FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

RYAN D. BOWER                                GREGORY F. ZOELLER
Allen, Allen & Brown                         Attorney General of Indiana
Salem, Indiana
                                             IAN MCLEAN
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                       May 31 2013, 9:27 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

CHRISTIE WILSON,                             )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )     No. 88A01-1301-CR-2
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Petitioner.                   )


                APPEAL FROM THE WASHINGTON SUPERIOR COURT
                       The Honorable Frank Newkirk, Jr., Judge
                           Cause No. 88D01-1204-FB-256



                                    May 31, 2013


                             OPINION - FOR PUBLICATION


BROWN, Judge
      Christie Wilson appeals the trial court’s order finding her in contempt. Wilson

raises one issue which we revise and restate as whether the trial court abused its

discretion when it found her in contempt. On cross-appeal, the State argues that this

court does not have jurisdiction and that this case is moot because Wilson did not timely

appeal the trial court’s order granting her immunity. We affirm.

                            FACTS AND PROCEDURAL HISTORY

      On April 11, 2012, the State charged Nathan Schultz with two counts of burglary

and eighteen counts of theft under cause number 88D01-1204-FB-256 (“Cause No.

256”). That same day, the State charged Wilson with burglary, theft, two counts of

receiving stolen property, and being an habitual offender under cause number 88D01-

1204-FB-257. On September 10, 2012, Wilson pled guilty to theft as a class D felony

and receiving stolen property as a class D felony, and the other charges were dismissed.

The court sentenced Wilson to three years for each offense and ordered that the sentences

be served consecutive to each other for an aggregate sentence of six years.

      In November 2012, the State filed a motion for grant of use immunity for Wilson

in Cause No. 256.1 On November 8, 2012, the court entered an Order Granting Use

Immunity which states:

      The State of Indiana having filed the State’s Grant of Use Immunity
      pursuant to Indiana Code 35-37-3-3, and the Court having reviewed the
      same, does now grant the witness, Christie Wilson, use immunity in
      connection with truthful testimony or statements given by her at deposition
      regarding the above-entitled cause. The Court instructs the witness that any
      evidence the witness gives, or evidence derived from that evidence, may
      not be used in a criminal proceeding against the witness, unless the

      1
          The record does not contain a copy of this motion.

                                                    2
       evidence is volunteered by the witness or is not responsive to a question by
       the prosecuting attorney. The Court instructs the witness that the witness
       must answer the questions asked and produce any items requested. The
       Court instructs the witness that a grant of use immunity does not prohibit
       the use of evidence the witness has given in a prosecution for perjury under
       I.C. 35-44-2-1. The Court further instructs the witness that, if the witness
       refuses to give the evidence after being granted use immunity, the Court
       may find the witness in contempt.

Appellant’s Appendix at 6.

       That same day, a deposition of Wilson occurred at which Wilson, her attorney, a

deputy prosecutor, and Schultz’s attorney were present. Wilson acknowledged that she

had received a copy of the Order Granting Use Immunity. Wilson indicated that she

would not be willing to answer questions, and her attorney stated that Wilson was willing

to answer basic questions, but “as to anything involving any type of criminal activity or

dealings with Mr. Schultz or otherwise, [Wilson] does intend to assert her Fifth

Amendment of the U.S. Constitution and . . . rights as well as . . . Article 1, Section 14 of

the Indiana Constitution, those rights to not self-incriminate.” Id. at 9. Wilson’s attorney

also stated that they “take issue with the Order Granting Use Immunity as being . . .

overly specific and not broad enough to actually provide the protections that those . . .

constitutions provide.” Id.

       Schultz’s counsel then asked Wilson some questions, and Wilson stated that she

was currently residing at the Rockville Correctional Facility for receiving stolen property

and aiding in a theft and that those charges were directly related to Schultz. However,

Wilson asserted her rights under the Fifth Amendment when asked whether Schultz

brought her property that led to her arrest for receiving stolen property. The prosecutor

then asked Wilson some questions, and Wilson indicated that she understood that the
                                       3
Order Granting Use Immunity provided that she would not be prosecuted for involvement

in any crimes that she speaks about and that she could be found in contempt for refusing

to answer. When asked why she did not want to testify, Wilson stated: “On advice of the

counsel, I respectfully refuse to answer and hereby assert my rights under the 5th

Amendment.” Id. at 12.

      On November 20, 2012, the State filed a Motion to Set Hearing on Contempt

against Wilson. On November 30, 2012, the court held a hearing on the contempt

allegation against Wilson, heard arguments, and found that Wilson was guilty of

contempt. On December 5, 2012, the trial court entered an order regarding Wilson’s

contempt. The court notified Wilson that she may purge herself of the contempt by

testifying truthfully in a deposition before 12:00 p.m. on December 14, 2012, and that if

she did not purge herself of the contempt that she is ordered to serve “6 months (actual)

at the Washington County Jail consecutive to any other sentence she is now ordered to

serve.”   Id. at 16.   On January 3, 2013, Wilson filed a notice of appeal from the

December 5, 2012 order.

                                     DISCUSSION

      Wilson argues that she did not willfully violate the court’s order, but merely

asserted her Fifth Amendment rights. She asserts that the Fifth Amendment to the United

States Constitution and Article 1, Section 14 of the Indiana Constitution guarantee a

defendant’s right against self-incrimination. Wilson contends that “it appears to be a

matter of first impression whether Indiana’s Constitution section 14 provides greater

protection than the U.S. Constitution’s Fifth Amendment in matters relating to compelled

                                           4
testimony through orders of use immunity.         It is reasonable to find that Indiana’s

constitution may offer more protection.” Appellant’s Brief at 4. She further states that

“Justice William Douglas, had vigorously dissented that a grant of immunity can rarely,

if ever, be broad enough to eliminate all possibility that the testimony will in fact operate

to incriminate a witness.” Id. (citing Ullmann v. United States, 350 U.S. 422, 440 (1956)

(Douglas, J., dissenting); Piccirillo v. New York, 400 U.S. 548 (1971) (Douglas, J.,

dissenting); Kastigar v. United States, 406 U.S. 441, 462 (1972) (Douglas, J.,

dissenting)). Wilson maintains that “[a] grant of immunity, especially a Use Immunity

order is proper only when it is broad enough to eliminate all possibility that the testimony

will in fact operate to incriminate her” and that if the State wishes to compel her

testimony it should offer transactional immunity. Id. at 5. She states that “[a]lthough the

U.S. Supreme Court has found that use immunity is sufficient protection, under the

Indiana Constitution transactional immunity should be the only true protection.” Id. at 7.

Wilson also argues that her “refusal to testify was not ‘disobedience of a court that

undermines the court’s authority, justice, and dignity.’ As such, the maximum 180 day

‘flat’ contempt sentence is inappropriate.” Id. at 7.

       The State argues that Wilson attempts to challenge the non-jurisdictional merits of

the trial court’s November 8, 2012 order that she appear and testify at a deposition in

Cause No. 256. The State asserts that Wilson forfeited her right to appeal the merits of

the November 8, 2012 order because she did not appeal that order according to the Rules

of Appellate Procedure. The State contends that “[s]ince Wilson does not challenge the

trial court’s finding that she is in contempt for failing to obey the November 8, 2012

                                              5
order, there are no issues for this Court to review.” Appellee’s Brief at 6. The State

further maintains that even if Wilson could challenge the November 8, 2012 order, she

has failed to demonstrate the merits of her claim.

A.     Jurisdiction

       We first address the State’s argument that this court does not have jurisdiction and

that this case is moot because Wilson did not timely appeal the trial court’s November 8,

2012 Order Granting Use Immunity. The State cites City of Gary v. Major, 822 N.E.2d

165 (Ind. 2005); and Witt v. Jay Petroleum, Inc., 964 N.E.2d 198 (Ind. 2012), reh’g

denied. In Major, the City of Gary appealed a trial court’s finding of contempt and a

corresponding award of monetary damages. 822 N.E.2d at 167. The Court held:

               The law in Indiana is well settled that a person cannot be held in
       contempt of court for failure to obey an order if the issuing court had no
       jurisdiction to give the order. Such an order is void and unenforceable.
       However, an order that is void because the court lacks jurisdiction to enter
       it is distinguished from an order that is otherwise invalid. Thus,
       “[a]lthough a defendant cannot be held in contempt of a void order, a
       defendant may be held in contempt of an erroneous order. . . . Accordingly,
       a defendant may not challenge a contempt finding based upon the prior
       order’s non-jurisdictional irregularities. A party must follow an erroneous
       order. The only remedy from an erroneous order is appeal and
       disobedience thereto is contempt.” Carson v. Ross, 509 N.E.2d 239, 243
       (Ind. Ct. App. 1987) (citations omitted), trans. denied; accord Crowl v.
       Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997) (“A party’s remedy for
       an erroneous order is appeal and disobedience of the order is contempt.”).

                                         *****

       Neither before the Court of Appeals nor before this Court has the City
       alleged the trial court lacked jurisdiction to enter its order of January 2001.
       At most, the order was erroneous. However, “[t]he only remedy from an
       erroneous order is appeal . . . .” Carson, 509 N.E.2d at 243.



                                             6
Id. at 169-170 (citations and footnote omitted). The Court then emphasized that the City

did not appeal the trial court’s original order of January 17th, which declared null and

void all towing contracts entered by the City Council and ordered the executive branch of

the City of Gary to establish a procedure for the bidding and awarding of towing

contracts, and held that “we are not presented with any question about the merits of the

order or whether it was correct.” Id. at 170. The Court observed that the “only issue is

whether there was sufficient evidence before the trial court to demonstrate that the City

was in willful disobedience of the trial court’s order.” Id.

       In Witt, John Witt, HydroTech Corp., and attorney Mark Shere were held in

contempt of court for violating the terms of a temporary restraining order. 964 N.E.2d at

200. On appeal, the appellants argued that the temporary restraining order “was issued

‘under an incorrect legal standard’ and that this ‘moots’ the finding of contempt for

violating its terms.” 964 N.E.2d at 203. The Court held:

       An order of the court is only unenforceable when the court lacked
       jurisdiction. If, in the valid exercise of its jurisdiction, a court issues an
       erroneous order, that order must be obeyed. Major, 822 N.E.2d at 169-70.
       “The only remedy from an erroneous order is appeal and disobedience
       thereto is contempt.” Id. at 170 (quoting Carson v. Ross, 509 N.E.2d 239,
       243 (Ind. Ct. App. 1987), trans. denied). Recognizing this, [the appellants]
       contend that the TRO and preliminary injunction are appealable as of right.
       See Ind. Appellate Rule 14(A)(5). A preliminary injunction is appealable
       as of right. A TRO is not. See id.; see also State ex rel. Bd. of Med.
       Registration & Examination v. Hayes, 228 Ind. 286, 288, 91 N.E.2d 913,
       913 (1950) (stating that the granting or denial of a restraining order is not
       appealable). Regardless, such appeal must be filed “within thirty (30)
       days” after the entry of the order into the record. Ind. App. R. 14(A). This
       was not done. Because of procedural default, the validity of the TRO and
       preliminary injunction cannot be challenged in this appeal.



                                              7
Id. (footnote omitted). The Court then addressed the appellants’ arguments regarding

whether the trial court abused its discretion in finding and punishing the contempt. Id. at

203-204.

       In the present case, we observe that Wilson’s notice of appeal indicated that she

was appealing the December 5, 2012 order. Wilson phrases the issue as “whether or not

the State of Indiana may compel testimony from [Wilson], who invokes the Federal and

State Fifth Amendment privileges against compulsory self-incrimination.” Appellant’s

Brief at 1. Under the statement of the case, Wilson states: “This is an appeal of the trial

court’s contempt finding, conviction and sentence of six months without ‘good time’

credit.” Id. In the argument section of her brief, she states that she “was not willfully

violating the court’s order, but merely asserting a reasonable legal position,” that her

refusal to testify was not “disobedience of a court that undermines the court’s authority,

justice, and dignity,” and that the sentence of 180 days was inappropriate. Id. at 7. While

some of Wilson’s arguments may to some extent raise the issue of the validity of the

November 8, 2012 order, we cannot say that all of Wilson’s arguments pertain only to the

validity of that order. Consequently, we will address the merits of Wilson’s argument to

the extent that she contends that the trial court erred in finding that she was in contempt.

B.     Contempt

       We now turn to whether the trial court abused its discretion when it found Wilson

in contempt. 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.” State

v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990). Contempt proceedings may be generally

                                              8
categorized as civil or criminal, according to the nature and purpose of the sanction

imposed. Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), reh’g denied, trans.

denied. A civil contempt is a violation of a court order resulting in a proceeding for the

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

proceeding must be coercive or remedial in nature. Id. By contrast, a criminal contempt

is an act directed against the dignity and authority of the court that obstructs the

administration of justice and tends to bring the court into disrepute. Id. 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.2 Id.

       Contempt may also be direct or indirect. Jones, 847 N.E.2d at 199. Direct

contempt involves action in the presence of the court, such that the court has personal

knowledge of it. Id. Indirect contempt undermines the orders or activities of the court

but involves action outside the trial court’s personal knowledge. Id. Here, the parties

agree that the alleged contempt is indirect because Wilson’s failure to answer the

questions at the deposition took place away from the courtroom and outside the personal

knowledge of the trial court. See Ind. Code § 34-47-3-1 (“A person who is guilty of any

willful disobedience of any process, or any order lawfully issued . . . by any court of

record . . . is guilty of an indirect contempt of the court that issued the process or order.”).

       A party that is willfully disobedient to a court’s order may be held in contempt of

court. Witt, 964 N.E.2d at 202. It is soundly within the discretion of the trial court to


       2
         Wilson concedes that “[t]he purported contempt in this case would, if it existed, likely be
considered criminal contempt.” Appellant’s Brief at 3. The State argues that the remedial distinction
between a civil and criminal contempt has no bearing on the appeal.
                                                 9
determine whether a party is in contempt, and we review the judgment under an abuse of

discretion standard. Id. We will reverse a trial court’s finding of contempt only if there

is no evidence or inference therefrom to support the finding. Id. Contempt of court

involves disobedience which undermines the court’s authority, justice, and dignity. Id.

The trial court has the inherent power to maintain its dignity, secure obedience to its

process and rules, rebuke interference with the conduct of business, and punish unseemly

behavior. Id. Crucial to the determination of contempt is the evaluation of a person’s

state of mind, that is, whether the alleged contemptuous conduct was done willfully. Id.

“When a person fails to abide by a court’s order, that person bears the burden of showing

that the violation was not willful.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct.

App. 1999), reh’g denied, trans. denied. The determination of whether to find a party in

contempt permits the trial court to consider matters which may not, in fact cannot, be

reflected in the written record. Witt, 964 N.E.2d at 202-203. The trial court possesses

unique knowledge of the parties before it and is in the best position to determine how to

maintain its “authority, justice, and dignity” and whether a party’s disobedience of the

order was done willfully. Id.

      The Indiana Supreme Court recently held that “[o]ur General Assembly has

empowered prosecutors to compel witnesses to testify, tipping the scales in the

government’s favor.” In re S.H., 984 N.E.2d 630, 633 (Ind. 2013) (citing Ind. Code §§

35-37-3-1 et seq. (2008); 35-34-2-1 et seq. (2008)). “To bring them back into balance,

such compulsion must be accompanied by a grant of witness immunity ‘coextensive with

the scope of the privilege.’” Id. (quoting In re Caito, 459 N.E.2d 1179, 1182 (Ind. 1984),

                                           10
cert. denied, 469 U.S. 805, 105 S. Ct. 62 (1984), reh’g denied). “Critically, the immunity

must place the witness ‘in substantially the same position as if he had properly exercised

his privilege to remain silent.’” Id. (quoting Caito, 459 N.E.2d at 1182).

       Three types of immunity may be granted a witness in exchange for her testimony.

Caito, 459 N.E.2d at 1182. Transactional immunity prohibits the State from criminally

prosecuting the witness for any transaction concerning that to which the witness testifies.

Id. at 1182-1183. Use immunity prohibits use at a subsequent criminal proceeding of

testimony compelled of the witness. Id. at 1183. Derivative use immunity prohibits

admission against a witness in a subsequent criminal prosecution of evidence obtained as

a result of the witness’s compelled testimony. Id.

       “Conferring transactional immunity upon a witness is undoubtedly coextensive

with his Fifth Amendment privilege since the compelled testimony can never be used

against the witness in any criminal proceedings.” Id. “This type of immunity grants the

same degree of protection to a citizen ordered to testify as though he had not testified at

all.” Id.

       The grant of use immunity alone cannot give a witness protection equivalent to the

Fifth Amendment privilege. Id. The shortcoming of use immunity is that, although the

compelled testimony cannot be admitted against the witness in a subsequent prosecution,

other evidence derived from that testimony can. Id. Use immunity per se cannot protect

an individual’s right not to give evidence against herself because the compelled testimony

may still be employed by investigators who have thereby gained a knowledge of the

details of the crime and other sources of incriminating evidence. Id. Use immunity

                                            11
cannot alone provide protection coextensive with the Fifth Amendment right because the

witness would have done less damage to his defense through claiming the privilege, than

by testifying with immunity. Id.

      Ind. Code § 35-37-3-3(a) governs witness immunity and provides that “any

evidence the witness gives, or evidence derived from that evidence, may not be used in

any criminal proceeding against that witness . . . .” (Emphasis added).3 The order

granting Wilson immunity states in part:

      The Court instructs the witness that any evidence the witness gives, or
      evidence derived from that evidence, may not be used in a criminal
      proceeding against the witness, unless the evidence is volunteered by the
      witness or is not responsive to a question by the prosecuting attorney.

Appellant’s Appendix at 6 (emphasis added). Based upon the language in Ind. Code §

35-37-3-3(a) and the trial court’s order granting immunity, we conclude that Wilson was

granted both use immunity and derivative use immunity.

      The United States Supreme Court has decided that statutes which compel the

testimony of target witnesses in exchange for both use immunity and derivative use

immunity are constitutional even when they allow subsequent perjury prosecutions

      3
          In its entirety, Ind. Code § 35-37-3-3 provides:

      (a)       Upon request of the prosecuting attorney, the court shall grant use immunity to a
                witness. The court shall instruct the witness, by written order or in open court,
                that any evidence the witness gives, or evidence derived from that evidence, may
                not be used in any criminal proceeding against that witness, unless the evidence
                is volunteered by the witness or is not responsive to a question by the prosecuting
                attorney. The court shall instruct the witness that the witness must answer the
                questions asked and produce the items requested.

      (b)       A grant of use immunity does not prohibit the use of evidence the witness has
                given in a prosecution for perjury under IC 35-44.1-2-1.

      (c)       If a witness refuses to give the evidence after the witness has been granted use immunity,
                the court may find the witness in contempt.
                                                     12
arising from false immunized testimony. In re Caito, 459 N.E.2d at 1183 (citing Kastigar

v. United States, 406 U.S. 441, 92 S. Ct. 1653 (1972)). In Kastigar, the United States

Supreme Court stated:

       We hold that such immunity from use and derivative use is coextensive
       with the scope of the privilege against self-incrimination, and therefore is
       sufficient to compel testimony over a claim of the privilege. While a grant
       of immunity must afford protection commensurate with that afforded by the
       privilege, it need not be broader. Transactional immunity, which accords
       full immunity from prosecution for the offense to which the compelled
       testimony relates, affords the witness considerably broader protection than
       does the Fifth Amendment privilege. The privilege has never been
       construed to mean that one who invokes it cannot subsequently be
       prosecuted. Its sole concern is to afford protection against being [“]forced
       to give testimony leading to the infliction of ‘penalties affixed to . . .
       criminal acts.[’”] Immunity from the use of compelled testimony, as well
       as evidence derived directly and indirectly therefrom, affords this
       protection. It prohibits the prosecutorial authorities from using the
       compelled testimony in any respect, and it therefore insures that the
       testimony cannot lead to the infliction of criminal penalties on the witness.

406 U.S. at 453, 92 S. Ct. at 1661 (footnote omitted). The Court in Kastigar also held

that “immunity from use and derivative use ‘leaves the witness and the Federal

Government in substantially the same position as if the witness had claimed his privilege’

in the absence of a grant of immunity.” Id. at 458-459, 92 S. Ct. at 1664 (quoting

Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S. Ct. 1594, 1609-1610 (1964)).

Thus, we cannot say that the trial court abused its discretion in finding Wilson in

contempt on the basis of the Fifth Amendment.

       With respect to Wilson’s argument that “under the Indiana Constitution

transactional immunity should be the only true protection,” we disagree. In Caito, the

appellant had refused to testify claiming his privilege against self-incrimination under the

Fifth Amendment as well as Article 1, Section 14 of the Indiana Constitution. 459
                                       13
N.E.2d at 1181. On appeal, the Court mentioned “[o]ur constitutions,” observed that the

Court in Kastigar had held that statutes which compel testimony in exchange for both use

immunity and derivative use immunity are constitutional, and concluded that Ind. Code §

35-34-2-8 did not violate the Fifth Amendment of the United States Constitution, nor

Article 1, Section 14 of the Indiana Constitution.4 Id. at 1182-1184. Based upon Caito,

which was decided about twenty years ago, we cannot say that the Indiana Constitution

requires transactional immunity or that the trial court’s finding of contempt was an abuse

of discretion.5

        For the foregoing reasons, we affirm the trial court’s finding of contempt.

        Affirmed.

RILEY, J., and BRADFORD, J., concur.




        4
          At the time, Ind. Code § 35-34-2-8 provided in part: “Upon request by the prosecuting attorney,
the court shall grant use immunity to a witness before the grand jury. The court shall instruct the witness
by written order or in open court that any evidence the witness gives before the grand jury, or evidence
derived from that evidence, may not be used in any criminal prosecution against that witness, unless the
evidence is volunteered by the witness or is not responsive to a question by the grand jury or the
prosecutor.”
        5
          Wilson mentions her sentence of 180 days in her brief. Specifically, Wilson states that her
“refusal to testify was not ‘disobedience of a court that undermines the court’s authority, justice, and
dignity.’ As such, the maximum 180 day ‘flat’ contempt sentence is inappropriate.” Appellant’s Brief at
7. Because we conclude that the trial court did not abuse its discretion in finding Wilson in contempt,
which involves disobedience of a court which undermines the court’s authority, justice, and dignity, we
do not find that Wilson’s argument requires remand. To the extent that Wilson suggests that her sentence
is otherwise inappropriate, we conclude that Wilson fails to develop the argument. Consequently, this
issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the
defendant’s contention was waived because it was “supported neither by cogent argument nor citation to
authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived
argument on appeal by failing to develop a cogent argument).
                                                    14
