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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