Hawk v. State, 06A01–1411–MI–508.

• Decision Date: 14 April 2015
• Docket Number: No. 06A01–1411–MI–508.,06A01–1411–MI–508.
• Parties: Leona Rae HAWK, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

31 N.E.3d 1046 (Table)

Leona Rae HAWK, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 06A01–1411–MI–508.

Court of Appeals of Indiana.

April 14, 2015.

Christopher B. Serak, Jacob Hammerle & Johnson, Zionsville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz Deputy, Attorney General Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

RILEY

, Judge.

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.

[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 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.

[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.

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) (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...