviction.
II. Invasion of Privacy
To convict McElfresh of invasion of privacy as a Class A misdemeanor, the State was required to prove beyond a reasonable doubt that McElfresh knowingly or intentionally violated a no contact order. I.C. § 35-46-1-15.1(5). McElfresh contends that, because the no contact order only applied to any contact with T.W., his letter to A.W. did not constitute a violation of that order. [Footnote omitted.]
But the State contends that McElfresh’s letter constituted an attempt to indirectly contact T.W., which is sufficient to support his conviction. In C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997), this Court noted that “contact” may include communication that is “either direct or indirect and is not limited by the means in which it is made known to another person.” Therefore, the mere fact that McElfresh’s attempted communication with T.W. was indirect—via a third party—does not vitiate the conviction.
Our inquiry does not end there, however, given that the contact between McElfresh and T.W. was incomplete. In Huber v. State, [805 N.E.2d 887, 892 (Ind. Ct. App. 2004),] this Court … [held] that while indirect communication can support an invasion of privacy conviction, it must be a completed communication ….
In this case, likewise, while McElfresh may have made an attempt at indirect communication with T.W., the contact was incomplete. There is no evidence in the record that A.W. ever actually spoke to T.W. on behalf of McElfresh. Therefore, we find insufficient evidence supporting the class A misdemeanor invasion of privacy conviction.
When a conviction is reversed because of insufficient evidence, we may remand to the trial court with instructions to enter a judgment of conviction on a lesser-included offense if the evidence is sufficient to support the lesser offense. [Citation omitted.] Attempted invasion of privacy is an inherently lesser-included offense of invasion of privacy. We find that McElfresh’s conduct in this case—writing a letter to T.W.’s mother with a request to communicate with T.W. on his behalf— constituted a substantial step towards committing the crime of class A misdemeanor invasion of privacy. Accordingly, we reverse McElfresh’s invasion of privacy conviction and remand with instructions to enter judgment for attempted invasion of privacy as a class A misdemeanor.
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Najam, J., and Friedlander, J., concur.
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I. Attempted Obstruction of Justice
….
At trial, the State presented evidence that McElfresh mailed the May 3 letter to A.W. regarding her daughter T.W., a witness in the pending [child molestation] proceeding against him. The State argued that the letter was an effort to convince T.W. to change or withhold her testimony against him by threatening prosecution against her for false informing and/or conspiracy. …
In McElfresh’s letter, he * * * essentially told T.W.’s mother that if T.W. intended to lie under oath, she would face legal consequences for the dishonesty. That is simply the truth. We cannot believe that in the State of Indiana it can constitute a crime to make a true statement, even if the subject matter of the true statement involves the future testimony of a witness in a criminal proceeding. There are certainly circumstances in which this crime is committed when an individual writes a letter to someone with instructions to pass threats or coercive statements onto a third party. But those circumstances are not present in this case. We find that there is insufficient evidence supporting the attempted obstruction of justice conviction, and reverse that conviction.
II. Invasion of Privacy
To convict McElfresh of invasion of privacy as a Class A misdemeanor, the State was required to prove beyond a reasonable doubt that McElfresh knowingly or intentionally violated a no contact order. I.C. § 35-46-1-15.1(5). McElfresh contends that, because the no contact order only applied to any contact with T.W., his letter to A.W. did not constitute a violation of that order. [Footnote omitted.]
But the State contends that McElfresh’s letter constituted an attempt to indirectly contact T.W., which is sufficient to support his conviction. In C.W.W. v. State, 688 N.E.2d 224, 226 (Ind. Ct. App. 1997), this Court noted that “contact” may include communication that is “either direct or indirect and is not limited by the means in which it is made known to another person.” Therefore, the mere fact that McElfresh’s attempted communication with T.W. was indirect—via a third party—does not vitiate the conviction.
Our inquiry does not end there, however, given that the contact between McElfresh and T.W. was incomplete. In Huber v. State, [805 N.E.2d 887, 892 (Ind. Ct. App. 2004),] this Court … [held] that while indirect communication can support an invasion of privacy conviction, it must be a completed communication ….
In this case, likewise, while McElfresh may have made an attempt at indirect communication with T.W., the contact was incomplete. There is no evidence in the record that A.W. ever actually spoke to T.W. on behalf of McElfresh. Therefore, we find insufficient evidence supporting the class A misdemeanor invasion of privacy conviction.
When a conviction is reversed because of insufficient evidence, we may remand to the trial court with instructions to enter a judgment of conviction on a lesser-included offense if the evidence is sufficient to support the lesser offense. [Citation omitted.] Attempted invasion of privacy is an inherently lesser-included offense of invasion of privacy. We find that McElfresh’s conduct in this case—writing a letter to T.W.’s mother with a request to communicate with T.W. on his behalf— constituted a substantial step towards committing the crime of class A misdemeanor invasion of privacy. Accordingly, we reverse McElfresh’s invasion of privacy conviction and remand with instructions to enter judgment for attempted invasion of privacy as a class A misdemeanor.
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Najam, J., and Friedlander, J., concur.