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A woman’s communication with her former attorney was for the purpose of perpetrating a fraud on the state and trial court and therefore not subject to attorney-client privilege, a split Court of Appeals of Indiana has ruled in affirming a lower court’s decisions.
In October 2019, a Logansport police officer conducted a license-plate check on a vehicle driven by Kimberly Brook and discovered the driver’s license of the car’s registered owner had been suspended, according to court records.
The officer determined a license photo of the car’s owner matched the physical description of the woman he observed driving the car and initiated a traffic stop.
The officer discovered Brook was subject to two active license suspensions: one for excessive points on her license and another for a repeat insurance violation.
While the officer was in his patrol car, Brook got out of her car and began yelling at him, saying, “I don’t have time for this.” She then began to walk away from the scene.
The officer ordered Brook to stop, but she began running faster. The officer caught up to her in front of a nearby home. Brook tried to “rip and wrestle her arms away” from him, and the officer used a leg sweep to get her to the ground.
Brook was transported to the Cass County Jail and searched during intake.
A correction officer found a pill bottle in Brook’s purse and discovered the drug Lorazepam. The label on the front of the pill bottle didn’t contain prescription information for Lorazepam, which is a controlled substance.
The state initially charged Brook with two counts of Level 6 felony possession of a Schedule I, II, III or IV controlled substance, Class A misdemeanor resisting law enforcement, Class A misdemeanor driving while suspended, and Class B misdemeanor disorderly conduct.
The state later amended the charging information to reflect charges of Class A misdemeanor resisting law enforcement, Class A misdemeanor driving while suspended, Class B misdemeanor disorderly conduct, and Level 6 felony unlawful possession or use of a legend drug.
The state then filed a notice under Evidence Rule 404(b), which stated it intended to introduce evidence that Brook “produced and provided to the State a forged prescription in an attempt to manufacture a defense to” the unlawful possession or use of a legend drug charge against her.
At a hearing on the notice, the state called Brook’s former attorney, Andrew Achey, to testify about statements Brook made regarding a falsified prescription for Lorazepam she had provided to him during the course of his representation in the case.
Brook objected to Achey being allowed to testify to these statements based on attorney-client privilege.
After addressing an issue about the distinction between the law regarding possession of a “controlled substance” and possession of a “legend drug,” the state moved to amend its charging information to include a count of Level 6 felony obstruction of justice based on the information conveyed by Achey in the hearing.
For Brook’s assertion of attorney-client privilege, the Cass Superior Court found the state made a prima facie showing that Brook had violated the law through her communications and “also established a relationship between the communication at issue and the prima facie violation.”
Brook also objected to the state’s proposed jury instruction regarding the driving-while-suspended charge, which stated that a person was guilty of driving while suspended if she “operates a motor vehicle on a highway less than ten years after the date on which judgment was entered for a prior unrelated violation of this section.”
The trial court stated it would take the bifurcation request under advisement.
Brook also objected to the proposed preliminary instruction regarding the elements for unlawful possession or use of a legend drug.
During the jury trial, the state moved to introduce Brook’s driving record, and Brook objected on the basis that the state failed to lay an adequate foundation.
The trial court overruled the objection.
Over a continuing objection by the defense based on privilege, the state called Achey as a witness. Achey testified that after deposing a doctor who denied writing Brook a prescription, Brook became “very apologetic” and admitted to Achey that she did not have a prescription for Lorazepam.
A jury found Brook guilty of Class A misdemeanor resisting law enforcement, Class A misdemeanor driving while suspended, Level 6 felony unlawful possession or use of a legend drug, and Level 6 felony obstruction of justice.
The jury acquitted Brook of Class B misdemeanor disorderly conduct.
Brook received an aggregate sentence of two years executed with one year to be served in the DOC and the second year to be served on Community Corrections, if eligible.
On appeal, Brook argued bifurcation of the driving-while-suspended charge is required under Indiana Code section 35-38-1-2, even though her enhancement was based upon a prior civil infraction and not a prior offense.
In a matter of first impression, the Court of Appeals ruled because bifurcation is only required under the statute when the state seeks to elevate an offense because a defendant has been previously convicted of the offense — “and the term offense means crime and not infraction” — the trial court is not required to bifurcate the proceedings.
“Thus, although her current criminal charge was for Class A misdemeanor driving while suspended, it was not elevated because she was previously convicted of the offense,” the opinion says. “Instead, her current offense was elevated because she previously had a civil judgment entered against her for Class A infraction driving while suspended, which is not a conviction for a criminal offense.”
Brook also argued the trial court’s jury instruction for the offense of unlawful possession or use of a legend drug was clearly erroneous.
She contended that the jury instruction relieved the state from its burden of proof as to a material element of the offense.
The Court of Appeals disagreed, ruling Lorazepam’s status as a legend drug was not an issue of fact because the drug falls within the class of medications incorporated by reference into Indiana’s statutory definition for the term “legend drug.”
“Therefore,” the opinion says, “the instructions left the factual question to the jury, while informing the jury that Lorazepam satisfied the legal definition for the term legend drug.”
Brook also argued the trial court abused its discretion when it ruled that her prior attorney was required to testify about communications related to Brook’s attempt to present a false prescription record.
The Court of Appeals disagreed.
“Here, Brook’s communications with Achey were not privileged because they were made for the purpose of perpetrating a fraud on the State and trial court and for the purpose of committing the crime of obstruction of justice,” the opinion says.
The communications fell within the crime-fraud exception to the attorney-client privilege, the opinion says.
Lastly, Brook argued her two-year sentence is inappropriate.
The Court of Appeals again disagreed, citing in part Brook’s prior criminal convictions, including for driving while suspended, operating a vehicle while intoxicated, theft and conversion.
“Further, during the course of this case, Brook displayed deceitful and dishonest behavior that reflects poorly on her character,” the opinion says.
The case is Kimberly J. Brook v. State of Indiana, 22A-CR-2110.
Judges Nancy Vaidik and Elizabeth Tavitas each concurred in part and dissented in part with separate opinions.
Vaidik dissented on the issue of bifurcating the driving-while-suspended charge.
For bifurcation, Vaidik wrote the lead opinion proceeds “as though Brook’s argument is limited to Section 35-38-1-2(c),” which she disagrees with.
“That statute was not the basis for Brook’s bifurcation request in the trial court, and it is not the primary basis for her argument on appeal,” Vaidik wrote.
Tavitas dissented from the majority’s holding that the trial court did not abuse its discretion in instructing the jury regarding the elements of the crime of possession of a legend drug.
“Here, Lorazepam is not specifically enumerated by the Indiana Code as a legend drug,” Tavitas wrote. “It is instead listed in a federal publication that is referenced by the Indiana Code section defining a legend drug. Accordingly, I believe that the State was required to offer extrinsic evidence — such as the relevant portion of the Orange Book — to prove to the jury that Lorazepam is a legend drug.”
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