Grogg v. State, 102120 INCA, 20A-CR-809

Docket Nº:20A-CR-809
Opinion Judge:BRADFORD, CHIEF JUDGE
Party Name:Allen L. Grogg, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney:Attorney for Appellant Anthony S. Churchward Anthony S. Churchward, PC Fort Wayne, Indiana Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Judge Panel:Najam, J., and Mathias, J., concur.
Case Date:October 21, 2020
Court:Court of Appeals of Indiana
 
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Allen L. Grogg, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 20A-CR-809

Court of Appeals of Indiana

October 21, 2020

Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-1906-F3-42

Attorney for Appellant Anthony S. Churchward Anthony S. Churchward, PC Fort Wayne, Indiana

Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

BRADFORD, CHIEF JUDGE

Case Summary

[¶1] In April of 2019, Teisha Gonzalez and Allen Grogg became engaged in a relationship after meeting on Facebook. After a few weeks of speaking remotely, Gonzalez and Grogg began meeting in person and discussed living together. On May 28, 2019, Gonzalez called 911 and reported that she was the victim of a domestic incident involving Grogg. A no-contact order was issued, restricting Grogg from contacting Gonzalez. Grogg was subsequently charged with and convicted of, inter alia, Level 5 felony domestic battery. Both prior to and during trial, the State alleged that Grogg committed contempt of court by violating and attempting to violate the no-contact order. Following trial, the trial court found that Grogg had committed four separate acts of contempt and imposed an aggregate 450-day sentence.

[¶2] On appeal, Grogg contends that the evidence is insufficient to sustain his Level 5 felony domestic battery conviction. He also contends that the trial court abused its discretion in imposing a 450-day sentence for his contemptuous behavior. We affirm.

Facts and Procedural History

[¶3] Gonzalez met Grogg on Facebook in April of 2019. After speaking remotely for "a couple of weeks," Gonzalez met Grogg in person. Tr. Vol. II p. 61. Soon thereafter, the relationship "was getting serious" and Gonzalez and Grogg discussed the possibility of Grogg moving in with Gonzalez. Tr. Vol. II p. 61. Gonzalez "was a little bit more hesitant" about cohabitating than Grogg. Tr. Vol. II p. 71. Grogg "was ready." Tr. Vol. II p. 71.

[¶4] At 1:44 p.m. on May 28, 2019, Gonzalez called 911 and indicated that "she had been in a domestic and was tased." Tr. Vol. II p. 98. Fort Wayne Police Officer Michael Bodeker responded to the dispatch. When Officer Bodeker arrived at Gonzalez's residence, he observed that Gonzalez "was angry, afraid, apologetic. She was crying. She was nervous and she was pretty fearful." Tr. Vol. II p. 98.

[¶5] Gonzalez informed Officer Bodeker that she and Grogg began arguing the night before about whether Grogg should move in with Gonzalez and that at some point, she fell asleep. Grogg, who "had a taser/flashlight, one end was a flashlight, the other end was a taser; he shocked her in the back and woke her up." Tr. Vol. II p. 99. When Gonzalez "got up," Grogg "tased her in the chest area over the heart." Tr. Vol. II p. 99. Gonzalez was particularly concerned about being "tased" in the chest because she "had a heart monitor … that she had just got hooked up to 'cause she was worried about some kind of heart condition." Tr. Vol. II p. 99. Officer Bodeker also observed "two little red marks consistent to a - the taser or a taser" on Gonzalez's chest. Tr. Vol. II p. 100.

[¶6] Before being apprehended, Grogg led police on a vehicle pursuit. Fort Wayne Police Officer Daniel Nerzig assisted in the pursuit of Grogg's vehicle and testified that upon searching Grogg's vehicle, he found a flashlight that looked as if the edge was "machined." Tr. Vol. II p. 156. However, "[o]n closer inspection, [Officer Nerzig] found a toggle switch on the bottom, when you flipped you'd hit a button, the edge of the flashlight would activate with a spark, like an arc." Tr. Vol. II p. 156. Officer Nerzig further described the object, stating there's exposed metal, which is uncommon, especially with a powder-coated black flashlight. On the bottom, there's a toggle switch, on/off. Most flashlights have only a switch … only a switch that turns them on and off up here. There's an on/off switch; when the switch is depressed, it would arc.

Tr. Vol. II p. 157. Officer Nerzig indicated that he tested the "taser" portion of the object on May 28th and "it did produce a spark." Tr. Vol. II p. 157.

[¶7] On June 3, 2019, the State charged Grogg with Level 3 felony criminal confinement, Level 5 felony domestic battery, Level 5 felony criminal confinement, Level 6 felony resisting law enforcement, Class A misdemeanor resisting law enforcement, Class A misdemeanor interference with the reporting of a crime, Class B misdemeanor leaving the scene of an accident, and Class C misdemeanor possession of paraphernalia. A no-contact order was issued on June 5, 2019, prohibiting Grogg from contacting Gonzalez.

[¶8] On August 20, 2019, the State alleged that between June 5, 2019 and August 20, 2019, in violation of a no-contact order, Grogg (1) "contacted or attempted to contact" Gonzalez 861 times via the Allen County jail phone system and (2) contacted Gonzalez "using the messaging system at the Allen County jail." Appellant's App. Vol. II p. 53. Citing to Grogg's violations of the no-contact order, the State subsequently filed a verified petition to revoke Grogg's bond. Following a hearing, the trial court granted the State's petition on August 29, 2019.

[¶9] On January 10, 2020, the State alleged that between December 18, 2019 and January 10, 2020, Grogg had called Gonzalez 422 times and contacted her using the messaging system at the jail "nearly every day." Appellant's App. Vol. II p. 160. Following a hearing on the second contempt information, on January 14, 2020, the trial court suspended Grogg's communication privileges, except for communication with his attorney.

[¶10] On January 23, 2020, the State alleged that after Grogg's communication privileges were limited to contact with his attorney on January 14, 2020, he "used another Inmate's tablet messaging to contact Dawn Prather" and asked "her to contact [Gonzalez] through another party." Appellant's App. Vol. II p. 223. The trial court conducted a hearing on the third contempt information and continued the matter until after trial.

[¶11] Beginning January 28, 2020, the trial court conducted a two-day jury trial. On the second day of trial, the State filed an oral motion to dismiss the Class A misdemeanor interference with the reporting of a crime charge. The trial court granted the State's motion. Also on the second day of trial, the State alleged that Grogg "attempted again to make contact with [Gonzalez] while [Grogg] was being escorted in the hallway at the Allen County Courthouse, in the presence of Bailiffs." Appellant's App. Vol. II p. 249. The jury acquitted Grogg of the criminal confinement charges and found Grogg guilty of the remaining charges. Following trial, the trial court also found Grogg guilty of each of the four contempt charges.

[¶12] On March 5, 2020, the trial court sentenced Grogg to an aggregate six-year term for his underlying criminal convictions. The trial court also sentenced Grogg to an aggregate 450-day term for his four acts of contempt and ordered that the sentence stemming from the contempt charges run "consecutive to the sentence imposed in this cause." Appellant's App. Vol. III p. 74.

Discussion and Decision

I. Sufficiency of the Evidence

[¶13] Grogg contends that the State produced insufficient evidence to sustain his conviction for Level 5 felony domestic battery. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations omitted).

[¶14] In order to convict Grogg of Level 3 felony domestic battery, the State was required to prove that Grogg knowingly or intentionally "touche[d] a family or household member in a rude, insolent, or angry manner" and "[t]he offense [was] committed with a deadly weapon." Ind. Code § 35-42-2-1.3(a)(2) & (c)(2). Grogg does not challenge the sufficiency of the evidence to prove that he knowingly or intentionally touched...

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