author: ROBB, Chief Judge.

text:
    In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.T. (Minor Child), and T.S. (Father), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
    No. 49A02-1205-JT-420.
    Court of Appeals of Indiana.
    Jan. 25, 2013.
    Steven J. Halbert, Carmel, IN, Attorney for Appellant.
    Robert J. Henke, DCS Central Administration, Patrick M. Rhodes, Indiana Department of Child Services, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

T.S. (“Father”) appeals the termination of his parental rights as to D.T. and raises one issue on appeal: whether his due process rights were violated when the lower court did not appoint a Guardian ad Litem (“GAL”) for Father. Concluding that his due process rights were not violated, we affirm.

Facts and Procedural History

On August 11, 2010, D.T. (the “Child”) was born. At that time, Father was fifteen years old. Two days later, the Department of Child Services (“DCS”) filed a petition alleging that the Child was a Child in Need of Services (“CHINS”). Approximately a week after birth, the Child was placed in foster care. At the initial court hearing, Father requested and was appointed a public defender. In September 2010, the Child’s mother N.T. (“Mother”) appeared with counsel and requested a GAL for herself; GALs were appointed for Mother and for the Child, and the Child was found to be a CHINS. In October 2010, there was a disposition hearing at which the court ordered, among other things, for Father to: participate in a parenting assessment and complete all recommendations developed as a result of the assessment; participate in and complete home-based counseling, and complete all recommendations of counselor; secure stable income; and obtain and maintain suitable housing. The plan at that point was reunification of the Child with the parents.

On January 11, 2011, there was a placement and review hearing. Father was present at the hearing, and was represented at that hearing by Mother’s attorney, who was sitting in for Father’s attorney. The court noted that Father had refused to participate in services, had stated that he did not want anything to do with the Child, and home-based counseling was closed prior to completion due to his lack of participation. The court also noted that Father’s mother (“Grandmother”) had not been meeting with home-based services, attending meetings, or following recommendations. A little further into the hearing, Mother’s attorney noted a conflict of interest and stated that he was no longer representing Father. The hearing continued, and the court later noted again that Father did not want the Child, and that Grandmother complained that home-based services kept asking her questions to which they already knew the answers. The plan for permanency at the end of the hearing remained reunification with the parents.

On January 14, 2011, Father admitted to a charge of possession of marijuana, a misdemeanor if committed by an adult. In March 2011, Father’s probation officer filed a petition for modification because Father had multiple absences from ordered programs and was disruptive when he was present. The record indicates that in April 2011, Father told a DCS case manager that he did not want to parent.

In August 2011, the court held a permanency hearing. DCS requested that the permanency plan be changed to adoption based on the lack of progress exhibited by the parents. DCS also noted that Father was recently (re)engaged with home-based services but earlier that week had told them that he did not want to participate in services, and that Father had not been communicating with home-based services or returning calls. Father’s counsel objected to the change in permanency plan, and said that Father was having a bad day when he talked to home-based services earlier in the week, but that he was now willing to work with services and would like to continue working toward having the Child in his home. The Child’s GAL agreed with the plan being changed to adoption, but noted that because of Father’s age, services should be continued for Father and he should be allowed to continue visitation. The court ordered the plan changed to adoption with a review hearing scheduled and services to continue for Father. The court told Father that

plan A is now that the child be adopted, but plan B is you could rally [Father] and you can get this child. You can get this child, you can parent this child, so in your young mind you’ve got to figure out what I want and then you have to do that .... but right now based upon where we are and what I find is going to be best for the child I’m going to change the plan to adoption.

Transcript at 8.

On December 13, 2011, the court held a review hearing at which it was noted that Father was not participating in parenting skill services but was visiting the Child. A home-based services representative said that she had not seen Father since November, and that he did not want to participate in services and the home-based services would therefore be closed. Father’s attorney noted that they were working on a waiver for Grandmother to be able to adopt the Child, because she had a prior CHINS allegation herself; the record indicates that the waiver would have been necessary not only for her to adopt the Child, but also for the Child to be placed with Father, because Father was living at home with Grandmother. The foster mother who had cared for the Child since he was about a week old stated that she wanted to adopt him. The permanency plan at the end of the hearing was for adoption.

On February 17, 2012, Father was charged with confinement and battery both with the use of a deadly weapon, as felonies, and possession of a handgun as a misdemeanor.

On March 2, 2012, an evidentiary hearing was held on the termination petition. Father testified that initially he did not want the Child, but that about two weeks after the Child was born, he decided that he did want him in his life. A case manager testified that Father had been vocally opposed to not only services but visitation until well into 2011. A home-based case manager testified that Father had been told that the services were court-ordered, and apparently made to understand that they were a pre-requisite to placement of the Child with him.

The foster mother discussed the Child’s medical concerns, noting that he was on a feeding tube for the first five months or so, and had physical therapy and frequent appointments at Riley Children’s Hospital to deal with developmental delays. At the time of the hearing, he was on physical therapy for mobility and was about to get leg braces to treat bowlegs; he was on developmental therapy to address age appropriate behavior; he was on occupational therapy to work on his feeding skills — he was at risk for aspiration and his liquids had to be thickened; and he had frequent ear infections and was scheduled to have tubes put in his ears that week. He had various therapy appointments every week. The foster mother stated that when she dropped the Child off for visitation with the Father and Father’s family, she made a point of telling the intermediary of upcoming appointments, and she left a note in the diaper bag with the same information. Despite that, neither Father nor Grandmother ever came to any of the Child’s medical appointments. She also said that visitations with the Father were often canceled or cut short by Father. Father and Grandmother both testified that the only medical issue they were aware of was that the Child needed to have his liquids thickened.

A case manager testified that she could not recommend placement of the Child with Father because of lack of follow-through and lack of progress on goals, and Grandmother had not completed the information necessary for a waiver to place the Child in her home. She had concerns about Father’s ability to parent the Child and address his medical needs. She testified that she had worked with minor parents in the past, and while they try to engage the entire family in every case, with minor parents they try especially to cater to the level of understanding of the minor parent. In this case, they had referred home-based services to Father multiple times because of his age, and his age also made the parenting skills classes very important. He was also referred to Fathers and Families, an agency directed at young fathers. She said that each referral had been made at least five times.

On April 24, 2012, the court issued an order terminating the parent-child relationship of Father to the Child. The court found, among other things, that Father had made no effort to learn any skills or to demonstrate the willingness or ability to address the Child’s medical needs; Father refused to participate in services or training; Father would periodically state that he would like to learn to parent the Child, but would make only cursory efforts to participate in services and would completely fail to participate in any training to care for the Child’s medical needs; Father resides with Grandmother and Grandmother has refused to permit background checks; Father stated that he did not need to learn to parent the Child because his family would be there to do it; Father continues to engage in delinquent activity; and continuation of the parent-child relationship poses a risk to the Child and termination of the relationship is in the best interest of the Child. This appeal followed.

Discussion and Decision

I. Standard of Review

The Due Process clause of the U.S. Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. When the State terminates a parent-child relationship, it must do so in a manner that meets the requirements of due process. C.T. v. Marion Cnty. Dept, of Child Servs., 896 N.E.2d 571, 586 (Ind.Ct.App.2008), trans. denied. Due process within the context of termination of a parent-child relationship requires a balancing of three factors: (1) the private interests affected by the proceeding, (2) the risk of error created by the State’s chosen procedure, and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. It is well established that both the private interests and the State interests are substantial in termination cases. See id.; In re A.L.H., 774 N.E.2d 896, 900-01 (Ind.Ct.App.2002). The factor at issue then is the risk of error.

II. Due Process

Father argues that his due process rights were violated when the court failed to appoint him a GAL. We disagree. We do note at the outset however our disappointment with the overall care that was taken with this case. We regret that the court allowed the January 11, 2011 hearing to continue without Father’s counsel present, particularly after Mother’s counsel noted a conflict and stated that he could no longer stand in for Father’s counsel. We also agree with Father that the participation decree could have been better tailored to a minor parent and that the language regarding employment and housing was not written with a minor parent in mind. However, Father also failed to meet the other, reasonable, requirements of the decree — in particular, he failed to actively participate in or complete services, despite being given multiple chances over the course of eighteen months. Because of that, in light of the standard of the best interests of the child, we agree with the overall and final determination of the juvenile court.

Father contends that a GAL would have insisted that the obligations imposed on Father be tailored to a minor, and would have understood how important the choices made at the initial CHINS hearing are. We observe that while the obligations were not well tailored to a minor, the court emphasized Father’s failure to meet obligations that were appropriate for a minor. Additionally, Father was given multiple referrals to multiple different services throughout the eighteen months leading up to termination, in large part out of respect for his age. It was the sum total of Father’s lack of participation that largely informed the court’s opinion, and not choices that were made at any one hearing.

DCS correctly argues that issues not timely raised below are waived on appeal, but also notes that waived issues may nonetheless be addressed on appeal if they qualify as fundamental error. Manuel v. State, 793 N.E.2d 1215, 1218 (Ind.Ct.App.2003), trans. denied; see also In re K.S., 750 N.E.2d 882, 834 (Ind.Ct.App.2001). It does not appear that Father raised the issue of appointment of a GAL below. To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible and must constitute a blatant violation of basic principles. Manuel, 793 N.E.2d at 1218. The harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process. Id.

We must determine whether any risk of error created by not providing Father with a GAL tips the balance in favor of a determination that Father was denied due process. For several reasons, we determine that it does not. Firstly, we note that Indiana law requires that a GAL be appointed to represent and protect the best interests of a child when a child is alleged to be a CHINS. Ind.Code § 31-34-10-3. However, that statute applies to the child who is the subject of the CHINS allegation. See In re A.L.H., 774 N.E.2d at 901.

We have previously stated that termination proceedings are civil in nature, and are therefore governed by the Indiana Rules of Trial Procedure. Crayne v. M.K.R.L., 413 N.E.2d 311, 313 (Ind.Ct.App.1980). Trial Rule 17 requires that “[i]f an infant or incompetent person is not represented, or is not adequately represented, the court shall appoint a guardian ad litem for him.” In the present case, Father was represented by counsel at all hearings except for the final half of the hearing at which Mother’s counsel was sitting in for Father’s counsel, as noted above. Additionally, Father’s mother appears to have been present at most hearings, and to have been involved in the case. The record does not indicate, and Father does not contend, that he was inadequately represented. It was therefore not required that the court appoint a GAL to Father. Father argues that a GAL should have been appointed under Indiana Code section 31-32-3-11, which states that “[t]he juvenile court may appoint a guardian ad litem or a court appointed special advocate, or both, for the child at any time.” DCS argues that this section applies only to the child who is the subject of a CHINS allegation. We disagree with DCS that this section is limited to CHINS cases; rather, it is Indiana Code section 31-34-10-3 that is within the CHINS Article of the code and applies only to the child who is the subject of a CHINS allegation. Section 31-32-3-11 could have applied to Father, but the wording clearly indicates that appointment of a GAL under that section is discretionary, and for the reasons outlined above, we do not believe the court was required to appoint a GAL for Father. Because the court did appoint a GAL to both Mother and the Child, the court must have been aware not only of the statutory requirement of a GAL in some situations, but the court must also have been willing to assign a GAL when appropriately requested even where the subject was represented by counsel, as Mother was. The record does not indicate, and Father does not argue, that he ever requested a GAL at any point in the process.

We conclude that any risk of error created by not providing Father with a GAL was low. Father was represented by counsel, and Father’s mother was involved in the process. Father makes statements about what a GAL would have done and how things would then have been different, but we are not convinced. Father was given multiple chances to participate in services and learn to parent the Child, but declined to do so. The record indicates that Father chose not to participate in services, not that he did not participate because he was unaware that the proscribed steps were necessary if he wanted to maintain his relationship with the Child. The juvenile court properly determined that the best interests of the Child would be best served by terminating the relationship between Father and the Child and allowing the Child to be adopted. There was no fundamental error, and Father’s due process rights were not violated when the court failed to appoint a GAL to him.

Conclusion

Concluding that Father’s due process rights were not violated, we affirm.

Affirmed.

MAY, J., and PYLE, J., concur.

      . Mother was not a minor at the time of D.T.'s birth, but was appointed a GAL due to her lower cognitive abilities.

      . There is no participation decree for Grandmother in the record. However, the record is clear that DCS and service programs were actively engaged with Grandmother and involved her in services, apparently due to a combination of Father's age, Father's reluctance to participate, and general practices to involve the entire family where possible.

      . The court also terminated the relationship between Mother and the Child, but Mother does not appeal.

      . DCS cites to Indiana Code section 29-3-2-1 as the section under which Mother's GAL was appointed. However, Title 29 deals with probate and is not relevant to the instant case. Exactly which code section was used to appoint Mother’s GAL is immaterial, and Trial Rule 17 would apply to Father.

      . For the hearing at which Father was not represented for the final half, the plan for permanency at the end of the hearing was still reunification. Moreover, it appears that most of the court’s focus on Father occurred during the first portion of the hearing, when he was ostensibly represented by Mother’s counsel. This was not a hearing in which the plan for permanency changed or where new obligations were imposed on Father, nor was it the trial where evidence regarding termination was heard. While we do not approve of the lower court’s handling of the representation situation that day, we also do not find any resulting error in the later termination of Father’s parental rights.


source: Caselaw Access Project

author: MAY, Judge. NAJAM, Judge,

license: Public Domain

text:
    David DELAGRANGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1203-CR-144.
    Court of Appeals of Indiana.
    Jan. 25, 2013.

      Michael C. Borschel, Fishers, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

David Delagrange appeals his conviction of four counts of Class C felony attempted child exploitation. Delagrange presents two issues, one of which we find disposi-tive: Whether the trial court erred when it denied Delagrange’s motion for directed verdict. We reverse and remand.

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement.

At the time Delagrange committed these acts, the voyeurism statute stated, in relevant part:

(a) A person:
(1) who:
(A) peeps; or
(B) goes upon the land of another with the intent to peep; into an occupied dwelling of another person; or
(2) who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including:
(A) restrooms;
(B) baths;
(C) showers; and
(D) dressing rooms;
without the consent of the other person, commits voyeurism, a Class B misdemeanor.

Ind.Code § 35-45-4-5(a) (2005). After Delagrange committed these acts, the legislature amended Ind.Code § 35-45-4-5 to include a new crime, “public voyeurism.” P.L. 75-2011, Sec. 1. That section provides: “A person who: (1) without the consent of the individual; and (2) with intent to peep at the private area of an individual; peeps at the private area of an individual and records an image by means of camera commits public voyeurism, a Class A misdemeanor.” Ind.Code § 35-45-4-5(d) (2011).

The child exploitation statute states, in relevant part, “(b) A person who knowingly or intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age ... commits child exploitation, a Class C felony.” Ind. Code § 35-42-4-4(b)(l) (emphasis added). “Sexual conduct” means:

sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.

Ind.Code § 35-42-4-4(a)(4).

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute.

FACTS AND PROCEDURAL HISTORY

Delagrange moved to dismiss the voyeurism and attempted child exploitation charges. The parties stipulated to evidence into the record describing the events of February 27. The trial court dismissed the voyeurism charges, but not the attempted child exploitation charges. The trial court certified the partial denial of Delagrange’s motion to dismiss for interlocutory appeal.

A panel of this court affirmed the denial of Delagrange’s motion to dismiss the child exploitation charges, holding Delagrange’s activity could fit within the statutory definition of sexual conduct. The case was remanded for trial.

Delagrange’s case proceeded to jury trial. After the State presented its case in chief, Delagrange moved for a directed verdict. The trial court denied Dela-grange’s motion, and Delagrange testified on his own behalf. The jury returned a guilty verdict on the four Class C felony attempted child exploitation charges as well as on the Class A misdemeanor resisting law enforcement charge. The trial court entered convictions and sentenced Delagrange to four years incarcerated with three years suspended to probation.

DISCUSSION AND DECISION

At the close of the State’s case, Delagrange requested a directed verdict. For a trial court to grant a motion for a directed verdict,

there must be a total lack of evidence regarding an essential element of the crime, or the evidence must be without conflict and susceptible only to an inference in favor of the innocence of the defendant. If the evidence is sufficient to sustain a conviction upon appeal, then a motion for a directed verdict is properly denied; thus, our standard of review is essentially the same as that upon a challenge to the sufficiency of the evidence. We neither reweigh evidence nor judge witness credibility, but consider only the evidence that supports the conviction and the reasonable inferences to be drawn therefrom in order to determine whether there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt.

Edwards v. State, 862 N.E.2d 1254, 1262 (Ind.Ct.App.2007) (citations omitted), tram, denied.

The State charged Delagrange with four counts of Class C felony attempted child exploitation based on incidents involving four girls under age eighteen. Each count had identical language, except for the age and name of the alleged victim. For example, Count I alleged:

On or about February 27, 2010 David Delagrange did attempt to commit the felony of Child Exploitation that is to knowingly or intentionally produce and/or film and/or videotape and/or create a digitized image of a performance or incident that includes sexual conduct by a child under eighteen (18) years of age, to wit: 15 years of age, by engaging in conduct that constituted a substantial step toward the commission of said offense that is; attach a camera to his shoe and recorded video of the area under the skirt or dress of the child, who is [A.K.]

(App. at 131.) Delagrange does not dispute he “knowingly or intentionally sought to capture up-skirt photos of panties, boots, high heels, etc., of adult women,” (Br. of Appellant at 11), but argues the charging information does not allege he attempted to commit an act that could be considered “sexual conduct by a child.”

The State argues this issue was decided as part of Delagrange’s interlocutory appeal and, thus, is res judicata. The doctrine of res judicata bars litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties. Small v. Centocor, Inc. 731 N.E.2d 22, 26 (Ind.Ct.App.2000), reh’g denied. The doctrine exists to prevent repetitive litigation of the same issue. Id.

Delagrange’s interlocutory appeal challenged the trial court’s denial of his motion to dismiss the charges against him. In that appeal he argued “the facts, as pleaded in the charging information, do not constitute crimes of attempted child exploitation ... [because] the statutory definition of ‘sexual conduct’ does not encompass his activity at the mall that day.” Delagrange, 951 N.E.2d at 595. A divided panel of our court held the allegations in Delagrange’s charging information, taken as true, “adequately state the elements of attempt and child exploitation.” Id. The majority examined the statutory definition of “sexual conduct” pursuant to Ind.Code § 35-42-4-4(a), specifically the clause, “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person.” In addition, the majority analyzed the dictionary definition of the word “exhibition,” and held it meant, “to show or display.” Delagrange, 951 N.E.2d at 595.

That panel did not, however, examine the implications of the clause “by a child” in the child exploitation statute, which is our focus in this opinion. As the opinion on interlocutory appeal did not address the portion of the statute at issue here, the issue herein is not res judicata,

The charging information follows the language of the child exploitation statute, which states in relevant part: “(b) A person who knowingly or intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age ... commits child exploitation, a Class C felony.” Ind.Code § 35-42-4-4(b)(1) (emphasis added). “Sexual conduct” means:

sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.

Ind.Code § 35-42-4-4(a)(4).

In support of his motion for a directed verdict, Delagrange argued:

Judge, this statute, the child exploitation statute, is a statute for child pornography producers, directors. And this— this exhibition of the uncovered genitals — first of all, there has to be an exhibition of the genitals by the person who is being photographed. And then that — that exhibition then has to be digitized or created — either video or still camera.
And that — those—those—the facts in this case don’t apply to the statute. That’s not what happened. There is nothing remotely close in the evidentiary chain that related to that statute.

(Tr. at 196-97) (emphasis added). The trial court denied Delagrange’s motion.

When interpreting statutes, we use the following standard:

The first step in interpreting a statute is to determine whether the Legislature has spoken clearly and unambiguously on the point in question. When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Clear and unambiguous statutes leave no room for judicial construction. However when a statute is susceptible to more than one interpretation it is deemed ambiguous and thus open to judicial construction. And when faced with an ambiguous statute, other well-established rules of statutory construction are applicable. One such rule is that our primary goal of statutory construction is to determine, give effect to, and implement the intent of the Legislature. To effectuate legislative intent, we read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute. We also examine the statute as a whole. And we do not presume that the Legislature intended language used in a statute to be applied illogieally or to bring about an unjust or absurd result.

City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). Neither party argues the language of the statute is ambiguous, and thus we apply the “plain, ordinary, and usual” meaning of the words and phrases in the statute.

The portion of the child exploitation statute relevant to the instant appeal required the State to prove Delagrange attempted to photograph, film, videotape or created a digitized image of any performance or incident that includes sexual conduct, here the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person,” Ind.Code § 35-42-4^1(a)(4), “by a child under eighteen (18) years of age.” Ind.Code § 35-42-4-4(b)(l) (emphasis added). The phrasing of the statute demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires. Therefore, in order for Delagrange’s attempt to commit child exploitation, each child must have been exhibiting her uncovered genitals with the intent to satisfy sexual desires.

The State presented no evidence the victims exhibited their genitals or intended to satisfy anyone’s sexual desire. For those reasons, we hold the trial court should have directed a not guilty verdict because the State did not to present evidence to support the elements of Class C felony child exploitation. Accordingly, we reverse Delagrange’s four counts of Class C felony child exploitation and remand to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

KIRSCH, J., concurs.

NAJAM, J., dissents with separate opinion.

NAJAM, Judge,

dissenting.

I respectfully dissent. I would hold that the law of the case doctrine bars Dela-grange’s attempt to relitigate an issue that this court squarely addressed in Delagrange v. State, 951 N.E.2d 593 (Ind.Ct.App.2011) (“Delagrange I ”), trans. denied. As we explained in Indiana-Kentucky Electric Corporation v. Save the Valley, Inc., 953 N.E.2d 511, 517-18 (Ind.Ct.App.2011):

The law of the case doctrine provides that an appellate court’s determination of a legal issue binds both the trial court and the appellate court in any subsequent appeal involving the same case and substantially the same facts. Murphy v. Curtis, 930 N.E.2d 1228, 1234 (Ind.Ct.App.2010); see also Pepper v. United States, — U.S.-, 131 S.Ct. 1229,179 L.Ed.2d 196 (2011) (“[A]s most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”). The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Murphy, 930 N.E.2d at 1284. This doctrine is based upon the sound policy that once an issue is litigated and decided, that should be the end of the matter. Id. To invoke this doctrine, the matters decided in the earlier appeal must clearly appear to be the only possible construction of an opinion. Id. Thus, questions not conclusively decided in the earlier appeal do not become the law of the case. Id.
Indiana has applied this doctrine in its strictest sense and has resisted creating exceptions to the strict application of the doctrine. Ind. Farm Gas Prod. Co. v. S. Ind. Gas & Elec. Co., 662 N.E.2d 977, 981 (Ind.Ct.App.1996), trans. denied. In fact, Indiana courts have held numerous times that the law of the ease must be followed even when the earlier decision is deemed to be incorrect. Id. A court, however, may revisit its prior decision under extraordinary circumstances, such as when there is a significant change in the substantive law. Id.

In Delagrange I, Delagrange appealed the trial court’s denial of his motion to dismiss wherein he alleged that “the facts, as pleaded in the charging information, do not constitute crimes of attempted child exploitation.” 951 N.E.2d at 595. In particular, Delagrange’s motion to dismiss included the following argument:

[AJssuming for purposes of this Motion only ... that the factual allegations against Defendant are true, Defendant did not commit the crime of Attempted] Child Exploitation.
The foundational requirement for a violation of I.C. § 35-42-4-4 is “sexual conduct.” “Sexual conduct” means sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sado-masochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.
Here, as with the voyeurism counts, the State’s evidence consists of the same up-skirt or “panty shot” footage, namely that of fully clothed and unwitting females in a shopping mall....
The Child Exploitation statute applies to people who knowingly or intentionally produce or trade in child pornography and it does not apply to misguided individuals in search of “panty shots” at the Mall. While the alleged conduct here is not something that should be condoned, not all irresponsible behavior is criminal conduct that rises to the level requiring punishment through the penal code.

Appellant’s App. at 75-76 (emphasis added). Because Delagrange assumed, for purposes of his motion to dismiss, that the facts as alleged by the State were true, the posture of this appeal, following a jury trial, is essentially the same as that of the first appeal. In other words, we are merely asked to reexamine whether the facts as alleged in the information, and which are supported by the evidence presented at trial, constitute the crime of child exploitation.

As we observed in Delagrange I,
[f]or each count [of attempted child exploitation], the State alleges that Dela-grange “engage[d] in conduct that constituted a substantial step towards” the offense of “knowingly or intentionally produc[ing] and/or creating] and/or film[ing] and/or videotap[ing] and/or [creating a] digitized image of a performance or incident that includes sexual conduct by a child under eighteen (18) years of age” by using his shoe camera to “record! ] video of the area under the skirt or dress of the child, ...”

951 N.E.2d at 595. And we held that “[t]hese allegations adequately state the elements of attempt and child exploitation.” Id.

In particular, in his appeal from the denial of his motion to dismiss, Delagrange challenged only one facet of the definition of “sexual conduct,” namely, whether his conduct constituted “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person ....” Id. Delagrange asserted that “based on the facts as alleged, ‘[n]o one attempted to do anything to exhibit exposed genitals.’ ” Id. In addressing this argument, we turned to the American Heritage Dictionary of the English Language, which defines “exhibit” as “to show or display.” Id. And we held that, “[i]f Delagrange had taken photographs of uncovered genitals under the alleged victims’ skirts or dresses, then he would have shown or displayed them as a digital image. Delagrange’s behavior is sufficient to constitute an attempted exhibition as described by statute.” Id. (emphasis added).

In this appeal after his convictions, De-lagrange alleges that the State presented insufficient evidence to show that he knowingly or intentionally captured a performance or incident that included sexual conduct by a child as charged in the information. In particular, he directs us to evidence showing that he did not exhibit the uncovered genitalia of any of his minor victims. And he contends that any inference that he was attempting to find uncovered genitalia in his quest is “unreasonable.” Brief of Appellant at 18. But his argument in support of that contention ignores the fact that he was charged with and convicted of attempted child exploitation. And, again, this court squarely rejected this argument in Delagrange I.

The majority reexamines the element of “sexual conduct by a child” and concludes that it

demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires. Therefore, in order for Delagrange’s attempt to commit child exploitation, each child must have been exhibiting her uncovered genitals with the intent to satisfy sexual desires.

Op. at 1232 (emphasis added).

First, again, I would hold that the law of the case doctrine precludes such a reconsideration of the relevant statutory language. But, second, the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires. Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children. Indeed, the statute protects the very young, including infants and toddlers, who have no awareness of what sexual desires are, as well as children of all ages who are drugged or otherwise unwittingly manipulated by a perpetrator. So I cannot agree that “sexual conduct by a child” mandates any active participation whatsoever by a child. To the contrary, and as we have already held, only the perpetrator need “show or display” the uncovered genitals of a minor child for the sexual desires of any person. See Delagrange I, 951 N.E.2d at 595.

In sum, the law of the case doctrine precludes our consideration of the issues raised in this appeal. And, to the extent that the majority reads the child exploitation statute to require a child victim to actively participate in the sexual conduct element of the crime, I disagree. While the statute may not be well-drafted, the legislature cannot have intended that interpretation. See State ex rel. Hatcher v. Lake Superior Court, Room Three, 500 N.E.2d 737, 739 (Ind.1986) (observing that “[u]nder our rules of statutory construction, it cannot be presumed the General Assembly intended language used in a statute to be applied in an illogical manner.”) Such an interpretation undermines the goal of the statute, which is to criminalize the exploitation of child victims. For these reasons, I would affirm Dela-grange’s convictions for attempted child exploitation.

      . Ind.Code § 35-42-4-4 (child exploitation); Ind.Code § 35-41-5-1 (attempt).

      . We held oral argument on November 27, 2012, in our Courtroom at the Indiana Statehouse. We commend counsel on the quality of their advocacy.

      . Ind.Code § 35-45-4-5 (2005).

      . Ind.Code § 35-44-3-3.

      . Delagrange does not appeal his conviction of Class A misdemeanor resisting law enforcement.

      . The standard of review for a motion to dismiss is different than for a directed verdict. Our standard of review for a motion to dismiss considers all the facts alleged in the information to be true, State v. Bilbrey, 743 N.E.2d 796, 798 (Ind.Ct.App.2001): "Questions of fact to be decided at trial ... are not property raised by a motion to dismiss.” State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003). By contrast, our review of the denial of a directed verdict focuses on the evidence presented at trial. See Edwards v. State, 862 N.E.2d at 1262 (For a trial court to grant a motion for a directed verdict, "there must be a total lack of evidence regarding an essential element of the crime, or the evidence must be without conflict and susceptible only to an inference in favor of the innocence of the defendant.”).

      . We agree with the dissent that the child exploitation statute is poorly written, making the intent thereof somewhat unclear. However, when the legislative intent of a statute is unclear, we must construe the statute against the State. Smith v. State, 675 N.E.2d 693, 697 (Ind.1996).

      . In fact, the evidence indicates Delagrange filmed the victims on a winter day and all of the captured images were of pantyhose, leggings, boots, and panties.


author: CRONE, Judge.

text:
    Peter F. AMAYA, Appellant-Plaintiff, v. D. Craig BRATER, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; Members of the Student Promotions Committee; Patricia Treadwell, M.D., Chair of the Student Promotions Committee; Joseph A. DiMicco, Ph.D.; Kathleen A. Prag, M.D.; and Klaus A. Hilgarth, M.D., Appellees-Defendants.
    No. 49A04-1204-PL-208.
    Court of Appeals of Indiana.
    Jan. 30, 2013.
    Rehearing Denied March 27, 2013.

      Thomas D. Collignon, Collignon & Diet-rick, P.C., Indianapolis, IN, for Appellant.
    Cory Brundage, Cory Brundage, LLC, Indianapolis, IN, for Appellees.
   OPINION

CRONE, Judge.

Case Summary

Peter F. Amaya was dismissed from Indiana University School of Medicine for failure to maintain acceptable professional standards by allegedly cheating on an examination. He filed a lawsuit against D. Craig Brater, M.D., in his capacity as dean and director of Indiana University School of Medicine, the Board of Trustees of Indiana University, members of the Student Promotions Committee, Patricia Treadwell, M.D., chair of the Student Promotions Committee, Joseph A. DiMicco, Ph.D., Kathleen A. Prag, M.D., and Klaus A. Hilgarth, M.D. (hereinafter collectively referred to as “IUSM”), alleging multiple claims including breach of contract and breach of good faith and fair dealing. IUSM moved for summary judgment on those claims. Following a hearing, the trial court granted summary judgment in favor of IUSM. Amaya now appeals. The sole issue raised on appeal is whether the trial court erred when it entered summary judgment in favor of IUSM. Finding that no genuine issue of material fact remains on these claims and that judgment as a matter of law is appropriate, we affirm.

Facts and Procedural History

The relevant undisputed facts indicate that in the spring of 2010, Amaya, an Ohio resident, was a third-year medical student at Indiana University School of Medicine located in Indianapolis. He was attending medical school on scholarship. On March 29, 2010, Amaya sat for a combined mini-block examination consisting of Introduction to Clinical Medicine II, Pharmacology, and Pathology. Three professors, Drs. DiMicco, Hilgarth, and Prag, each observed Amaya during the examination and concluded that he was cheating by looking at the paper of the student to his right. On March 30, 2010, Dr. DiMicco confronted Amaya with his observations, and Ama-ya denied cheating on the mini-block examination. On April 5, 2010, Dr. Hilgarth confronted Amaya with his observations and explained to Amaya that his behavior of looking into the workspace of the student to his right gave the appearance of cheating. Amaya denied that he cheated or that he engaged in any behavior that gave the appearance of cheating. Amaya maintained that he was merely looking over and up at the clock on the right-hand wall of the testing room.

On April 21, 2010, Dr. Treadwell, the chair of the Student Promotions Committee (the “SPC”), wrote to Amaya and notified him that he had been accused of cheating by Drs. DiMicco and Hilgarth and that, if true, his behavior constituted a serious breach of professionalism and a violation of the medical school’s Honor Code. Dr. Treadwell informed Amaya that a show cause hearing was scheduled for May 17, 2010, during which Amaya should appear before the SPC and explain why he should not be dismissed from medical school “for failure to maintain acceptable professional standards.” Appellant’s App. at 42. Amaya was provided copies of written correspondence from Drs. DiMicco, Hilgarth, and Prag, wherein they each explained the basis of their allegations of cheating.

Prior to the show cause hearing, Amaya met with James Brokaw, Ph.D., the associate dean for Admissions and Medical Student Affairs. The purpose of the meeting was for Dr. Brokaw to help Amaya prepare for his presentation to the SPC and to make sure that Amaya understood the process. On May 17, 2010, Amaya appeared before the SPC, made a PowerPoint presentation, and tendered a written submission including photographs, field studies, timelines, and statistical analysis. Again, Amaya maintained that he was not looking at the other student’s paper when he took the examination but was, instead, looking at the clock on the right-hand wall. Following the presentation, the SPC voted to table further deliberation of the case until June 7, 2010, so it could thoroughly review Amaya’s information and then “deliberate with utmost seriousness and give due consideration to the evidence presented.” Mat 132.

Between May 17, 2010, and June 7, 2010, a seven-person subcommittee of the SPC continued to evaluate Amaya’s information. The subcommittee directed additional written questions to Drs. DiMicco, Hilgarth, and Prag. On June 1, 2010, the subcommittee sent the written responses of Drs. DiMicco, Hilgarth, and Prag, to Amaya, and Amaya was permitted to reply to the SPC with his own written responses to their comments. The subcommittee also conducted field tests which consisted of members going to the testing location and sitting in Amaya’s seat while other members observed the difference between glances up at the clock and glances to a neighbor’s paper. The field tests revealed that “proctors can easily distinguish between glances up at the clock and glances down and to the right.” Id. at 144.

On June 9, 2010, the SPC wrote to Ama-ya and informed him that based upon his presentation, all the written documentation and responses from the three witnesses, his responses thereto, as well as the results of field tests which evaluated his contention that he was merely looking at the clock, the SPC believed that “the preponderance of evidence supports the charge of ethical misconduct (cheating) during the mini-block exam on March 29, 2010.” Id. The letter reminded Amaya that, pursuant to the medical school’s Student Handbook, “Dishonesty of any kind with respect to examinations ... shall be considered cheating. It is the responsibility of the student not only to abstain from cheating but, in addition, to avoid the appearance of cheating....” Id. at 145. Amaya was informed that the SPC had voted to recommend to Dean Brater that Amaya be “dismissed from medical school for failure to maintain acceptable professional standards.” Id. at 144. Amaya was also advised that, pursuant to the Student Handbook, he was entitled to request a reconsideration hearing.

Amaya requested reconsideration, and a reconsideration hearing was held on July 19, 2010. Amaya presented additional testimony and documentation. Thereafter, the SPC declined to reverse its earlier recommendation for dismissal. Amaya then appealed the SPC’s recommendation to Dean Brater. Prior to meeting with Amaya, Dean Brater requested that an additional field test be conducted at the testing site in order to evaluate Amaya’s contention that he was merely looking at the clock rather than at the other student’s paper. The test revealed that the proctors “could tell what direction the accused was looking by eye movement alone.” Id. at 150. On August 13, 2010, Dean Brater met with Amaya and reviewed all the material submitted by Amaya and considered by the SPC. On August 18, 2010, Dean Brater advised Amaya that he would not reverse the SPC’s recommendation and that Amaya was dismissed from Indiana University School of Medicine.

On August 25, 2010, Amaya filed a verified complaint for temporary restraining order, preliminary injunction, permanent injunction, and other relief against IUSM. Following a hearing, the trial court denied Amaya’s application for preliminary injunction on September 27, 2010. Amaya’s second amended verified complaint alleged count I, violation of due process, count II, dismissal not supported by substantial evidence, count III, violation of equal protection, count IV, breach of contract, and count V, breach of good faith and fair dealing.

On September 27, 2011, IUSM filed a motion for summary judgment and designation of evidence on counts IV and V. IUSM also filed a motion to dismiss counts I, II, and III. A hearing was held on both motions on February 22, 2012. On March 27, 2012, the trial court issued an order denying IUSM’s motion to dismiss counts I and II and granting IUSM’s motion to dismiss count III. In that same order, the trial court granted IUSM’s motion for summary judgment as to counts IV and V.

Finding no just reason for delay, the trial court entered final judgment as to counts III, IV, and V on April 9, 2012. Amaya now appeals the trial court’s entry of summary judgment on counts IV and V. We will state additional facts in our discussion where necessary.

Discussion and Decision

When reviewing a trial court’s order granting summary judgment, we apply the same standard as the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where the designated eviden-tiary matter shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). An issue is genuine if the trier of fact is required to resolve the parties’ differing accounts of the truth or if the undisputed material facts support conflicting reasonable inferences. Id.

On appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607-08 (Ind.Ct.App.2008), trans. denied. In doing so, we consider the designated evidence in the light most favorable to the non-moving party. Id. at 608. A trial court’s grant of summary judgment arrives on appeal cloaked with a presumption of validity, and the appellant bears the burden of demonstrating that the grant of summary judgment was erroneous. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695-96 (Ind.Ct.App.2006).

Here, the trial court entered findings of fact and conclusions thereon in support of its summary judgment ruling. We note that the trial court is not required to provide written findings and conclusions on summary judgment and that the conclusions are not binding on appeal. First Farmers Bank, 891 N.E.2d at 608. However, the trial court’s findings and conclusions offer us valuable insight into the trial court’s rationale that facilitates our appellate review. Id. We may affirm based on any theory argued by the parties and supported by the record. Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219, 224 (Ind.Ct.App.2006).

We begin by noting that in counts IV and V, Amaya raises two separate theories of liability against IUSM: (1) breach of contract, and (2) breach of the duty of good faith and fair dealing. While we will later explain the nature of the contractual relationship between student and university, we agree with IUSM that a separate cause of action for alleged breach of duty of good faith and fair dealing is inapposite here. The duty of good faith and fair dealing is a concept created by the Uniform Commercial Code and restricted to contracts for the sale of goods and is also a concept which our courts have expanded to insurance contracts as a cause of action sounding in tort. See Ford Motor Credit Co. v. Gamer, 688 F.Supp. 435, 442 (N.D.Ind.1988) (finding that duty of good faith supplied by Indiana’s Uniform Commercial Code is specifically restricted to contracts within Indiana Code Article 26-1); Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993) (recognizing that insurance companies have an implied contractual duty of good faith the breach of which sounds in tort; damages for breach of duty of good faith likely to be coterminous with those recoverable in breach of contract action). As Amaya fails to direct us to, and we are unaware of, any authority for the proposition that a separate cause of action for breach of good faith exists here, we conclude that counts IV and V of Ama-ya’s complaint are duplicative and raise only one claim for breach of contract against IUSM. Accordingly, the sole issue for our determination on appeal is whether the trial court erred when it entered summary judgment on Amaya’s claim for breach of contract.

In Neel v. Indiana University Board of Trustees, 485 N.E.2d 607, 610 (Ind.Ct.App.1982), we characterized the legal relationship between a student and a university as one of implied contract. We explained that, although courts have analyzed the relationship under many different legal doctrines, “[t]he most pervasive and enduring theory is that the relationship between a student and an educational institution is contractual in nature. The terms of the contract, however, are rarely delineated, nor do the courts apply contract law rigidly.” Id. at 610. It is generally well accepted that the catalogues, bulletins, circulars, and regulations of a university made available to the matriculant become of part of the contract. See Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir.1992) (noting consensus from numerous states).

Indiana courts have taken a very flexible approach to the scope of contractual promises between students and universities and have noted that hornbook rules cannot be “applied mechanically where the principal is an educational institution” and the result would be to override an academic determination. Neel, 435 N.E.2d. at 611 (citations omitted). Indeed, “[bjecause such determinations rest in most cases upon the subjective professional judgment of trained educators, the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community.” Id. Accordingly, although an implied contract exists between the student and the university, the nature of the terms vary:

In the area of academic services, the courts’ approach has been similar to that used with contracts conditioned upon the satisfaction of one party. The university requires that the student’s academic performance be satisfactory to the university in its honest judgment. Absent a showing of bad faith on the part of the university or a professor, the court will not interfere. The good faith judgment model both maximizes academic freedom and provides an acceptable approximation of the educational expectations of the parties.

Id; Gordon v. Purdue Univ., 862 N.E.2d 1244,1251 (Ind.Ct.App.2007).

In this context, “bad faith is not simply bad judgment or negligence[, rjather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.” Gordon, 862 N.E.2d at 1251. Literal adherence by a university to its internal rules will not be required when the dismissal of a student “rests upon expert judgments as to academic or professional standards and such judgments are fairly and nonarbitrarily arrived at.” Neel, 435 N.E.2d at 612 (citation omitted). In other words, the sole function of courts is to determine whether the educational institution acted illegally, arbitrarily, capriciously, or in bad faith. Neel, 435 N.E.2d at 613; Gordon, 862 N.E.2d at 1252; Gagne v. Trs. of Ind. Univ., 692 N.E.2d 489, 496 (Ind.Ct.App.1998), trans. denied.

Amaya’s claims regarding IUSM’s alleged breach of contract are so voluminous that we choose not to reproduce them here. In short, he contends that IUSM breached its implied contract with him by failing to publish “its standards and procedures for the evaluation, advancement, and graduation of its students and for disciplinary action” in accordance with the accreditation standards of the Liaison Committee on Medical Education (“LOME”) and the Indiana University Code of Student Ethics. Appellant’s Br. at 15. He also contends that IUSM failed to follow its own internal policies and procedures for disciplinary misconduct and to “guarantee students in the unit a fair opportunity to be heard consistent with the standards of evidence and due process found” in the Code of Student Ethics and the LCME’s accreditation standards. Id. at 16.

However, even assuming that an implied contract existed between Amaya and IUSM, and even assuming that IUSM failed to strictly follow the procedures outlined in all its handbooks and codes or to publish its procedures in specific accordance with accreditation standards as asserted by Amaya, that does not automatically lead to a finding of breach of contract on the part of IUSM. It is well settled that before a court will intervene into the implied contractual relationship between student and university, there must be some evidence that the university acted arbitrarily or in bad faith. See Neel, 435 N.E.2d at 613; Gordon, 862 N.E.2d at 1252; Gagne v. Trs. of Ind. Univ., 692 N.E.2d 489, 496 (Ind.Ct.App.1998), trans. denied. Amaya has failed to designate any such evidence here.

IUSM’s Student Handbook provides that the SPC is appointed by the dean to monitor student academic and professional standards as determined by the faculty. Appellant’s App. at 205. Section V(F), entitled “Dismissal,” provides that “[a] student may be required to meet with the [SPC] to show cause why he/she should not be dismissed from school when he/she: ... H. has been cited for lack of acceptable academic ethics or professional behavior.” Id. at 206. The designated evidence indicates that three faculty members observed Amaya cheating during the mini-block examination. Amaya was informed of these observations and was requested to prepare for a show cause hearing before the SPC. Amaya appeared before the SPC and presented a PowerPoint presentation. He also “tendered voluminous written material, including photographs, field studies, experts’ reports, timelines, and statistical analysis.” Id. at 15. Following Amaya’s presentation, the SPC tabled its vote in order to further deliberate and thoroughly review Amaya’s information. The SPC also asked for written submissions from the three faculty members and from Ama-ya. Thereafter, Amaya was informed that a subcommittee of the SPC had conducted field tests to determine the validity of the information he had submitted. Considering the results of those field tests as well as the written responses to additional questions, the SPC determined that the evidence supported the charge of cheating. Amaya was granted his request for a reconsideration hearing as provided by section VI of the Student Handbook. Id. at 206. When the SPC declined to reverse its decision, Amaya was then afforded the opportunity to meet with the dean for further review as provided for in the Student Handbook. Id. at 207. After considering all the evidence presented, the Dean determined that dismissal was warranted.

Based upon the record before us, we conclude that IUSM substantially followed its published procedures for dismissal, and Amaya has failed to designate any evidence to indicate that IUSM’s decision to dismiss Amaya was arbitrary, capricious, or made in bad faith. IUSM’s conclusion that Amaya failed to maintain acceptable professional standards was a rational determination arrived at after much deliberation and after Amaya had numerous opportunities to be heard and to explain his behavior. In support of his assertion that IUSM acted in bad faith, Amaya makes various conelusory allegations including that Dr. DiMicco withheld evidence, that Dr. Brokaw misled him during his meeting, that Dr. Treadwell misled him during the show cause hearing, that the SPC inappropriately speculated regarding facts, and that Dean Brater failed to disclose the second field test to him. However, we agree with the trial court that other than these conelusory allegations, Amaya has failed to designate any facts which would support a reasonable inference that IUSM engaged in “the conscious doing of a wrong because of dishonest purpose or moral obliquity” or had “a state of mind affirmatively operating with furtive design or ill will.” Gordon, 862 N.E.2d at 1258.

We note that our judicial deference to the foregoing expert judgments as to Ama-ya’s failure to meet professional standards is dictated by the fact that the administrators and directors of IUSM have a duty to the public as well as to the student. To place incompetent, irresponsible, or unethical doctors into active practice would surely be to the detriment of the health and safety of the members of society. See Neel, 435 N.E.2d at 613 (noting that directors of dental school have duty to refrain from placing irresponsible dentists into private practice). Courts are ill-equipped to second-guess professional judgments that are non-arbitrarily arrived at.

Amaya has not met his burden to establish that the trial court erred when it entered summary judgment on his breach of contract claim. No genuine issue of material fact remains on this issue. Accordingly, judgment as a matter of law in favor of IUSM is appropriate. We affirm the trial court’s entry of summary judgment on counts IV and V of Amaya’s second amended complaint.

Affirmed.

ROBB, C.J., and BARNES, J., concur.

      . Dr. Prag did not directly confront Amaya with her observations.

      . Apparently, as of the date of the filing of Amaya’s appellant’s brief, IUSM has a motion for summary judgment on counts I and II pending before the trial court. Appellant’s Br. at 2.

      . Although we decline to address Amaya’s claims regarding the LCME accreditation standards in detail, we note our agreement with the trial court that the LCME accreditation standards do not form part of the implied contract between Amaya and IUSM. The LCME accreditation standards are part of an agreement between the LCME and IUSM. Appellant's Br. at 40 (Conclusion 11).


author: BAKER, Judge.

text:
    Ignacio PEREZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1206-CR-247.
    Court of Appeals of Indiana.
    Feb. 5, 2013.

      Phillip L. Miller, Leatherman & Miller, Goshen, IN, Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this interlocutory appeal, the appellant-defendant, Ignacio Perez, challenges the trial court’s denial of his motion to suppress evidence that police officers seized from his person and his residence.

Notwithstanding Perez’s arguments, we find that the detention, arrest, and search incident to that arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution. Moreover, we conclude that a “dog sniff’ outside Perez’s residence was reasonable, and that there was probable cause for the issuance of a search warrant. Thus, the seizure of cocaine from Perez’s residence was proper and the trial court properly denied his motion to suppress.

Finally, we conclude that there was no violation of Perez’s rights under Article I Section 11 of the Indiana Constitution. We therefore remand this cause for trial.

FACTS

On August 18, 2009, an undercover officer with the Elkhart Police Department’s Interdiction and Covert Enforcement (ICE) unit purchased 458 grams of marijuana and 29 grams of cocaine from an individual named Concepcion Avalos-Cor-tez. The officer and Cortez completed this transaction at a carwash in Elkhart. After the officer purchased the marijuana, Cortez stated that another individual would deliver the cocaine to the carwash.

At some point, an older-model blue Dodge Caravan arrived, and Cortez entered the van. He emerged and handed the officer 29 grams of cocaine. It was subsequently discovered that the van was registered to Jaime Galvez in South Bend. However, after several trips to Galvez’s residence and hours of surveillance, the officers were not able to determine that the vehicle was registered to that particular resident.

Two days later, the undercover officer arranged to purchase more cocaine from Cortez. When the officer first arrived at the car wash where the original transaction had occurred, Cortez informed the officer that his cocaine supplier was running late but would deliver the drugs shortly.

Thereafter, when the police officer observed a maroon Ford F-150 truck parked behind Cortez, it was determined that this truck was also registered to Jaime Galvez at the same address. The officer again purchased 29 grams of cocaine from Cortez. The officer had reason to believe Cortez received the drugs from the person in the truck. During hours of surveillance at the registered address, police never saw the truck arrive at or leave the residence.

On August 81, the undercover officer again arranged to purchase 15 grams of cocaine from Cortez. The same maroon truck was at the car wash during this transaction, and the officer again believed that the cocaine had been provided by the person in the truck. Officers from ICE followed the truck directly from the car wash to Perez’s residence.

The following day, the police began surveillance of Perez’s residence. The blue Dodge minivan that was used in the controlled buy on August 18 was seen at Perez’s residence, and a records search revealed that Perez owned the residence. The police obtained a photograph of Perez from the Bureau of Motor Vehicles (BMV) and discovered that Perez had a handgun permit. The officers believed that the individual delivering cocaine to Concepcion at the car wash might be obtaining the cocaine from Perez’s house.

The next day, the undercover officer again purchased 15 grams of cocaine from Cortez at the car wash. The officer then asked Cortez if he could obtain an additional one-and-one-half ounces of cocaine. Cortez told the officer that he could obtain the cocaine within an hour. Cortez remained at the car wash. At some point, a white Ford truck registered to Perez arrived, and the driver met with Cortez for about five minutes. After Perez’s truck left, Cortez contacted the undercover officer and informed him that he had the cocaine and arranged to meet. The police officers then followed Cortez, stopped his vehicle, and seized one-and-one-half ounces of cocaine from the truck.

After arresting Cortez, the police officers went to Perez’s residence. Captain Turner from ICE asked Indiana State Police Trooper Mick Dockery and his canine that had assisted in the traffic stop and the arrest of Cortez, to accompany the officers to Perez’s residence and remain nearby in case a uniformed officer was needed.

Captain Turner and another officer arrived at Perez’s home and knocked on the front door. The officers saw two surveillance cameras at the front of Perez’s house pointed at the front door and driveway. From their training and experience, the officers recognized that these types of surveillance systems are commonly used by drug traffickers at their drug locations.

Perez answered the door, asked the officers to wait while he disarmed his residential alarm system, and stepped out onto the porch to speak with the officers. The police officers clearly identified themselves to Perez as law enforcement officers, and Perez locked the door behind him as he stepped onto the porch.

Even though the officers recognized him from his BMV photograph, the officers asked Perez his name. Perez responded, “why”? State’s Ex. p. 4. The officers then explained to Perez that a white truck registered to him had been used to deliver cocaine earlier that day. However, Perez lied to them and denied owning the truck. He also denied having any drugs in the house. While speaking with the officers, Perez was nervous and agitated, breathing heavily, and pacing back and forth with his arms folded. During the conversation, Perez walked down from his porch, past the officers, and onto an adjacent patio. The officers remained on the porch steps, which were now between Perez and the fi-ont door. Captain Turner radioed Trooper Dockery to come to the scene because Perez was “belligerent.” State’s Ex. 1.

Captain Turner told Perez that he was going to obtain a search warrant for the residence. The other officers saw Perez’s wife at the front door and asked her to step outside. When Perez’s wife opened the door, Perez started screaming at her in Spanish and moved back toward the officers at the door of his residence. The officers told Perez to stop, and Captain Turner stood with his arms in the air telling Perez to back up. The police officers did not touch Perez, but he approached them and started to “chest bump” the officers. Perez also attempted to break past them and move toward the front door. Tr. p. 79, 88.

Captain Turner told Trooper Dockery to handcuff Perez. Trooper Dockery, who had arrived in a patrol car and was dressed in uniform, stepped in front of Perez, pulled out his handcuffs, and attempted to place them on Perez. However, Perez repeatedly pulled his arm away and moved backwards towards the driveway. Trooper Dockery pressed Perez against a parked SUV and tried to handcuff him again. Perez fought back, grabbed Trooper Dockery’s gun, and the two wrestled to the ground in front of the SUV.

Perez was arrested for resisting law enforcement. When Perez was searched, the police discovered over $1000 cash in Perez’s pocket, $260 of which had been used by ICE to buy cocaine that day. The canine then conducted a “sniff’ of Perez’s front door. Tr. p. 80. The front door was closed at the time, and the canine alerted to the presence of illegal narcotics.

Perez’s wife informed the officers that several vehicles were parked in the garage, including a white truck. She also told the officers that no one else was in the home. The police then secured a search warrant for Perez’s house at 12:10 a.m. on September 3, 2009.

During a search of the residence, the police discovered over eighty grams of a powdery substance that field tested positive for cocaine, a semiautomatic handgun, ammunition, two digital scales, six open boxes of plastic bags, and over $2400 cash in the master bedroom.

On September 9, 2009, the State charged Perez with dealing in cocaine, a class A felony, and resisting law enforcement, a class A misdemeanor. Thereafter, Perez filed a motion to suppress, alleging that “all evidence seized ... or obtained by law enforcement authorities as a result of said unreasonable detention and subsequent search of [his] person and home should be suppressed as a result of the violation of [his] Constitutional rights under the 4th Amendment to the United States Constitution and under Article I, Section 11 of the Indiana Constitution, and pursuant to the ‘Fruit of the Poisonous Tree’ doctrine as announced by the United States Supreme Court.” Appellant’s App. p. 41.

Following a hearing on November 10, 2011, the trial court denied Perez’s motion to suppress. The trial court determined, among other things, that the police had reasonable suspicion to detain Perez to complete their investigation, and that Perez’s arrest for resisting law enforcement was lawful. As a result, the trial court determined that any evidence seized as a result of his arrest was admissible at trial.

It was further determined that because the police officers were lawfully on the premises, it was lawful for the dog to sniff the residence. Thus, based on the results of that sniff, it was reasonable for the police officers to obtain a search warrant for Perez’s house and search it. Perez now brings this interlocutory appeal, challenging the validity of his detention by police officers and the subsequent search of his residence.

I. Standard of Review

We conduct a de novo review of a trial court’s ruling on the constitutionality of a search or seizure. Campos v. State, 885 N.E.2d 590, 596 (Ind.2008). However, the standard of review in a motion to suppress is similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.App.2003). We will consider the evidence most favorable to the ruling to determine whether there is substantial evidence of probative value to support the denial of the motion. Id.

II. Perez’s Claims

Perez argues that the evidence must be suppressed because the police illegally detained him and subsequently placed him in handcuffs. Therefore, Perez contends that his arrest for resisting law enforcement was unlawful and the subsequent search of his person violated his right to be free from unreasonable search and seizure. Perez also claims that there was no probable cause to issue the search warrant for his residence and that the evidence seized during the search of his residence was unlawful.

A. Initial Stop

In addressing Perez’s arguments, we note that there are three levels of police investigation, only two of which implicate the Fourth Amendment to the Constitution: (1) an arrest, requiring probable cause to believe that the person has committed a crime; (2) an investigative stop, requiring reasonable suspicion that criminal activity may be occurring or about to occur; and (3) a consensual encounter that does not amount to either an arrest or a seizure. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000). A consensual encounter occurs when a person remains free to disregard the officer’s questions and walk away, whereas an investigatory stop involves a brief compulsory detention that the person is not free to disregard. Bovie v. State, 760 N.E.2d 1195, 1198 (Ind.Ct.App.2002).

In this case, it is apparent that the encounter began consensually. More specifically, the police officers approached Perez’s front door through the publicly accessible route and began conversing with him. Perez does not dispute that the police were permitted to knock on his front door to ask him questions or that he voluntarily stepped out on the porch to speak to the police. Rather, Perez maintains that the encounter developed into an illegal seizure when the police prevented him from reentering his home and detained him by placing him in handcuffs.

In support of this claim, Perez relies on this court’s opinion in State v. Atkins, 834 N.E.2d 1028, 1082 (Ind.Ct.App.2005). Appellant’s Br. p. 24. In Atkins, it was determined that an investigatory stop may not be conducted on private property because the standard announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) applies only to encounters “between a citizen and a police officer on a public street.” Atkins, 834 N.E.2d at 1032.

However, in Hardister v. State, the evidence showed that police officers went to the defendant’s residence to conduct a “knock and talk” investigation in response to an anonymous tip that drugs were being cooked in the home. 849 N.E.2d 563, 570 (Ind.2006). When the occupants responded to the police presence by fleeing toward the rear of the house, which police observed through a window, it was determined that the officers had reasonable suspicion to stop the suspects. Id. at 570-71. The police officers proceeded to the side of the house to seize the occupants that they expected to exit the rear of the house. Id. at 571.

Our Supreme Court rejected the defendant’s claim that the police officers should have had probable cause and a warrant to invade the curtilage of the residence. In light of this disposition, it is apparent that our Supreme Court has contemplated that a knock and talk encounter may evolve into an investigatory stop on private property. Moreover, police intrusion upon such private property was approved to conduct the investigatory stop. As a result, we reject Perez’s argument that his detention was unconstitutional merely because police officers were on his property.

B. Reasonable Suspicion and Detention

We also note that the police had reasonable suspicion that criminal activity was afoot and, therefore, could lawfully detain Perez. Reasonable suspicion exists where the facts known to the officer and the reasonable inferences therefrom would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Williams v. State, 754 N.E.2d 584, 587 (Ind.Ct.App.2001). The police have the legal right to take reasonable steps to stabilize a situation such as this during the course of their investigation. Williams v. State, 959 N.E.2d 357, 359 (Ind.Ct.App.2011), trans. denied. This includes placing an individual in handcuffs to enable the officers to conduct their investigation and ensure their own safety or the safety of others. Safety concerns of a police officer are a legitimate and weighty justification for such an intrusion. Delatorre v. State, 903 N.E.2d 506, 508 (Ind.Ct.App.2009).

Here, the evidence shows that the police officers first sought only to detain Perez and not arrest him. Nonetheless, it was established that Perez’s residence had been linked to multiple sales of cocaine and that a truck registered to him had been used in a drug sale earlier that day. State’s Ex. 1. As discussed above, Perez had surveillance cameras and an alarm system at his house, which is common among drug traffickers. The police also suspected that Perez might be armed because he had a handgun permit.

Perez also displayed an unusual preoccupation with excluding the police from his home. More particularly, Perez closed and locked his front door as he stepped out to speak -with police, walked away from his door while speaking to the officers in an attempt to lure them away from the door, yelled repeatedly at his "wife when she opened the door, and attempted to force his way past the officers to return into his home when his wife started to exit. Tr. p. 37-39, 40, 55, 57. Perez was also agitated, nervous, angry, and belligerent, and he paced back and forth with his arms crossed while talking to the police officers. Id. at 87. Perez also lied to police officers about owning the white truck that was used in the earlier drug buy. Id. at 50-51, 54. Moreover, we note that when Perez started to yell at his wife in Spanish, the police officers did not know if Perez was ordering his wife to return to the house to retrieve a weapon or destroy the drugs they suspected were in the home. Thus, it was reasonable for the police to detain Perez and place him in handcuffs to control the scene and to protect themselves and potential evidence while they conducted their investigation.

C.Arrest and Search Incident Thereto

The evidence also demonstrated that Perez forcibly resisted Trooper Dock-ery’s attempt to place him in handcuffs. Perez repeatedly pulled his arm away from Trooper Dockery, fought with him, and attempted to grab his gun. Tr. p. 79, 90-92. The two wrestled to the ground and Trooper Dockery’s canine had to seize Perez’s arm before Perez agreed to stop resisting. This forcible resistance constituted the offense of resisting law enforcement and provided probable cause for Perez’s arrest. I.C. § 35-44.1-3-l(a)(l).

When Perez was searched, the police discovered cash in Perez’s pants pocket that had been used earlier that afternoon in a controlled buy. Perez only disputes the legality of the arrest and does not challenge the validity of the search incident to his arrest. Notwithstanding Perez’s claim, a citizen may not use force to resist a peaceful arrest by an individual he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful. Cole v. State, 878 N.E.2d 882, 886-87 (Ind.Ct.App.2007). As a result, the cash was lawfully seized from Perez in a search incident to his arrest. See Edwards v. State, 759 N.E.2d 626, 629 (Ind.2001) (holding that a police officer may conduct a war-rantless search of a person if the search is incident to a lawful arrest). In light of these circumstances, we conclude that the trial court properly denied Perez’s motion to suppress the cash that the police seized from his person following the arrest.

D.Canine Sniff

After Perez was arrested for resisting law enforcement, Trooper Dockery took the drug detection canine to Perez’s front door to sniff. Although the front door was closed, the canine alerted to the presence of illegal narcotics at the door.

Even though Perez claims that the police officers’ actions of bringing the canine on the premises were illegal, we have determined that an individual does not harbor an expectation of privacy on a front porch where salesmen, neighbors, visitors, or religious proselytizers may appear at any time. In other words, as long as an officer is lawfully on the premises, the officer may have a dog sniff the residence without implicating the Fourth Amendment. Hoop v. State, 909 N.E.2d 463, 468 (Ind.Ct.App.2009). Also, a dog sniff alone can provide probable cause for the issuance of a search warrant. Id. at 471. As a result, the canine’s sniff at the closed front door of Perez’s residence was not an illegal search, and his alert to the presence of narcotics alone was sufficient to provide probable cause for the warrant to search Perez’s residence.

E.Search Warrant

We next observe that the affidavit that was submitted in support of the search warrant provided probable cause that evidence related to drug trafficking would be found in Perez’s residence. Indeed, a search warrant is presumed valid and the burden is on the defendant to rebut that presumption. Britt v. State, 810 N.E.2d 1077, 1080 (Ind.Ct.App.2004). In deciding whether to issue a search warrant, “the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Query v. State, 745 N.E.2d 769, 771 (Ind.2001). The duty of the reviewing court is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. Id. In doing so, we focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Id.

As discussed above, the evidence demonstrated that three different vehicles, including one that was registered to Perez, were involved in four different controlled drug buys. Each of these vehicles had been seen at Perez’s residence, and one of the vehicles had been followed back to Perez’s house after cocaine was delivered. It was also determined that Perez’s white truck had been used to deliver one-and-one-half ounces of cocaine earlier on the day that the search took place.

In our view, all of these circumstances, as well as those already discussed, provided probable cause for the issuance of the warrant. Thus, Perez’s claims fail.

F. The Indiana Constitution

Finally, Perez contends that his motion to suppress should have been granted because his right to be free from unreasonable search and seizure also violated the provisions of Article I, Section 11 of the Indiana Constitution.

The purpose of Article I, Section 11 is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Moran v. State, 644 N.E.2d 586, 540 (Ind.1994). This provision must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Brown v. State, 658 N.E.2d 77, 79 (Ind.1995).

Although virtually identical to the wording of the search and seizure provision in the federal constitution, Indiana’s search and seizure clause is independently interpreted and applied. Baniaga v. State, 891 N.E.2d 615, 618 (Ind.Ct.App.2008). Under the Indiana Constitution, the legality of a governmental search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). The burden is on the State to show that under the totality of the circumstances, the intrusion was reasonable. Id.

Generally, the reasonableness of a search or seizure under the Indiana Constitution turns on the balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. at 361.

In this case, the evidence establishes that the police officers’ conduct was reasonable throughout their encounter with Perez. From the earlier controlled drug buys and surveillance efforts, the police had ample reason to believe that Perez’s home was being used to store illegal drugs. The police went to Perez’s home and asked to speak to him. They knew that he likely owned a handgun and observed that surveillance cameras and an alarm system protected the house.

Perez voluntarily exited his house and spoke to the officers at their request. During that conversation, Perez was agitated and nervous. Because Perez acted in a belligerent manner toward the officers, they summoned Trooper Dockery to the scene who was in uniform. When Perez’s wife came to the door behind the officers, they asked her to step outside and she complied. At that point, the officers had not made any show of authority and had not touched anyone. Tr. p. 40-41, 54, 57, 59-60.

When Perez’s wife opened the door, Perez repeatedly yelled at her in Spanish and started to charge toward the door and the officers. The officers did not know if Perez was ordering his wife to obtain a weapon or destroy evidence. Captain Turner put his hands in the air and told Perez to back away. Again the officer did not touch Perez. However, Perez “chest bumped” the officers and attempted to force his way past them to go inside the house. Tr. p. 79, 88. It was only then that Captain Turner told Trooper Dockery to place Perez in handcuffs. In our view, that was a reasonable response to Perez’s volatile behavior and his refusal to step away from the officers.

As discussed above, Perez repeatedly pulled away from Trooper Dockery while being handcuffed. Tr. p. 79, 90-91. Perez struggled with Trooper Dockery, reached for his gun, wrestled with him to the ground, and continued to resist until the police dog bit him. Id. at 90-93, 95-96. Trooper Dockery then arrested Perez for resisting law enforcement and searched him. Id. at 108. And as discussed above, cash that was used in the earlier controlled buy was found in his pocket.

The canine alerted to the presence of narcotics at Perez’s front door. Under the Indiana Constitution, reasonable suspicion is required to conduct a dog sniff of a private residence. Hoop, 909 N.E.2d at 470. The prior investigation, Perez’s suspicious behavior, and the discovery of the cash on Perez’s person provided ample reason for the officers to conduct the dog sniff of Perez’s front door. The dog’s alert to the presence of narcotics, as well as the other circumstances, were sufficient to provide probable cause to search the home. The officers then procured a search warrant before entering and searching Perez’s home.

In sum, the police officers had compelling evidence that Perez and his residence were involved in the sale of significant quantities of cocaine. The police made minimal intrusions upon Perez’s ordinary activities and escalated that intrusion only as much as was necessary to respond to the evolving circumstances and Perez’s behavior. Law enforcement officials had substantial need to protect themselves during their investigation and to prevent the destruction of evidence while they secured a search warrant. In short, the police officers’ conduct was reasonable throughout the investigation, and we conclude that the trial court properly denied Perez’s motion to suppress.

The judgment of the trial court denying Perez’s motion to suppress is affirmed, and we remand this cause for trial.

RILEY, J., and BARNES, J., concur.

      . Article I, Section 11 of the Indiana Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated....”