Jennifer Cook v. State of Indiana

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[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

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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

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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

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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,

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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

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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

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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.

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“Impermissible contact includes but is not limited to knowingly or intentionally

following or pursuing the victim.” Ind. Code 35-45-10-3 (2017).

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[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.

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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.

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[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 fishcleaning 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.

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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.

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[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 sixmonth 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.

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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.

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[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, nuisancetype 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

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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

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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

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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.

Affirmed and remanded.