FILED
Oct 17 2023, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Theodore E. Rokita
Terre Haute, Indiana Indiana Attorney General
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Russell G. Finnegan, October 17, 2023
Appellant-Defendant, Court of Appeals Case No.
23A-MI-442
v. Appeal from the Pulaski Circuit
Court
State of Indiana, The Honorable David Chidester,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
66C01-2110-MC-168
Opinion by Judge Crone
Judges Riley and Mathias concur.
Crone, Judge.
Case Summary
[1] Russell G. Finnegan appeals the trial court’s finding that he was in indirect
criminal contempt of court. He contends that the trial court abused its
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 1 of 11
discretion in failing to act on his notice of intent to file an insanity defense and
appoint medical personnel to evaluate his mental health and testify at his
criminal contempt hearing. We agree and therefore reverse and remand.
Facts and Procedural History
[2] On June 17, 2021, Finnegan was charged with indirect criminal contempt of
court under cause number 66C01-2106-MC-99 and ordered to show cause at a
hearing as to why he should not be held in contempt. Special Judge John Potter
was selected to preside over the hearing. Following a hearing, Judge Potter
issued an order finding Finnegan in indirect criminal contempt. Thereafter, “the
Court began to receive vulgar, misogynistic, inappropriate, and harassing
correspondence” from Finnegan that was “in blatant disrespect of the Court’s
authority.” Appellant’s App. Vol. 2 at 12. On October 12, 2021, Judge Potter,
sua sponte, initiated proceedings under cause number 66C01-2110-MC-168 and
ordered Finnegan to show cause at a hearing as to why he should not again be
held in indirect criminal contempt of court. Special Judge David Chidester was
selected to preside over the hearing.
[3] During a hearing on January 3, 2023, Finnegan’s counsel alerted the trial court
that there is a “mental health issue with [Finnegan]” and that counsel was in
the process of having mental health evaluations completed in an unrelated
criminal case also pending in the Pulaski Circuit Court. Tr. Vol. 2 at 7. On
January 19, 2023, Finnegan filed a notice of intent to raise the defense of
mental disease or defect and requested the trial court to appoint medical
personnel to evaluate his mental health and testify at the contempt hearing. In
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 2 of 11
the notice, defense counsel again informed the trial court that evaluations were
still pending in the unrelated criminal case. Counsel also filed a motion for
continuance to allow for more time to obtain results. Judge Chidester never
ruled on Finnegan’s notice but denied the motion for continuance. Following
the final contempt hearing held on January 27, 2023, Judge Chidester issued an
order finding Finnegan in indirect criminal contempt pursuant to Indiana Code
Section 34-47-3-1. 1 The trial court imposed a sanction of 170 days in the
Department of Correction. 2 This appeal ensued.
Discussion and Decision
[4] Finnegan challenges the trial court’s finding that he was in indirect criminal
contempt of court. As a general matter, our supreme court has explained,
Contempt of court generally involves disobedience of a court or
court order that undermines the court’s authority, justice, and
dignity. There are two kinds of contempt: direct contempt and
indirect contempt. Indirect contempt, which is at issue in this
case, involves those acts committed outside the presence of the
1
That section provides:
A person who is guilty of any willful disobedience of any process, or any order lawfully issued:
(1) by any court of record, or by the proper officer of the court;
(2) under the authority of law, or the direction of the court; and
(3) after the process or order has been served upon the person;
is guilty of an indirect contempt of the court that issued the process or order.
2
A trial court “may impose a maximum sentence of six months ‘for criminal contempt [ ] without guilt or
innocence being determined by a jury.’” Gerber v. State, 167 N.E.3d 792, 799 (Ind. Ct. App. 2021) (quoting
Holly v. State, 681 N.E.2d 1176, 1177 (Ind. Ct. App. 1997)), trans. denied.
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 3 of 11
court which nevertheless tend to interrupt, obstruct, embarrass or
prevent the due administration of justice.
Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016) (citations and quotation
marks omitted). It is within the trial court’s discretion to determine whether a
party is in contempt, and we review the judgment under an abuse of discretion
standard. Id. This Court will reverse a trial court’s finding of contempt only if
there is no evidence or inference therefrom to support the finding. Id.
[5] Finnegan raises two issues for our review, one of which we find dispositive. He
asserts that the trial court abused its discretion in failing to appoint medical
personnel to evaluate his mental health and testify at his criminal contempt
hearing. 3 Specifically, he argues that a trial court “abuses its discretion when it
improperly denies a defendant the evaluations contemplated by statute when a
Notice of Mental Disease or Defect has been filed.” Appellant’s Br. at 16. We
agree.
[6] Indiana Code Section 35-36-2-2 provides:
3
Finnegan also asserts that the trial court’s application of Indiana Code Section 34-47-3-1 infringed upon his
constitutional right to free expression pursuant to Article 1, Section 9 of the Indiana Constitution. While we
need not address this issue because we reverse the court’s contempt finding on other grounds, we note that
Finnegan waived this claim because he did not raise this issue below and raises it for the first time on appeal.
It is well established that arguments raised for the first time on appeal, even ones based upon constitutional
claims, are waived. State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022), trans. denied; see Ellis v. State, 194
N.E.3d 1205, 1217 (Ind. Ct. App. 2022) (failure to invoke Article 1, Section 9 of Indiana Constitution in
argument before trial court resulted in waiver on appeal), trans. denied.
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 4 of 11
(a) At the trial of a criminal case in which the defendant intends
to interpose the defense of insanity, evidence may be introduced
to prove the defendant’s sanity or insanity at the time at which
the defendant is alleged to have committed the offense charged in
the indictment or information.
(b) When notice of an insanity defense is filed in a case in which
the defendant is not charged with a homicide offense under IC
35-42-1, the court shall appoint two (2) or three (3) competent
disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as
health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) of
the individuals appointed under this subsection must be a
psychiatrist or psychologist. The individuals appointed under this
subsection shall examine the defendant and testify at the trial.
This testimony shall follow the presentation of the evidence for
the prosecution and for the defense, including the testimony of
any mental health experts employed by the state or by the
defense.
[7] Here, well before the final criminal contempt hearing, Finnegan’s counsel
alerted the trial court that there is a “mental health issue with [Finnegan]” and
that he was in the process of having mental health evaluations completed in an
unrelated criminal case also pending in the Pulaski Circuit Court. Tr. Vol. 2 at
7. In response, Judge Chidester remarked that he personally did not believe that
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 5 of 11
Finnegan was mentally ill based upon prior observations of and interactions
with him. At the conclusion of the hearing, the court scheduled the final
criminal contempt hearing for January 27, 2023. On January 19, 2023,
Finnegan’s counsel filed a notice of his intent to raise the defense of mental
disease or defect along with a request for the appointment of medical personnel
to examine Finnegan pursuant to Indiana Code Section 35-36-2-2. Defense
counsel informed the court that one of the evaluations had been completed in
the unrelated criminal matter and that the other evaluation was still pending.
The trial court never ruled on Finnegan’s notice or request, and the criminal
contempt hearing proceeded on January 27, 2023, after which Finnegan was
found in contempt and sentenced to just under six months of jail time.
[8] The State’s sole response to the trial court’s “fail[ure] to act upon Finnegan’s
request to assert an insanity defense” is its claim that Finnegan was simply “not
entitled” to file that notice and obtain the statutory mental health evaluations
because a contempt proceeding is not a “trial of a criminal case” as
contemplated by Indiana Code Section 35-36-2-2. Appellee’s Br. at 17-18. The
State likens contempt proceedings to “other civil matters[,]” see id., and directs
us to case law in which Indiana courts have recognized the general proposition
that contempt is a “sui generis proceeding neither civil nor criminal in nature,
although both of those labels are used to describe certain categories of
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 6 of 11
contempt.” Buford v. State, 139 N.E.3d 1074, 1079 (Ind. Ct. App. 2019) (quoting
State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990)). 4
[9] It is well established that contempt proceedings are categorized as either civil or
criminal, according to the nature and purpose of the sanction imposed. Gerber v.
State, 167 N.E.3d 792, 798 (Ind. Ct. App. 2021), trans. denied.
A civil contempt is a violation of a court order resulting in a
proceeding for the benefit of the aggrieved party. As such, any
type of penalty in a civil contempt proceeding must be coercive
or remedial in nature. 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. 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.
4
In likening contempt proceedings to “other civil matters,” the State relies on Patterson v. State, 659 N.E.2d
220, 223 (Ind. Ct. App. 1995), in which this Court rejected the defendant’s argument that, during probation
revocation proceedings, the trial court abused its discretion in not appointing two or three psychiatrists or
psychologists to examine him and testify pursuant to Indiana Code Section 35-36-2-2. Specifically, we
concluded that the insanity defense statute was inapplicable to probation revocation proceedings, stating that
the statute “concerns a ‘criminal case’” while “[a] revocation proceeding is in the nature of a civil case.” Id.
However, we based our decision in part on prior holdings that a probation revocation hearing was not a
criminal proceeding for purposes of double jeopardy. Id. (citing Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App.
1991), aff’d, 580 N.E.2d 244 (Ind. 1991), cert. denied (1992). Unlike a probation revocation, however, our
courts have repeatedly recognized that criminal contempt proceedings and the punitive sanctions imposed
implicate double jeopardy. See Buford, 139 N.E.3d at 1080 (vacating criminal contempt finding: “[h]aving
found that the contempt sanction was punitive and thus that the sanction of ninety days in the Marion
County jail constituted a punishment, we find that the State’s filing [of a count for invasion of privacy] on the
same day as the contempt hearing … constitutes double jeopardy concerns.”); see also Hunter v. State, 802
N.E.2d 480, 483 (Ind. Ct. App. 2004) (noting test for determining whether a sanction, other than a criminal
sentence, constitutes jeopardy is whether the sanction constitutes a punishment), trans. denied. We are not
persuaded by the State’s attempt to equate criminal contempt proceedings with probation revocation
proceedings.
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 7 of 11
Id. (citation omitted).
[10] Indeed, this Court has recognized that “[o]ne who is subject to criminal
contempt is afforded many of the same constitutional safeguards that a
defendant in a criminal trial enjoys because of the penalties that may be
imposed.” Wine v. State, 147 N.E.3d 409, 415-16 (Ind. Ct. App. 2020), trans.
denied. “Criminally contemptuous conduct may violate other provisions of the
criminal law; but even when this is not the case convictions for criminal contempt
are indistinguishable from ordinary criminal convictions, for their impact on the
individual defendant is the same.” Id. at 416 (emphasis in Wine) (quoting Bloom v.
Illinois, 391 U.S. 194, 201 (1968)). That is to say, “the role of criminal contempt
and that of many ordinary criminal laws seem identical—protection of the
institutions of our government and enforcement of their mandates.” Id. (quoting
Bloom, 391 U.S. at 201). Simply put, criminal contempt is “a crime in every
fundamental respect” as it “is a violation of the law, a public wrong which is
punishable by fine or imprisonment or both.” Id. (quoting Bloom, 391 U.S. at
201).
[11] We conclude that a criminal contempt proceeding is a “trial of a criminal case”
as contemplated by Indiana Code Section 35-36-2-2. 5 Accordingly, defendants
5
We acknowledge that a criminal contempt is not categorized as a felony or a misdemeanor as those terms
are used in the prior subsection, Indiana Code Section 35-36-2-1, regarding the time for filing a notice of
intent to interpose an insanity defense. See Holly, 681 N.E.2d at 1177 (noting that a criminal contempt is
categorized as a “petty” contempt or a “serious criminal contempt” based upon the penalty actually
imposed). This does not change our opinion that a criminal contempt proceeding is a “criminal case” in
which a notice of insanity defense may be filed.
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 8 of 11
like Finnegan, who are held to answer for criminal contempt and face the same
array of punishments as do other criminal defendants, are entitled to the same
statutory protections afforded other criminal defendants, including the right to
file a notice of insanity defense and obtain the appointment of appropriate
experts to testify at the contempt proceedings. Therefore, the trial court here
abused its discretion in failing to act upon Finnegan’s notice and thereby
denying him the mental health evaluations required by Indiana Code Section
35-36-2-2.
[12] We reject the State’s alternative assertion that, even assuming that Finnegan
was improperly denied the required mental health evaluations, any such error
was harmless. “An error is harmless when it results in no prejudice to the
‘substantial rights’ of a party.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)
(citation omitted). A criminal defendant who raises an insanity defense bears
the burden of proving by a preponderance of the evidence that he suffers from a
“mental disease or defect” that rendered him “unable to appreciate the
wrongfulness of the conduct at the time of the offense.” Ind. Code § 35-41-3-
6(a). Our supreme court has recognized that defendants generally rely on expert
testimony to meet this evidentiary burden because “[o]pinion testimony from
psychiatrists, psychologists, and other mental-health experts is central to a
determination of insanity.” Barcroft v. State, 111 N.E.3d 997, 1003 (Ind. 2018).
“Unlike lay witnesses, who can merely describe symptoms they believe might
be relevant to the defendant’s mental state, mental-health experts can identify
the elusive and often deceptive symptoms of insanity and tell the [factfinder]
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 9 of 11
why their observations are relevant.” Id. (citation omitted). “In short, their goal
is to assist factfinders, ‘who generally have no training in psychiatric matters, to
make a sensible and educated determination about the mental condition of the
defendant at the time of the offense.’” Id. (citation omitted).
[13] The State suggests that Judge Chidester did not need assistance from experts
because he was essentially able to and did determine, based upon his prior
observations and familiarity with Finnegan, that Finnegan did not suffer from a
mental disease or defect that rendered him incapable of appreciating the
wrongfulness of his conduct. However, we emphasize that criminal contempt is
a specific intent offense, as it requires that the defendant’s conduct be “willful.”
Ind. Code § 34-47-3-1. Accordingly, the only relevant mental condition is
Finnegan’s condition at the time of this offense.
[14] We recognize that “even when experts are unanimous in their opinion, the
factfinder may discredit their testimony—or disregard it altogether—and rely
instead on other probative evidence[,]” such as lay testimony or demeanor
evidence, “from which to infer the defendant’s sanity.” Barcroft, 111 N.E.3d at
1003 (citing Galloway v. State, 938 N.E.2d 699, 710 (Ind. 2010)). Be that as it
may, Finnegan should have had the opportunity to obtain and offer the
requested expert evaluations, and it would have then been the trial court’s
prerogative to disregard that testimony if it was unpersuasive or inconsistent
with other probative evidence. Under the circumstances presented, we simply
cannot say with confidence that the absence of expert opinion testimony had no
bearing on the outcome of this case. See Durden, 99 N.E.3d at 652 (noting basic
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 10 of 11
premise of harmless error analysis that criminal conviction may stand when
error had no bearing on outcome of case). Therefore, we reverse the trial court’s
finding of indirect criminal contempt and remand for further proceedings
consistent with this opinion.
[15] Reversed and remanded.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 23A-MI-442 | October 17, 2023 Page 11 of 11