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.




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