author: Najam, Judge.

text:
    Brian Harold CONNOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-442
    Court of Appeals of Indiana.
    FILED November 29, 2018
    Attorneys for Appellant: Marc Lopez, Matthew Kroes, The Marc Lopez Law Firm, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Brian Harold Connor appeals his conviction for operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor, following a bench trial. Connor raises two issues for our review, one of which we find dispositive, namely, whether the trial court abused its discretion when it admitted into evidence the results of a chemical breath test.

[2] We reverse.

Facts and Procedural History

[3] On March 17, 2017, the Indianapolis Metropolitan Police Department ("IMPD")

conducted a sobriety checkpoint near the intersection of Delaware Street and Michigan Street. At approximately 7:25 p.m., Connor arrived at the sobriety checkpoint, and IMPD Captain Don Weilhamer stopped Connor. Captain Weilhamer noticed that there "was an odor of alcoholic beverage coming from" Connor. Tr. Vol. II at 43. He further noticed that Connor's eyes were "bloodshot and glassy. He was also reacting rather slowly when [Captain Weilhamer] was asking him for his driver's license and registration." Id. Captain Weilhamer then asked Connor how much he had had to drink, and Connor responded that he had had two beers.

[4] At that point, Captain Weilhamer asked Connor to step out of the car. Captain Weilhamer then administered a series of field sobriety tests to Connor. Connor passed the test that required him to stand on one leg, but he failed the horizontal gaze nystagmus test and the walk and turn test. Captain Weilhamer then read Connor the implied consent advisement, and Connor agreed to take a chemical breath test.

[5] Captain Weilhamer escorted Connor to a local police station and administered a breath test using the Intox EC/IR II machine. When Connor blew into the mouthpiece for the test, he blew so hard that the instrument registered a "maximum flow exceeded" message. Id. at 51. Captain Weilhamer then waited approximately three minutes, replaced the mouthpiece, and administered another test using the same machine. The results of the second breath test showed that Connor had an alcohol concentration equivalent to 0.097 gram of alcohol per 210 liters of breath. After Captain Weilhamer received the results of the test, he placed Connor under arrest and searched his pockets. During that search, Captain Weilhamer found a small flask inside Connor's pocket that "smelled of alcohol." Id. at 64.

[6] The State charged Connor with one count of operating a vehicle while intoxicated, as a Class C misdemeanor; one count of operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor; and one count of possessing an open alcoholic container during the operation of a motor vehicle, as a Class C infraction.

[7] The trial court held a bench trial on November 13, 2017. During the trial, the State presented as evidence the testimony of IMPD Lieutenant Richard Kivett, who was the sobriety checkpoint commander on March 17. Lieutenant Kivett testified about the details of the sobriety checkpoint. At the end of Lieutenant Kivett's testimony, Connor moved to suppress evidence that officers had obtained at the checkpoint on the ground that the checkpoint was unconstitutional. The trial court bifurcated the trial and allowed the parties to submit briefs on the constitutionality of the checkpoint. Thereafter, the trial court denied Connor's motion to suppress.

[8] The trial court continued the trial on February 5, 2018. During the second phase of the trial, the State presented the testimony of Captain Weilhamer as evidence. Captain Weilhamer testified about his observations of Connor at the sobriety checkpoint and about the results of the field sobriety tests. He also testified that, based on his observations of Connor and the failed field sobriety tests, he had decided to administer a chemical breath test to Connor. Captain Weilhamer then testified about the procedure he had followed when he administered the breath test. Specifically, he testified that, when he had attempted to perform the test the first time, "Connor blew so hard that the instrument registered maximum flow exceeded." Id. at 51. Captain Weilhamer testified that, after he had received the error message, he waited approximately three minutes and performed another test using the same machine.

[9] During the State's direct examination of Captain Weilhamer, Connor moved to suppress the results of the chemical breath test. In his motion, Connor asserted that the results of that test were inadmissible because the procedures Captain Weilhamer had followed when he administered the test had "not been approved in accordance with the rules" adopted by the Department of Toxicology. Id. at 54. The trial court denied Connor's motion. The State then moved to admit the results of the chemical breath test as evidence, which the trial court admitted over Connor's objection.

[10] At the conclusion of the bench trial, the court found Connor guilty of operating a motor vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than .15 gram of alcohol per 210 liters of breath, as a Class C misdemeanor, but not guilty of the remaining two counts. The trial court entered judgment of conviction and sentenced Connor accordingly. This appeal ensued.

Discussion and Decision

[11] Connor asserts that the trial court abused its discretion when it admitted into evidence the results of the chemical breath test. Connor initially challenged the admission of this evidence through a motion to suppress but now appeals following a completed trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Lanham v. State , 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010).

[12] " 'The admission of chemical breath test results is left to the sound discretion of the trial court and will be reviewed for an abuse of discretion.' " Wolpert v. State , 47 N.E.3d 1246, 1247 (Ind. Ct. App. 2015) (quoting Fields v. State , 807 N.E.2d 106, 109 (Ind. Ct. App. 2004) ). "An abuse of discretion occurs when the trial court's decision is contrary to the logic and effects of the facts and circumstances before it, or when the trial court errs on a matter of law." Wilson v. State , 973 N.E.2d 1211, 1213-14 (Ind. Ct. App. 2012). On appeal, Connor specifically contends that the trial court abused its discretion when it admitted the results of the chemical breath test as evidence because Captain Weilhamer did not administer the test "in accordance with the rules" set out by the Department of Toxicology. Appellant's Br. at 15.

[13] Indiana Code Section 9-30-6-5(a) (2018) provides that "[t]he director of the state department of toxicology shall adopt rules under IC 4-22-2 concerning ... [t]he certification of the proper technique for administering a breath test." The results of a chemical breath test "are not admissible" if the techniques used in the test "have not been approved in accordance with the rules adopted" by the Department of Toxicology. Ind. Code § 9-30-6-5(d)(4) ; see also Short v. State , 962 N.E.2d 146, 149 (Ind. Ct. App. 2012). "Because the State is the party offering the results of the breath test, it has the burden of establishing the foundation for admitting the results." Short , 962 N.E.2d at 149. "Therefore, the State must set forth the proper procedure for administering a chemical breath test and show that the operator followed that procedure." Id.

[14] Pursuant to Indiana Code Section 9-30-6-5, the Department of Toxicology has adopted rules concerning the proper technique a test operator must follow when administering a breath test using an Intox EC/IR II breath test instrument, which is the instrument Captain Weilhamer used to administer the breath test to Connor. In particular, those rules prescribe twelve steps a test operator is required to follow in order to properly administer a breath test. See 260 Ind. Admin. Code 2-4-2(a) (2014), http://www.in.gov/legislative/iac/iac_title?iact=260. Those rules also anticipate that, following those initial twelve steps, a test operator may receive one of six specified error messages, namely: "Please blow"; "Interfering Substance"; "RFI Detected"; "Mouth Alcohol"; "Insufficient Sample"; or "Time Out." 260 I.A.C. 2-4-2(b). In the event a test operator receives one of those error messages, the rules provide for additional procedures the test operator must follow in order to re-administer the breath test. See id.

[15] Here, when Captain Weilhamer initially administered the breath test to Connor, the machine displayed an error message that read "maximum flow exceeded." Tr. Vol. II at 51. There is no dispute that the Department of Toxicology's rules neither identify that error message as a possible initial breath test result nor prescribe the technique that a test operator must follow when the instrument displays that message. As such, Connor contends that that error message was an "unanticipated problem" for which there is no direction in the administrative code and, therefore, Captain Weilhamer's resolution "has neither been approved ... by the Department of Toxicology nor codified in the Indiana Administrative Code." Appellant's Br. at 16. In essence, Connor contends that the breath test results were inadmissible because the Department of Toxicology has not designated the proper procedure to be followed when administering a breath test after having received a "maximum flow exceeded" error message, a message that is not addressed in the administrative code. We must agree.

[16] The "[i]ntroduction of a breath test lends the aura of scientific certainty to a prosecution for driving while intoxicated, often sealing the fate of the offender in the mind of the trier of fact." Bowman v. State , 564 N.E.2d 309, 311 (Ind. Ct. App. 1990), summarily aff'd in relevant part , 577 N.E.2d 569, 571 (Ind. 1991). "Thus, the detailed procedures to be followed," as adopted by the Department of Toxicology, "reflect a determination that the test should be as accurate and free from uncertainty as possible." Id.

[17] But neither our trial courts nor this court have the requisite knowledge to determine whether the technique that is to be followed after an error message is the correct technique when that error message has not been addressed in the administrative code. Rather, the Indiana General Assembly has tasked the Department of Toxicology with promulgating rules concerning the proper technique for administering a breath test because the Department possesses the specialized knowledge of how the breath test machines work. Because courts lack the necessary expertise that the Department of Toxicology possesses, our Supreme Court has made clear that "breath test results may be admitted only when the test was conducted in 'strict compliance'

with" the regulations adopted by the Department of Toxicology. State v. Cioch , 908 N.E.2d 1154, 1156 (Ind. 2009).

[18] The State acknowledges that "[t]he Administrative Code is silent as to what officers must do when an error resulting from too much breath being blown appears." Appellee's Br. at 17-18. Nonetheless, the State contends that Captain Weilhamer "correctly presumed that a second test was required and administered a second test" because, "[f]or every one of the listed error messages that are outlined in the regulation, the next step is to 'perform an additional breath test[.]' " Id. (quoting 260 I.A.C. 2-4-2 ).

[19] While the State is correct that a test operator must perform an additional breath test if the operator receives any of the listed six error messages, the actual steps that a test operator must take when administering the second test vary based on the specific message received. For instance, if "Please blow" appears, the test operator is to perform an additional breath test, beginning with step eleven. 260 I.A.C. 2-4-2(b)(1). If after the second test, "No. 0.020 Agreement" is displayed, the operator must perform an additional breath test beginning with step two and proceeding through step twelve. Id. Similarly, if "RFI Detected"; "Insufficient Sample"; or "Time Out" is displayed, the operator should administer an additional breath test beginning at step two and proceeding through step twelve. See 260 I.A.C. 2-4-2(b)(3) and (5).

[20] However, for both the "Interfering Substance" and "Mouth Alcohol" messages, the operator is to administer a second breath test beginning at step one. See 260 I.A.C. 2-4-2(b)(2) and (4). For those errors that require the test operator to begin at step one, the test operator must wait fifteen minutes before administering the second test. See 260 I.A.C. 2-4-2(a). But for those errors that require the test operator to begin at step two, there is no set amount of time that a test operator must wait before administering the second test. See id.

[21] In other words, contrary to the State's assertion, there is no single protocol for a test operator to follow when administering an additional breath test after having received an error message. Rather, there is a significant difference in the procedure to be followed depending on the error message. Without direction from the Department of Toxicology on how to properly proceed following the "maximum flow exceeded" error message, we cannot say that Captain Weilhamer's decision to simply wait three minutes before administering a second test using the same machine was correct. We cannot determine whether Captain Weilhamer should have re-administered the test beginning at step one, which requires a fifteen-minute wait before the second test, or whether he should have re-administered the test beginning at step two, which does not require the test operator to wait before administering the second test, or whether the Department of Toxicology would prescribe an entirely different protocol for the second test.

[22] In sum, the evidence does not show that the technique Captain Weilhamer used to administer the second breath test to Connor was an authorized technique that produced an accurate test result. When Captain Weilhamer received an error message for which there was no corresponding protocol in the administrative code, he improvised. Because the technique he used had not been approved in accordance with a rule promulgated by the Department of Toxicology, as a matter of law the results of the breath test were not admissible. I.C. § 9-30-6-5(d)(4). The trial court therefore abused its discretion when it admitted that evidence. And we cannot say that the error in the admission of the breath test results was harmless, as the State did not present any other evidence to establish that Connor had operated a motor vehicle with an alcohol concentration equivalent to more than 0.08 gram per 210 liters of breath.

[23] Thus, we hold that the trial court erred when it admitted the results of the breath test as evidence because Captain Weilhamer had administered the test using a procedure that had not been approved by the Department of Toxicology. And we hold that the admission of the breath test was not harmless error, as it was the only evidence that the State presented to support his conviction. We therefore reverse Connor's conviction for operating a motor vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of the person's breath.

[24] Reversed.

Bailey, J., and May, J., concur.

      We held oral argument in this case on October 26, 2018, at Washington High School in Washington, Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the administration, faculty, staff, and students of Washington High School for their hospitality.

      Connor asserts that the trial court erred when it denied his motion to suppress. However, because Connor appeals after a completed trial, "the question of whether the trial court erred in denying his motion to suppress is no longer viable." Reinhart v. State , 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

      In his brief on appeal, Connor states that the administrative rules address the following error messages: please blow, subject sample interferent, subject sample invalid, radio interference, and subject sample incomplete. But those are the potential error messages that can appear on the report when the test operator uses the BAC DataMaster breath test instrument. See 260 I.A.C. 2-4-1.

      The State relies on Hurley v. State , 75 N.E.3d 1074, 1080 (Ind. 2017), to support its assertion that "[o]ur Supreme Court has interpreted [260 Indiana Administrative Code 2-4-2 ] to 'presumptively require[ ]' a second test to be administered if the first attempt at administration should fail, provided that the suspect is not refusing the test." Appellee's Br. at 17. But the State's reliance on Hurley is misplaced. Hurley specifically states that 260 Indiana Administrative Code 2-4-2"requires an officer to administer a second test after the first test returns an insufficient sample unless the subject clearly manifests an unwillingness to take the test." Hurley , 75 N.E.3d at 1077 (emphasis added). Thus, our Supreme Court in that case did not interpret the entire regulation as requiring an officer to administer a second test if the first test should fail for any reason. Rather, that court's holding was limited to the procedure an officer should follow if the instrument displays one particular error message, which is not at issue here.

      Until the Department of Toxicology provides a technique for a test operator to follow when the "maximum flow exceeded" error appears on the machine, the test operator can either obtain an alternate chemical test, such as a blood test, or perform a breath test on another breath test machine. Indeed, for each of the listed error messages, a test operator has the option of obtaining an alternate chemical test for ethanol or performing an additional breath test on another instrument instead of performing a second test on the machine in question. See, e.g. , 260 I.A.C. 2-4-2(b)(1)(B) and (C).

      The State did present as evidence Captain Weilhamer's testimony that Connor smelled of alcohol, that he had bloodshot and glassy eyes, and that he had failed two field sobriety tests. However, that evidence does not support his conviction for operating a motor vehicle with a specific alcohol concentration between 0.08 and 0.15 gram of alcohol per 210 liters of breath.

      Connor also contends that the trial court erred under Article 1, Section 11 of the Indiana Constitution when it admitted evidence that officers had obtained pursuant to a sobriety checkpoint that he alleges was unconstitutional as conducted. But, as discussed above, the only evidence the State presented to support Connor's conviction was the result of the breath test. Because we hold that the only evidence to support his conviction was inadmissible, we need not address Connor's contention that the sobriety checkpoint was unconstitutional.


source: Caselaw Access Project

author: Bailey, Judge.

license: Public Domain

text:
    Anthony J. JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1753
    Court of Appeals of Indiana.
    FILED November 29, 2018
    Attorney for Appellant: Christopher L. Clerc, Columbus, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Anthony J. Johnson ("Johnson") appeals the trial court's order increasing his bail bond from $175,000 to $500,000. Johnson raises one issue on appeal which we restate as whether the trial court abused its discretion when it increased his bail bond.

[2] We affirm.

Facts and Procedural History

[3] On March 28, 2018, a detective with the Columbus Police Department ("CPD") filed a probable cause affidavit in which he swore as follows. On January 30, 2018, and February 28, 2018, the CPD used a confidential informant ("CI") to conduct controlled buys of methamphetamine from Johnson. The CI conducted two more controlled buys of heroin from Johnson on March 21, 2018, and March 22, 2018. During the latter buy, Johnson forced the CI to remove her clothes so he could check for a wire. Initially, the CI removed only her shirt and bra, but Johnson forced her to remove her pants. Johnson forcibly put his fingers in the CI's vagina and pulled her towards him. The sergeant conducting the strip search of the CI afterwards noticed blood in the CI's underwear that was not there before the buy. The CI reported that Johnson scratched her vagina. She was then transported to the hospital for a sexual assault exam. Johnson was arrested on March 23, 2018, and after transporting him to the jail, the officer found methamphetamine and heroin in the back of his police car.

[4] The State charged Johnson on March 28, 2018, with rape, as a Level 3 felony; two counts of dealing methamphetamine, as Level 3 felonies; two counts of dealing in a narcotic drug, as Level 5 felonies; possession of methamphetamine, as a Level 5 felony; and possession of a narcotic drug, as a Level 5 felony. On May 14, 2018, Johnson filed a motion to reduce his bail bond, which had been set at $175,000, and the court held a hearing on that motion on May 17.

[5] Johnson testified at the hearing as follows. He is 39 years old and has lived in Indiana for thirteen or fourteen years. His mother still lives in Brooklyn, New York, but he has four children who live in Columbus, Indiana. Johnson is ordered to pay child support but owes an unknown amount in arrearage. Johnson was last employed in 2017 and held that job for approximately one month. Before that job, he did not have consistent employment and worked at a series of temporary jobs. Johnson's girlfriend's sister had promised him a job upon his release from jail. Johnson has arrests or convictions in Kentucky, New York, and Delaware, in addition to previous convictions in Indiana. In addition, in the past Johnson has failed to appear for two hearings in two different Indiana criminal cases.

[6] Detective Kelly Hibbs ("Det. Hibbs") of the CPD testified as follows at the bond reduction hearing. After Johnson's arrest, the CI was assaulted by three people, sustaining injury to her head and a black eye. Det. Hibbs listened to recorded phone calls made by Johnson from the Bartholomew County Jail and was able to connect Johnson's communications to the assault of the CI. Johnson used the code words "wine stain" in reference to the CI and stated that, if the "wine stain" was "cleaned up" before his trial, he would be "good." Tr. at 24. Two of the perpetrators of the assault were in custody at the time of the bond hearing, while the police continue to search for the other perpetrator.

[7] During the jail phone calls Det. Hibbs heard Johnson express a concern for his girlfriend's safety and arrange for her to obtain a gun. CPD officers executed a search warrant for Johnson's residence and found several firearms. Det. Hibbs testified that Johnson's "access to firearms is apparently readily available," and, based on Johnson's phone calls from jail, Det. Hibbs did not believe that Johnson "will do anything legally when he gets out." Tr. at 22.

[8] At the conclusion of the hearing, the State asked the court to consider an increase in Johnson's bail bond. After summarizing the testimony, the trial court granted the State's request, stating:

The Court is concerned regarding safety to the community and the C.I. who was involved in this case and also the alleged victim of the rape. The Court is concerned with the phone conversations that have been discussed here today between Mr. Johnson and other people in this community. The Court is not going to stand for any type of initiation or contribution to people being harmed in this community and finds that type of action a sincere threat to the community.
The Court does not believe that a bond reduction is appropriate. I'm going to deny that. In fact, I think given the circumstances that have been set forth here today, the Court is going to raise the bond to Five Hundred Thousand or Ten Percent cash.

Tr. at 27. This appeal ensued.

Discussion and Decision

[9] The amount of bail is within the sound discretion of the trial court and will be reversed only for an abuse of discretion. Cole v. State , 997 N.E.2d 1143, 1145 (Ind. Ct. App. 2013). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. The Indiana Constitution prohibits excessive bail. IND. CONST. art. 1, § 16. Bail is excessive if it is set at an amount higher than reasonably calculated to ensure the accused party's presence in court. Cole , 997 N.E.2d at 1145. The inability of the accused to procure the amount necessary is not a factor that, on its own, renders the amount unreasonable. Lopez v. State , 985 N.E.2d 358, 361-62 (Ind. Ct. App. 2013) (citing Mott v. State , 490 N.E.2d 1125, 1128 (Ind. Ct. App. 1986) ), trans. denied.

[10] The Indiana Code provides that "[b]ail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community " if the court finds that the defendant poses a risk to the physical safety of either another person or the community. I.C. § 35-33-8-4(b) (emphasis added). The statute further provides a non-exhaustive list of factors for the trial court to consider:

(1) the length and character of the defendant's residence in the community;
(2) the defendant's employment status and history and the defendant's ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental condition;
(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring the defendant to trial;
(6) the defendant's previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.

I.C. § 35-33-8-4. The trial court may increase bail where the State provides clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community. I.C. § 35-33-8-5(b) (emphasis added). Moreover, a court "may not reduce bail if the court finds by clear and convincing evidence ... that the defendant otherwise poses a risk to the physical safety of another person or the community." I.C. § 35-33-8-5(c) (emphasis added).

[11] Here, the trial court did not abuse its discretion by increasing Johnson's bail because the State requested such an increase and provided clear and convincing evidence that Johnson posed a risk to the physical safety of the CI. Det. Hibbs's testimony established that, after Johnson's incarceration, he arranged for the assault of the CI who he is accused of raping. At Johnson's direction, three people assaulted the CI, resulting in two stitches on the back of her head and a black eye. And Johnson had ready access to firearms, as indicated by his arrangement for his girlfriend to obtain a gun and the firearms the police found when they searched his residence. The trial court did not abuse its discretion when it credited Det. Hibbs's assessment that Johnson was unlikely to obey the law upon release from jail. Given Det. Hibbs's testimony-in addition to the facts that Johnson had a spotty employment history, had a criminal history in four different states including Indiana, had a history of failing to appear for other criminal proceedings, and faced significant criminal charges-we cannot say the trial court's decision was against the logic and effect of the facts and circumstances before it. I.C. § 35-33-8-4(b), (c) ; Cole , 997 N.E.2d at 1145.

[12] Affirmed.

Mathias, J., and Bradford, J., concur.

      Ind. Code § 35-42-4-1(a).

      I.C. § 35-48-4-1.1(a), (d).

      I.C. § 35-38-4-1(a)(1).

      I.C. § 35-48-4-6.1(a), (b).

      I.C. § 35-48-4-6(a), (b).

      This fact distinguishes Johnson's case from Cole v. State , where the State never requested an increase in bail and the State failed to present evidence to support such an increase. 997 N.E.2d at 1146-47.


author: Vaidik, Chief Judge.

text:
    James E. JARMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1034
    Court of Appeals of Indiana.
    Filed November 30, 2018
    Attorney for Appellant: Brian A. Karle Ball Eggleston, PC, Lafayette, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] James E. Jarman appeals his convictions for possession of methamphetamine, dealing in a synthetic drug or synthetic drug lookalike substance, and possession of paraphernalia. The convictions arose from a suspicionless search of Jarman, who was on community corrections for a prior conviction. The Indiana Supreme Court has held that suspicionless searches of a community-corrections participant are permissible under the Fourth Amendment to the U.S. Constitution, but only if the conditions of the program unambiguously authorize such searches. Here, Jarman signed a waiver consenting to searches "without a warrant and without probable cause." Jarman contends that this language did not unambiguously authorize searches with no suspicion at all and that the suspicionless search of his person therefore violated the Fourth Amendment. Given the well-established distinction between "probable cause" and the lesser degrees of suspicion sometimes required by the Fourth Amendment, we agree with Jarman and reverse his convictions.

Facts and Procedural History

[2] In March 2017, Jarman was under the supervision of Tippecanoe County Community Corrections in connection with a 2015 conviction for felony domestic battery of his ex-wife. On the morning of March 16, two community-corrections officers went to Jarman's house after hearing from an anonymous source that Jarman's ex-wife "was possibly living at the residence," that Jarman had purchased alcohol and had been drinking, and that Jarman "possibly had been abusing his [A]dderall medication." Tr. p. 10.

[3] At the house, the officers had Jarman do a breathalyzer test, which he passed. When asked if there was anyone else in the house, Jarman said that a male friend of his was there, but the officers conducted a "safety sweep" of the house and found Jarman's ex-wife in the attic. Id. at 8. One of the officers handcuffed Jarman and "conducted a pat down on him." Id. The officer found "a knotted baggie containing an unknown white powdery substance." Id. at 12. Jarman said that it was "joint medication that he uses for joint pain." Id. at 13. The officer asked where the bottle for the medication was, and Jarman said that it was in a locked cabinet in the basement. Jarman gave the officer a key to the cabinet, and the officer proceeded to find methamphetamine, several bags of a green, leafy substance (that was not marijuana), a synthetic urine kit, two handwritten ledgers, stamp baggies, a cut straw, a scale, and a glass smoking device. Id. at 14-16.

[4] The State charged Jarman with dealing and possession of methamphetamine, dealing and possession of a synthetic drug or synthetic drug lookalike substance, and possession of paraphernalia. The case proceeded to a bench trial, where Jarman promptly moved to suppress all evidence obtained after the warrantless search of his person, arguing that the search violated the Fourth Amendment. The State responded that the search of Jarman was permissible because he "waived his [F]ourth [A]mendment rights" as a condition of admission to community corrections. Id. at 9. The State introduced a copy of the "Community Correction Policy Concerning Search and Seizures - Waiver of Fourth Amendment Rights" that Jarman had signed, which provided, in part:

In consideration of the opportunity to participate in a Community Corrections program rather than serve my sentence through the Department of Correction or other secure or more restrictive environment, I acknowledge and agree that I hereby waive my rights concerning searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution and under Article 1, § 11 of the Indiana Constitution. Specifically, I hereby consent to allow employees of Community Corrections or law enforcement officers to search my person or property without a warrant and without probable cause.

Ex. 21. The trial court took all matters under advisement and then issued an order denying Jarman's motion to suppress and finding him guilty of all charges except dealing in methamphetamine. The court later merged the synthetic-drug possession count into the more serious synthetic-drug dealing count and imposed a total sentence of four years, with two of those years to be served with Tippecanoe County Community Corrections.

[5] Jarman now appeals.

Discussion and Decision

[6] Jarman contends that the trial court should have granted his motion to suppress and found him not guilty on all charges. He renews his argument that the search of his person violated the Fourth Amendment, which provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
While Jarman is the party appealing, whether a search was constitutional is a question of law we review de novo. Kelly v. State , 997 N.E.2d 1045, 1050 (Ind. 2013). And because the search here was done without a warrant, the State bears the burden of convincing us it fell within an exception to the warrant requirement. See id.

[7] Jarman makes two arguments in his brief: (1) that the officers who searched him did so without reasonable suspicion that he was engaged in illegal behavior and (2) that his consent to searches without probable cause did not also constitute consent to suspicionless searches. The State offers two responses, both based on Jarman's consent to searches "without a warrant and without probable cause." First, the State contends that Jarman, by giving that consent, "gave officers probable cause (and a warrant) to search him and his property" and "also necessarily gave them reasonable suspicion because that 'is a less demanding standard than probable cause.' " Appellee's Br. p. 7 (quoting State v. Schlechty , 926 N.E.2d 1, 7 (Ind. 2010), reh'g denied ). The State cites no authority for the novel proposition that Jarman "gave" officers probable cause (and therefore the lesser-included reasonable suspicion) by signing the waiver, and we are not aware of any. By signing the waiver, Jarman did not agree that officers had probable cause to search him; rather, he agreed that officers did not need probable cause to search him.

[8] No matter, the State says: Jarman's waiver of Fourth Amendment rights was complete, not partial, meaning that he could be searched with no suspicion at all. The State cites State v. Vanderkolk , where our Supreme Court held that suspicionless searches of a community-corrections participant are permissible if the participant has "consented or been clearly informed that the conditions of their probation or community corrections program unambiguously authorize" such searches. 32 N.E.3d 775, 779 (Ind. 2015). In arguing that Jarman waived all Fourth Amendment rights and consented to suspicionless searches, the State relies on the following passage in the waiver: "I hereby waive my rights concerning searches and seizures under the Fourth and Fourteenth Amendments of the United States Constitution and under Article 1, § 11 of the Indiana Constitution." Read in isolation, that language would certainly seem to support the State's argument. However, that seemingly complete waiver must be read in light of the next sentence: "Specifically , I hereby consent to allow employees of Community Corrections or law enforcement officers to search my person or property without a warrant and without probable cause." (Emphasis added.) The use of the word "specifically" means that this second sentence defined the actual scope of Jarman's waiver (and consent) made in the first sentence. Under Vanderkolk , then, the question we must answer is whether a waiver that allows searches "without a warrant and without probable cause" also "unambiguously authorizes" suspicionless searches. We hold that it does not.

[9] As already noted, the State itself acknowledges that "reasonable suspicion" is "a less demanding standard than probable cause." Appellee's Br. p. 7. And while not all searches need to be supported by probable cause, some degree of suspicion is often required. As the U.S. Supreme Court explained in United States v. Knights , a case involving a search of the apartment of a person on probation:

The degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable. Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term "probable cause," a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable.

534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Given this well-established distinction between "probable cause" and lesser degrees of suspicion, the statement "I agree to a search without probable cause" does not unambiguously mean "I agree to a search without reasonable suspicion." If the State wanted Jarman to be subject to suspicionless searches as a condition of entering community corrections, it should have included in its waiver form language like "without suspicion," "without reasonable suspicion," "without reasonable cause," or "without cause." See , e.g., Samson v. California , 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (holding that suspicionless search did not violate Fourth Amendment because it was conducted pursuant to parole statute allowing searches "with or without a search warrant and with or without cause " (emphasis added) ). Because the waiver did not include any such language, we reverse.

[10] Reversed.

Riley, J., and Kirsch, J., concur.

      The State does not argue that the search of Jarman was justified by actual suspicion that he was engaged in some illegal activity, notwithstanding the fact that his ex-wife-the victim of his underlying domestic-battery offense-had been found hiding in the attic. The State argues only that Jarman "gave" officers reasonable suspicion by signing the waiver.

      In a single sentence in the last paragraph of its brief, the State cites the U.S. Supreme Court's holding that when police lawfully arrest a suspect, "a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a reasonable search under that Amendment." United States v. Robinson , 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (formatting altered). To the extent the State meant to suggest that the search of Jarman fell within the search-incident-to-arrest exception to the warrant requirement, it waived the issue by failing to develop a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (argument section of appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning"). In the sentence following the citation to Robinson , the State returns to its argument that Jarman "waived" the protection of the Fourth Amendment in order "to participate in community corrections." Appellee's Br. p. 8.


author: May, Judge.

text:
    In the MATTER OF the GUARDIANSHIP OF Christopher LINDROTH, a Disabled Adult;
    Hartford Underwriters Insurance Company, Appellant-Respondent, v. Marcia Dempe, as Guardian of the Person and Co-Guardian of the Estate of Christopher Lindroth, and First Midwest Bank, as Co-Guardian of the Estate of Christopher Lindroth, a Disabled Adult, Appellee-Claimants
    Court of Appeals Case No. 45A04-1711-GU-2685
    Court of Appeals of Indiana.
    Filed December 5, 2018
    Attorneys for Appellant: Karl L. Mulvaney, Margaret M. Christensen, Nana Quay-Smith, Bingham Greenebaum Doll LLP, Indianapolis, Indiana, Trenton W. Gill, Katherine M. Haire, Reminger Co., LPA, Indianapolis, Indiana
    Attorneys for Appellee: Libby Y. Goodnight, Krieg DeVault LLP, Indianapolis, Indiana, Ann Marie Woolwine, Krieg DeVault LLP, Merrillville, Indiana
   May, Judge.

[1] Hartford Underwriters Insurance Company (hereinafter "Hartford") appeals an order entered by the Lake Circuit Court in the Guardianship of Christopher Lindroth. On appeal, Hartford asserts the following restated issues:

(1) whether the Lake Circuit Court had jurisdiction to order Hartford to pay attorney fees arising from the Worker's Compensation action;
(2) whether, if the Lake Circuit Court had jurisdiction, it should have deferred to the Arbitrator's continuing jurisdiction over the fees to be paid in the Worker's Compensation action;
(3) whether the Lake Circuit Court's order for Hartford to pay attorney fees is wrong under Illinois Worker's Compensation Law; and
(4) whether the Guardians should pay attorney fees to Hartford because Guardians engaged in improper forum shopping.

We reverse the Lake Circuit Court's order as to attorney fees and remand.

Facts and Procedural History

[2] Lindroth was severely injured in a motorized cart accident while working for his employer, Coastal International, in Cook County, Illinois. He spent extended time in a coma and the lower half of his body is permanently paralyzed. Soon after the accident, a guardianship was opened in the Circuit Court of Lake County, Indiana, with Lindroth's mother, Marcia Dempe, named as guardian of his person, and Dempe and First Midwest Bank named as guardians of his estate (hereinafter "Guardians" and "the Estate").

[3] Guardians filed a claim for worker's compensation benefits in Cook County, Illinois. Hartford is the worker's compensation insurer for Lindroth's employer and thus is a party in Lindroth's worker's compensation action. There appears to have been no dispute that Lindroth was entitled to worker's compensation benefits, and Hartford began paying for Lindroth's medical expenses and lost wages.

[4] Guardians also filed a civil tort action in Cook County, Illinois, against the manufacturer of the cart Lindroth had been driving and various other parties. That case proceeded to a jury, which found the damages were $34 million but Lindroth was 35% at fault, such that Lindroth was awarded a judgment of $22 million. Of that, Lindroth's lawyers for the tort case received $9 million for fees and costs.

[5] Pursuant to an Illinois statute, 820 ILCS 305/5, a worker's compensation insurer is entitled to reimbursement from any civil judgment proceeds collected by an employee from third parties responsible for the workplace accident, so Hartford sought reimbursement from the civil judgment proceeds of the $5.7 million that Hartford had already paid out for Lindroth's medical expenses and lost wages. Pursuant to that same statute, insurers that are reimbursed from such civil judgment proceeds must return 25% of such reimbursement to cover the insurer's portion of attorney fees from the civil action that produced the proceeds. The parties agreed Hartford's statutory lien (reimbursement amount minus 25% attorney fees) was $3.5 million.

[6] The guardianship judge in Lake Circuit Court initially ordered Guardians to put $3.5 million of the civil judgment proceeds into a segregated account earmarked for paying Hartford's statutory lien. After time, the Lake Circuit Court ordered Guardians to release $3 million to Hartford. On November 10, 2016, Hartford filed a motion requesting the Lake Circuit Court release the remainder of the lien money to which Hartford was statutorily entitled.

[7] That same day, Guardians filed a motion asserting Hartford owed the Estate $2.3 million for attorney fees on future medical expenses that also would be paid from the civil judgment proceeds, rather than by Hartford. Guardians suggested the Lake Circuit Court subtract Hartford's statutory lien money being held in the segregated account from that $2.3 million due for attorney fees on future medical expenses and order Hartford to pay the Estate $1.9 million. The Lake Circuit Court signed Guardians' proposed order. (Compare Addendum to Appellant's Br. at 3-7 with id. at 8-12.) Hartford filed a motion to correct error, which the Lake Circuit Court denied without any findings or conclusions.

[8] On November 16, 2017, Hartford filed an emergency motion to reconsider because the Illinois Worker's Compensation Commission was to issue a decision about when Hartford would pay attorney fees for future medical expenses that would be covered by the civil judgment proceeds. On November 30, 2017, the Worker's Compensation Arbitrator issued an order that found the Lake Circuit Court "has no jurisdiction over the issue of adjudicating the Illinois workers' compensation lien." (Id. at 18.) In addition, the Arbitrator found the Lake Circuit Court's orders do "not control the decision of the [Worker's Compensation] Arbitrator." (Id. ) The Arbitrator entered a number of findings to explain why the Lake Circuit Court had wrongly applied Illinois law, and then the Arbitrator entered the following conclusions and orders:

The arbitrator notes that the Indiana probate court's order of March 16, 2017 found that a net recoverable lien was due to [Hartford] in the amount of $396,325.76. The Indiana probate court's order did not reimburse [Hartford] for the Section 5(b) lien due and owing to Hartford. The Indiana probate court ordered the amount held in escrow to be distributed directly to [Guardians]. The arbitrator finds that in the event Hartford is still due and owing any amount for their lien under Section 5(b) of the Act that any payments for statutory attorney's fees to [Lindroth's] attorneys are suspended until such time that the workers' compensation carrier is repaid for their Section 5(b) lien on past workers' compensation benefits already paid....
The arbitrator finds that [Hartford] is ordered to pay the 25% attorneys fee for future medical and permanent total disability benefits to [Lindroth's] counsel as the benefit to [Hartford] from the third-party recovery is received by [Hartford]. Any such payments for statutory attorney's fees to [Lindroth's] counsel is suspended until such time that [Hartford's] section 5(b) lien is completely recovered.

(Id. at 20-21) (errors in original).

[9] The Lake Circuit Court then heard Hartford's pending motion to reconsider. In the order thereon, the Lake Circuit Court stated in pertinent part:

This court, namely, the Lake Circuit Court, is a court of general jurisdiction. As such, it is vested with authority to hear and determine the general class of cases involving guardianships, as well as any matters merely collateral to those proceedings. The court rejects Hartford's argument that [the court] lacked subject matter jurisdiction here. Indeed, the court's March 16, 2017 Judgment relates directly to the interests of the estate that is in the care of this court.

(Id. at 22.) The Lake Circuit Court also reiterated its conclusions regarding lump-sum payments of future attorney fees and then affirmed its prior order that Hartford pay the $1.9 million lump-sum award of attorney fees for anticipated future medical expenses.

Discussion and Decision

[10] As Hartford notes on appeal, it cannot comply with the orders of both the Worker's Compensation Arbitrator and the Lake Circuit Court, because those two orders are in direct conflict - the Arbitrator ordered Hartford not to make any additional payments until the Guardians refund the remaining statutory lien monies (˜ $400,000), while the Lake Circuit Court ordered Hartford to immediately pay an additional $1.9 million to the Guardians for reimbursement of attorney fees on future estimated medical expenses.

[11] Hartford appeals from the Lake Circuit Court's denial of Hartford's motion to reconsider the Lake Circuit Court's judgment of March 16, 2017, in light of the Illinois Worker's Compensation Commission Arbitrator's decision of November 30, 2017. "A trial court's control and discretion to change its own rulings is firmly established in common law, and we will review a trial court's reconsideration of its prior rulings for abuse of discretion." In re Estate of Hammar , 847 N.E.2d 960, 962 (Ind. 2006).

[12] At issue in that motion to reconsider was whether the Lake Circuit Court had jurisdiction to order Hartford to pay the Estate attorney fees that may accrue in the worker's compensation action. Where, as here, the facts pertinent to the trial court's jurisdiction are undisputed, we review the issue de novo . Edwards v. Edwards , 80 N.E.3d 939, 943 (Ind. Ct. App. 2017). "Subject matter jurisdiction is defined as the power to hear and determine cases of the general class to which any particular proceeding belongs." Id.

[13] The guardianship action from which Hartford appeals arose from the Lake Circuit Court. Lake Circuit Court does not have a separate probate court and instead hears probate matters within the civil division of that Court. See Ind. Code § 33-33-45-21(a) ("The court is divided into civil (including probate), criminal, county, and juvenile divisions."). The Lake Circuit Court is a court of "original and concurrent jurisdiction in all civil cases." Ind. Code § 33-28-1-2(a)(1).

[14] However, "Indiana courts only have jurisdiction to the extent that jurisdiction has been granted to them by the constitution or by statute[,]" In re Custody of M.B ., 51 N.E.3d 230, 234 (Ind. 2016), and our legislature made very clear that the "worker's compensation board shall administer the worker's compensation law." Ind. Code § 22-3-1-2. Moreover, the worker's compensation system is the exclusive remedy for employees who are injured or killed by an accident arising out of and in the course of employment. See Ind. Code § 22-3-2-6 ("The rights and remedies granted to an employee [under this law] on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee's personal representatives, dependents or next of kin ... on account of such injury or death."); see also Wolf Corp. v. Thompson , 609 N.E.2d 1170, 1173 (Ind. Ct. App. 1993) (employer entitled to summary judgment on Estate's wrongful death action filed in trial court because sole remedy for accident was to be found in worker's compensation laws). "The board maintains continuing jurisdiction over all attorney's fees in cases before the board and may order a different attorney's fee or allowance in a particular case." Ind. Code § 22-3-1-4(e). Furthermore, appeals from worker's compensation proceedings rest within the jurisdiction of the Court of Appeals. See Ind. Appellate Rules 5(C)(1) & 9(A). As such, under Indiana law, trial courts do not have authority to review or decide issues within worker's compensation proceedings.

[15] The worker's compensation proceeding at issue herein, however, is from Illinois. Illinois's version of the Worker's Compensation Act explains "[a]ny disputed questions of law or fact shall be determined as herein provided." 820 ILCS 305/19. When parties inform the Commission that "the parties have failed to reach an agreement," the Commission is to designate an Arbitrator. 820 ILCS 305/19(a). "The Arbitrator shall make such inquiries and investigations as he or they shall deem necessary ...." 820 ILCS 305/19(b). Thereafter, the Arbitrator files its decision with the Commission, which distributes the decision to the parties. Id. If neither party files a "Petition for Review" of the Arbitrator's decision, "then the decision shall become the decision of the Commission and in the absence of fraud shall be conclusive." Id. If a Petition for Review is filed, then the Commission holds a hearing as provided by statute and issues its decision. See 820 ILCS 305/19(e) (explaining proceedings before Commission); see also 820 ILCS 305/19(c)(6) ("The fees and payment thereof of all attorneys and physicians for services authorized by the Commission under this Act shall, upon request of either the employer or the employee or the beneficiary affected, be subject to the review and decision of the Commission."). Commission decisions are binding unless procured by fraud or timely appealed. 820 ILCS 305/19(f).

[16] Unlike in Indiana, appeals of decisions from the Illinois Commission proceed to circuit courts. 820 ILCS 305/19(f)(1). However, the statute is very specific that, in particular, appeals may be heard by

the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred , shall by summons to the Commission have power to review all questions of law and fact presented by such record.

820 ILCS 305/19(f)(1) (emphasis added). As that italicized language makes clear, the appeal is to be heard wherever in Illinois a defendant is located or where the accident occurred. Thus, because the Lake Circuit Court is not in Illinois, it simply cannot be a proper forum to hear any questions of law or fact presented by the worker's compensation record.

[17] Even if Lake Circuit Court arguably could have had subject matter jurisdiction, our Indiana Supreme Court recently reiterated that "having jurisdiction does not automatically mean that it would be appropriate for the circuit court to exercise that jurisdiction." In re Custody of M.B. , 51 N.E.3d at 235 (emphasis in original).

Courts of concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time, and where one of the courts acquires jurisdiction of the subject matter and the parties, it is vested with such jurisdiction to the exclusion of the other court until the final disposition of the case. In addition, this rule is not mitigated where the subject matter before the separate courts is the same, but the actions are in different forms.
In the present case, a CHINS proceeding and a custody action are distinct in form, but we acknowledge that both involve the same subject matter, which is the care and custody of M.B. Due to this, it would have been appropriate for the circuit court to have allowed the parties to file their independent custody action, but stay the action until the conclusion of the CHINS proceeding, or, had the parties filed a 12(B)(8) motion, the court could possibly have dismissed on those grounds. A court of concurrent jurisdiction should abstain from exercising that jurisdiction when the subject matter is properly before another court. We seek to clarify that abstention is not the same as relinquishing or being divested of jurisdiction but is only the postponement of its exercise.

Id. (internal citations and quotations omitted). Similarly, here, even if the Lake Circuit Court had jurisdiction over matters collateral to the Guardianship, it should have abstained from interfering with the Illinois Worker's Compensation Arbitrator's authority to determine when and how attorney fees would be paid inside that Worker's Compensation action.

[18] As the Lake Circuit Court noted, it has jurisdiction over the Guardianship and the funds being managed therein for Lindroth. We presume this is why Hartford brought its request for payment of the statutory lien to the Lake Circuit Court. Nevertheless, the Lake Circuit Court's jurisdiction to release funds to pay Hartford's statutory lien against Lindroth's civil judgment proceeds does not also grant the Lake Circuit Court jurisdiction to recalculate the attorney fees due in the Illinois Worker's Compensation proceedings. See, e.g., American Mgmt., Inc. v. Riverside Nat. Bank , 725 N.E.2d 930, 933 (Ind. Ct. App. 2000) (defendant cannot challenge merits of foreign judgment during domestication unless foreign judgment is void because foreign court lacked subject matter jurisdiction or personal jurisdiction).

[19] As a final matter, Hartford asks that we order the Estate to pay appellate attorney fees because "[t]he Estate's blatant act of forum shopping should not be countenanced by this Court." (Br. of Appellant at 46.) We may order a party to pay appellate attorney fees "if an appeal, petition, or motion, or response, is frivolous or in bad faith." Ind. Appellate Rule 66(E). Hartford asserts that the Estate is the party that asked the Lake Circuit Court to calculate the attorney fees that were due to Hartford. However, Hartford filed a "petition to adjudicate/set Hartford's reimbursable past workers' compensation lien[,]" (Appellant's App. Vol. 2 at 43), and therein Hartford

respectfully requests this Honorable Court enter an Order setting Hartford's recoverable past workers' compensation lien at $3,462,111.49 and, further, a directive that said amount is to be withdrawn from the segregated account that was set up specifically to reimburse The Hartford as [sic] and for its workers compensation lien, and for any other relief this Court deems just.

(Id. at 48.)

[20] As Hartford was the party that invited the Lake Circuit Court to calculate the amount of Hartford's statutory lien and the Estate simply requested a different calculation of the monies due, we decline to impose attorney fees on the Estate for "forum shopping[.]" (Br. of Appellant at 46.) While we hold the Lake Circuit Court did not have jurisdiction to calculate the attorney fees due in the Illinois Worker's Compensation proceeding involving these same two parties, we decline to shift fees from the party that first asked the Lake Circuit Court to exceed its authority.

Conclusion

[21] Because the Lake Circuit Court did not have jurisdiction to decide when and how attorney fees would be paid in an ongoing worker's compensation proceeding from Illinois, we reverse the order denying Hartford's motion to reconsider, vacate the order for Hartford to pay $1.9 million in attorney fees, and remand for the Lake Circuit Court to disburse Estate funds in accordance with any unappealed final order from the Worker's Compensation Arbitrator or Worker's Compensation Commission.

[22] Reversed and remanded.

Baker, J., and Robb, J., concur.

      The parties are not arguing about the specific amounts of money that should change hands, only when (and on whose order) the monies should be paid. As such, for simplicity sake, all financials are rounded herein.

      By this time, Hartford had recalculated the lien amount because Medicaid had unexpectedly covered some medical expenses, and the amount due to Hartford under the lien was only $400,000.

      Because a motion to reconsider does not stay the deadline for a notice of appeal, Hartford timely filed its notice of appeal. After the record was filed, vesting jurisdiction in our Court, we stayed the appeal and remanded for the Lake Circuit Court to address Hartford's motion to reconsider.

      Thus, we need not determine the application of Illinois law regarding concurrent jurisdiction, which permits Illinois trial courts to determine questions of law that arise in Worker's Compensation proceedings prior to the Commission making its final determination. See , e.g. , Employers Mut. Cos. v. Skilling , 163 Ill.2d 284, 206 Ill.Dec. 110, 644 N.E.2d 1163, 1166 (1994) ("although we conclude that the Commission had concurrent jurisdiction to hear the disputed insurance coverage issue presented in this case, when the question of law was presented to the circuit court in the declaratory judgment suit, the jurisdiction of the circuit court became paramount").

      We therefore need not determine whether the Lake Circuit Court's order misapplied Illinois law.


author: Riley, Judge.

text:
    Joshua SAGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1557
    Court of Appeals of Indiana.
    FILED December 5, 2018
    Attorney for Appellant: Mark F. James, Anderson Agostino & Keller, PC, South Bend, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Joshua Sage (Sage), appeals his conviction for two Counts of felony murder, Ind. Code §§ 35-42-1-1(3)(B) ; 35-48-4-1.1.

[2] We affirm.

ISSUES

[3] Sage presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion when it admitted his statement made to police while he was hospitalized for injuries sustained during the offenses; and
(2) Whether the State produced sufficient evidence to prove the offenses beyond a reasonable doubt.

FACTS AND PROCEDURAL HISTORY

[4] In the days preceding August 2, 2017, Jermon Gavin (JG) contacted Ron Snyder (Snyder) to arrange the purchase of a large amount of methamphetamine. Snyder, in turn, contacted Sage, who agreed to supply approximately one and one-half pounds of methamphetamine to sell to JG. Sage was to deliver the drugs to Snyder's home located in the 2100 block of Frederickson Street in South Bend, Indiana. Sage did not feel at ease about the deal with JG from the beginning, and he knew that it was necessary for his personal safety to be armed when dealing in such a large quantity of methamphetamine. Sage carried a Sig Sauer handgun. He also arranged for his brother, Robert Brady (Brady), to accompany him to Snyder's home to "have [his] back." (Exhibit 135, Exh. Vol. I, Clip 3 at 10:30-:33). Sage provided his brother with a Smith and Wesson handgun.

[5] During the evening of August 2, 2017, Sage and Brady brought the methamphetamine to Snyder's home. There were at least nine other people present at Snyder's home that evening, including Alyssa Sanchez (Izzy). Sage transported the methamphetamine in a plastic grocery bag in which he also stowed his own "bowl" used for smoking meth. (Transcript Vol. 3, p. 76). Upon arriving, Sage and Brady went to the basement of Snyder's home, where they consumed methamphetamine. Either Brady or Sage armed Snyder with a handgun.

[6] Unbeknownst to them, JG and his associates, Jesus Pedraza (Jesse) and Benito Pedraza (Benny), had decided to steal the methamphetamine, so they armed themselves with handguns prior to going to Snyder's home. As part of their plan, they dropped off Damon Bethel (Bethel), who was also carrying a handgun, in an alley near Snyder's home. JG and the Pedraza brothers arrived at Snyder's home shortly before midnight. While Benny remained in their car parked across the street from Snyder's home, JG, Jesse, Sage, Brady and Snyder convened in the attached garage of Snyder's home, leaving the garage door open looking out onto Frederickson Street. Sage produced the methamphetamine for JG and Jesse to sample, inspect, and weigh. As the methamphetamine deal unfolded, Anton James (James), pulled up in a white SUV in front of Snyder's home. James had come to the home to sell Izzy marijuana. Although James was known to Snyder and others at Snyder's home, he was not a participant in the methamphetamine deal. Sage saw the SUV pull up outside, and it made him nervous.

[7] Jesse eventually left the garage and telephoned JG's cell phone to inform JG that he intended to go through with the theft of the methamphetamine. As JG withdrew from the garage, Bethel ran in with his gun drawn, demanding the methamphetamine. According to Sage, Bethel did not await a response before firing on Sage. A fusillade of gunfire ensued as Sage and Brady exchanged shots with JG and Bethel. In addition, when the firing started, Benny emerged from their parked car and paused to fire into the white SUV before directing additional shots into the garage. James sped away with Izzy in the SUV but crashed the SUV two blocks away. James perished in his SUV from a bullet which struck his aorta. Back in the garage, Sage and Brady had both shot Bethel, who died lying face down in the garage. Sage was shot four times. Law enforcement arrived quickly. A total of fifty-one shell casings were recovered from the scene. Sage had fired his handgun at least fourteen times.

[8] On August 7, 2017, investigators attempted to interview Sage, but he invoked his right to counsel and did not consent to be interviewed. On August 8, 2017, while Sage was still hospitalized, the State filed an Information, charging Sage with two Counts of felony murder, one Count of dealing in methamphetamine, and one Count of attempted dealing in methamphetamine. On August 12, 2017, Sage communicated to the officer guarding him that he wished to speak to investigators. While being treated for his injuries, Sage had received pain medications, including fentanyl and morphine. Sage last received fentanyl on August 5, 2017. Although fentanyl is a strong medication, its effects dissipate rapidly. On August 13, 2017, Sage received a final, low dose of morphine at 2:58 a.m. Sage also received a dose of Narco, which is a blend of Tylenol, acetaminophen, and hydrocodone, at 9:07 a.m. Sage was being administered Narco to transition him from morphine in preparation for his discharge from the hospital. Narco is a medication that is prescribed for outpatient use that may be taken without hindrance to daily function. The registered nurse charged with administering Sage his medication found him to be lucid, cognizant, and alert on August 13, 2017. The medication nurse did not note that Sage was experiencing any cognitive or memory issues that day.

[9] On August 13, 2017, Detectives Timothy Wiley (Detective Wiley) and Gery Mullins (Detective Mullins) went to the hospital to interview Sage, as per Sage's request. Before interviewing him and according to their usual practice, the officers contacted Sage's medication nurse who informed them that she had no concerns about Sage's ability to speak with them. The interview, which was videotaped, began at 12:50 p.m. Detective Wiley read Sage a waiver of attorney rights form that provided that Sage had previously requested an attorney, now wished to waive his right to an attorney, had initiated the interview, and had requested to make a statement. Sage confirmed that those provisions were true and signed the waiver of attorney form. Detective Mullins then provided Sage with his Miranda advisements and asked Sage if he had any questions, to which Sage responded, "No, I understand." (Exhibit 135, Exh. Vol. I, Clip 1 at 2:57-3:01). Detective Mullins read Sage a waiver of his Miranda rights, and Sage confirmed to Detective Mullins that the provisions of the waiver were true before signing the form.

[10] At the beginning of the interview, Detective Mullins asked Sage to explain to them what happened, and Sage spoke largely uninterrupted about the drug deal and shootings for approximately five minutes. Sage provided detailed physical descriptions of JG, Jesse, and Bethel, and their movements during the offenses. Sage admitted that he shot at Bethel with the Sig Sauer handgun and that he was probably the person who killed him. Sage also thought it was possible that he had fired in the direction of the open garage door. Throughout the interview, Sage responded to the detectives' questions, and he asked the detectives questions of his own. Sage provided the detectives with his address and his cell phone number. The interview concluded at 1:42 p.m. On August 14, 2017, Sage was discharged from the hospital into police custody.

[11] On January 22, 2018, Sage filed a motion to suppress his August 13, 2017, statement, arguing that his injuries and the medications he received could "affect a person's ability to give a free, voluntary and knowing statement." (Appellant's App. Vol. II, p. 13). On May 4, 2018, the trial court held a hearing on Sage's motion to suppress. The trial court denied Sage's motion the same day, finding that Sage had signed valid waivers of his right to an attorney and to his Miranda rights, that he was lucid during the interview, and that he understood what was being asked of him.

[12] Sage's jury trial took place May 14, 2018, through May 17, 2018. Sage's counsel objected to the admission of Sage's August 13, 2017, statement on the same grounds raised in the previously-denied motion to suppress. The jury found Sage guilty of the four charged offenses. On June 20, 2018, the trial court entered judgment of conviction on the two felony murder convictions only and sentenced Sage to two concurrent terms of fifty-five years.

[13] Sage now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION

I. Voluntariness of Statement

[14] Sage contends that the trial court erred when it denied his motion to suppress. We note that, because this appeal follows the admission of Sage's statement at trial, the issue on appeal is better framed as whether the trial court erred when it admitted the challenged statement at trial. Guilmette v. State , 14 N.E.3d 38, 40 (Ind. 2014). As a general rule, the trial court has broad discretion to rule on the admissibility of evidence. Id. We review for an abuse of the trial court's discretion and reverse only when the admission of the challenged evidence is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Id.

[15] Sage argues that his "rights to due process were violated because the officers did not verify that his statements were knowing and voluntary because they did not ascertain if he was under the influence or otherwise thinking clearly." (Appellant's Br. p. 7). We take this to be a challenge to the voluntariness of his August 13, 2017, statement. Sage argued in his motion to suppress, which formed the basis for his objection to the admission of the statement at trial, that his statement was involuntary under Article 1, Section 14, of the Indiana Constitution. Under Indiana law, the State is required to prove beyond a reasonable doubt that a statement is voluntary. Weisheit v. State , 26 N.E.3d 3, 18 (Ind. 2015), cert. denied . When evaluating the voluntariness of a statement, the trial court considers the "totality of the circumstances, including any element of police coercion; the length, location, and continuity of the interrogation; and the maturity, education, physical condition, and mental health of the defendant." Id. (quoting Wilkes v. State , 917 N.E.2d 675, 680 (Ind. 2009) ) (internal citations omitted). We review the trial court's determination of voluntariness as a sufficiency of the evidence issue. Id. We do not reweigh the evidence, and we will affirm if the trial court's finding of voluntariness is supported by substantial evidence. Id.

[16] Here, as was noted by his medication nurse, Sage was lucid, cognizant, and alert the day he made his statement. He was not experiencing any memory or cognitive issues. Detectives Wiley and Mullins spoke with the medication nurse before interviewing Sage to confirm that he was able to speak with them. Detective Mullins read to Sage a waiver of his right to an attorney and a waiver of his Miranda rights which Sage indicated he understood before signing. The interview itself was conducted informally in a conversational tone and lasted approximately one hour. Under the totality of these circumstances, we conclude, as did the trial court, that Sage's statement was voluntary.

[17] Sage contends that his statement was not voluntary because of his injuries, the medication he was receiving, and what he characterizes as his "poor" recollection. (Appellant's Br. p. 7). However, Sage's conclusory statements that these factors affected his ability to give a voluntary statement enjoy little evidentiary support in the record. By August 13, 2017, when he gave his statement, Sage had recuperated sufficiently that he was to be discharged from the hospital the following day. Sage had received a low dose of morphine at 2:58 a.m. that day and a low dose of Narco at 9:07 a.m, but there is simply no indication in the record that these medications affected Sage's awareness, ability to understand his rights, or his ability to recollect events. As pointed out by the State, in order for intoxication to render a statement involuntary, a defendant must be unaware of what he is saying. Wilkes , 917 N.E.2d at 680. Sage does not argue on appeal that he was unaware of what he was saying when he spoke with the detectives. Indeed, Sage spoke coherently and extemporaneously throughout the interview, responded appropriately to the detective's questions, and accurately recollected many details of the offenses. Because we conclude that Sage provided a voluntary statement, we find no abuse of the trial court's discretion in admitting his statement at trial.

II. Sufficiency of the Evidence

[18] Sage challenges the evidence supporting his two convictions for felony murder. When we review the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to assess witness credibility or to weigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

[19] Felony murder occurs when a person kills another human being while committing or attempting to commit dealing in methamphetamine. Ind. Code §§ 35-42-1-1(3)(B) ; 35-48-4-1.1. Here, the evidence showed that Sage brought one and one-half pounds of methamphetamine to Snyder's home on August 2, 2017, in order to sell it to JG, a gun battle ensued when one of JG's confederates, Bethel, attempted to rob Sage, and that Bethel and James died of gunshot wounds sustained in the exchange of gunfire between the would-be sellers and the would-be buyers. Nevertheless, Sage challenges the evidence supporting his convictions for killing both Bethel and James.

[20] Sage contends that the evidence does not support his conviction for killing Bethel because Sage was acting in self-defense when he shot Bethel. However, we agree with the State that self-defense was not available to Sage. Under Indiana law, a person is not justified in using force in the defense of self if that person is committing a crime. Ind. Code § 35-41-3-2(g)(1). However, the mere fact that a defendant is committing a crime at the time he is allegedly defending himself does not, standing alone, deprive the defendant of the defense of self-defense. Mayes v. State , 744 N.E.2d 390, 394 (Ind. 2001). "Rather, there must be an immediate causal connection between the crime and the confrontation." Id.

[21] Here, Sage's act of dealing methamphetamine, the underlying felony of the felony murder charge, drew Bethel and his confederates to Snyder's garage to attempt to rob Sage, and a gun battle ensued in which Sage shot and killed Bethel. Thus, there was a direct and immediate causal connection between the crime Sage was committing and the ensuing confrontation. Sage, who does not address the statutory limitation on self-defense in his Appellant's Brief, cannot feasibly argue otherwise. Because Sage's only challenge to the sufficiency of the evidence supporting his conviction for murdering Bethel was that he acted in self-defense, which was not available to him as a defense, we conclude that the State proved Sage's conviction for Bethel's death beyond a reasonable doubt.

[22] Sage's challenge to the sufficiency of the evidence supporting his conviction for murdering James is that it "was not reasonably foreseeable that Anton James would be killed." (Appellant's Br. p. 8). Our supreme court has recognized that the language of the murder statute "does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person ." Palmer v. State , 704 N.E.2d 124, 126 (Ind. 1999) (emphasis added). For purposes of felony murder liability, "it matters not whether the death caused is that of the intended victim, a passerby [,] or even a co-perpetrator." Forney v. State , 742 N.E.2d 934, 938-39 (Ind. 2001) (emphasis added). A person who commits or attempts to commit one of the felonies designated in the murder statute is criminally liable for a death of another during the commission of the crime if the defendant reasonably should have "foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death." Palmer , 704 N.E.2d at 126. On review, we must determine whether the defendant's conduct caused or contributed to the victim's death or set in motion a series of events that could have reasonably be expected and did result in death. Dalton v. State , 56 N.E.3d 644, 648 (Ind. Ct. App. 2016), trans. denied .

[23] We find the case of Sheckles v. State , 684 N.E.2d 201 (Ind. Ct. App. 1997), trans. denied , to be instructive. Sheckles attempted to collect a loan by force inside a bar where other patrons were present, thereby committing an attempted robbery. Id. at 203. When his plan went awry, Sheckles engaged in a gun battle with the bartender, and one of the bar's patrons was shot and killed. Id. The court held that Sheckles had created a dangerous situation in which intervention by a nonparticipant to the underlying felony, the bartender, was reasonably foreseeable and that he had exposed the victim to circumstances which posed a substantial likelihood of fatal injury. Id. at 205. The court held that Sheckles was criminally responsible for the death of the bystander, regardless of who fired the shot. Id.

[24] Here, Sage created a dangerous situation by arming himself, Brady, and Snyder in order to deal a large quantity of methamphetamine. Sage went to Snyder's home, which was in an area of South Bend that Snyder characterized at trial as rife with shootings and robberies, to deal the methamphetamine. The home was also located in a residential neighborhood with other houses close by, which increased the likelihood that cars would pass by the garage where the methamphetamine deal was taking place. Indeed, in the moments immediately preceding and following the offenses, three other cars apart from James' SUV passed in front of Snyder's home. Sage's act of dealing methamphetamine from Snyder's garage set in motion the robbery attempt which led to the gunfire that killed James. Benny was in the act of returning fire in Sage's direction when he paused to shoot into James' vehicle. The foreseeability of James' death was more overt than the Sheckles victim because Benny, who the State argued at trial actually shot James, was an accomplice along with JG, Jesse, and Bethel in the methamphetamine deal gone bad and not simply a nonparticipant.

[25] In addition, Sage was subjectively aware that the situation was dangerous; he had asked his brother Brady to come along on the deal in order to "have [his] back" because Sage knew it was necessary to protect yourself when dealing in such large quantities of methamphetamine. (Exh. 135, Exh. Vol. I, Clip 3 at 10:30-:33). Contrary to his assertion on appeal, Sage was aware of the fact that James's SUV was stopped in front of the home before the gun battle broke out, which he related in his statement made him nervous. As a result, it was not only reasonably foreseeable that gunfire might breakout at the drug deal, but it was foreseeable to Sage that the driver of the SUV stopped out front might be shot when Sage began firing. It made no difference that it was Benny who shot James. Sheckles , 684 N.E.2d at 205.

[26] Sage likens his case to Layman v. State , 42 N.E.3d 972 (Ind. 2015), in which our supreme court reversed Layman's felony murder conviction based on evidence that Layman, who was a juvenile at the time of the offense, had entered a home intending to commit a theft but was unarmed and engaged in no violent or threatening conduct before the homeowner shot one of Layman's accomplices. Id. at 979. The court held that, under those circumstances, nothing about Layman's conduct was the mediate or immediate cause of his accomplice's death. Id. at 979-80. This case is readily distinguishable in that Sage and his cohorts were all armed, and, thus, violence was contemplated as part and parcel of the methamphetamine deal.

[27] Although other facts may present a more difficult call on the foreseeability of a bystander's death, the instant case does not present us with the outer limits of felony murder liability for the death of a bystander/nonparticipant in the underlying felony. Because James' death was the foreseeable result of Sage's methamphetamine dealing, we conclude that the State proved that Sage killed James while committing the alleged felony.

CONCLUSION

[28] Based on the foregoing, we conclude that the trial court acted within its discretion when it admitted Sage's voluntary confession into evidence. In addition, we conclude that the State proved beyond a reasonable doubt that Sage killed Bethel and James during the commission of the offense of dealing in methamphetamine.

[29] Affirmed.

[30] Vaidik, C. J. and Kirsch, J. concur

      Inasmuch as Sage attempts to argue that he did not validly waive his right to counsel or that the procedural safeguards required for a valid guilty plea should be applied to the giving of a statement to police, we note that Sage did not raise these arguments in his motion to suppress or at trial. Arguments raised for the first time on appeal are waived. See Leatherman v. State , 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) ("[A] party may not present an argument or issue on appeal unless the party raised that argument or issue before the trial court. In such circumstances the argument is waived."). As such, we decline to address those arguments.