author: BAKER, Judge.

text:
    Virginia E. ALLDREDGE and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis, Appellants-Plaintiffs, v. The GOOD SAMARITAN HOME, INC., Appellee-Defendant.
    No. 82A01-1206-CT-249.
    Court of Appeals of Indiana.
    Jan. 31, 2013.

      Robert D. King, Jr., David R. Thompson, The Law Office of Robert D. King, Jr., P.C., Indianapolis, IN, Attorneys for Appellant.
    Adam E. Glass, Danny E. Glass, Law Firm of Fine & Hatfield, P.C., Evansville, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, we consider an issue of first impression, namely, whether and to what extent the doctrine of fraudulent concealment tolls the two-year deadline for filing claims contained within Indiana’s Wrongful Death Act (the “WDA”).

Virginia E. Alldredge and Julia A. Luker, as co-personal representatives of the Estate of Venita Hargis (collectively, “the Plaintiffs”), filed a wrongful death complaint against The Good Samaritan Home, Inc. (“Good Samaritan”) twenty-three months after learning that Good Samaritan had allegedly fraudulently concealed the nature of Hargis’s death. Concluding that the WDA’s two-year deadline had been equitably tolled but that the Plaintiffs nevertheless failed to file their complaint within a reasonable time, the trial court granted Good Samaritan’s motion for summary judgment.

The Plaintiffs argue that the two-year time frame required by the WDA for the filing of claims is a statute of limitations, not a condition precedent to the filing of a wrongful death claim, and that Indiana Code section 34-11-5-1 (the “Fraudulent Concealment Statute”) should have applied to toll the statute of limitations such that they had a full two years to file their complaint after learning of Good Samaritan’s fraudulent concealment. Furthermore, the Plaintiffs argue that the reasonable time standard used by the trial court violates equal protection principles and that public policy concerns require a uniform standard for determining when the statute of limitations runs after it has been tolled by fraudulent concealment.

We conclude that the WDA’s two-year limitations period is in fact tolled by fraudulent concealment and that plaintiffs whose wrongful death claims have been fraudulently concealed beyond the WDA’s limitations period have a full two years after the concealment is or should be discovered with reasonable diligence in which to file their claims. Accordingly, we affirm the trial court’s judgment in part and reverse in part.

FACTS

In November 2006, Hargis was a resident at a nursing home owned and operated by Good Samaritan in Evansville. On November 17, 2006, a nurse employed by Good Samaritan told Luker, Hargis’s daughter, that Hargis had fallen at the nursing home and that she was being taken to the hospital because she had started vomiting a few hours after the fall. Because Hargis sometimes suffered from transient ischemic attacks, or “mini-strokes,” which had caused her to fall in the past, Luker and the rest of Hargis’s family believed Good Samaritan’s story that Hargis had fallen. Appellants’ App. p. 40. On November 26, 2006, Hargis died from a head injury purportedly caused by the fall.

On November 24, 2009, nearly three years after Hargis’s death, a former employee of Good Samaritan told Hargis’s daughter Peggy McGee that Hargis’s head injury had not been caused by a simple fall as they had previously been led to believe. The former employee explained that Har-gis had actually been attacked and pushed to the floor by another resident of the nursing home, and the head injury that resulted in Hargis’s death was caused during this attack.

On December 22, 2010, an estate was opened for Hargis for the sole purpose of pursuing a wrongful death claim. The Plaintiffs were named her co-personal representatives. On October 27, 2011, the Plaintiffs filed their complaint, alleging that Hargis’s death had been proximately caused by the negligence of Good Samaritan and that Good Samaritan had fraudulently concealed the true cause of Hargis’s death.

In lieu of an answer, Good Samaritan filed a motion to dismiss the suit with prejudice because, it claimed, the Plaintiffs’ complaint failed to state a claim upon which relief could be granted as it was filed more than two years after Hargis’s death. In support of its motion, Good Samaritan attached a copy of Hargis’s certificate of death and a copy of the probate court docket which showed the date on which Hargis’s estate was opened and her personal representatives named.

Upon motion by the Plaintiffs, the trial court treated Good Samaritan’s motion to dismiss as a motion for summary judgment. In its order granting Good Samaritan’s motion without a hearing, the trial court acknowledged its agreement with the Plaintiffs that fraudulent concealment was applicable to the case. However, citing Southerland v. Hammond, 693 N.E.2d 74 (Ind.Ct.App.1998), the trial court stated that the two-year timeframe for filing wrongful death claims “is not a statute of limitations, but a condition precedent to the existence of the claim.” Appellants’ App. p. 8. The trial court further found that, according to Southerland, fraudulent concealment only creates “an equitable exception” that allows a party to institute an action “within a reasonable time” after learning information that would lead to the discovery of the truth. Id. Noting that the Plaintiffs waited a year after discovering the truth to open Hargis’s estate and nearly two years to file their complaint, the trial court found that the Plaintiffs’ claim was barred because they had waited an unreasonable amount of time to bring the claim.

The Plaintiffs filed a motion to correct error, claiming that the trial court should have applied the Fraudulent Concealment Statute, which they claimed provides for a new full two-year limitations period after the concealment is discovered, instead of the equitable doctrine of fraudulent concealment, which they admitted provides only for the filing of a claim within a reasonable time after discovery. Moreover, the Plaintiffs argued that because Good Samaritan’s fraudulent concealment lasted beyond the initial deadline for filing a wrongful death action, the deadline effectively started over, and they were entitled to file their action at any time within two years of discovery. Finally, the Plaintiffs argued that the “reasonable time” standard was arbitrary and capricious such that it made the WDA unconstitutional as applied to them. Notwithstanding the Plaintiffs’ arguments, the trial court denied the motion to correct error on May 3, 2012. The Plaintiffs now appeal.

DISCUSSION AND DECISION

Summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In our review of a summary judgment decision, we view the pleadings and the designated materials in a light most favorable to the non-moving party. LCEOC, Inc. v. Greer, 735 N.E.2d 206, 208 (Ind.2000). However, when the appellant claims only an error of law, we review the trial court’s summary judgment decision de novo. Spangler v. Bechtel, 958 N.E.2d 458, 461 (Ind.2011).

Indiana first enacted a wrongful death statute in 1852. Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 758 (Ind.2001). Like other •wrongful death acts across the country, this statute was enacted to solve what was perceived to be a gross inequity in the common law — that because there was no common law action that allowed a person’s family members to recover when another’s wrongful act or omission killed their loved one and the person’s own claim died with him, it was often cheaper for a defendant to kill his victim than to maim him. W. Page Keeton et al., Prosser and Keeton on Torts 945 § 127 (5th ed. 1984). In its present form, Indiana’s WDA states as follows:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. ... [T]he action shall be commenced by the personal representative of the decedent within two (2) years[.]

Ind.Code § 34-23-1-1 (emphasis added).

Good Samaritan urges this Court to hold, consistent with a number of other cases previously decided by this Court, that the limitations period within the WDA cannot be tolled because the WDA is a non-claim statute created by the legislature in derogation of the common law. See Southerland v. Hammond, 693 N.E.2d 74, 77 (Ind.Ct.App.1998); Robertson v. Gene B. Glick Co., 960 N.E.2d 179, 184-85 (Ind.Ct.App.2011), trans. denied. In Southerland, this Court said:

In Indiana it is well established that the right to maintain an action for wrongful death is purely statutory and did not exist at common law. Since this right is purely statutory, the two year time period within which an action must be commenced is a “condition attached to the right to sue.” In Indiana this two year time period is not a statute of a limitation but a condition precedent to the existence of the claim. We conclude that the wrongful death statute is a non-claim statute, not subject to tolling.

693 N.E.2d at 77. This language was recently repeated in Robertson, 960 N.E.2d at 184.

Notwithstanding that this explanation has been often repeated by panels of this Court, the Plaintiffs claim that in light of recent Indiana Supreme Court jurisprudence characterizing the WDA’s limitations period as a “statute of limitations provision,” our interpretation has been incorrect. See Newkirk v. Bethlehem Woods Nursing & Rehabilitation Center, LLC, 898 N.E.2d 299, 299 (Ind.2008); Technisand, Inc. v. Melton, 898 N.E.2d 303, 305 (Ind.2008). Furthermore, they claim that even if this Court has previously refused to allow tolling of the WDA’s limitations period in a number of other cases for reasons of lesser consequence, we should nevertheless allow for tolling to occur where a wrongful death action has been fraudulently concealed.

We agree with the Plaintiffs that to deny a decedent’s personal representatives the ability to file a wrongful death action when such cause of action has been fraudulently concealed by a defendant beyond the WDA’s two-year limitations period would allow the defendant to take egregious advantage of his or her own malfeasance. In Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959), the United States Supreme Court stated:

[W]e need look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of eases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations.

359 U.S. at 232-33, 79 S.Ct. 760. Accordingly, we conclude that the WDA’s limitations period is tolled when a wrongful death action has been fraudulently concealed by the defendant.

Having reached this conclusion, it becomes necessary in this case to determine whether the WDA’s limitations period starts anew upon the discovery of the fraudulent concealment or whether it is tolled only for a reasonable time. The Plaintiffs beseech us to apply the Fraudulent Concealment Statute, which provides:

If a person liable to an action conceals the fact from the knowledge of the person entitled to bring the action, the action may be brought at any time within the period of limitation after the discovery of the cause of action.

Ind.Code § 34-11-5-1.

Because the original predecessor to this statute was enacted in 1843, nine years before Indiana’s first wrongful death statute was enacted, we are prohibited from directly applying the statute in the context of the WDA. See Guy v. Schuldt, 236 Ind. 101, 105, 138 N.E.2d 891, 893 (1956)(holding that the Fraudulent Concealment Statute was inapplicable to medical malpractice cases because the medical malpractice statute was enacted many years after the Fraudulent Concealment Statute, and thus the Fraudulent Concealment Statute could not be considered an “exception” to the statute of limitations set forth in the medical malpractice statute). However, we note that subsequent to Guy, our Supreme Court has held that where a patient fails to discover a physician’s malpractice within the applicable statute of limitations because of a long latency period in his or her condition, the patient will have two years from the time that the malpractice was discovered or should have been discovered with the exercise of reasonable diligence to file a claim. See, e.g., Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind.1999).

In rejecting an argument that medical malpractice victims who legitimately discover their claims after the statute of limitations has expired only have a reasonable time in which to file their claims, the Van Dusen Court noted that “[rjather than simply ignoring the statute of limitations and its two-year time period, ... the better course is to construe or reconstrue the statute in such a way as to further the purposes of the legislature without offending the Indiana Constitution.” Id. at 495-96.

Here, the Plaintiffs contend that imposing a “reasonable time” filing deadline on wrongful death claims that have been fraudulently concealed would violate both Article 1, Section 12 of the Indiana Constitution and the equal protection guarantee of the United States Constitution. In addressing this issue, we first note that the courts have a duty to interpret statutes in a way so as to avoid constitutional issues. City of Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind.2006). We also presume the legislature intended to avoid unjust or absurd results. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002).

Our Supreme Court has held that in the context of medical malpractice cases where a long latency period prevents a patient from discovering a physician’s malpractice within the applicable statute of limitations, the medical malpractice statute of limitations cannot be constitutionally applied to bar the plaintiffs action. Martin v. Richey, 711 N.E.2d 1273, 1282 (Ind.1999). And in such cases, our Supreme Court has held that the plaintiff has a period of time equal to that of the original statutory period in which to file the claim. Van Dusen, 712 N.E.2d at 497.

We see no reason to impose a shorter period of time in the wrongful death context when the reason for the plaintiffs failure to discover the action within the WDA’s two-year limitations period is the fault of the defendant rather than simply the result of a medical condition’s long latency period. In short, it is abhorrent to think that we would treat people who have been intentionally defrauded regarding their loved one’s deaths worse than others, such as in Martin and Van Dusen, where the defendant’s misfeasance has been undiscovered merely on account of nature’s own time frame.

Accordingly, we conclude that where one fraudulently conceals the existence of a wrongful death action beyond the WDA’s two-year limitations period, the decedent’s personal representative shall be entitled to commence the action within the lesser of two years from the date of the discovery of the cause of action or two years from the discovery of facts that, in the exercise of reasonable diligence, should lead to the discovery of the wrongful act or omission that resulted in the decedent’s death.

In so construing the WDA, we avoid holding that the WDA’s two-year limitations period is unconstitutional as applied to the Plaintiffs under either the Indiana or United States Constitutions. See City of Vincennes, 841 N.E.2d at 162. This interpretation also allows us to give effect to the two-year time period that our legislature originally thought was appropriate for wrongful death claims and to avoid the need for plaintiffs, practitioners, and courts to engage in “hair-splitting” to determine exactly what constitutes a “reasonable time.”

We affirm the portion of the trial court’s judgment that held that fraudulent concealment could operate to toll the WDA’s two-year limitations period but reverse its conclusion that the Plaintiffs had only a reasonable time in which to commence their wrongful death action. Instead, as stated above, the Plaintiffs have two years after the concealment is or should have been discovered with reasonable diligence in which to file their claims. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

That being said, we observe that when these types of cases arise, it may be preferable for the trial court to bifurcate the issues of negligence and fraudulent concealment from the issue of damages in the interest of saving judicial time and resources. This is because the application of the fraudulent concealment doctrine to the WDA still requires a decedent’s personal representative to show not only the underlying negligence that resulted in the decedent’s death but also that the underlying negligence has been fraudulently concealed by the defendant.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for continuation of the underlying litigation.

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

      . We heard oral argument in this case in Indianapolis on January 9, 2013. We commend counsel for their able presentations.

      . We note that application of the fraudulent concealment doctrine to the WDA still requires a decedent’s personal representative to show not only the underlying negligence that resulted in the decedent’s death but also that the underlying negligence has been fraudulently concealed by the defendant. In such cases where these issues exist, it may be preferable for the trial court to bifurcate these issues from the issue of damages in the interest of saving judicial time and resources.

      . Revised Statutes of the State of Indiana, ch. 40, § 113 (1843). This statute has been through minor edits in the past 150 years, but the significant language has not been materially altered since its original adoption.

      . Article 1, Section 12 of the Indiana Constitution provides in relevant part, “All courts shall be open; and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law....”

      . U.S. Const, amend. XIV. § 1.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Brian KENDRICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1206-CR-314.
    Court of Appeals of Indiana.
    Jan. 31, 2013.
    Rehearing Denied April 25, 2013.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Brian Kendrick appeals his sentence on remand for Class A felony attempted murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license. He contends the trial court erred when, after we vacated his two convictions of Class C felony feticide, it again sentenced Kendrick to fifty-three years. We affirm.

FACTS AND PROCEDURAL HISTORY

We stated the facts underlying Kendrick’s convictions in our opinion deciding his first direct appeal:

On the evening of April 21, 2008, Kendrick and Aaron Stewart came to Aaron Little’s garage on the west side of Indianapolis for haircuts. Charles Petty, Little’s best friend, was also present. The four men hung out for about an hour.
During that time, Stewart and/or Kendrick made references to wanting to rob a bank. Kendrick had a black backpack with him with a Calico semi-automatic pistol inside, an uncommon gun that he had gotten from Stewart several months prior.
Stewart and Kendrick left that evening in Kendrick’s blue Trailblazer. They agreed to commit a robbery together the following morning. Little was also apparently in on the robbery at some point. A number of phone calls were made early the next morning between Little and Stewart and Stewart and Kendrick. When Stewart and Kendrick arrived at Little’s house that morning, Little refused to participate in the robbery, but he agreed to get a car for them to use. The three men drove together to a gas station where Little met one of his girlfriends, Twaunya Taylor, at about 7:45 to borrow her black Sebring. After he dropped Taylor off at work, Little met Stewart and Kendrick back at his house. Kendrick took possession of the Sebring, and Stewart drove his Trailblazer.
On their way to the bank on the east side, Stewart and Kendrick stopped in a parking lot to solidify their plan for the robbery. The plan was for Stewart to park on the street and wait in his Trailblazer during the robbery. He was instructed to block (with his vehicle) anyone pursuing Kendrick, who was going to flee in the Sebring.
That morning, Katherine Shuffleld was working as a teller at the Huntington Bank at 21st and Post Road in Indianapolis. There were three other employees present and one patron as Kendrick entered the bank armed with a Calico handgun. He wore a face mask, gloves, and dark clothing to avoid being identified. Kendrick ordered the patron to the floor. Then he attempted to open the gate to the teller area. When he could not open it, he jumped over Shuffield’s counter. As the obviously-pregnant Shuffield backed away, Kendrick pointed his gun and shot her in the abdomen. Shuffield fell to the floor screaming for someone to help her and her twin babies.
Without responding to Shuffield’s pleas for help, Kendrick moved onto the next two tellers, taking the contents of their cash drawers. He then jumped back over the counter and on his way out fired a shot in the direction of the patron still lying on the floor. Neither the patron nor any of the bank employees were able to identify the shooter.
Upon fleeing the bank, Kendrick ran to the Sebring and drove away, and Stewart drove the Trailblazer. They met at an abandoned house. When Stewart learned that Kendrick had shot someone, he went to his cousin’s house to get new clothing for Kendrick. In the meantime, Kendrick opened the bag only to find that a dye-pack had exploded. Kendrick and Stewart eventually went together in the Trailblazer to Stewart’s cousin’s home.
After several frantic phone calls from Stewart, Little came later that morning to pick up the Sebring on the east side. While Stewart and Little drove from Stewart’s cousin’s home to the abandoned house, Stewart filled Little in on what had happened. After returning the Sebring to his girlfriend’s garage, Little went to Petty’s house. He watched the news coverage of the robbery and told Petty about the robbery and his involvement.
Shuffield was seriously injured as a result of the shooting. After two days of surgeries, she began having contractions such that the babies had to be delivered. They were only about twenty-two-weeks gestation. The first twin was stillborn and the second survived only a few hours after delivery.
Leads for the crime were running cold, so at the end of May the bank offered a reward. As a result, Petty provided information to police in early June and gave specific details not previously released to the media. Stewart and Kendrick were subsequently arrested, and upon his arrest, Stewart gave a statement to police implicating himself and Kendrick.
On June 23, 2008, the State charged Kendrick with class A felony attempted murder, class A felony robbery, two counts of class C felony feticide, and one class A misdemeanor weapons charge. Kendrick’s five-day jury trial commenced on January 25, 2010. Among others, Little, Petty, and Stewart testified against Kendrick. The theory of the defense was that Kendrick had been set up and was not involved in the robbery. The jury ultimately found Kendrick guilty as charged. The trial court entered judgments of conviction accordingly, except it reduced the robbery conviction to a class B felony to avoid double jeopardy. At the sentencing hearing on February 12, 2010, the trial court sentenced Kendrick to consecutive sentences of thirty years for attempted murder, fourteen years for robbery, four years for each feticide conviction, and one year on the handgun conviction. In all, Kendrick received an aggregate sentence of fifty-three years in prison.

Kendrick v. State, 947 N.E.2d 509, 512-13 (Ind.Ct.App.2011), reh’g denied, trans. denied. cert. denied — U.S. —, 132 S.Ct. 1752, 182 L.Ed.2d 541 (2012) (footnotes omitted).

We reversed Kendrick’s two Class C felony feticide convictions on the basis of double jeopardy, and remanded for resen-tencing. We directed the trial court that it may “now consider the victim’s pregnancy and the termination thereof in crafting Kendrick’s sentence for attempted murder. On remand, however, the court may not impose an aggregate sentence in excess of fifty-three years, as that would raise a presumption of vindictiveness.” Id. at 514-15.

On remand, the trial court resentenced Kendrick to thirty-eight years for Class A felony attempted murder, fourteen years for Class B felony robbery, and one year for Class A misdemeanor possession of a handgun without a license. The trial court ordered the sentences served consecutively, for an aggregate sentence of fifty-three years.

DISCUSSION AND DECISION

When resentencing, a trial court may not “impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Ind. Post-Conviction Rule l(10)(b). Kendrick argues the trial court erred when, on resentencing, it increased his sentence for Class A attempted murder by eight years. We disagree.

On appeal of a sentence, our court “should focus on the forest-the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). While Kendrick’s sentence for Class A felony attempted murder increased from thirty years to thirty-eight years, his aggregate sentence, fifty-three years, did not change. Therefore, the trial court did not impermissibly increase Kendrick’s sentence. See Hicks v. State, 729 N.E.2d 144, 147 (Ind.2000) (affirming resentencing of defendant when enhancement increased sentence for murder but aggregate sentence remained the same). We accordingly affirm.

Affirmed.

ROBB, C.J., and PYLE, J., concur.

      . Ind.Code § 35-42-1-1 (murder); Ind.Code § 35-41-5-1 (attempt).

      . Ind.Code § 35-42-5-1.

      . Ind.Code § 35-47-2-1.

      . Ind.Code § 35-42-1-6.


author: BRADFORD, Judge.

text:
    Keiyun L. MAYS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A04-1205-CR-287.
    Court of Appeals of Indiana.
    Feb. 5, 2013.

      P. Jeffrey Schlesinger, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Sixteen-year-old D.K. was asleep in her bed when she felt someone on top of her, beating and stabbing her on her head and upper body. As the attack progressed, D.K. was struck several times with a tire iron, was stabbed several times, lost consciousness three times, and urinated on herself. At some point, D.K. recognized that her attacker was Appellant-Defendant Keiyun Mays, known to her because he had dated her sister. D.K. eventually escaped from Mays and obtained assistance. A jury found Mays guilty of Class B felony criminal confinement, and the trial court sentenced him to fifteen years of incarceration and found him to be a sexually violent predator (“SVP”). Mays contends that the trial court abused its discretion in sentencing him, that the State produced insufficient evidence to sustain an SVP finding, and that the SVP interview process violated his right against self-incrimination such as to constitute fundamental error. Concluding that all of Mays’s arguments are without merit, we affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 2:00 to 3:00 a.m. on August 5, 2009, sixteen-year-old D.K. was awakened by someone stabbing and beating her. D.K. began kicking, screaming, and yelling, “Take anything, take whatever you want[,]” which did not cause the attack to cease. Tr. p. 78. D.K’s attacker pulled D.K. off of her bed by her legs and hit her in the face three times, causing her to lose consciousness. D.K. felt herself urinate and woke up after approximately one minute. D.K.’s attacker hit her with a tire iron, causing her to pass out again.

When D.K. regained consciousness a second time, she was on her back and her attacker had her pinned her down. D.K. recognized her assailant as Mays. Mays had previously dated D.K’s sister, and D.K. was also friends with Mays’s sister. D.K. asked Mays to allow her to turn around, and, when he allowed her to, she grabbed the tire iron and hit Mays in the face with it. D.K. ran out of her room, closed the door, and struggled to escape through the front door. Although Mays caught up to D.K. and ripped her shirt, D.K. managed to escape to the nearby home of a friend, who contacted the authorities. D.K. then lost consciousness a third time.

On August 6, 2009, the State charged Mays with Class A felony burglary, two counts of Class B felony criminal confinement, Class B felony rape, Class C felony criminal confinement, Class C felony battery, and Class D felony sexual battery. On March 31, 2011, a jury found Mays guilty of two counts of Class B felony criminal confinement, Class C felony criminal confinement, and Class C felony battery. On May 4, 2011, the State petitioned to have Mays’s possible status as an SVP evaluated. On April 30, 2012, the trial court found Mays to be an SVP, entered judgment on one count of Class B felony criminal confinement, and sentenced him to fifteen years of incarceration. The trial court found Mays’s youth and drug and alcohol abuse to be mitigating circumstances. The trial court found the nature and circumstances of the crime and that Mays had violated the terms of his community corrections placement to be aggravating circumstances.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Sentencing Mays

Under our current sentencing scheme, “the trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.2007). We review the sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the decision is clearly against the logic and effect of the facts and circumstances.” Id.

A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at all[,]” (2) enters “a sentencing statement that explains reasons for imposing a sentence — including a finding of aggravating and mitigating factors if any— but the record does not support the reasons,” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration,” or (4) considers reasons that “are improper as a matter of law.” Id. at 490-91. If the trial court has abused its discretion, we will remand for resentencing “if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. at 491. However, under the new statutory scheme, the relative weight or value assignable to reasons properly found, or to those which should have been found, is not subject to review for abuse of discretion. Id.

Mays contends that the trial court abused its discretion in considering charges for which he was tried but found not guilty. Specifically, Mays contends that the record indicates that the trial court considered elements of the Class A felony burglary and Class B felony rape charges, of which Mays was acquitted. To support this argument, Mays points only to the trial court’s sentencing order, in which the court indicates erroneously that the jury had found him guilty of rape. Our review of the record, however, shows that the indication that Mays had been found guilty of rape is clearly nothing more than a scrivener’s error. The trial court’s order issued at the conclusion of trial clearly indicates that the jury had found Mays not guilty of rape. The trial court’s abstract of judgment, issued four days before the sentencing order, also indicates that the jury had acquitted Mays of rape. At Mays’s sentencing hearing, neither the State, nor Mays, nor the trial court even so much as mentioned the fact that Mays had been charged with rape. In summary, there is no indication whatsoever that the trial court was actually confused regarding Mays’s acquittal of the rape charge or that it considered the charge in sentencing Mays. Mays has failed to establish that the trial court abused its discretion in sentencing him.

II. Whether the State Produced Sufficient Evidence to Sustain the Trial Court’s SVP Finding

Indiana Code section 35-38-1-7.5, which governs findings regarding sexually violent predators, provides, in part, that “[a]s used in this section, ‘sexually violent predator’ means a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense[.]” In this case, the State sought to have Mays found an SVP pursuant to subsection (e), which provides, in part, that

[t]he prosecuting attorney may request the court to conduct a hearing to determine whether the person ... is a sexually violent predator.... If the court grants the motion, the court shall appoint two (2) psychologists or psychiatrists who have expertise in criminal behavioral disorders to evaluate the person and testify at the hearing. After conducting the hearing and considering the testimony of the two (2) psychologists or psychiatrists, the court shall determine whether the person is a sexually violent predator.... A hearing conducted under this subsection may be combined with the person’s sentencing hearing.

Mays contends that the State produced insufficient evidence to sustain the trial court’s SVP finding.

When a defendant makes a sufficiency-of-the-evidenee challenge to a trial court’s SVP finding, our inquiry is whether there was substantial evidence of probative value to support the trial court’s finding that the defendant suffers from a mental abnormality or personality disorder that makes him or her likely to repeatedly commit the enumerated sex or violent offenses. [Scott v. State, 895 N.E.2d 369, 375-75 (Ind.Ct.App.2008) ]. We will neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 374-75. We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. Id.

Williams v. State, 895 N.E.2d 377, 385-86 (Ind.Ct.App.2008).

Three psychiatrists examined Mays: Drs. R. Bhawani Prasad and J.J.

Rodos by court appointment and Dr. George Parker as an expert witness for Mays. Dr. Prasad opined that Mays suffered from “antisocial personality ... also called psychopathic personality [disorder]” and that “there was a high likelihood that [Mays] might [reoffend in a sexual manner] if the circumstances presented themselves.” Tr. pp. 494, 495. Dr. Rodos opined that Mays had “an antisocial personality disorder” characterized by “the inability ... to feel guilty about’what you do, to put consequences on what you do, and control what you do” and concluded that Mays was a SVP. Tr. pp. 513-14. It is worth noting that Mays told Dr. Prasad that he had intended to rape D.K. as revenge for previously refusing to have sex with him and admitted to Dr. Rodos that the motive for his crimes against D.K. was sexual. Although Dr. Parker opined that Mays did not meet the definition of an SVP, the trial court was under no obligation to credit his opinion. Moreover, “we have previously held that unanimity between the doctors is not required for an SVP finding.” Williams, 895 N.E.2d at 386 (citing Westbrook v. State, 770 N.E.2d 868, 871 (Ind.Ct.App.2002)). Mays’s argument amounts to nothing more than an invitation to reweigh the evidence, which we will not do.

III. Whether the SVP Process Generated Fundamental Error

Mays concedes that he did not object below to the use of his statements during the SVP evaluation process. Mays contends, however, that such a use of his statements constitutes fundamental error. “Appellate courts may, on rare occasions, resort to the fundamental error exception to address on direct appeal an otherwise proeedurally defaulted claim.” Jewell v. State, 887 N.E.2d 939, 942 (Ind.2008).

But fundamental error is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.

Id.

Mays has failed to establish any error in this regard, much less fundamental error. In a case sufficiently analogous so as to control here, the Indiana Supreme Court rejected the defendant’s argument that his right against self-incrimination was violated when the trial court enhanced his sentence based on statements he made during the presentence investigation. See Gardner v. State, 270 Ind. 627, 637, 388 N.E.2d 513, 519 (1979). In rejecting Gardner’s argument, the Indiana Supreme Court concluded that “the crucial factor in our determination is that the defendant was informed, even before his trial started, that he had the right to remain silent and that anything he said could be used against him.” Id. The Court also observed that “[t]here is no showing of force or coercion during the interview with the probation officer.” Id.

As in Gardner, the SVP procedure here was a post-conviction evaluation that did not produce any admissions that contributed to any criminal convictions, only, in this case, to the determination of Mays’s SVP status. Moreover, the “crucial factor” identified by the Gardner Court is also present here, as Mays was informed prior to trial that he had the right to remain silent and that anything he said he could be used against him. Finally, there is no indication of any coercion or force exerted by Drs. Prasad and Rodos (or any other person) during their interviews with Mays. Mays has failed to establish that the process used to determine his SVP status constituted fundamental error.

The judgment of the trial court is affirmed.

NAJAM, J., and FRIEDLANDER, J., concur.

      . Mays attacks the opinions of Drs. Prasad and Rodos by arguing that the State failed to show that they had the required expertise in criminal matters to testify as to SVP status. Mays, however, failed to object to this alleged lack of qualification at the sentencing hearing and has therefore waived the issue for appellate review. The purpose of the contemporaneous objection rule is to promote a fair trial by preventing a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him. Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), Irons, denied (citation omitted). "The rule requires parties to voice objections in time so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id.


author: MATHIAS, Judge.

text:
    Terry SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1202-CR-88.
    Court of Appeals of Indiana.
    Feb. 7, 2013.

      Matthew D. Anglemeyer, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Terry Smith (“Smith”) was convicted in Marion Superior Court of Class B felony robbery, Class B felony possession of a firearm by a serious violent felon, Class D felony auto theft, and Class D felony resisting law enforcement. Smith appeals and presents five issues, which we reorder and restate as:

I. Whether the trial court abused its discretion in granting the State’s motion to continue the trial in order to obtain certain evidence;
II. Whether the trial court abused its discretion in admitting evidence and testimony regarding shell casings collected in the area where Smith had fled from the police;
III. Whether the trial court abused its discretion in admitting into evidence items seized from Smith’s home pursuant to a search warrant;
IV. Whether the trial court abused its discretion in admitting DNA evidence obtained from a buccal swab taken from Smith; and
V. Whether the State presented evidence sufficient to support a finding that Smith was an habitual offender.

We affirm.

Facts and Procedural History

Shortly after midnight on the morning of February 12, 2009, Jessie Dulaney (“Du-laney”) looked where he had parked his vehicle, a red Chevrolet Lumina minivan, and saw a man, later identified as Smith, driving away in the van. Dulaney, who lived near 80th Street and Post Road in Indianapolis, had not given Smith, or anyone else for that matter, permission to use his van, and telephoned the police to report that his van had been stolen.

Later that morning, at approximately 8:50 a.m., Ken Rozelle (“Rozelle”) went to the Chase Bank branch located on 42nd Street and Franklin Road in Indianapolis. The bank opened at 9:00 a.m., and Rozelle wanted to be one of the first customers so he could conduct his business quickly. Rozelle noticed a red Chevrolet Lumina minivan parked in the bank’s parking lot. The van was parked close to the bank’s door, and a light-skinned African-American man with a beard was sitting in the driver’s seat talking on his mobile phone. Rozelle went into the bank when it opened, deposited a check, and went back to his car within a few minutes. When he went back to his car, he noticed that the man in the van, later identified as Smith, was still in his car and had not yet gone into the bank. This struck Rozelle as odd, because most customers enter the bank quickly once the bank opens. When Rozelle drove away, Smith was still in the van.

Shortly thereafter, Smith went into the bank and fired one shot from a black semiautomatic handgun. Smith was wearing a black knit cap, gray sweatpants, a sweatshirt, and had a white bandana covering most of his face. Still, the bank employees could observe that the gunman appeared to be a light-skinned African-American man who was approximately 5’ 7" tall. Smith yelled at the bank employees to get on the floor. Bank employee Jennifer Aasen (“Aasen”) realized that a robbery was in progress and pressed a button that sounded a silent alarm to the police. The bank tellers were situated behind bulletproof glass, and the only way to approach them was through a door next to the desk of customer-service representative Julie Carson (“Carson”). Smith, seeming to know this, headed straight for Carson, pointed his gun at her, and instructed her to unlock the door to the teller area and hold the door open for him. Carson complied. Pointing his handgun, Smith then went to each of the three tellers and demanded that they put money in a black pillowcase Smith had. He demanded money from both of the drawers each teller had access to and instructed them not to put any dye packs in with the money.

After collecting $27,659 in cash, Smith ran out of the bank. After Smith left, branch manager Tonya Bruce (“Bruce”) locked the front door to the bank. She then directed all the employees to fill out questionnaires regarding the robbery and their descriptions of the robber. Lt. Jack Bailey (“Lt. Bailey”) of the Lawrence Police Department heard a dispatch of a suspected robbery at the Chase Bank at 42nd Street and Franklin Road. Lt. Bailey was only a short distance from the bank and could actually see the bank from where he was when he heard the dispatch. He drove straight to the bank and pulled in the parking lot. As he did, he saw Smith run from the bank, throw something into his van, and drive away. Lt. Bailey pursued Smith. When he checked the license plate on the van, Lt. Bailey was informed that the van had been stolen the night before. This heightened Lt. Bailey’s suspicions that Smith had just robbed the bank.

Even though Lt. Bailey had activated his emergency lights and siren, Smith refused to pull over. Lt. Bailey continued to pursue Smith until Smith pulled the van into a residential neighborhood and to the yard of a home on Dubarry Road. Behind this home was a fence that separated the home’s yard from Pinnacle Square Apartments. The fence behind the home had been broken down. In Lt. Bailey’s experience, people at the apartment complex used the hole in the fence to enter the apartment complex, and those fleeing from the police would use the hole in the fence to escape from the police. Smith left the van and ran toward the corner of the home on Dubarry Road. As Lt. Bailey parked his car and got out to follow Smith, Smith fired a shot from his handgun that struck the front passenger-side door of Lt. Bailey’s patrol ear. Lt. Bailey fired two shots in return and sought cover behind a large tree. Smith fired two more shots at Lt. Bailey, who could see Smith run back behind the house. Lt. Bailey waited for backup officers to arrive. Approximately fifty other police vehicles responded and set up perimeters around the apartment complex where they believed Smith had fled. However, the police were unable to locate Smith that day.

Detective Michelle Stewart (“Detective Stewart”) went to the Chase Bank and spoke with the employees regarding the robbery and viewed the vidéo captured by the bank’s security cameras. Based on what she learned from the employees and the video, she gave a description of the robber to the other police officers, describing the perpetrator as a “younger black male of medium build, medium height, not too tall, not super short,” and further described him as a “lighter-skinned black male” or Hispanic male wearing a gray jogging suit. Tr. pp. 627, 655. Crime Scene Specialist Donald Toth (“Toth”) collected ten bullet fragments from the Chase Bank, and collected two .40 caliber Winchester shell casings at the home on Du-barry Road. He also found a bullet in the door of Lt. Bailey’s car and a .45 caliber shell casing in the van Smith had been driving. Toth also found two .45 caliber shell casings in the back yard area of the home. Later testing determined that all three .45 caliber shells had been fired by the same gun, a High Point brand weapon. Inside the van, the police found the black pillowcase Smith had used in the robbery along with all of the money stolen from the bank.

A few days later, the police received information from a confidential informant that indicated that Smith was involved in the robbery. The informant gave the police information indicating that he did in fact know Smith and also knew information about Smith that had not been released to the public. Using this information, the police obtained a warrant to search Smith’s apartment at the Pinnacle Square Apartment complex. Inside, the police found a black knit hat and a pair of gray sweatpants. Although Smith matched the description of the robber, the police did not arrest him at the time of the search. Subsequent testing found DNA on the pillowcase found inside the van and used in the robbery. The police then got a warrant to obtain Smith’s DNA from a buccal swab of his cheek. Smith’s DNA was a “major contributor” to two of the DNA samples found on the pillowcase. The police then interrogated Smith, who waived his Miranda rights. Smith denied that he was the robber and denied ever having been to the Chase branch that had been robbed. But he later admitted that he had been to that branch before.

On March 8, 2010, the State charged Smith with Class A felony attempted murder, Class B felony armed robbery, Class B felony criminal confinement, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony auto theft, and Class D felony resisting law enforcement. The State subsequently amended the charges to add an allegation that Smith was an habitual offender. A jury trial was held on May 31 through June 3, 2011. At the conclusion of this trial, the jury found Smith not guilty of attempted murder and criminal confinement, but was unable to reach a verdict on the remaining counts. The trial court declared a mistrial as to the counts on which the jury was unable to reach verdict, and a second jury trial on those counts was set for August 22, 2011.

Smith then moved for a speedy trial on July 22, 2011, and the trial court set October 1, 2011, as the “deadline” for the trial. On August 2, 2011, the State moved to continue the trial. Smith indicated that he had no objection so long as the trial was still held within the speedy trial deadline. The trial court granted the State’s motion to continue and moved the trial to September 19, 2011. At a pre-trial conference held on September 15, 2011, the State orally moved to continue the trial again. Over Smith’s objection, the trial court reset the trial for December 19, 2011. Smith filed a motion for discharge and dismissal on October 28, 2011, alleging that the speedy trial deadline had passed. The trial court subsequently denied this motion. The trial court also denied Smith’s pre-trial motions to suppress evidence obtained as a result of the search warrant and the buccal swab.

Smith’s second jury trial began on December 19, 2011. On December 21, 2011, the jury found Smith guilty of Class B felony robbery, Class D felony auto theft, and Class D felony resisting law enforcement. Smith waived his right to a jury trial on the charge of possession of a firearm by a serious violent felon and the allegation that he was an habitual offender. The trial court later found Smith guilty of possession of a firearm by a serious violent felon and found Smith to be an habitual offender.

At a hearing held on January 27, 2012, the trial court sentenced Smith to fifteen years on the robbery conviction, to which a thirty-year habitual offender enhancement was added. The trial court sentenced Smith to twenty years for possession of a firearm by a serious violent felon, three years for auto theft, and three years for resisting law enforcement. All of these sentences were to run concurrently with the forty-five-year enhanced sentence imposed on the robbery conviction. Smith now appeals.

I. State’s Motion to Continue

Smith argues that the trial court erred in granting the State’s motion to continue made before the scheduled September 19, 2011 trial date. As noted above, after Smith’s first trial, Smith moved for a speedy trial pursuant to Criminal Rule 4(B). This rule provides in relevant part that:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Crim. R. 4(B).

As explained in Chambers v. State, 848 N.E.2d 298, 303-04 (Ind.Ct.App. 2006), Criminal Rule 4(D) provides that a trial court may grant the State a continuance when it is satisfied that: (1) there is evidence for the State that cannot then be had, (2) reasonable effort has been made by the State to procure the evidence, and (3) there is just ground to believe that such evidence can be had within ninety days. Any exigent circumstances may warrant a reasonable delay beyond the limitations of Criminal Rule 4. Id. at 304. The reasonableness of such delay should be judged in the context of the particular case, and the decision of the trial judge will not be disturbed except for an abuse of discretion. Id. ‘“Rule 4(D) does not mandate the evidence be essential or unique, only that it be unavailable and that the State be entitled to present it.’ ” Wilhelmus v. State, 824 N.E.2d 405, 413 (Ind.Ct.App.2005) (quoting Smith v. State, 502 N.E.2d 485, 488 (Ind.1987)). The purpose of Criminal Rule 4(B) is to assure criminal defendants speedy trials, not to provide them with a technical means of avoiding trial. Id. at 412.

During Smith’s first trial, the State called witness Shelly Crispin (“Crispin”), a forensic scientist, to testify regarding the DNA analysis she performed upon the samples taken from the pillowcase. The State, however, did not call as a witness Judith Macechko (“Macechko”), the serologist who had taken the samples from the pillowcase. Smith objected to the introduction of the DNA evidence at his first trial, but not on the grounds that there was a lack of foundation. In preparation for the second trial, the State requested a transcript of the first trial. The State did not receive the transcript until September 14, 2011 — just five days before the scheduled start of the second trial. In reviewing this transcript, the State discovered that, for reasons unknown, Macechko had not been called to testify at the first trial. The State further discovered that Macech-ko had moved to Ohio to take care of her ailing mother and was unable to return to Indiana to testify; nor was the State able to depose Macechko in time for the upcoming trial. Therefore, on September 15, 2011, the State moved to continue the trial in order to obtain Macechko’s deposition. The trial court agreed and granted the State’s motion.

On appeal, Smith claims that the State did not make a reasonable effort to obtain the evidence, and that the evidence could have been obtained before the expiration of the speedy trial deadline. The trial court obviously disagreed, and we are unable to say that the trial court’s decision amounted to an abuse of discretion. The State did not obtain the transcript of the first trial until shortly before the scheduled start of the second trial. When the State discovered that there was a potential issue with the introduction of the DNA evidence without Macechko’s foundational testimony, it attempted to contact her to obtain her testimony. When the State learned that Macechko was unable to return to the State due to the health of her mother, it then sought to continue the trial in order to depose her. Under these facts and circumstances, we cannot say that the trial court abused its discretion in determining that the State made a reasonable effort to obtain the evidence and that the State could not have obtained Macechko’s testimony prior to the expiration of the speedy trial deadline.

We agree with the State that Smith’s citation to Chambers is misplaced. In that case, the evidence at issue was a lab report that the prosecution did not have in its possession, but which had actually been completed six days before the State moved to continue the trial. See 848 N.E.2d at 299-300. On appeal, a panel of this court held that the prosecutor could have discovered that the report was ready by simply telephoning the laboratory and asking. Id. at 304. Here, however, the State did not have Macechko’s testimony available, nor was it readily available at the time the State moved to continue. In short, the trial court did not abuse its discretion in granting the State’s motion to continue under Criminal Rule 4(D).

II. Admission of Evidence Regarding Shots Fired and Casings Found

Smith next claims that the trial court abused its discretion when it allowed testimony regarding the shots that were fired at Lt. Bailey and the shell casings found during the investigation of the robbery. Because Smith was acquitted of the charge of attempted murder at the first trial, he claims that the admission of this evidence was irrelevant to the charges presented to the jury and, even if relevant, such relevance was outweighed by the danger of unfair prejudice. See Ind. Evidence Rules 402, 403.

In reviewing this claim, we note that the admission of evidence is within the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

Indiana Evidence Rule 402 provides generally that relevant evidence is admissible and irrelevant evidence is inadmissible. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ind. Evidence Rule 401 (emphasis added). In order to be relevant, the evidence at issue “need only have some tendency, however slight, to make the existence of a material fact more or less probable, or tend to shed any light upon the guilt or innocence of the accused.” Simmons v. State, 717 N.E.2d 635, 638 (Ind.Ct.App.1999).

In this case, we are unable to say that the trial court abused its discretion in determining that the evidence of the shooting met this rather low threshold for relevancy. We agree with the State that although the question of attempted murder was not before the jury, the evidence regarding the shooting was relevant to show where Smith went after he went around the home and why Lt. Bailey did not immediately follow and apprehend Smith.

And we cannot ignore the fact that Smith was still charged with resisting law enforcement for knowingly fleeing from Lt. Bailey. The State charged Smith with resisting law enforcement as follows:

Terry W. Smith, on or about February 12, 2009, did knowingly flee from Lt. Jack Bailey, a law enforcement officer empowered by the Lawrence Police Department, after Lt. Jack Bailey had identified himself by visible or audible means and ordered Terry W. Smith to stop, and while committing said offense Terry W. Smith did operate a vehicle, that is: a 1990 Chevrolet Lumina minivan.

Appellant’s App. p. 58. Thus, while Smith’s act of fleeing in the minivan was relevant and necessary to convict him as charged, evidence regarding where Smith went as he continued to flee from Lt. Bailey after he got out of the car was not irrelevant to the issue of how and where Smith fled.

Nor do we think that the trial court abused its discretion in concluding that the relevance of this information was not outweighed by the danger of unfair prejudice. “All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence.” Duvall v. State, 978 N.E.2d 417, 428 (Ind.Ct.App.2012) (citing Carter v. State, 766 N.E.2d 377, 382 (Ind.2002)).

Here, the evidence regarding the shooting and the location of the casings was highly relevant, and we cannot say that this evidence was unfairly prejudicial. Indeed, the jury also heard evidence that Smith pointed a weapon during the bank robbery and fired a shot when he first went inside the bank. Thus the jury was already well aware that Smith was armed and had fired a weapon. Under these facts and circumstances, we cannot say that the evidence that Smith fired his weapon as he fled from the police was unfairly prejudicial.

III. Validity of Search Warrant

Smith also challenges the validity of the search warrant obtained by the police in order to search Smith’s apartment. The police investigating the robbery were called to the jail because an inmate indicated that he knew information about the robbery. The detectives spoke to the inmate and included the following information in the subsequently-prepared probable cause affidavit:

On 2-17-2009 Det. Michele Stewart and Det. Sgt. Mark Osborn with the Lawrence Police Department received a call from the Marion County Jail. The Jail advised they had a subject in the jail that requested to speak with the assigned Detectives on the bank robbery and that he may have information on it The subject at the jail ... wished to remain anonymous for fear of his safety to himself and his children. The Cl advised that the person we were looking for was a black male he knew as Terry. He states that Terry goes by the nickname of BB. The Cl also advised that he is familiar with Terry. The reason he believes Terry is the suspect is because he has seen Terry wearing a gray sweat suit identical to what he saw on the news. He further stated that Terry-wears a pair of dark tennis shoes and carries a .45 Caliber High Point. Cl states Terry has also done time for bank robbery and has bragged about shooting at the police and getting away from them during past crimes he has committed. Cl advises that Terry lives in Pinnacle Square Apartments. Cl states that Terry likes to steal mini vans and often times cracks the column on the left side of the steering column.
Cl describes Terry as a light skinned black male. Cl states Terry is short with a muscular build about 5'8 [sic] and 170 pounds. BMV and jail records show Terry Smith as 5'8 [sic] and 175 pounds. The information the Cl provides on the caliber of weapon and the column being cracked on the left side was not information that was released to the news media. The Cl also advised that Terry drove a blue Chevrolet Caprice with chrome on the vehicle and also owned a maroon colored mini van.
Det. Sgt. Mark Osborn knew from previous incidents back in September of 2008 that BB was a Terry Smith. Det. Osborn asked the Cl if Terry lived in Pinnacle with his brother Jessie and the Cl state[d], “yes, that is him.” The suspect was identified as Terry Smith B/M with a DOB of 8-17-1982.
On 2-18-2009 Det. Michele Stewart located a traffic stop involving Terry Smith driving a blue Chevy Caprice with [an Indiana license] and the last four of the VIN as 0077 on 1-23-2009. The vehicle is registered to Terry Smith’s Mother....
* * *
On 2-20-2009 the manager of Pinnacle Square Apartments advised that [a certain apartment] was rented by [Smith’s mother]. Maintenance further advised that they fixed a window on February 14th and were let into the apartment by a B/M. Maintenance was shown a photo of Terry Smith and advised that is who let them in the apartment.
A background check of Terry Smith showed that on November of 2002 that Terry Smith was arrested for armed Robbery. In this robbery Terry Smith used a pillowcase to put money in and used a white t-shirt or white cloth to cover his face.
In July 2003 Terry Smith was arrested for a bank robbery. During this bank robbery Terry Smith confronted the tellers and demanded the large bills. The teller was not moving fast enough so [Smith] went to the lower drawer himself and started grabbing money. Terry Smith removed the dye pack from the drawer and threw it at the teller.

Exhibits Vol., Defendant’s Ex. A, pp. 489-90. Smith now claims that the probable cause affidavit was insufficient because it was based on hearsay information provided by an anonymous source.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require probable cause for the issuance of a search warrant. Casady v. State, 934 N.E.2d 1181, 1188 (Ind.Ct.App.2010), trans. denied (citing Mehring v. State, 884 N.E.2d 371, 376 (Ind.Ct.App.2008), trans. denied). Probable cause is a fluid concept incapable of precise definition and must be decided based on the facts of each case. Id. In deciding whether to issue a search warrant, the issuing magistrate’s task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. Id. at 1188-89. The duty of a reviewing court is to determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Id. at 1189. While we review the question de novo, we give significant deference to the issuing magistrate’s determination and focus on whether reasonable inferences drawn from the totality of the evidence support the finding of probable cause. Id. “In determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant.” Mehring, 884 N.E.2d at 377. “ ‘On review, we consider only the evidence presented to the issuing magistrate and not post hac justifications for the search.’ ” Casady, 934 N.E.2d at 1189 (quoting Jaggers v. State, 687 N.E.2d 180, 182 (Ind.1997)).

Where a warrant is sought based on hearsay information, the affidavit must either: (1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that establishes that the totality of the circumstances corroborates the hearsay. State v. Spillers, 847 N.E.2d 949, 953-54 (Ind.2006) (citing Ind.Code § 35-33-5-2(b)(l) and (2)). The trustworthiness of hearsay for the purpose of proving probable cause can be established in several ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant’s statements, (3) some basis for the informant’s knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. Id. (citing Jaggers, 687 N.E.2d at 182). However, these examples are not exclusive, and “[depending on the facts, other considerations may come into play in establishing the reliability of the informant or the hearsay.” Id.

With regard to anonymous sources, our supreme court has stated:

Use of anonymous informants to establish probable cause often presents heightened reliability concerns. Because there is no possibility of criminal liability for filing a false police report, the informant has no incentive to be truthful. Anonymity effectively shields from scrutiny any possible ulterior motives; the situation is rife with the potential for pranks and mischief. Accordingly, some corroboration of the accusations is all the more essential when the informant is anonymous. At the same time, anonymous tips can provide important information enabling police to apprehend suspects who otherwise might escape detection. A balance must be struck between these considerations. As Gates put it: “While a conscientious assessment of the basis for crediting [anonymous] tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.”

Jaggers, 687 N.E.2d at 182-83 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (other citations omitted).

Here, however, it is not entirely clear that the confidential informant was truly “anonymous.” Simply because the police did not list the informant’s name in the probable cause affidavit does not mean that the informant’s identity was unknown to the police. To the contrary, the fact that the informant was an inmate at the jail indicates that the police did know who the informant was and that the informant simply did not want the police to name him as the source of the information implicating Smith. Thus, the confidential informant here is not the prototypical “anonymous tipster” who has no incentive to be truthful because there is no possibility of criminal liability for making a false report. See Jaggers, 687 N.E.2d at 182. On the other hand, the confidential informant used here is also not the innocent “concerned citizen” who was a witness to or victim of a crime. See Frasier v. State, 794 N.E.2d 449, 457 (Ind.Ct.App.2003).

Moreover, the confidential informant revealed information indicating that he personally knew Smith, and knew details about Smith that had not been publicized and were not readily known by a general member of the public, including his preferred weapon and his modus operandi for stealing vehicles. This information showed that there was some independent and unique basis for the informant’s knowledge. In fact, because certain details of the robbery had not been made public, the fact that the informant knew these details about Smith, who already matched the description of the robber, adequately established the reliability of the information provided by the informant.

Furthermore, even if we were to conclude that the warrant was unsupported by probable cause, this would not necessarily require exclusion of the evidence seized as a result of the search. Although the exclusionary rule generally provides that evidence seized in a search conducted pursuant to an invalid search warrant may not be admitted at trial, the “good faith exception” allows the admission of evidence seized during the execution of a search warrant if the State can show that the officer conducting the search relied in good faith upon a properly issued, but subsequently invalidated warrant. Johnson v. State, 952 N.E.2d 305, 310 (Ind.Ct.App.2011), trans. deniedl. “The good faith exception to the warrant requirement ‘was created in large part because of the practical reality that once a neutral and detached magistrate has issued a search warrant, there is literally nothing more the policeman can do in seeking to comply with the law....’” Johnson, 952 N.E.2d at 310 (quoting Rice v. State, 916 N.E.2d 296, 304 (Ind.Ct.App.2009), trans. denied). Although police officers are required to have a reasonable knowledge of what the law prohibits, imposing on them the obligation to second-guess a magistrate’s decision in all but the most obvious instances of an affidavit lacking an indicia of probable cause is not a burden the law anticipates. Id. (citing Jackson v. State, 908 N.E.2d 1140, 1144 (Ind.2009)). Suppression is appropriate only where, upon facts known to the issuing magistrate or judge, a well-trained officer would have known that the search was illegal despite the magistrate’s authorization. Id.

There are in turn exceptions to the good faith exception, and the good faith exception does not apply where: (1) the warrant is based on false information knowingly or recklessly supplied; (2) the warrant is facially deficient; (3) the issuing magistrate is not detached and neutral; or (4) the affidavit or sworn testimony upon which the probable cause rests is so lacking in indicia of probable cause as to render an official belief in the existence of the warrant unreasonable. Id. at 310-11.

Smith makes no argument that the police supplied the issuing magistrate with false information, that the warrant was facially deficient, or that the magistrate was not detached or neutral. Instead, he claims that the affidavit for probable cause was so lacking in indicia of probable cause as to render the an official belief in the existence of the warrant unreasonable. We disagree. In fact, we have already determined that the affidavit was adequate to support a finding of probable cause. Smith’s suggestion that the affidavit at issue was one of the “most obvious instances of an affidavit lacking an indicia of probable cause” is completely without merit. Johnson, 952 N.E.2d at 310.

Perhaps the police could have corroborated more of the confidential informant’s information and inquired as to whether the informant knew more non-public information about Smith and his involvement with the robbery. But based on what the confidential informant did tell them, we conclude that the police acted in objective good faith in relying on the search warrant. See Lloyd v. State, 677 N.E.2d 71, 76 (Ind.Ct.App.1997) (concluding that good faith exception did apply where officer had firsthand knowledge that third party had attempted to obtain marijuana from defendant’s apartment, undercover officer later purchased marijuana from this third party, and the third party stated that her “source” still had marijuana, thus a reasonable person could conclude that defendant was the “source” referred to); Newby v. State, 701 N.E.2d 593, 604 (Ind.Ct.App.1998) (holding that good faith exception did not apply to search of defendant’s residence where affidavit characterizing informant as credible and reliable contained false information, affidavit did not fully disclose context in which informant gave his statements to police, and no serious effort was made to corroborate that informant’s allegations were reliable).

Accordingly, exclusion of the evidence seized during the execution of the warrant was not required, and the trial court did not abuse its discretion by admitting the evidence found during the execution of the search warrant.

IV. DNA Evidence

Smith also claims that the trial court erred in admitting DNA evidence obtained as a result of a buccal swab of Smith. We again note that the admission of evidence is within the discretion of the trial court. Boatner, 934 N.E.2d at 186. Smith claims that the DNA obtained from the buccal swab should have been excluded because the swab was not performed in strict compliance with the procedures set forth in Indiana Code section 10-13-6-12. This section provides that:

DNA samples for the Indiana DNA data base must be collected in a medically approved manner by one (1) of the following:
(1) A physician.
(2) A registered nurse.
(3) A licensed vocational nurse.
(4) A licensed clinical laboratory technologist.
(5) Any other person trained to collect DNA samples properly.

Smith notes that the police directed Smith himself to swab his own cheek. As Smith is not a physician, a nurse, a laboratory technologist, or a person trained to collect DNA samples properly, he argues that the DNA collected during the buccal swab was not obtained properly and should have therefore been excluded.

The weakness of Smith’s argument is readily apparent from reading the first line of this statute. Section 10-13-6-12 sets forth who is allowed to collect DNA samples “for the Indiana DNA data base.” The DNA sample taken from Smith was not for the DNA database, but to compare with DNA collected from the pillowcase found in the van abandoned by the robber. Because this statute is not applicable to the buccal swab used to obtain a DNA sample from Smith, Smith’s argument fails.

Y. Habitual Offender Enhancement

Smith lastly claims that the State failed to prove the prior felonies supporting his habitual offender adjudication. To prove that Smith had a prior unrelated felony conviction for robbery in 2003, the State submitted two arrest reports and an abstract of judgment. Smith notes that the abstract of judgment for the 2003 conviction was signed by Master Commissioner Nancy Broyles. Smith, citing Long v. State, 962 N.E.2d 671 (Ind.Ct.App.2012), trans. denied, claims that a master commissioner does not have the authority to enter a final judgment on a sentence following a guilty plea.

In Long, the trial court judge rejected the sentence imposed by the master commissioner. On appeal, the defendant argued that the trial court had no authority to reject the sentence imposed by the master commissioner because the commissioner had the statutory authority to impose a sentence on her own, without requiring approval of the trial court judge. In addressing this argument, the Long court noted first that “a Marion County master commissioner ‘has the powers and duties prescribed for a magistrate under IC 33-23-5-5 through IC 33-23-5-9.’” 962 N.E.2d at 673 (quoting Ind.Code § 33-33-49-16(e)). Magistrates, and thus master commissioners, are generally precluded from entering final orders. Id. (citing Ind. Code § 33-23-5-8(2)). As noted in Long, the main exception to this rule is found in Indiana Code section 33-23-5-9(b), which provides that “[i]f a magistrate presides at a criminal trial, the magistrate may do the following: (1) Enter a final order. (2) Conduct a sentencing hearing. (3) Impose a sentence on a person convicted of a criminal offense.” See also Ind.Code § 33-23-5-5(14) (“A magistrate may ... [e]nter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense as described in section 9 of this chapter.”). The court in Long concluded that because the defendant in that case had pleaded guilty, the magistrate did not “preside at a criminal trial” as set forth in Indiana Code section 33-23-5-9(b) and that the magistrate therefore did not have the authority to sentence Long. 962 N.E.2d at 673-74.

In so holding, Long distinguished and disagreed with another holding of this court in Ivy v. State, 947 N.E.2d 496 (Ind.Ct.App.2011). In Ivy, the defendant pleaded guilty and was sentenced by a master commissioner. On appeal, Ivy first argued that the master commissioner was without authority to rule on the defendant’s motion to be placed in community corrections. We first noted that master commissioners have the same authority as magistrates. Id. at 498. We then concluded that “[b]ecause magistrates, and therefore master commissioners, are authorized to enter final orders in criminal trials, conduct sentencing hearings, and impose sentences on convicted persons, we conclude that [the master commissioner] had the power to enter a final judgment on Ivy’s motion to modify his sentence.” Id. at 498-99.

We need not, however, resolve any conflict between Ivy and Long because there is no indication that Smith ever challenged the validity of his guilty plea and subsequent conviction for robbery on the basis that the master commissioner was without authority to enter a final order. “[A] defendant may not wage a collateral attack on the validity of a prior conviction during a habitual-offender proceeding unless the court documents on their face raise a presumption that the conviction is constitutionally infirm and the apparent constitutional infirmity undermines the integrity and reliability of the guilt determination.” Dexter v. State, 959 N.E.2d 235, 238 (Ind.2012) (citing Gross v. State, 444 N.E.2d 296, 301 (Ind.1983)). Importantly, the present case is completely unlike Dexter, in which the judgment presented by the State to support the habitual offender adjudication had not been signed at all. See id. Here, a judicial officer signed the judgment, and that judgment was never challenged at trial or on appeal as being improper. Under these facts and circumstances, we conclude that the State presented evidence sufficient for the trial court to conclude that Smith had in fact been convicted of robbery in 2003, and there was therefore sufficient evidence to support Smith’s adjudication as an habitual offender.

Conclusion

The trial court did not abuse its discretion in granting the State’s motion to continue so that the State could procure the testimony of a necessary witness. The trial court also did not abuse its discretion in the admission of the evidence regarding the shots fired and casings found, the evidence obtained during the execution of the search warrant, or the DNA evidence obtained from the buccal swab. Lastly, the State presented evidence sufficient to support the trial court’s determination that Smith was an habitual offender.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . The State also asked Smith to stipulate as to the foundation of the DNA evidence, but Smith refused, which he was entirely within his rights to do.

      . In the initial guilt phase of the jury trial, the question of whether Smith was guilty of being a serious violent felon in possession of a firearm was not yet before the jury, as the trial court planned to present this issue to the jury after the initial guilt phase. This subsequent phase of the jury trial never occurred because Smith waived his rights to a jury trial on this issue and the issue of whether he was an habitual offender.

      . Moreover, even if we were to agree with Smith that the relevance of this evidence was outweighed by the danger of unfair prejudice, any error in the admission of this evidence would have been harmless. See Jackson v. State, 973 N.E.2d 1123, 1129 (Ind.Ct.App.2012) (if a conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood the challenged evidence contributed to the conviction, the error is harmless). Here, there was substantial independent evidence of guilt supporting Smith’s convictions such that we are satisfied that any error in the admission of evidence regarding the shooting was harmless. Specifically, Smith was the same height and build as the description of the robber given by the victims; Smith had a beard and a lighter complexion, again matching the description of the robber given by the police; clothes matching those worn by the robber were found in Smith’s apartment shortly after the robbery; Smith lived in the apartment complex where the robbery suspect had fled toward; and Smith's DNA was found on the pillowcase that was found in the van used by the robber to flee the scene of the robbery.

      . In Indiana, the good faith exception is codified in Indiana Code section 35-37-4-5, which provides in relevant part that:
      (a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith.
      (b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith if:
      (1) it is obtained pursuant to:
      (A) a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid[.]

      . In fact, all of Indiana Code article 10-13-6 pertains to the Indiana DNA database.

      . Smith does not challenge the sufficiency of the evidence regarding his 2001 conviction for attempted robbery. See Appellant’s Br. p. 37 n. 18.

      . As noted above, Smith waived his right to have a jury determine his habitual offender status.