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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 1 of 14 [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).
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 2 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 3 of 14 [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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 4 of 14 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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 5 of 14 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. Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 6 of 14 [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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 7 of 14 [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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 8 of 14 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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 9 of 14 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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 10 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 11 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 12 of 14 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
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 13 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 75A04-1403-CR-141 | February 19, 2015 Page 14 of 14