Gregory Schweisthal v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Feb 19 2015, 9:28 am

Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as

precedent or cited before any court except for the

purpose of establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Lizbeth W. Pease Gregory F. Zoeller

Nichols & Wallsmith Attorney General of Indiana

Knox, Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Gregory Schweisthal, February 19, 2015

Appellant-Defendant, Court of Appeals Case No.

75A04-1403-CR-141

v. Appeal from the Starke Circuit

Court.

The Honorable Kim Hall, Judge.

State of Indiana, Cause No. 75C01-1308-FB-21

Appellee-Plaintiff

Baker, Judge.

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[1] Gregory Schweisthal appeals his convictions and sentence for class D felony

Invasion of Privacy1 and class A misdemeanor Domestic Battery.2 He argues

that there was insufficient evidence to support his conviction for invasion of

privacy, that the admittance of State’s Exhibit 30 violated Indiana Rule of

Evidence 404(b), that the admission of Dr. Gregory Hale’s testimony was

improper, and that his sixty-four-month sentence is inappropriate. Finding no

error, we affirm.

Facts

[2] Schweisthal and J.S. were married in 2006. On October 3, 2012, the trial court

issued a no contact order, barring Schweisthal from having any contact with

J.S. The no contact order precluded Schweisthal from contacting J.S., both in

person and through text, calls, or social media. It also prohibited third parties

from contacting J.S. on Schweisthal’s behalf. J.S. and Schweisthal disregarded

the no contact order and continued to have contact, both in-person and via text.

They also took a vacation together.

[3] On August 10, 2013, the no contact order was still in effect. Schweisthal texted

J.S. and asked her if she wanted to go to the races with him. J.S. told

Schweisthal that she would rather attend a party thrown by a co-worker; she

invited Schweisthal to accompany her. He agreed, and he picked J.S. up for the

1

Ind. Code § 35-46-1-15.1

2

I.C. § 35-42-2-1.3(a)(2).

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party at approximately 5:00 p.m. The two stopped at a liquor store on the way

to the party. Schweisthal and J.S. then socialized at the party.

[4] After leaving the party, the two began to argue while they were in the car. At

trial, J.S. testified that Schweisthal called her a “whore” and a “slut.” Tr. p. 47.

They eventually arrived at a local bar. J.S. testified that Schweisthal was still

angry with her at the bar, and continued to yell at her.

[5] When the two left the bar, Schweisthal demanded that J.S. give him her cell

phone. J.S. asked Schweisthal to take her home. Instead of driving her home,

however, Schweisthal drove J.S. to his mother’s house. He then took her

phone, which she was holding in her hand. When J.S. got out of the car,

Schweisthal pushed her to the ground in the yard. The two fought on the

ground, and J.S. kicked Schweisthal; she screamed at him to leave her alone

and take her home. At that point, Schweisthal’s brother came out of the house

and told him to take J.S. home because she was “nothing but trouble.” Id. at

59.

[6] Schweisthal and J.S. then went to his bedroom. J.S. testified that Schweisthal

placed his arm on her neck and pushed. J.S. testified that Schweisthal had

sexual intercourse with her throughout the night. The two then slept. When

they woke up in the morning, J.S. could not locate her shorts, and she testified

that Schweisthal would not return them to her and that he told her that she was

a “whore” and could walk home naked. Id. at 70. J.S. found a pair of men’s

shorts and began to walk home barefoot. She still did not have her cell phone.

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[7] Schweisthal drove up next to J.S. and told her to get in his car. Schweisthal

drove back to his mother’s house, where he retrieved J.S.’s clothes and purse.

He then drove to a Cracker Barrel, where J.S. changed into jeans. Then they

went to a McDonald’s, and Schweisthal bought coffee. Schweisthal then drove

J.S. to her home.

[8] When they arrived at J.S.’s home, Schweisthal went into a bedroom and slept.

J.S. sat down on the couch in her living room and cried. When Schweisthal

woke up, he asked J.S. if she would like to go see a movie, and J.S. said that she

did not want to. Schweisthal asked J.S. to come into the bedroom, where he

put his head in her lap and told her he was sorry. The next day, Schweisthal

texted J.S., telling her that she was probably pregnant. He told her that he had

never meant to hurt her and that he was sorry.

[9] J.S. told her daughter what had occurred, and her daughter encouraged her to

call the police, but J.S. did not. Eventually, J.S. spoke to a friend from the

Starke County Prosecutor’s Office, who told her that she needed to report what

had happened. J.S. then spoke to officers with the Starke County Sheriff’s

Department.

[10] On August 16, 2013, the State charged Schweisthal with Count I, rape, a class

B felony; Count II, invasion of privacy, a class D felony; Count III, invasion of

privacy, a class D felony; Count IV, strangulation, a class D felony; and Count

V domestic battery, a class A misdemeanor. On March 13, 2014, the State, by

way of an amended information, changed Counts II and III to class A

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misdemeanor invasion of privacy. The State also added Count IIA and IIIA,

enhancements to the invasion of privacy charges based on Schweisthal’s prior

criminal history, which would elevate those charges to class D felonies.

[11] Schweisthal’s three-day jury trial began on January 22, 2014. At trial, the State

introduced the text messages sent by Schweisthal from June 2013 through

August 10 and 11, 2013 into evidence. Schweisthal did not object. The State

also introduced the testimony of expert witness Dr. Gregory Hale, who testified

regarding the cycle of domestic violence and the reasons why domestic violence

victims may not leave their abusers. Schweisthal objected to the testimony as

“highly prejudicial.” Tr. p. 144.

[12] On January 24, a jury found Schweisthal guilty of Counts II, III, and IV. The

jury found Schweisthal not guilty of rape and strangulation. Schweisthal

pleaded guilty to enhancements IIA and IIIA, and the trial court merged

Counts II and IIA and Counts III and IIIA.

[13] Regarding sentencing, Schweisthal entered into a plea agreement in another

cause, number 75C01-1209-FD-198 (FD-198), in which he pleaded guilty to

three counts of class D felony domestic battery. That agreement stipulated that

the sentences for those three counts of domestic battery would be served

concurrently.

[14] On February 28, 2014, the trial court held a sentencing hearing in the instant

case. It identified the following as aggravating factors: 1) the harm, injury, or

loss suffered by the victim was greater than the elements necessary to prove the

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commission of the offense, 2) Schweisthal’s criminal history, and 3) the fact

that Schweisthal had recently violated the terms of pretrial release and violated

a no contact order. It identified as mitigating factors the fact that J.S. had taken

part in inducing or facilitating the offense by inviting Schweisthal to violate the

no contact order and the fact that Schweisthal pleaded guilty to Count IIA and

IIIA and to all the counts of domestic battery in FD-198. Finding that the

aggravating factors outweighed the mitigating factors, the trial court merged the

invasion of privacy counts and sentenced Schweisthal to thirty-two months

executed for the invasion of privacy conviction and to one year executed for the

domestic battery conviction, to be served concurrently. The sentence in the

instant case was ordered to be served consecutively to the sentence imposed in

FD-198, for a total sentence of sixty-four months. Schweisthal now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[15] Schweisthal argues that there was insufficient evidence to convict him of

invasion of privacy. When reviewing challenges to the sufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of the

witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Rather, we

consider only the evidence most favorable to the verdict and the reasonable

inferences drawn therefrom, and we will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the

verdict. Id. Reversal is appropriate only when a reasonable trier of fact would

not be able to form inferences as to each material element of the offense. Id.

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[16] In order to prove that Schweisthal was guilty of invasion of privacy, the State

was required to prove beyond a reasonable doubt that he knowingly or

intentionally violated “a no contact order issued as a condition of pretrial

release, including release on bail or personal recognizance, or pretrial diversion,

and including a no contact order issued under IC 35-33-8-3.6.” I.C. § 35-46-1-

15.1(5).

[17] Schweisthal does not argue that there was not a no contact order. Rather, he

asserts that the State failed to prove that he knowingly and intentionally

violated the order. He argues that the no contact order was not entered into

evidence and that, therefore, the jury cannot know if the no contact order

included a warning informing Schweisthal that he could not communicate with

J.S. even if she initiated the contact. He maintains that because he and J.S.

were in regular contact and even took vacations together, J.S.’s actions

indicated that the no contact order was no longer valid.

[18] Schweisthal, however, ignores the fact that he stipulated to his knowledge of the

no contact order. At trial, he stipulated that, “[o]n October 3, 2012, Judge Kim

Hall issued a no contact order to the defendant Gregory Schweisthal barring

him from having any contact with [J.S.].” Tr. p. 208. Furthermore,

Schweisthal was reminded of the no contact order in open court on July 19,

2013, less than a month before the events in the instant case occurred. Id. at

259-60. Therefore, a reasonable jury could have concluded that Schweisthal

had knowledge of the no contact order.

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[19] Furthermore, Schweisthal’s implication that J.S. could somehow nullify the no

contact order by initiating contact with him is incorrect. Our legislature has

made clear, in Indiana Code section 34-26-5-11, that “[i]f a respondent is

excluded from the residence of a petitioner or ordered to stay away from a

petitioner, an invitation by the petitioner to do so does not waive or nullify an

order for protection.” Therefore, the fact that J.S. contacted Schweisthal does

not in any way change the fact that the no contact order was in full force on

August 10 and 11, 2013. There was sufficient evidence to support Schweisthal’s

conviction for invasion of privacy.

II. Admissibility of Evidence: Exhibit 30

[20] Schweisthal next argues that the trial court erred in admitting State’s Exhibit

30, which consisted of text messages sent between Schweisthal and J.S. The

admission of evidence at trial is a matter left to the discretion of the trial court.

Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review these

determinations for abuse of that discretion, and will reverse only when

admission is clearly against the logic and effect of the facts and circumstances

and the error affects a party’s substantial rights. Id. at 260.

[21] Here, while Schweisthal argues that this evidence is prejudicial, he did not

object to the admission of the evidence at trial. The failure to make a

contemporaneous objection at trial results in the waiver of the issue on appeal.

Stephens v. State, 735 N.E.2d 278, 282 (Ind. Ct. App. 2000). As Schweisthal did

not object at trial and does not argue that admission of the evidence constituted

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fundamental error, this argument is waived. Waiver notwithstanding, we

address the merits of Schweisthal’s argument.

[22] Schweisthal contends that the evidence contained in Exhibit 30 was admitted in

violation of Indiana Evidence Rule 404(b). Rule 404(b) provides that

“[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character.” Schweisthal argues that, while the State may

have properly introduced evidence of text messages sent on or about August 10

and 11, 2013, it was an abuse of discretion for the trial court to admit text

messages sent beginning in June 2013, two full months before the incident in

the instant case. Such evidence, he argues, was evidence of prior bad acts in

violating the no contact order that fall into none of the permitted uses provided

for in Rule 404(b).

[23] We agree with Schweisthal that the text messages sent in June were

inadmissible, and were erroneously admitted into evidence in violation of rule

404(b), but we find the error to be harmless. See Hoglund v. State, 962 N.E.2d

1230, 1238 (Ind. 2012) (“Generally, errors in the admission of evidence are to

be disregarded unless they affect the substantial rights of a party.”). Our

Supreme Court has stated that the improper admission of evidence is harmless

error if the conviction is supported by substantial independent evidence of guilt

satisfying the reviewing court there is no substantial likelihood the challenged

evidence contributed to the conviction. Id. Here, there was abundant

independent evidence that Schweisthal had contacted J.S., in person and via

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text. Therefore, we do not find that the error was so prejudicial as to make a

fair trial impossible.

III. Admissibility of Evidence: Testimony of Dr. Hale

[24] Schweisthal also argues that the trial court erred when it admitted the testimony

of Dr. Hale regarding the domestic violence cycle. He maintains that the

testimony inherently suggested that he had committed prior bad acts of

domestic violence. The State argues that Dr. Hale’s testimony was admissible

pursuant to Indiana Rule of Evidence 702(a), which provides that a witness

may be qualified as an expert by virtue of the witness’s “knowledge, skill,

experience, training, or education.” Kubsch v. State, 784 N.E.2d 905, 921 (Ind.

2003). Expert scientific testimony is admissible if: (1) it satisfies the above

standard, (2) the scientific principles upon which the expert testimony rests are

reliable, and (3) the testimony’s probative value is not substantially outweighed

by the danger of unfair prejudice. Hall v. State, 796 N.E.2d 388, 399 (Ind. Ct.

App. 2003). It is within the trial court’s sound discretion to decide whether a

person is qualified as an expert witness. Id.

[25] Our Supreme Court has previously determined that an expert may testify

concerning the effect of domestic violence and battered woman syndrome

provided that the testimony is relevant. Iqbal v. State, 805 N.E.2d 401, 409-10

(Ind. Ct. App. 2004) (expert testimony allowed to educate the jury on the

complexity of behavior of domestic violence victims). Schweisthal, however,

contends that this case is distinguishable from Iqbal. He points out that a panel

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of this Court noted in Iqbal that “our review of the expert’s testimony reveals

that the expert did not have personal knowledge of the case and had not

counseled Tammy,” and contends that an expert who does have personal

knowledge of the case may not testify. Id. at 410. The State acknowledges that

Dr. Hale spoke with J.S. and had personal knowledge of her case, but argues

that, since Dr. Hale’s testimony contained no references to J.S. or opinions

regarding her personally, it was admissible.

[26] We agree with the State. The testimony provided by Dr. Hale did not reveal

any personal knowledge of the case. Tr. p. 149-65. Nor did Dr. Hale offer any

opinions as to J.S. in particular. Dr. Hale’s testimony simply educated the jury

as to domestic violence generally and explained why a victim of domestic

violence might continue to contact and respond to her abuser. This was

relevant, as Schweisthal used the fact that J.S. stayed in contact with him to

bolster his contentions that he did not rape J.S. and that the sexual intercourse

was consensual. We find Dr. Hale’s testimony relevant and conclude that its

probative value was not substantially outweighed by the danger of unfair

prejudice. Therefore, the trial court did not abuse its discretion in allowing Dr.

Hale to testify.

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IV. Sentencing

[27] Finally, Schweisthal argues that the trial court erred when it ordered him to

serve thirty-two months consecutive to his sentence in FD-198.3 He maintains

that the trial court should have considered his Indiana Risk Assessment Score

as a mitigating factor and given more weight to his guilty pleas.4 Sentencing

decisions rest within the sound discretion of the trial court and are reviewed on

appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Indeed, a trial court

“may impose any sentence that is: (1) authorized by law; and (2) permissible

under the Constitution of the State of Indiana . . . regardless of the presence or

absence of aggravating circumstances or mitigating circumstances.” Ind. Code

§ 35–38–1–7.1(d). A trial court abuses its sentencing discretion if its decision is

clearly against the logic and effect of the facts and circumstances before it, or

3

Schweisthal argues that his sentence was inappropriate, but he does not make a cogent argument

concerning Indiana Appellate Rule 7(B) or address either prong of Rule 7(B). Rather, his argument is based

on his contention that the trial court considered improper aggravating factors and failed to give enough

weight to mitigating factors. Therefore, we review his sentence for an abuse of discretion.

4

Schweisthal also argues in his brief that the trial court abused its discretion by considering the rape charge

and evidence thereof during sentencing, despite the fact that the jury found Schweisthal not guilty of rape.

We address this argument here only to point out that the trial court, in fact, went out of its way to state that it

was not considering the evidence presented in regards to the rape charge: “[t]his court can only sentence you

on the crimes that were charged and the crimes that the jury convicted you of. You were charged with rape

and the jury said not guilty. I’m not going to use the evidence that was presented to the jury on the rape

charge to enhance your sentence….” Tr. p. 32. This argument, therefore, was without merit. We remind

counsel for Schweisthal that Indiana Rule of Professional Conduct 8.2(a) provides that “A lawyer shall not

make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a

candidate for election or appointment to judicial or legal office.” We caution counsel to heed this rule in the

future.

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the reasonable, probable, and actual deductions to be drawn therefrom.

Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006).

[28] When imposing the sentence, a trial court is not obligated to find a

circumstance to be mitigating merely because it is advanced as such by the

defendant. Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007). An

allegation that the trial court failed to identify or find a mitigating factor

requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

A trial court does not abuse its discretion by failing to consider a mitigating

factor not argued at sentencing, and it has no obligation to weigh aggravating

and mitigating factors against each other. Id. at 491–92.

[29] Although Schweisthal argues that the trial court erred in failing to consider his

Indiana Risk Assessment Score as a mitigating factor, he failed to proffer this

score at the sentencing hearing, and, therefore, his claim is waived. Simms v.

State, 791 N.E.2d 225 (Ind. Ct. App. 2003) (holding that, when defendant fails

to advance a mitigating circumstance at sentencing, he is precluded from

advancing it as a mitigating circumstance for the first time on appeal). Waiver

notwithstanding, the trial court had no obligation to consider the Risk

Assessment Score as a mitigating factor, and we will not find that it erred in

refraining from doing so.

[30] Schweisthal also contends that the trial court did not give proper weight to his

guilty pleas as mitigating factors. The trial court is not required to give the

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same weight to a mitigating factor as a defendant would have, Rogers v. State,

878 N.E.2d 269, 272 (Ind. Ct. App. 2007), and “the relative weight or value

assignable to reasons properly found . . . is not subject to review for abuse.”

Anglemyer, 868 N.E.2d at 491. The trial court considered the guilty pleas as a

mitigating factor along with the fact that J.S., by remaining in contact with

Schweisthal, facilitated the offense. However, it also identified aggravating

factors, including: 1) the fact that the harm, injury, or loss suffered by the victim

was greater than the elements necessary to prove the commission of the offense,

2) Schweisthal’s criminal history, and 3) the fact that Schweisthal had recently

violated the terms of pretrial release and violated a no contact order. The trial

court found that the aggravating factors outweighed the mitigating factors, a

determination that is not subject to review. Id. Therefore, we find no error.

[31] The judgment of the trial court is affirmed.

May, J., and Barnes, J., concur.

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