Allen L. Grogg v. State of Indiana

FILED

Oct 21 2020, 8:57 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Anthony S. Churchward Curtis T. Hill, Jr.

Anthony S. Churchward, PC Attorney General of Indiana

Fort Wayne, Indiana

Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Allen L. Grogg, October 21, 2020

Appellant-Defendant, Court of Appeals Case No.

20A-CR-809

v. Appeal from the Allen Superior

Court

State of Indiana, The Honorable Frances C. Gull,

Appellee-Plaintiff. Judge

Trial Court Cause No.

02D05-1906-F3-42

Bradford, Chief Judge.

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Case Summary

[1] In April of 2019, Teisha Gonzalez and Allen Grogg became engaged in a

relationship after meeting on Facebook. After a few weeks of speaking

remotely, Gonzalez and Grogg began meeting in person and discussed living

together. On May 28, 2019, Gonzalez called 911 and reported that she was the

victim of a domestic incident involving Grogg. A no-contact order was issued,

restricting Grogg from contacting Gonzalez. Grogg was subsequently charged

with and convicted of, inter alia, Level 5 felony domestic battery. Both prior to

and during trial, the State alleged that Grogg committed contempt of court by

violating and attempting to violate the no-contact order. Following trial, the

trial court found that Grogg had committed four separate acts of contempt and

imposed an aggregate 450-day sentence.

[2] On appeal, Grogg contends that the evidence is insufficient to sustain his Level

5 felony domestic battery conviction. He also contends that the trial court

abused its discretion in imposing a 450-day sentence for his contemptuous

behavior. We affirm.

Facts and Procedural History

[3] Gonzalez met Grogg on Facebook in April of 2019. After speaking remotely

for “a couple of weeks,” Gonzalez met Grogg in person. Tr. Vol. II p. 61.

Soon thereafter, the relationship “was getting serious” and Gonzalez and Grogg

discussed the possibility of Grogg moving in with Gonzalez. Tr. Vol. II p. 61.

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Gonzalez “was a little bit more hesitant” about cohabitating than Grogg. Tr.

Vol. II p. 71. Grogg “was ready.” Tr. Vol. II p. 71.

[4] At 1:44 p.m. on May 28, 2019, Gonzalez called 911 and indicated that “she had

been in a domestic and was tased.” Tr. Vol. II p. 98. Fort Wayne Police

Officer Michael Bodeker responded to the dispatch. When Officer Bodeker

arrived at Gonzalez’s residence, he observed that Gonzalez “was angry, afraid,

apologetic. She was crying. She was nervous and she was pretty fearful.” Tr.

Vol. II p. 98.

[5] Gonzalez informed Officer Bodeker that she and Grogg began arguing the night

before about whether Grogg should move in with Gonzalez and that at some

point, she fell asleep. Grogg, who “had a taser/flashlight, one end was a

flashlight, the other end was a taser; he shocked her in the back and woke her

up.” Tr. Vol. II p. 99. When Gonzalez “got up,” Grogg “tased her in the chest

area over the heart.” Tr. Vol. II p. 99. Gonzalez was particularly concerned

about being “tased” in the chest because she “had a heart monitor … that she

had just got hooked up to ‘cause she was worried about some kind of heart

condition.” Tr. Vol. II p. 99. Officer Bodeker also observed “two little red

marks consistent to a — the taser or a taser” on Gonzalez’s chest. Tr. Vol. II p.

100.

[6] Before being apprehended, Grogg led police on a vehicle pursuit. Fort Wayne

Police Officer Daniel Nerzig assisted in the pursuit of Grogg’s vehicle and

testified that upon searching Grogg’s vehicle, he found a flashlight that looked

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as if the edge was “machined.” Tr. Vol. II p. 156. However, “[o]n closer

inspection, [Officer Nerzig] found a toggle switch on the bottom, when you

flipped you’d hit a button, the edge of the flashlight would activate with a spark,

like an arc.” Tr. Vol. II p. 156. Officer Nerzig further described the object,

stating

there’s exposed metal, which is uncommon, especially with a

powder—coated black flashlight. On the bottom, there’s a toggle

switch, on/off. Most flashlights have only a switch … only a

switch that turns them on and off up here. There’s an on/off

switch; when the switch is depressed, it would arc.

Tr. Vol. II p. 157. Officer Nerzig indicated that he tested the “taser” portion of

the object on May 28th and “it did produce a spark.” Tr. Vol. II p. 157.

[7] On June 3, 2019, the State charged Grogg with Level 3 felony criminal

confinement, Level 5 felony domestic battery, Level 5 felony criminal

confinement, Level 6 felony resisting law enforcement, Class A misdemeanor

resisting law enforcement, Class A misdemeanor interference with the reporting

of a crime, Class B misdemeanor leaving the scene of an accident, and Class C

misdemeanor possession of paraphernalia. A no-contact order was issued on

June 5, 2019, prohibiting Grogg from contacting Gonzalez.

[8] On August 20, 2019, the State alleged that between June 5, 2019 and August

20, 2019, in violation of a no-contact order, Grogg (1) “contacted or attempted

to contact” Gonzalez 861 times via the Allen County jail phone system and (2)

contacted Gonzalez “using the messaging system at the Allen County jail.”

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Appellant’s App. Vol. II p. 53. Citing to Grogg’s violations of the no-contact

order, the State subsequently filed a verified petition to revoke Grogg’s bond.

Following a hearing, the trial court granted the State’s petition on August 29,

2019.

[9] On January 10, 2020, the State alleged that between December 18, 2019 and

January 10, 2020, Grogg had called Gonzalez 422 times and contacted her

using the messaging system at the jail “nearly every day.” Appellant’s App.

Vol. II p. 160. Following a hearing on the second contempt information, on

January 14, 2020, the trial court suspended Grogg’s communication privileges,

except for communication with his attorney.

[10] On January 23, 2020, the State alleged that after Grogg’s communication

privileges were limited to contact with his attorney on January 14, 2020, he

“used another Inmate’s tablet messaging to contact Dawn Prather” and asked

“her to contact [Gonzalez] through another party.” Appellant’s App. Vol. II p.

223. The trial court conducted a hearing on the third contempt information and

continued the matter until after trial.

[11] Beginning January 28, 2020, the trial court conducted a two-day jury trial. On

the second day of trial, the State filed an oral motion to dismiss the Class A

misdemeanor interference with the reporting of a crime charge. The trial court

granted the State’s motion. Also on the second day of trial, the State alleged

that Grogg “attempted again to make contact with [Gonzalez] while [Grogg]

was being escorted in the hallway at the Allen County Courthouse, in the

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presence of Bailiffs.” Appellant’s App. Vol. II p. 249. The jury acquitted

Grogg of the criminal confinement charges and found Grogg guilty of the

remaining charges. Following trial, the trial court also found Grogg guilty of

each of the four contempt charges.

[12] On March 5, 2020, the trial court sentenced Grogg to an aggregate six-year

term for his underlying criminal convictions. The trial court also sentenced

Grogg to an aggregate 450-day term for his four acts of contempt and ordered

that the sentence stemming from the contempt charges run “consecutive to the

sentence imposed in this cause.” Appellant’s App. Vol. III p. 74.

Discussion and Decision

I. Sufficiency of the Evidence

[13] Grogg contends that the State produced insufficient evidence to sustain his

conviction for Level 5 felony domestic battery.

When reviewing the sufficiency of the evidence to support a

conviction, appellate courts must consider only the probative

evidence and reasonable inferences supporting the verdict. It is

the fact-finder’s role, not that of appellate courts, to assess

witness credibility and weigh the evidence to determine whether

it is sufficient to support a conviction. To preserve this structure,

when appellate courts are confronted with conflicting evidence,

they must consider it most favorably to the trial court’s ruling.

Appellate courts affirm the conviction unless no reasonable fact-

finder could find the elements of the crime proven beyond a

reasonable doubt. It is therefore not necessary that the evidence

overcome every reasonable hypothesis of innocence. The

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evidence is sufficient if an inference may reasonably be drawn

from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

quotations omitted).

[14] In order to convict Grogg of Level 3 felony domestic battery, the State was

required to prove that Grogg knowingly or intentionally “touche[d] a family or

household member in a rude, insolent, or angry manner” and “[t]he offense

[was] committed with a deadly weapon.” Ind. Code § 35-42-2-1.3(a)(2) &

(c)(2). Grogg does not challenge the sufficiency of the evidence to prove that he

knowingly or intentionally touched Gonzalez in a rude, insolent, or angry

manner. He argues only that the State failed to prove that the offense was

committed with a deadly weapon.

[15] Indiana Code section 35-31.5-2-86(a) provides that “‘deadly weapon’ means the

following:

(2) A destructive device, weapon, device, taser (as defined in IC

35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1),

equipment, chemical substance, or other material that in the

manner it:

(A) is used;

(B) could ordinarily be used; or

(C) is intended to be used;

is readily capable of causing serious bodily injury.

“‘Serious bodily injury’ means bodily injury that creates a substantial risk of

death or that causes: (1) serious permanent disfigurement; (2) unconsciousness;

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(3) extreme pain; (4) permanent or protracted loss or impairment of the function

of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.

[16] The question of whether a weapon is “deadly” is determined

from a description of the weapon, the manner of its use, and the

circumstances of the case. Whether an object is a deadly weapon

based on these factors is a question of fact. The original purpose

of the object is not considered. Rather, the manner in which the

defendant actually used the object is examined.

Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (internal citations

omitted). Grogg acknowledges that “it does not matter if serious bodily injures

were sustained by the crime victim, provided the defendant had the apparent

ability to injure the victim seriously through his use of the object during the

crime.” Appellant’s Br. p. 16 (citing Miller v. State, 500 N.E.2d 193, 196–97

(Ind. 1986)).

[17] The State accused Grogg of using a “flashlight type electrical device that was

either a ‘taser’ or a ‘stun gun’” during the commission of the offense.

Appellant’s Br. p. 16. A “taser” is defined as “any mechanism that is: (1)

designed to emit an electronic, magnetic, or other type of charge or shock

through the use of a projectile; and (2) used for the purpose of temporarily

incapacitating a person.” Ind. Code § 35-47-8-3. A “stun gun’ is defined as

“any mechanism that is: (1) designed to emit an electronic, magnetic, or other

type of charge that equals or does not exceed the equivalency of a five (5)

milliamp sixty (60) hertz shock; and (2) used for the purpose of temporarily

incapacitating a person.” Ind. Code § 35-47-8-2. A mechanism is a “electronic

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stun weapon” if the charge “exceeds the equivalency of a five (5) milliamp sixty

(60) hertz shock[.]” Ind. Code § 35-47-8-1.

[18] We have previously concluded that the evidence of the strength of shock

emitted from a stun gun is not required to prove that the stun gun was used as a

deadly weapon that was readily capable of causing bodily injury. In McClellan

v. State, 13 N.E.3d 546, 549 (Ind. Ct. App. 2014), we concluded that a jury

could reasonably conclude that the defendant committed battery by means of a

deadly weapon, i.e., a stun gun that could ordinarily be used in a manner

readily capable of causing serious bodily injury, despite the fact that the State’s

witness “could not determine the strength of the electric shock emitted from the

stun gun.” Likewise, in Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App.

2006), we concluded that the evidence was sufficient to prove that the stun gun

in question was a deadly weapon that was readily capable of causing serious

bodily injury when the evidence established that the stun gun shocks left marks

on the victim’s skin and caused the victim to feel pain.

[19] In this case, the evidence reveals that Grogg was in possession of an object that

had a flashlight on one end and a taser or stun gun on the other. Grogg used

the taser/stun gun portion of the object to shock Gonzalez twice. The first

shock was to Gonzalez’s back and was strong enough to awaken Gonzalez.

Grogg subsequently shocked Gonzalez in the chest, near her heart. The shock

left red marks on Gonzalez’s skin consistent with marks made by a taser or stun

gun. Gonzalez, who was under observation for a potential heart condition, was

placed in fear as a result of Grogg’s actions. Gonzalez expressed her fear both

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to Officer Bodeker and in a text message sent to Grogg in which she told Grogg

that “I hate the cops… they are a last resort and you made me so scared I had

to call them!” State’s Ex. 40 (ellipsis in original).

[20] While we are unable to determine from the record whether the object used by

Grogg to shock Gonzalez would properly be classified as a taser or a stun gun,

the object qualified as a deadly weapon because it had the apparent ability to

cause serious bodily injury and Grogg acted in a manner that put Gonzalez in

fear for her life. See Merriweather v. State, 778 N.E.2d 449, 458 (Ind. Ct. App.

2002) (providing that pellet guns or BB guns qualified as deadly weapons

because “the weapons had the apparent ability to cause serious bodily injury

and because they were used in a threatening manner, put the victims in fear.”).

As such, we conclude that the evidence is sufficient to prove that Grogg, using a

deadly weapon, knowingly or intentionally touched Gonzalez in a rude,

insolent, or angry manner. Grogg’s claim to the contrary effectively amounts to

an invitation to reweigh the evidence, which we will not do. See Robey v. State,

7 N.E.3d 371, 379 (Ind. Ct. App. 2014) (providing that on review, “we do not

reweigh the evidence.”).

II. Sentencing

[21] Grogg also contends that the trial court abused its discretion in sentencing him.

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), modified on other grounds on reh’g, 875 N.E.2d 218

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(Ind. 2007). “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.” Id.

(quotation omitted).

[22] In arguing that the trial court abused its discretion in sentencing him, Grogg

asserts that the trial court abused its discretion by imposing an aggregate 450-

day sentence for his contemptuous behavior.

Contempt is a sui generis proceeding neither civil nor criminal in

nature, although both of those labels are used to describe certain

categories of contempt. Contempt proceedings may be generally

categorized as civil or criminal, according to the nature and

purpose of the sanction imposed. A civil contempt is a violation

of a court order resulting in a proceeding for the benefit of the

aggrieved party. As such, any type of penalty in a civil contempt

proceeding must be coercive or remedial in nature.

By contrast, criminal contempt actions are punitive and are

carried out in response to an act directed against the dignity and

authority of the court which obstructs the administration of

justice and which tends to bring the court into disrepute or

disrespect. Accordingly, a criminal contempt sanction is punitive

in nature because its purpose is to vindicate the authority of the

court, and it benefits the State rather than the aggrieved party.

Buford v. State, 139 N.E.3d 1074, 1079 (Ind. Ct. App. 2019) (internal citations

and quotations omitted).

[23] The State filed four separate contempt informations. On August 20, 2019, the

State alleged that between June 5, 2019 and August 20, 2019, in violation of a

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no contact order, Grogg (1) “contacted or attempted to contact” Gonzalez 861

times via the Allen County jail phone system and (2) contacted Gonzalez

“using the messaging system at the Allen County jail.” Appellant’s App. Vol.

II p. 53. On January 10, 2020, the State alleged that between December 18,

2019 and January 10, 2020, Grogg called Gonzalez 422 times and contacted

her using the messaging system at the jail “nearly every day.” Appellant’s App.

Vol. II p. 160. On January 23, 2020, the State alleged that after Grogg’s

communication privileges were limited to contact with his attorney on January

14, 2020, he “used another inmates tablet messaging to contact Dawn Prather”

and asked “her to contact [Gonzalez] through another party.” Appellant’s

App. Vol. II p. 223. On January 29, 2020, the State alleged that Grogg

“attempted again to make contact with [Gonzalez] while [Grogg] was being

escorted in the hallway at the Allen County Courthouse, in the presence of

Bailiffs.” Appellant’s App. Vol. II p. 249. Following the underlying criminal

trial, the trial court found Grogg guilty of each allegation.

[24] We have previously adopted the approach used by the Vermont Supreme Court

in State v. North, 186 Vt. 27, 978 A.2d 435 (2009), to determine whether

behavior represented separate, discrete contempts or a single contemptuous

episode. Mockbee v. State, 80 N.E.3d 917, 922 (Ind. Ct. App. 2017). In North,

the Vermont Supreme Court indicated that one should consider the factors of

time and place and whether the offenses were motivated by a single criminal

objective. Mockbee, 80 N.E.3d at 922 (citing North, 978 A.2d at 439). It is clear

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from the allegations set forth in each of the informations that each was based on

behavior that occurred at separate and distinct times.

[25] While the parties agree that Grogg’s four contempt convictions resulted from

indirect criminal contempt charges that were filed due to his repeated violations

of the no-contact order and the order suspending Grogg’s communication

privileges, Grogg recognizes that “the four (4) Informations were filed in

succession after he had been made aware of each of them.” Appellant’s Br. p.

21. Grogg argues, however, that because “[t]he conduct all involved the same

protected person and the same conduct,” the trial court “abused its discretion

by ordering the four (4) separate sanctions to be served consecutively to each

other.” Appellant’s Br. p. 21. Grogg further argues that the trial court

could have suspended a large portion of the sentence on the

condition that he not have any further contact with Ms.

Gonzalez since the No Contact Order remained in effect. This

would have satisfied the coercive need for punishment while

furthering the remedial goal of enforcing the No Contact Order

in the future.

Appellant’s Br. p. 21. In raising this argument, Grogg proposed one possible

punishment that the trial court could have imposed. However, he failed to cite

to any authority indicating that the aggregate 450-day sentence imposed by the

trial court constituted an abuse of the trial court’s discretion.

[26] The Sixth Amendment to the United States Constitution, applied

to the States through the Fourteenth Amendment, guarantees to

defendants in criminal cases the right to trial by jury. While petty

contempts like other petty crimes may be tried without a jury,

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serious criminal contempts must be tried with a jury if the

defendant insists on this mode of trial.… There is a fixed

dividing line between petty and serious offenses: those crimes

carrying a sentence of more than six months are considered

serious crimes and those carrying a sentence of six months or less

are considered petty crimes. Thus sentences up to six months

may be imposed for criminal contempts without guilt or

innocence being determined by a jury. Sentences exceeding six

months may not be imposed absent a jury trial or waiver thereof.

Holly v. State, 681 N.E.2d 1176, 1177–78 (Ind. Ct. App. 1997) (internal citations

omitted). Stated differently, “[s]entences exceeding six months may not be

imposed absent a jury trial or waiver thereof.” Fearman v. State, 89 N.E.3d 435,

437 (Ind. Ct. App. 2017).

[27] In sentencing Grogg for the four separate acts of contempt, the trial court

imposed an aggregate 450-day sentence, stating as follows:

As it relates to the contempts that were filed against you: At the

conclusion of your jury trial, the Court found you in contempt of

court for your willful violations of the contempt informations

that were filed August 20th of 2019, January 10th of 2020,

January 23rd of 2020, and January 29th of 2020. For your

contemptuous behavior, Mr. Grogg, you are ordered committed

to the Allen County Confinement Facility for a period of 60 days

for the first contempt, a period of 90 days for the second

contempt, a period of 120 days for the third contempt, and a

period of 180 days for the fourth contempt, all to be served

consecutive and consecutive to 02D05-1906-F3-42.

Tr. Vol. III p. 50. Grogg’s guilt was determined by the trial court, not by a jury.

As such, pursuant to Holly, the maximum sentence that the trial court could

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impose for each of the guilty findings was six months. None of the individual

sentences imposed by the trial court exceeded six months.

[28] Furthermore, a defendant may be punished by consecutive sentences for

multiple separate contemptuous acts so long as the acts did not arise during a

single criminal trial where the trial court waited until after the conclusion of the

trial to consider whether the defendant acted in contempt of court. See generally

Wine v. State, 147 N.E.3d 409, 418–19 (Ind. Ct. App. 2020) (citing Codispoti v.

Pa., 418 U.S. 506, 515) (providing that when a trial judge waits until after trial

to make a determination as to whether various acts of alleged contempt that

allegedly occurred during the trial, the acts should be treated as one act of

contempt because there is no ongoing overriding necessity for the contempt

determination to preserve order during the trial), trans. denied. In this case,

while the trial court waited until after the conclusion of Grogg’s trial to

determine whether Grogg’s conduct constituted contempt, the no-contact order

remained in effect. All of the charges included alleged distinct violations of the

no-contact order, with three allegedly occurring prior to trial. Given that the

no-contact order remained in place following trial, there was a risk of continued

contemptuous behavior by Grogg and there was an ongoing necessity for the

trial court to ensure compliance with the court’s order. As such, we conclude

that the trial court acted within its discretion in imposing consecutive sentences.

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

Najam, J., and Mathias, J., concur.

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