MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Apr 14 2015, 9:23 am
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
Christopher B. Serak                                      Gregory F. Zoeller
Jacob Hammerle & Johnson                                  Attorney General of Indiana
Zionsville, Indiana
                                                          Brian Reitz
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Leona Rae Hawk,                                           April 14, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          06A01-1411-MI-508
        v.                                                Appeal from the Boone Superior
                                                          Court.
State of Indiana,                                         The Honorable Rebecca McClure,
                                                          Judge.
Appellee-Plaintiff
                                                          Cause No. 06D02-1410-MI-131




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 1 of 14
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Leona Rae Hawk (Hawk), appeals the Order of the trial

      court holding her in indirect criminal contempt of court.


[2]   We affirm.


                                                    ISSUES

[3]   Hawk raises two issues on appeal, which we restate as follows:

      (1) Whether Hawk was deprived of due process amounting to fundamental

      error because the charging instrument failed to set forth an adequate description

      of the facts establishing contempt; and

      (2) Whether the trial court’s imposition of the maximum sanction for contempt

      is unreasonable.


                           FACTS AND PROCEDURAL HISTORY

[4]   At approximately 3:00 a.m. on October 13, 2014, Whitestown Metropolitan

      Police Officer Ryan Batts (Officer Batts) observed a female—later identified as

      Hawk—driving a vehicle with a license plate that was obscured by a tinted

      cover. Officer Batts began following the vehicle at a close enough distance to

      read the license plate number. While waiting for the results of the license plate

      check, Officer Batts continued to follow Hawk and observed that she

      committed several additional traffic infractions. When he learned that the

      vehicle was registered to a man with a suspended driver’s license, Officer Batts

      initiated a traffic stop.



      Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 2 of 14
[5]   Officer Batts approached the vehicle and asked for Hawk’s information, and he

      noticed that her speech was slurred and her movements were slow. Officer

      Batts ran a check on Hawk’s driver’s license, which was suspended indefinitely.

      Officer Jacob King (Officer King) arrived on the scene to assist and asked Hawk

      to exit her vehicle. As Hawk staggered to the rear of her vehicle, Officer Batts

      observed that her pupils were constricted, but Hawk denied that she had been

      drinking alcohol. At that point, Officer Batts arrested Hawk for driving while

      suspended and to further investigate a possible charge of operating while

      intoxicated.


[6]   Officer Batts secured Hawk in handcuffs, and when he commenced a pat-down

      search, Hawk became agitated. She demanded proof that her license was

      suspended, argued that it was a civil rights violation to deny her request to have

      a female officer conduct the pat-down, and told Officer Batts that “she was

      gonna have [his] job.” (Tr. p. 13). Officer Batts placed Hawk in the front seat

      of his vehicle. Hawk continued to demand proof that her driver’s license was

      suspended, so Officer Batts displayed the information for her on his computer,

      but Hawk insisted that the results were inaccurate. En route to the jail, Hawk

      fell asleep in the squad car. Officer King, who had remained at the scene to

      wait for the tow truck, radioed to Officer Batts that the inventory search of

      Hawk’s vehicle had yielded a glass pipe, three spoons, and several syringe caps.


[7]   At the Boone County Jail, Officer Batts administered three field sobriety tests,

      of which Hawk passed one and failed two. A portable breathalyzer test

      indicated that Hawk had not consumed any alcohol. Based on Hawk’s

      Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 3 of 14
      unsteadiness, droopy eyelids, and staggering, Officer Batts determined that

      chemical tests were necessary to verify whether Hawk was under the influence

      of alcohol or a controlled substance. Officer Batts read Indiana’s implied

      consent law to Hawk, which provides that when a police officer has probable

      cause to believe that a person has been operating while intoxicated, that person

      “impliedly consents” to “submit to each chemical test offered” by the officer “as

      a condition of operating a vehicle in Indiana.” Ind. Code §§ 9-30-6-1; -2. Hawk

      stated that “she wasn’t doing anything” until Officer Batts “proved that [her

      license] was suspended.” (Tr. pp. 8-9). Interpreting her response as a refusal to

      voluntarily comply, Officer Batts applied for and, at 4:27 a.m., was granted a

      search warrant “to use reasonable force to obtain” a sample of Hawk’s blood or

      other bodily fluid. (Appellant’s App. p. 32).


[8]   Officer Batts transported Hawk to the Witham-Anson emergency room in

      Zionsville, Indiana, explaining to her that he had a search warrant to procure

      blood and/or urine samples. When Hawk indicated that she would refuse,

      Officer Batts informed her that the procedure was not optional because it was

      ordered by a judge and that she could be held in contempt for refusing to

      submit. Hawk stated that “she didn’t care what the [j]udge said, [and] she

      didn’t care what the [w]arrant said.” (Tr. p. 13). While waiting for the lab

      technician, Officer Batts read the search warrant to Hawk and allowed her to

      review it, but Hawk was belligerent—screaming that she wanted her attorney,

      Officer Batts’ superior officer, a female police officer, and a doctor present

      because Officer Batts was violating her civil rights.


      Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 4 of 14
[9]    As the lab technician, Patricia Clinkenbeard (Technician Clinkenbeard),

       prepared her equipment, she asked Hawk to stop screaming in order to avoid

       scaring the children in the emergency room, but Hawk simply yelled, “I have

       rights[,]” and continued with her tirade. (Tr. p. 23). When Technician

       Clinkenbeard approached with her needle, Hawk pulled away and started

       bouncing around on the hospital bed. Officer Batts and Officer King attempted

       to restrain her, but Hawk squirmed, kicked, and screamed that she was being

       subjected to police brutality. Because of the officers’ proximity to the struggling

       Hawk, Technician Clinkenbeard was concerned that the vein might spray and

       contaminate the officers. Realizing that it could not be safely accomplished, the

       officers decided to forego the blood draw. Officer Batts instructed Hawk to

       stand so they could leave, but Hawk refused. The officers removed her from

       the bed, and because Hawk refused to walk, they had to pull her out of the

       hospital. Hawk did not cease screaming until after she had been removed from

       the building.


[10]   On October 16, 2014, the State filed a petition for rule to show cause and an

       Information, charging Hawk with indirect criminal contempt of court based on

       her failure to comply with the search warrant. On October 30, 2014, the trial

       court conducted a hearing and, at the close of the evidence, issued its Order

       finding Hawk in indirect contempt of court. As a sanction, the trial court

       ordered Hawk to serve 180 days in the Boone County Jail.


[11]   Hawk now appeals. Additional facts will be provided as necessary.



       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 5 of 14
                                   DISCUSSION AND DECISION

                                     I. Adequacy of Charging Instrument

[12]   In this case, the trial court found Hawk to be in indirect criminal contempt of

       court for refusing to comply with the search warrant. Indirect contempt is the

       willful disobedience, resistance, or hindrance of any process or other lawfully

       issued order of a court. I.C. §§ 34-47-3-1; -2. “A criminal contempt can be any

       act which manifests a disrespect for and defiance of a court.” In re Perrello, 291

       N.E.2d 698, 700 (Ind. 1973). Hawk now claims that the finding of contempt

       should be reversed because the Information “does not describe the charge with

       the requisite specificity under prevailing law to apprise [her] of the nature of the

       prohibited conduct underlying the charge.” (Appellant’s Br. pp. 5-6).


[13]   At the outset, we note that Hawk relies on Indiana’s criminal charging statute,

       which requires that a charging information “allege the commission of an

       offense by . . . setting forth the nature and elements of the offense charged in

       plain and concise language without unnecessary repetition.” I.C. § 35-34-1-

       2(a)(4). The purpose of a charging information is to protect a defendant’s due

       process rights by providing him “with notice of the crime of which he is charged

       so that he is able to prepare a defense.” Ben-Yisrayl v. State, 738 N.E.2d 253,

       271 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164 (2002). However, it is

       well established that an action for 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” depending on “the nature and purpose of the

       sanction imposed.” Wilson v. State, 988 N.E.2d 1211, 1218 (Ind. Ct. App. 2013)

       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 6 of 14
       (quoting State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990)). Accordingly, we look

       to Indiana Code chapter 34-47-3—which specifically governs all cases of

       indirect contempt—rather than the general criminal code.


[14]   Indirect contempt involves actions that do not occur in the presence of the trial

       court; thus, an indirect contempt proceeding “requires an array of due process

       protections, including notice and an opportunity to be heard.” Ind. Bureau of

       Motor Vehicles v. Charles, 919 N.E.2d 114, 118 (Ind. Ct. App. 2009). These due

       process safeguards are codified at Indiana Code section 34-47-3-5(a), which

       stipulates that an individual charged with indirect contempt must “be served

       with a rule of the court against which the contempt was alleged to have been

       committed.” In particular, the rule to show cause is required to

               (1) clearly and distinctly set forth the facts that are alleged to constitute
               the contempt;
               (2) specify the time and place of the facts with reasonable certainty, as
               to inform the defendant of the nature and circumstances of the charge
               against the defendant; and
               (3) specify a time and place at which the defendant is required to show
               cause, in the court, why the defendant should not be attached and
               punished for such contempt.
       I.C. § 34-47-3-5(b). Before the trial court may issue a rule to show cause, an

       information verified by oath or affirmation must be filed to apprise the court of

       “the facts alleged to constitute the contempt.” I.C. § 34-47-3-5(d)(1).


[15]   Hawk concedes that she did not move to dismiss or otherwise object to the

       adequacy of the rule to show cause or the Information, thereby waiving her

       claim for appeal. See Holler v. State, 106 N.E. 364, 364 (Ind. 1914) (“The proper


       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 7 of 14
       mode of testing an information for indirect contempt is by a motion to

       discharge the rule to show cause.”). Nevertheless, she contends that the

       Information “contains fundamental errors that have important implications on

       [her] basic constitutional rights.” (Appellant’s Br. p. 5).


[16]   The fundamental error doctrine is a narrow exception to the waiver rule, under

       which our court may consider the merits of an otherwise forfeited claim if there

       are “blatant violations of basic principles, the harm or potential for harm is

       substantial, and the resulting error denied the defendant fundamental due

       process.” Ben-Yisrayl, 738 N.E.2d at 270. “To qualify as fundamental error, ‘an

       error must be so prejudicial to the rights of the defendant as to make a fair trial

       impossible.’” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (quoting

       Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). On review, we are mindful of

       the fact that the fundamental error exception is only applicable in the most

       “egregious circumstances.” Id. Simply arguing “that a constitutional right is

       implicated” is insufficient to invoke the fundamental error doctrine. Id.


[17]   In the present case, the Information charged that

               on or about October 13, 2014 in Boone County, State of Indiana,
               Leona Rae Hawk did willfully disobey a Search Warrant Order issued
               under 06D02-1410-MC-543 by the Boone County Superior Court II
               under the authority of law, after it had been served upon her, contrary
               to the form of the statutes in such cases made and provided by [the
               Indiana Code] and against the peace and dignity of the State of
               Indiana.




       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 8 of 14
       (Appellant’s App. p. 18). The State’s petition for rule to show cause

       accompanied the Information and set forth the following factual details serving

       as the basis for contempt:

                Hawk informed Officer Batts that she didn’t care what the [j]udge said
                and that Officer Batts wasn’t touching her until she spoke to her
                attorney. Officer Batts informed [Hawk] that she would be held in
                contempt of court for refusing and she said she didn’t care and that she
                wanted to speak to her attorney. Upon arriving at Witham Hospital-
                Anson and when [Technician Clinkenbeard] arrived in the room,
                [Hawk] continued to scream and yell and said we weren’t taking her
                blood or anything else until she spoke to her attorney. [Technician]
                Clinkenbeard prepared the needle and tubes and [Officer King] and
                [Officer Batts] took Hawk[’s] sweatshirt off down to her handcuffs and
                she continued to yell and scream. [Hawk] started to resist by pulling
                away and bouncing around on the hospital bed. [Officer King] and
                [Officer Batts] attempted to hold [Hawk] down to get a blood sample
                and she started kicking, kneeing, and screaming police brutality.
       (Appellant’s App. p. 20).1


[18]   Hawk argues that “[t]he charge of ‘willful disobedience’ . . . is . . . a ‘generic

       term’ that ‘encompasses a large realm’ of potentially prohibited conduct, and is

       inadequate to properly apprise her of the nature of the prohibited conduct

       charged.” (Appellant’s Br. p. 7) (quoting Gebhard v. State, 459 N.E.2d 58, 61

       (Ind. Ct. App. 1984)). We disagree.




       1
         Because the trial court’s rule to show cause specifically references the State’s petition for rule to show
       cause, we will consider the documents together to determine whether Hawk received adequate notice of the
       charge. See Smith v. Ind. State Bd. of Health, 303 N.E.2d 50, 58 (Ind. Ct. App. 1973), reh’g denied, cert. denied,
       419 U.S. 836 (1974).

       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015                 Page 9 of 14
[19]   First, we find that the Information tracks the “willful disobedience’ language of

       the indirect contempt statute. I.C. § 34-47-3-2. The dictionary defines “willful”

       as “done deliberately” or “intentional,” and the ordinary definition of

       “disobey” is “to not do what someone or something with authority tells you to

       do” or “to refuse or fail to obey rules, laws, etc.” MERRIAM-WEBSTER,

       http://www.merriam-webster.com/dictionary (last visited Mar. 31, 2015).

       Furthermore, our courts have long held that “[t]he acts constituting the criminal

       contempt ‘must be characterized by a deliberate intent to defy the authority of

       the court.’” Allison v. State ex rel. Allison, 187 N.E.2d 565, 568 (Ind. 1963)

       (quoting Denny v. State ex Inf. Brady, 182 N.E. 313, 321 (Ind. 1932)). Thus, “the

       language is clear, explicit, and susceptible of but one meaning”—that is, that

       Hawk intentionally refused to comply with the search warrant. Kilgallen v.

       State, 132 N.E. 682, 686 (Ind. 1921), reh’g overruled.


[20]   Second, the petition for rule to show cause sets forth a clear “statement of the

       facts constituting the contempt.” In re Perrello, 291 N.E.2d at 701. Despite

       being informed of the consequences of non-compliance, Hawk repeatedly stated

       that she would not consent to a blood draw, and she specifically expressed her

       disrespect for the court’s authority. When the officers attempted to use the

       “reasonable force” permitted by the warrant to obtain the samples, Hawk

       physically resisted—squirming, kicking, and screaming—making it unsafe for

       Technician Clinkenbeard to complete the draw. (Appellant’s App. p. 32).

       Accordingly, we find that Hawk received “clear notice” of the facts alleged to




       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 10 of 14
       constitute the contempt. In re Paternity of C.N.S., 901 N.E.2d 1102, 1105 (Ind.

       Ct. App. 2009).


[21]   Nevertheless, although Hawk does not assert that she was unable to defend

       herself in the contempt action based upon the facts set forth in the petition for

       rule to show cause and the Information, she argues that she will be unable to

       defend herself against double jeopardy in any future prosecution arising from the

       same incident. Particularly, she avers that the Information does not specify

       “which aspects of her conduct” were relied upon to establish willful

       disobedience. (Appellant’s Br. p. 7). According to Hawk, the risk that she will

       be “put in jeopardy for the same offense twice is not merely speculative but an

       imminent reality” because she “has in fact been charged with [r]esisting [l]aw

       [e]nforcement and [d]isorderly [c]onduct based on the same events of October

       14, 2014 as formed the basis for the contempt action.” (Appellant’s Br. pp. 8-9).


[22]   With the exception of Officer Batts’ incident report, which lists six offenses

       supporting Hawk’s arrest, we find nothing in the record establishing that she

       has officially been charged with resisting law enforcement, disorderly conduct,

       or any other offense.2 There is no question that Hawk’s sanction was intended

       to be punitive rather than remedial or coercive because the time for compliance




       2
         Hawk explains that the charges of resisting law enforcement and disorderly conduct “are currently pending
       under Cause No. 06D02-1410-CM-542, which case is reference[d] in rhetorical paragraph 5 of the Petition for
       Rule to Show Cause Hearing filed in this contempt action.” (Appellant’s Br. p. 6). We note that “rhetorical
       paragraph 5” specifically refers to Officer Batts’ affidavit for probable cause, which does not include any
       information about specific charges or the status of the case. (Appellant’s Br. p. 6).

       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015       Page 11 of 14
       with the search warrant had long lapsed. See D.W. v. State, 673 N.E.2d 509,

       511-12 (Ind. Ct. App. 1996), trans. denied. As such, the contempt sanction may

       very well constitute “the first jeopardy” for purposes of a double jeopardy

       analysis in the event that other charges have been or will be filed. Hunter v.

       State, 802 N.E.2d 480, 483 (Ind. Ct. App. 2004), trans. denied. However,

       whether any subsequent prosecution would actually violate the rule against

       double jeopardy would depend upon the statutory elements of the charged

       offenses and the factual bases upon which those new charges are predicated.

       Ellis v. State, 634 N.E.2d 771, 773 (Ind. Ct. App. 1994). We have already

       determined that Hawk was made aware of the facts giving rise to the charge of

       contempt. Absent any information of additional charges that rely on the same

       facts, we decline to engage in a purely speculative double jeopardy analysis. If

       and when Hawk’s double jeopardy rights are implicated, it will be up to her to

       make the relevant objections before the trial court. In this regard, we conclude

       that the rule to show cause and the Information for contempt satisfied the due

       process requirements of Indiana Code section 34-47-3-5(b), and we therefore

       find no error, let alone fundamental error.


                                         II. Reasonableness of Sanction

[23]   Hawk claims that the trial court’s imposition of a 180-day jail sentence is an

       inappropriate sanction. In general, a punishment for contempt is a matter

       reserved to the sound discretion of the trial court. Hopping v. State, 637 N.E.2d

       1294, 1298 (Ind.), cert. denied, 513 U.S. 1017 (1994). The trial court’s power to

       punish contempt is limited only by reasonableness. Jones v. State, 847 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 12 of 14
       190, 202 (Ind. Ct. App. 2006), reh’g denied, trans. denied. However, a trial court

       may impose a maximum sentence of six months “for criminal contempt[]

       without guilt or innocence being determined by a jury.” Holly v. State, 681

       N.E.2d 1176, 1177 (Ind. Ct. App. 1997).


[24]   Here, Hawk received the maximum sanction permitted in the absence of a jury

       trial. In determining a proper sanction, the trial court explained to Hawk that it

       “heard testimony today that has convinced the [c]ourt that you took actions

       clearly calculated to prevent hospital personnel from drawing your blood.” (Tr.

       p. 41). Moreover, the trial court found Hawk to be “the most resistant of any

       person [that it has] heard testimony about in a [c]ourt on a[n] indirect contempt

       hearing.” (Tr. p. 44).


[25]   “[A] criminal contempt sanction is punitive in nature because its purpose is to

       vindicate the authority of the court.” Jones, 847 N.E.2d at 199. In addition, a

       punishment for criminal contempt is meant to “act as a deterrent for [the

       defendant] and all others who might harbor the thought of defying an order of

       [the court].” In re Perrello, 291 N.E.2d at 701. We find that Hawk’s 180-day

       sentence effectuates both of these purposes. Hawk unequivocally announced

       her disregard for the authority of the court and proceeded to verbally and

       physically resist all efforts to execute the mandate of the search warrant. By her

       actions, Hawk put herself, the officers, and Technician Clinkenbeard at risk of

       injury or blood contamination. Moreover, by screaming, kicking, and flailing,

       Hawk successfully thwarted the blood draw, thereby preventing Officer Batts

       from collecting the necessary evidence to support a charge of operating while

       Court of Appeals of Indiana | Memorandum Decision | 06A01-1411-MI-508 | April 14, 2015   Page 13 of 14
       intoxicated. It would undermine the authority of all courts and render search

       warrants meaningless if an individual subject to a warrant could forcibly resist

       without fear of reprisal. As our supreme court has stated, “Open defiance of

       the orders of [a court] will not be countenanced.” Id. Accordingly, we find that

       Hawk’s sentence is reasonable in light of the given circumstances.


                                               CONCLUSION

[26]   Based on the foregoing, we conclude that Hawk was provided with adequate

       notice of the charge against her, and the trial court imposed a reasonable

       sanction of incarceration for 180 days.


[27]   Affirmed.


[28]   Bailey, J. and Barnes, J. concur




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