MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Feb 28 2019, 9:29 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                    Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyler Flota,                                             February 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1950
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82C01-1807-MC-1915



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019               Page 1 of 5
[1]   Tyler Flota appeals the trial court’s finding him in direct contempt. 1 Flota

      argues the trial court abused its discretion because it did not consider that Flota

      was under duress when he refused to testify. Because the trial court did not

      abuse its discretion, we affirm.



                                Facts and Procedural History
[2]   On July 3, 2018, Flota was subpoenaed to testify as a witness in the criminal

      trial of Kyle Fravel. The trial court held a hearing to determine if Flota would

      testify. Flota invoked his Fifth Amendment right against self-incrimination.

      The State moved for the trial court to grant Flota immunity. The court granted

      Flota immunity and advised him that he must answer questions and provide

      items that are requested. When asked if he understood and would testify, Flota

      originally said yes. However, upon clarification by his counsel, Flota told the

      trial court he would not testify. The trial court warned Flota that, if he did not

      testify, he would be held in contempt and incarcerated for 180 days. Flota

      acknowledged that he understood and still would not testify.


[3]   The trial court immediately held a contempt hearing. Flota, by counsel, argued

      he would not testify due to fear for his safety while being held in the

      Vanderburgh County Jail. Counsel argued Flota had already been assaulted

      once while in the jail but could not specify the reason for the assault. No




      1
          Ind. Code § 35-37-3-3(c) (2012).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019   Page 2 of 5
      evidence was presented to the trial court regarding the assault or any threats.

      Flota was found in direct contempt and sentenced to 150 days in jail.



                                 Discussion and Decision
[4]   Flota argues the trial court abused its discretion when it found him in direct

      contempt for refusing to testify after being subpoenaed and receiving immunity.


              A party that is willfully disobedient to a court’s order may be
              held in contempt of court. The order must be “clear and certain”
              in its requirements. It is soundly within the discretion of the trial
              court to determine whether a party is in contempt, and we review
              the judgment under an abuse of discretion standard.


      Witt v. Jay Petroleum, Inc, 964 N.E.2d 198, 201 (Ind. 2012). An abuse of

      discretion occurs if the decision is “clearly against the logic and effect of the

      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


[5]   Flota claims the trial court abused its discretion when it found him in direct

      contempt for refusing to testify. Flota claims he was under duress, which kept

      him from testifying, and he notes: “It is a defense that the person who engaged

      in the prohibited conduct was compelled to do so by threat of imminent serious

      bodily injury.” Ind. Code § 35-41-3-8. However, during the contempt hearing,

      Flota presented no evidence of a threat of serious bodily injury that would occur




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019   Page 3 of 5
      if he were to testify. Instead, Flota’s counsel presented the following argument

      on his behalf:


              Your Honor, with all due respect, I understand the State of
              Indiana’s position, however; my client is sitting in the jail and
              while the officers try to keep these people separate, the jail is
              overcrowded and it’s probably close to impossible to keep my
              client safe and protected from any co-defendants in this case. I
              can’t remember if the other co-defendant, Mr. Merrick, is also in
              the jail, although I believe he is, so there are risk factors that my
              client has had to endure while he’s at the jail. The State of
              Indiana hasn’t made any offers, hasn’t been able to get him to a
              different facility, hasn’t been able to keep Mr. Flota safe. I
              believe at one point Mr. Flota was beat up at the jail, I don’t
              know if it was regarding this or something different, however; he
              has significant concerns for his safety which is why he feels he
              cannot testify in this case because if he were to receive executed
              time on his own level 3 felony, it’s possible that he could be
              placed at sentencing at or near the same place as the co-
              defendants if they are found guilty and that there will be
              ramifications for his actions. So, for those reasons, I hope the
              Court understands why my client has taken the position that he
              has because he’s trying to protect himself from any harm that he
              might endure.


      (Tr. Vol. II at 10 (errors in original).)


[6]   Arguments made by counsel are not evidence. Blunt-Keene v. State, 708 N.E.2d

      17, 19 (Ind. Ct. App. 1999). Flota was granted immunity and ordered by the

      court to testify under a subpoena. Because Flota did not provide the trial court

      with any evidence of duress, we cannot say the trial court abused its discretion

      when it found him in direct contempt. See In re Caito, 459 N.E.2d 1179, 1182


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019   Page 4 of 5
      (Ind. 1984) (witness’s refusal to testify, invoking Fifth Amendment despite

      being granted immunity, constitutes direct contempt), cert. denied 469 U.S.

      805 (1984), reh’g denied.



                                              Conclusion
[7]   Because Flota did not provide evidence of duress, the trial court did not abuse

      its discretion by holding him in contempt when he refused to testify at trial after

      being subpoenaed and granted immunity. Therefore, we affirm.


[8]   Affirmed.


      Baker, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1950 | February 28, 2019   Page 5 of 5
