Tyler Flota v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

FILED

regarded as precedent or cited before any Feb 28 2019, 9:29 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

John Andrew Goodridge Curtis T. Hill, Jr.

Evansville, Indiana Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tyler Flota, February 28, 2019

Appellant-Defendant, Court of Appeals Case No.

18A-CR-1950

v. Appeal from the Vanderburgh

Circuit Court

State of Indiana, The Honorable David D. Kiely,

Appellee-Plaintiff Judge

Trial Court Cause No.

82C01-1807-MC-1915

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019 Page 1 of 5

[1] Tyler Flota appeals the trial court’s finding him in direct contempt. 1 Flota

argues the trial court abused its discretion because it did not consider that Flota

was under duress when he refused to testify. Because the trial court did not

abuse its discretion, we affirm.

Facts and Procedural History

[2] On July 3, 2018, Flota was subpoenaed to testify as a witness in the criminal

trial of Kyle Fravel. The trial court held a hearing to determine if Flota would

testify. Flota invoked his Fifth Amendment right against self-incrimination.

The State moved for the trial court to grant Flota immunity. The court granted

Flota immunity and advised him that he must answer questions and provide

items that are requested. When asked if he understood and would testify, Flota

originally said yes. However, upon clarification by his counsel, Flota told the

trial court he would not testify. The trial court warned Flota that, if he did not

testify, he would be held in contempt and incarcerated for 180 days. Flota

acknowledged that he understood and still would not testify.

[3] The trial court immediately held a contempt hearing. Flota, by counsel, argued

he would not testify due to fear for his safety while being held in the

Vanderburgh County Jail. Counsel argued Flota had already been assaulted

once while in the jail but could not specify the reason for the assault. No

1

Ind. Code § 35-37-3-3(c) (2012).

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evidence was presented to the trial court regarding the assault or any threats.

Flota was found in direct contempt and sentenced to 150 days in jail.

Discussion and Decision

[4] Flota argues the trial court abused its discretion when it found him in direct

contempt for refusing to testify after being subpoenaed and receiving immunity.

A party that is willfully disobedient to a court’s order may be

held in contempt of court. The order must be “clear and certain”

in its requirements. It is soundly within the discretion of the trial

court to determine whether a party is in contempt, and we review

the judgment under an abuse of discretion standard.

Witt v. Jay Petroleum, Inc, 964 N.E.2d 198, 201 (Ind. 2012). An abuse of

discretion occurs if the decision is “clearly against the logic and effect of the

facts and circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490

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

[5] Flota claims the trial court abused its discretion when it found him in direct

contempt for refusing to testify. Flota claims he was under duress, which kept

him from testifying, and he notes: “It is a defense that the person who engaged

in the prohibited conduct was compelled to do so by threat of imminent serious

bodily injury.” Ind. Code § 35-41-3-8. However, during the contempt hearing,

Flota presented no evidence of a threat of serious bodily injury that would occur

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if he were to testify. Instead, Flota’s counsel presented the following argument

on his behalf:

Your Honor, with all due respect, I understand the State of

Indiana’s position, however; my client is sitting in the jail and

while the officers try to keep these people separate, the jail is

overcrowded and it’s probably close to impossible to keep my

client safe and protected from any co-defendants in this case. I

can’t remember if the other co-defendant, Mr. Merrick, is also in

the jail, although I believe he is, so there are risk factors that my

client has had to endure while he’s at the jail. The State of

Indiana hasn’t made any offers, hasn’t been able to get him to a

different facility, hasn’t been able to keep Mr. Flota safe. I

believe at one point Mr. Flota was beat up at the jail, I don’t

know if it was regarding this or something different, however; he

has significant concerns for his safety which is why he feels he

cannot testify in this case because if he were to receive executed

time on his own level 3 felony, it’s possible that he could be

placed at sentencing at or near the same place as the co-

defendants if they are found guilty and that there will be

ramifications for his actions. So, for those reasons, I hope the

Court understands why my client has taken the position that he

has because he’s trying to protect himself from any harm that he

might endure.

(Tr. Vol. II at 10 (errors in original).)

[6] Arguments made by counsel are not evidence. Blunt-Keene v. State, 708 N.E.2d

17, 19 (Ind. Ct. App. 1999). Flota was granted immunity and ordered by the

court to testify under a subpoena. Because Flota did not provide the trial court

with any evidence of duress, we cannot say the trial court abused its discretion

when it found him in direct contempt. See In re Caito, 459 N.E.2d 1179, 1182

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(Ind. 1984) (witness’s refusal to testify, invoking Fifth Amendment despite

being granted immunity, constitutes direct contempt), cert. denied 469 U.S.

805 (1984), reh’g denied.

Conclusion

[7] Because Flota did not provide evidence of duress, the trial court did not abuse

its discretion by holding him in contempt when he refused to testify at trial after

being subpoenaed and granted immunity. Therefore, we affirm.

[8] Affirmed.

Baker, J., and Tavitas, J., concur.

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