author: BROWN, Judge.

text:
    Myron Jay RICKMAN, Appellant-Respondent, v. Sheila Rena RICKMAN, Appellee-Petitioner.
    No. 27A02-1211-DR-950.
    Court of Appeals of Indiana.
    Sept. 10, 2013.
    Myron Jay Rickman, Bunker Hill, IN, appellant pro se.
   OPINION

BROWN, Judge.

Myron Jay Rickman, pro se, appeals the trial court’s denial of his petition for modification of visitation order and denial of his motion to correct error. Rickman raises one issue which we revise and restate as whether the court erred in denying Rick-man’s petition for modification of visitation order and motion to correct error. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On May 4, 1996, Rickman and Sheila Rickman were married and had one child, M.R., who was born on November 26, 1996. On June 5, 1997, Sheila filed a petition for dissolution of marriage and petition for joint preliminary injunction and temporary restraining order. In February 1998, the court appointed a special advocate (a “CASA”) for M.R. On March 25, 1998, the court terminated restricted visitation.

On November 23, 1998, the court entered a custody and visitation decree which stated that the CASA recommended that Sheila have sole legal custody of M.R. and that Rickman “be granted supervised visitation on the basis of the CASA’s investigation into three (3) alleged child molestation reports brought against” Rickman. Appellant’s Appendix at 33. The court granted Sheila sole legal and physical custody of M.R. and gave Rickman supervised visitation.

On July 16, 1999, the CASA filed an emergency request for modification of visitation between M.R. and Rickman. On July 19, 1999, the court granted the CASA’s request and terminated visitation between M.R. and Rickman pending a hearing on August 23, 1999. Following the hearing, on August 26, 1999, the court suspended Rickman’s visitation rights.

In 2000, Rickman was sentenced to an aggregate term of fifty years for eight counts of child molesting as class A felonies, child molesting as a class C felony, and criminal confinement as a class C felony. See Rickman v. State, No. 27A04-1002-CR-80, slip op. at 3, 2010 WL 3050048 (Ind.Ct.App. August 5, 2010).

On September 20, 2012, Rickman, pro se, filed a verified petition for modification of visitation order. He requested that the court grant him telephone access with M.R. and communication via mail. Rick-man also suggested that “any/all determination of his modification (of visitation) request be conveyed directly to [M.R.] by the court, in camera, so as to preclude parental pressure.” Appellant’s Appendix at 41. On September 27, 2012, the court denied Rickman’s petition without a hearing. The chronological case summary (“CCS”) contains an entry which states: “The Court, having reviewed [Rickman’s] Verified Petition for Modification of Visitation Order, now denies such petition without hearing. [Rickman] is incarcerated at the Indiana Department of Corrections on Child Molesting charges.” Id. at 17.

On October 24, 2012, Rickman filed a motion to correct error. He alleged that the court erred in utilizing his incarceration “as a premise for denying his visitation right(s), in toto, ... via the Indiana Parenting Time Guidelines” and that the trial court did not find nor did the State assert “that the [child molesting] charge[s were] in any way associated with his own child.” Id. at 44. On October 30, 2012, the court denied Rickman’s motion to correct error.

DISCUSSION

Before addressing Rickman’s arguments, we note that Sheila did not file an appellee’s brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). However, questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

The issue is whether the court erred in denying Rickman’s petition for modification of visitation order and motion to correct error. A decision about parenting time requires us to give foremost consideration to the best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.2013). Generally, parenting time decisions are reviewed for an abuse of discretion. Id. If the record reveals a rational basis for the trial court’s determination, there is no abuse of discretion. In re Paternity of G.R.G., 829 N.E.2d 114, 122 (Ind.Ct.App.2005). We will not reweigh evidence or reassess the credibility of witnesses. Id. We review a trial court’s denial of a motion to correct error for an abuse of discretion, reversing only where the trial court’s judgment is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law. Perkinson, 989 N.E.2d at 761.

Rickman argues that the Indiana Parenting Time Guidelines encourage communication with a child by telephone and mail and that “[t]his is exactly what [he] is requesting if ... [M.R.] is receptive.” Appellant’s Brief at 8. He contends that “the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.” Id. (citing Ind.Code § 31-17-4-2). He requests that we remand this case to the trial court with instructions that the court conduct an in camera interview and notify the parties of M.R.’s decision as to his desire to have communication with him.

To the extent that Rickman suggests that the trial court did not make the requisite finding under Ind.Code § 31-17-4-2, we observe that the statute governs the modification, denial, and restriction of parenting time rights and provides:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.

Ind.Code § 31-17-4-2. ' The trial court did not make any finding that a restriction on Rickman’s parenting time consisting of telephone and mail contact might endanger M.R.’s physical health or significantly impair his emotional development, as required by Ind.Code § 31-17-4-2.

To the extent that Rickman cites the Indiana Parenting Time Guidelines, we observe that the Guidelines provide that “[b]oth parents shall have reasonable phone access to their child” and “[a] parent and a child shall have a right to communicate privately by ... cards, letters, and packages, without interference by the other parent.” Ind. Parenting Time Guideline 1(A). At the time that Rickman filed his petition, Part C of the Preamble of the Parenting Time Guidelines provided:

These Guidelines are applicable to all child custody situations, including paternity cases and cases involving joint legal custody where one person has primary physical custody. However, they are not applicable to situations involving family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development. In such cases one or both parents may have legal, psychological, substance abuse or emotional problems that may need to be addressed before these Guidelines can be employed. The type of help that is needed in such cases is beyond the scope of these Guidelines.
⅜ ⅜ ⅝ ⅜ ⅜
There is a presumption that the Indiana Parenting Time Guidelines are applicable in all cases covered by these guidelines. Any deviation from these Guidelines by either the parties or the court must be accompanied by a written explanation indicating why the deviation is necessary or appropriate in the case.
Commentary
The written explanation need not be as formal as Findings of Fact and Conclusions of Law; however, it must state the reason(s) for the deviation.

(Emphasis added) (subsequently amended January 4, 2018, effective March 1, 2018).

The question to be addressed, then, is whether the Guidelines apply to this situation. As noted, the CCS entry is devoid of explanation and contains no finding that there are circumstances which “the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development.” Preamble of the Parenting Time Guidelines.

We note that absent potential endangerment or significant impairment of the child’s health, safety, or emotional development, the plain language of the Parenting Time Guidelines presumes that the Guidelines would apply in this case. Further, the Indiana Supreme Court has implied that the Parenting Time Guidelines apply when one parent is incarcerated. Specifically, in Clark v. Clark, 902 N.E.2d 813, 814 (Ind.2009), the Indiana Supreme Court addressed whether incarceration constituted a substantial change in circumstances justifying modification of an existing child support obligation. In its discussion, the Court held that “[strengthening marriages and relationships between children and non-custodial parents has emerged as a national strategy for enhancing the well-being of children.” 902 N.E.2d at 817 (noting: “See Preamble for Ind. Parenting Time Guidelines (2009); U.S. Government Accountability Office, Healthy Marriage and Responsible Fatherhood Initiative: Further Progress Is Needed in Developing a Rislc-Based Monitoring Approach to Help HHS Improve Program Oversight (2008), http://www.gao. gov/new.items/d081002.pdf; Responsible Fatherhood and Healthy Families Act of 2007, S. 1626, 110th Cong. (2007) (introduced by Senators Evan Bayh and Barack Obama specifically discussing the pressures on incarcerated parents of the child support system)”).

The CCS entry related to the denial of Rickman’s petition states only that the petition was denied without a hearing and that Rickman was incarcerated on child molesting charges. That statement is factual and does not constitute a sufficient written explanation indicating why the petition was denied or whether it was denied pursuant to Ind.Code § 31-17-4-2, or whether the court considered the Parenting Time Guidelines. In either event, a factual basis and a finding as to potential endangerment of M.R.’s physical health or safety or. significant impairment of his emotional development are necessary.

If on remand, the trial court determines the Guidelines to be applicable, it must then proffer an explanation for its departure from the Guidelines. Thus, the trial court must reflect upon the best interests of the child and the possible consequences of its departure from the provisions of Indiana Parenting Time Guideline 1(A). Doing so would enable us to thoroughly and appropriately review the trial court’s deviation and the reasons behind it.

Under these circumstances and recognizing that Sheila did not file an appellee’s brief, we remand for the trial court to provide a written explanation for its reasons for denying the petition or to conduct other proceedings consistent with this opinion.

For the foregoing reasons, we reverse the trial court’s denial of Rickman’s petition for modification of visitation and remand for proceedings consistent with this opinion.

Reversed and remanded.

NAJAM, J., and MATHIAS, J., concur.

      . Rickman states that Sheila was granted a name change for M.R. to M.J., but does not cite to the record for such a name change.

      . The victim of Rickman’s offenses was not M.R. Rickman, slip op. at 2-3.


source: Caselaw Access Project

license: Public Domain

text:
    Kari EVERHART, Appellant, v. FOUNDERS INSURANCE COMPANY, Appellee.
    No. 84A01-1303-PL-128.
    Court of Appeals of Indiana.
    Sept. 11, 2013.

      John P. Nichols, Anderson & Nichols, Terre Haute, IN, Attorney for Appellant.
    Matthew J. Jankowski, Kopka Pinkus Dolin & Eads, PC, Indianapolis, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

Kari Everhart appeals from the court’s grant of summary judgment in favor of Founders Insurance Company (“Founders”) and from the denial of Everhart’s motion to correct error. Everhart raises one issue which we revise and restate as whether the court erred in granting summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 14, 2009, an incident took place at Club Coyote in West Terre Haute, Indiana, in which Everhart sustained injuries including a broken elbow. At the time, specifically between January 10, 2009 and January 10, 2010, Club Coyote had insurance coverage provided by Founders under Policy Number CPIN000061 (the “Policy”). The Policy, under Section I discussing classes of coverage, states:

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury”[] ... to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” ... to which this insurance does not apply. ...

Appellant’s Appendix at 36. Paragraph 2 of Coverage A listed exclusions denoting instances in which coverage under the Policy would not apply, specifically listing exclusions as Paragraphs 2.(a) through 2.(o). The Policy also contained an attached endorsement entitled “INDIANA CGL ENDORSEMENT-ASSAULT AND/OR BATTERY EXCLUSION” (the “Endorsement”), which states the following:

This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. The following exclusions are added to paragraph 2. Exclusions of SECTION I — COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY ..
This insurance does not apply to:
1. Assault and/or Battery/Negligent Hiring
“Bodily injury”... arising from:
(a) assault and/or battery committed by any insured, any “employee” of an insured, or any other person;
(b) The failure to suppress or prevent assault and/or battery by any person in subparagraph l.(a) above;
(c) The selling, serving or furnishing of alcoholic beverages which result in an assault and/or battery; or
(d) The negligent:
(1) Employment;
(2) Investigation;
(3) Supervision;
(4) Reporting to the proper authorities, or failure to so report; or
(5) Retention
of or by a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by subparagraphs 1(a) through l.(e) above.

Id. at 84.

On March 4, 2011, Everhart filed a complaint for damages against Club Coyote in Cause No. 84D02-1103-CT-1708 (the “Underlying Action”). On September 27, 2011, Founders filed its complaint for declaratory judgment in Cause No. 84D02-1109-PL-8980 (the “Declaratory Judgment Action”) against Everhart and Club Coyote seeking a declaration that it had no duty to defend or indemnify either party in the Underlying Action. On October 24, 2011, Club Coyote filed its answer to Founders’ complaint, and, on November 16, 2011, Everhart timely filed her answer. On July 3, 2012, Founders filed a motion for summary judgment, supporting memorandum, and designation of evidence. On October 5, 2012, Everhart filed her response to Founders’ summary judgment motion along with a designation of evidence. Everhart designated, as Exhibit B, her answers to interrogatories submitted in the Underlying Action. Interrogatory Number 6 (“Interrogatory No. 6”) asked for Everhart to “[djescribe in detail how the incident described in [her] Complaint happened, including what [she was] doing immediately before and leading up to the time the accident occurred,” and she responded as follows:

I was standing at the very left end of the long bar. I looked to the middle of the bar where patrons are served and saw the patron who was shoved into me & the bartender Mike Davis were sharing some words. The Mike [sic] grabbed the patron by the back of the head and bounced his head off of the bar approximately 3 to 4 times & then shoved him into a small crowd of people standing in front of the bar. The patron was then shoved a second time by Brice Elson, in my direction. The patron then stumbled & fell violently grabbing me by the left shoulder, bringing me to fall underneath of him, throwing my right arm out to catch my fall, breaking my arm in several places.

Id. at 106.

The court held a summary judgment hearing in the Declaratory Judgment Action on November 20, 2012, and on November 26, 2012, the court granted summary judgment in Founders’ favor, specifically finding that “[i]n viewing [Everhart’s] answer to [Interrogatory No. 6] ... it would appear that her description of what occurred on the evening in question which resulted in her alleged injury and damages does fit within the definition [of battery] as described by the Indiana Court of Appeals” in the case of Singh v. Lyday, 889 N.E.2d 342 (Ind.Ct.App.2008), reh’g dnied, trans. denied, Id. at 7. On December 17, 2012, Everhart filed her motion to correct error, Founders filed its response to Everhart’s motion to correct error on January 4, 2013, and, following a hearing on the motion on February 13, 2013, the court entered an order denying Everhart’s motion on February 19, 2013.

ISSUE AND STANDARD OF REVIEW

The issue is whether the court erred in granting Founders’ motion for summary judgment. When a trial court’s ruling granting or denying summary judgment is challenged on appeal, the procedure and standard under Indiana law is clear. Our standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind.2010). The moving party “bears the initial burden of making a pri-ma facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a challenged trial court summary judgment ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments presented at trial nor the rationale of the trial court ruling, see Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012) (“We will reverse if the law has been incorrectly applied to the facts. Otherwise, we will affirm a grant of summary judgment upon any theory supported by evidence in the record.”), cert. denied, — U.S. —, 133 S.Ct. 233, 184 L.Ed.2d 44 (2012); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind.2009) (“[W]e are not limited to reviewing the trial court’s reasons for granting or denying summary judgment but rather we may affirm a grant of summary judgment upon any theory supported by the evidence.”).

The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there.are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

Also, we generally review rulings on motions to correct error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App.2009); Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.2008), reh’g denied. An abuse of discretion occurs if the trial court’s decision is against the logic and effect of the facts and circumstances before it, or the reasonable inferences drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind.Ct.App.2008), reh’g denied.

The provisions of an insurance contract are subject to the same rules of construction as are other contracts. Cincinnati Ins. Co. v. Adkins, 935 N.E.2d 190, 192 (Ind.Ct.App.2010). Thus, the construction of Founders’ Policy presents a pure question of law that we review de novo. Id. “If its terms are clear and unambiguous, courts must give those terms their clear and ordinary meaning.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind.2005). Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict. Id. “We will make all attempts to construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767 N.E.2d 982, 992 (Ind.Ct.App.2002). “A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002), reh’g denied. “When a contract’s terms are ambiguous or uncertain and its interpretation requires extrinsic evidence, its construction is a matter for the fact-finder.” Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind.2010).

Also, in the context of an insurance policy, “[w]here there is ambiguity, insurance policies are to be construed strictly against the insurer” and “[t]his is particularly true where a policy excludes coverage.” Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996), reh’g denied. “This strict construal against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer. ‘The insurance companies write the policies; we buy their forms or we do not buy insurance.’ ” Id.

DISCUSSION

Everhart argues that “[t]he exclusion cited by Founders is not applicable in the instant case” because “the proximate cause of her injuries and damages was negligence on the part of ... Club Coyote” and “the exclusion relied upon ... is for intentional acts.” Appellant’s Brief at 6. Ever-hart argues that “[c]learly, [she] has never contended that any employee or patron of ... Club Coyote did anything intentionally,” and she points specifically to Interrogatory No. 6 for this proposition. Id.

Founders argues that “[t]he admissions contained in the parties’ pleadings demonstrate that there is no dispute that Ever-hart sustained the alleged injuries ... as a result of a battery” and it is “axiomatic that an allegation in a pleading which is left uncontested is deemed admitted under the rule governing the effect of failure to deny.” Appellee’s Brief at 8-9. Founders underscores that Everhart admitted in her answer the allegations contained in Paragraphs 7 and 8 of the Founders’ complaint for declaratory judgment which stated that Everhart was assaulted and/or battered while working at Club Coyote which resulted in the damages in the underlying case, and Founders argues that the Endorsement “is directly applicable to such claims....” Id. at 9. Founders argues that the conduct described by Everhart in her answer to Interrogatory No. 6 is within the scope of the definition of battery under Indiana law, that coverage for her injuries is excluded by the plain language of the Endorsement to the policy issued by Founders to Club Coyote, and that accordingly summary judgment in Founders’ favor was appropriate.

As noted by Founders in its arguments and by the trial court in its order, this court has previously recognized that Indiana follows the definition of battery provided by the Restatement (Second) of Torts as follows:

One is liable for the tort of battery if “(a) he acts intending to cause a harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such contact, and (b) a harmful contact with the person of the other directly or indirectly results.” Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind.2007) (quoting Restatement (Second) of Torts § 13 (1965)). “A touching, however slight, may constitute an assault and battery.” Knight v. Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind.Ct.App.2007).

Singh, 889 N.E.2d at 360. Also, Subsection (a) of the Endorsement excludes coverage for batteries “committed by any insured, any ‘employee’ of an insured, or any other person.” Appellant’s Appendix at 84.

This case turns on whether Ever-hart’s version of the events of what transpired and caused her injuries, as stated in Interrogatory No. 6, was a battery, because, if so, coverage under the Policy would be excluded pursuant to the Endorsement. Again, Interrogatory No. 6 states:

I was standing at the very left end of the long bar. I looked to the middle of the bar where patrons are served and saw the patron who was shoved into me & the bartender Mike Davis were sharing some words. The Mike [sic] grabbed the patron by the back of the head and bounced his head off of the bar approximately 3 to 4 times & then shoved him into a small crowd of people standing in front of the bar. The patron was then shoved a second time by Brice Elson, in my direction. The patron then stumbled & fell violently grabbing me by the left shoulder, bringing me to fall underneath of him, throwing my right arm out to catch my fall, breaking my arm in several places.

Id. at 106.

Thus, according to Everhart, the bartender grabbed a patron by the head, bounced his head about three or four times against the bar, and shoved the patron into a crowd of people. Then, a second person, Brice Elson, shoved the patron in her direction, and the patron grabbed her as he fell and brought Everhart to the ground, resulting in her breaking her arm. The record is not clear whether or not Elson was an employee of the insured, Club Coyote, but as noted above such a distinction is immaterial in deciding this case. The Endorsement excludes coverage for batteries committed by both employees of the insured and any other persons, and, as noted by Indiana’s definition of battery, a battery results if an individual acts intending to cause harmful contact with not only the person contacted, but also a third person, and harmful contact directly or indirectly results. There is no dispute that Elson intentionally pushed the patron, a third person, that the patron came into contact with Everhart, and that Everhart was harmed as a result by breaking her arm, and accordingly, Everhart was the victim of a battery on the premises of Club Coyote. We therefore conclude that the court did not err when it granted summary judgment in favor of Founders. See Fordyce v. Montgomery, 424 S.W.2d 746, 751 (Mo.Ct.App.1968) (noting that if the defendants had intended to cause a battery on another but “succeeded by mistake in injuring the plaintiff, then they were liable to the plaintiff to the same extent as if he had been their intended victim ... ”).

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Founders and its denial of Ever-hart’s motion to correct error.

Affirmed.

NAJAM, J., and MATHIAS, J., concur.

      . We observe that the named insured on the Policy is listed as "TOP HAT INC DBA CLUB KOYOTE.” Appellant's Appendix at 33. We refer to the insured in this matter as "Club Coyote.”

      . The Policy defines "bodily injury” as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” Appellant's Appendix at 48.

      . Specifically, Everhart brought suit against Club Coyote and Paul and Nancy Allsup, the owners of the premises of Club Coyote.

      . Specifically, Founders names in its complaint for declaratory judgment Everhart, "Top Hat, Inc. d/b/a Club Koyote,” and the Allsups. Appellant's Appendix at 28. On February 8, 2012, the Allsups were voluntarily dismissed by Founders pursuant to Ind. Trial Rule 41(A)(2) based upon a January 26, 2012 Fact Stipulation by All Parties stating that the Allsups were not entitled to defense or indemnity from Founders in the Underlying Action.

      . Although the court’s grant of summary judgment was also entered against Club Coyote, Club Coyote has not sought review of the court's order and is not a party to this appeal.


author: BRADFORD, Judge. BAILEY, Judge,

text:
    Brian RUSSELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 46A03-1212-CR-544.
    Court of Appeals of Indiana.
    Sept. 12, 2013.

      Nicholas T. Otis, Newby Lewis Kamin-ski & Jones, LLP, LaPorte, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Brian Russell appeals his conviction for Class C misdemeanor operating a vehicle while intoxicated. LaPorte County Sherriffs Deputy Andrew Hahn subjected Russell to an investigatory stop after concerned citizen Wayne Bogart called 911 to report Russell as a possible intoxicated driver. At trial, Appellee-Plaintiff the State of Indiana presented evidence obtained as a result of the stop, which the trial court admitted over Russell’s motion to suppress. Because Bogart provided police with specific information regarding where, when, and how Russell could be identified, and because Deputy Hahn corroborated this information with his own observations, we conclude that Bogart’s tip was sufficiently reliable to support reasonable suspicion under the Fourth Amendment. Under Article I, Section 11, we conclude that Deputy Hahn had reasonable suspicion to stop Russell because Bogart provided police with a reliable tip, Deputy Hahn’s request for Russell’s driver’s license and registration was minimally intrusive, and the need to remove intoxicated drivers from the road warranted an immediate police response. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

At approximately 2:00 a.m. on August 8, 2010, Bogart was driving on Highway 421, traveling from Valparaiso to his home in North Judson. Another driver, later identified as Russell, closed in on Bogart’s vehicle from the rear and flashed his vehicle’s headlights on and off. Thinking there was a problem, Bogart pulled over. Russell pulled his vehicle alongside Bogart’s, and both men rolled down their windows. Russell indicated to Bogart that he was lost and needed directions to State Road 30. Bogart noticed that Russell’s speech was slurred, and Russell admitted that he had been drinking alcohol. Bogart informed Russell that State Road 30 was sixteen miles in the opposite direction. Russell replied that “he would never be able to find [it]” and began to cry. Tr. p. 34. Russell begged Bogart to show him the way; Bogart eventually agreed.

Bogart set off for State Road 30, and Russell followed. While en route, Bogart called 911 on his cell phone. Bogart told the 911 operator that he believed Russell was intoxicated and asked that an officer meet him and Russell at the Speedway gas station near the intersection of Highway 421 and State Road 30. In response, Deputy Andrew Hahn was dispatched to the gas station. When Deputy Hahn arrived, he observed no vehicles in the gas station parking lot, prompting him to call the dispatcher to obtain more information. The dispatcher, who had just spoken with Bogart, informed Deputy Hahn that Bogart was nearing the gas station and that, when he arrived, Russell would be driving the trailing vehicle. Moments later, Deputy Hahn observed two vehicles pull into to the gas station parking lot, one trailing the other. The drivers of these vehicles were later identified as Bogart and Russell.

Bogart and Russell stopped at the gas pumps, and Bogart positioned his vehicle so as to block Russell from leaving. Bogart exited his vehicle, pointed to Deputy Hahn and then, at Russell. Russell then exited his vehicle. Deputy Hahn believed an altercation was about to take place and pulled his vehicle behind Russell’s. At that point, Russell re-entered his vehicle and began to drive away. Deputy Hahn ordered Russell to stop. He then activated his vehicle’s emergency lights and pursued Russell, stopping him before he exited the gas station parking lot.

Deputy Hahn asked Russell for his driver’s license and registration. During this exchange, Deputy Hahn observed that Russell’s speech was slurred, he had blood shot eyes, and his manual dexterity was poor. Deputy Hahn also identified the smell of alcohol emanating from the interi- or of Russell’s vehicle. At that point, Deputy Hahn asked Russell to exit his vehicle. As Russell exited, Deputy Hahn observed that Russell’s balance was poor and that he was swaying from side to side. Russell eventually admitted to Deputy Hahn that he had been drinking alcohol. Deputy Hahn then asked Russell to perform three field sobriety tests, all of which Russell failed. Deputy Hahn arrested Russell and transported him to LaPorte County Jail.

Russell was charged with Class C misdemeanor operating a vehicle while intoxicated. On December 21, 2010, Russell filed a motion to suppress “all evidence seized by the arresting officers, all observations made by the arresting officers, and all statements made by Mr. Russell as a result of the unconstitutional conduct of the police.” Appellant’s App. p. 13. Following a hearing on the issue, the trial court denied Russell’s motion. On October 24, 2012, Russell’s case proceeded to trial, during which the State presented evidence obtained as a result of Deputy Hahn’s investigatory stop. The jury found Russell guilty as charged. On November 28, 2012, the trial court sentenced Russell to sixty days in the LaPorte County Jail with sixty days suspended to probation. As a condition of probation, Russell was ordered to complete an alcohol treatment program. His driver’s license was also suspended for one year.

DISCUSSION AND DECISION

Russell argues that the trial court abused its discretion in admitting evidence obtained as a result of Deputy Hahn’s investigatory stop. Specifically, Russell claims that Deputy Hahn lacked reasonable suspicion to initiate the stop as required under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. Although we generally review a trial court’s decision to admit evidence despite a motion to suppress under an abuse-of-discretion standard, the ultimate determination of whether an officer had reasonable suspicion to conduct an investigatory stop is reviewed de novo. Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000).

As a preliminary matter, the State contends that Russell waived his federal claim by failing to provide an independent analysis under the Fourth Amendment. We agree. Although nearly identical in wording, the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution are independently interpreted and applied. Baniaga v. State, 891 N.E.2d 615, 618 (Ind.Ct.App.2008). An appellant’s failure to provide us with a separate analysis for each constitutional claim constitutes waiver. Francis v. State, 764 N.E.2d 641, 647 (Ind.Ct.App.2002) (citing South Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 202 n. 6 (Ind.Ct.App.1998)). Nevertheless, we will address Russell’s Fourth Amendment claim.

I. Fourth Amendment

Russell claims that Deputy Hahn’s investigatory stop violated his Fourth Amendment right to be free from unreasonable searches and seizures by the government. U.S. Const, amend. IV. “Because a traffic stop is a seizure under the Fourth Amendment, police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that criminal activity is taking place.” Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009).

Reasonable suspicion exists where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. In deciding whether there was reasonable suspicion for a stop, we look to the totality of the circumstances.

Burkes v. State, 842 N.E.2d 426, 429-30 (Ind.Ct.App.2006).

At trial, Deputy Hahn testified that he stopped Russell because of Bogart’s 911 call reporting a possible intoxicated driver. It is well-established in Indiana that a tip from a concerned citizen may justify an investigatory stop if sufficiently reliable. State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind.2011). The reliability of a concerned citizen tip “generally must be established by reference to underlying facts and circumstances which indicate that the information is trustworthy.” Renzulli, 958 N.E.2d at 1147. The tipster’s susceptibility to prosecution for false reporting heightens the likelihood of the report’s reliability and is a circumstance bearing on the reasonableness of suspicion. Kellems v. State, 842 N.E.2d 352, 355-56 (Ind.2006), rev’d, on other grounds.

Here, the tip received by the 911 operator and relayed to Deputy Hahn included specific information regarding where the suspect would be, when he would be there, and how he could be identified. Bogart asked that police meet him and Russell at the Speedway gas station near the intersection of Highway 421 and State Road 30. Bogart later informed police that he was nearing the gas station and that, when he arrived, Russell would be driving the trailing vehicle. This information was corroborated when, moments later, Deputy Hahn observed two vehicles pull into the gas station parking lot, one trailing the other. Notably, these events occurred at the low-traffic time of approximately 2:00 a.m. Deputy Hahn also observed Bogart position his vehicle so as to block Russell from leaving the parking lot, and Bogart pointed out Russell to Deputy Hahn. Furthermore, Bogart agreed to meet police at the gas station, rendering him susceptible to prosecution for false reporting. Under these circumstances, we conclude that Bogart’s tip demonstrated sufficient reliability to give rise to reasonable suspicion to support an investigatory stop under the Fourth Amendment.

II. Article I, Section 11

Russell also claims that Deputy Hahn’s investigatory stop violated his Article I, Section 11 right to be free from unreasonable searches and seizures. Ind. Const, art. I, § 11. Under the Indiana Constitution, the legality of a government 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). Although other relevant considerations under the circumstances may exist, the Indiana Supreme Court has determined that the reasonableness of a search or seizure turns on a 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 citizens’ ordinary activities, and 3) the extent of law enforcement needs. Id. at 361.

For the reasons stated in our analysis of Russell’s Fourth Amendment claim, we conclude that the degree of Deputy Hahn’s suspicion was reasonably high. He received a concerned citizen tip about a possible intoxicated driver, which, based on corroboration, was sufficiently reliable. In contrast, the degree of intrusion on Russell’s privacy was minimal. Deputy Hahn merely asked Russell for his license and registration before additional observations — i.e., Russell’s slurred speech and the smell of alcohol — gave rise to further suspicion and corresponding intrusion. State v. Washington, 898 N.E.2d 1200, 1211 (Ind.2008) (“In a stop based on either probable cause or reasonable suspicion, it is clear that an officer may request the driver’s license and registration.... ”). Moreover, the stop was justified by the needs of law enforcement. A suspected intoxicated driver warrants an immediate police response for the safety of the general public, as well as for the safety of the driver. Renzulli 958 N.E.2d at 1148. In light of the totality of the circumstances, we conclude that Deputy Hahn had reasonable suspicion to support his investigatory stop under Article I, Section 11.

Russell’s only contention on appeal is that Deputy Hahn lacked reasonable suspicion to initiate the stop because Bogart did not report, and Deputy Hahn did not observe, any additional criminal activity such as erratic driving. Russell relies on the Indiana Supreme Court’s decision in Ren-zulli where, in concluding that a tipster’s 911 call reporting a possible intoxicated driver gave rise to reasonable suspicion for an investigatory stop, the court noted that the tipster “also described the criminal activity observed, ‘he is all over the road he is going to kill somebody[.]’ ” Renzulli 958 N.E.2d at 1149. This contention, however, is without merit. Despite the language asserted by Russell, Renzulli does not stand for the proposition that a tipster must report additional criminal activity in order for his or her report of a possible intoxicated driver to be deemed reliable. See Bogetti v. State, 723 N.E.2d 876, 878 (Ind.Ct.App.2000) (finding reasonable suspicion of intoxicated driving where anonymous tipster reported only that individual “may be intoxicated”); see also Renzulli, 958 N.E.2d at 1148 (discussing Bogetti with approval).

Because Russell’s rights under the Fourth Amendment and Article I, Section 11 were not violated, the trial court acted within its discretion in admitting evidence obtained as a result of Deputy Hahn’s investigatory stop of Russell’s vehicle.

The judgment of the trial court is affirmed.

MAY, J., concurs.

BAILEY, J., concurs in result with opinion.

BAILEY, Judge,

concurring in result.

I concur with the result of the majority; however, given Russell’s waiver of a Fourth Amendment challenge to the stop leading to his arrest, I write separately because I do not think that this Court should address the merits of that issue.

Failure to provide separate analysis of Indiana and United States constitutional claims under Article 1, Section 11 and the Fourth Amendment, respectively, results in waiver. Francis v. State, 764 N.E.2d 641, 647 (Ind.Ct.App.2002). This is because, though similar in wording, we interpret and apply the two provisions independently from one another. Id. at 646-47. Thus, in Francis, we held as waived an Indiana constitutional challenge to an investigatory stop where the defendant argued that “the Indiana Constitution’s ‘protections relating to investigative stops [are] consistent with federal Fourth Amendment constitutional analysis.’ ” Id. at 646 (citations omitted).

Here, Russell’s brief mentions the applicability of the Fourth Amendment to the United States Constitution, but it provides no separate analysis. And while his brief mentions the Fourth Amendment and cites cases that discuss the Fourth Amendment, he does not recognize the distinctions in analysis between Fourth Amendment claims and claims under Article I, Section 11 of the Indiana Constitution. His arguments offer analysis only on the latter of these, addressing most directly the Indiana constitutional analysis set out in State v. Renzulli, 958 N.E.2d 1143 (Ind.2011).

The majority rightly concludes that Russell has waived any argument under the Fourth Amendment to the U.S. Constitution, but then performs that analysis itself, waiver notwithstanding.

Under these circumstances, I would conclude that Russell’s Fourth Amendment contention is waived without moving on to address the issue further. This is particularly so because, in the final analysis, Russell’s argument boils down to a request for us to reweigh the evidence leading to the trial court’s conclusion that the police had reasonable suspicion to stop him. Thus, neither Russell’s Federal nor Indiana constitutional analysis would prevail, and this obviates the need to discuss the merits of an unargued constitutional issue.

I therefore respectfully concur in result with this separate opinion.


author: KIRSCH, Judge. VAIDIK, Judge,

text:
    Jerry A. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A05-1208-CR-411.
    Court of Appeals of Indiana.
    Sept. 13, 2013.

      Robert W. Hammerle, Kathryn Dinardo, Hammerle Law Office, Indianapolis, IN, Victoria L. Bailey, Beech Grove, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Jerry A. Smith (“Smith”) brings this interlocutory appeal from the trial court’s order denying his motion to dismiss the charges against him. Smith contends that further prosecution in state court after his plea of guilty to charges of federal conspiracy to commit mail and wire fraud is barred by statutory double jeopardy principles.

We affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

The factual background of this appeal largely mirrors the facts we have set forth in another case against Smith, which we also dispose of today. See Smith v. State, No. 24A01-1210-CR-469, 993 N.E.2d 1185, 2013 WL 5010978 (Ind.Ct.App. Sept. 13, 2013).

Between 2004 and 2010, Smith and Ja-sen Snelling (“Snelling”) ran a Ponzi scheme out of CityFund Advisory (“City-Fund”) and Dunhill Investment Advisors Ltd. (“Dunhill”). Snelling was listed as the President of CityFund, and Smith was listed as the Secretary/Treasurer. City-Fund’s investment advisor license with the U.S. Securities and Exchange Commission (“SEC”) was withdrawn in 2004, and Dun-hill’s registered trust with the SEC was withdrawn in 2002. Smith has not been registered to sell securities since May of 2008 and was never registered to sell securities through CityFund or Dunhill. Of the securities sold through CityFund and Dunhill, none was registered as required by law. A total of approximately seventy-two investors in Ohio, Kentucky, and Indiana collectively lost over $8,900,000.00 in this investment scheme.

Smith entered a guilty plea to the three federal charges against him on June 12, 2012. Smith signed an agreed statement of facts acknowledging the Ponzi day trading scheme in which he and Snelling falsely represented that they were licensed to sell securities when they were not and the investors’ money was never invested. Smith acknowledged that he and Snelling performed the specific overt acts set forth in the indictment.

At roughly the same time, Smith was also facing the Dearborn County charges. The Dearborn County charges alleged that Smith and Snelling operated a Ponzi scheme in which they solicited over $4,000,000.00 in “investments” to their businesses, CityFund and Dunhill, from over thirty known investors. The charges alleged that Smith and Snelling used most of the money for their personal enrichment without investing the money. The Dear-born County charges similarly stated that CityFund’s investment advisor license with the SEC was withdrawn in 2004, and Dun-hill’s registered trust with the SEC was withdrawn in 2002. Smith has not been registered to sell securities since May of 2008, and was never registered to sell securities through CityFund or Dunhill. Further, none of the securities sold through those businesses were registered as required by law. The victims identified in the Dearborn County charges are Paul V. Klee III (“Klee”), Paul V. Klee II, also known as Paul V. Klee, Jr. (“Klee Jr.”), and Todd Hinsky (“Hinsky”).

After pleading guilty to the federal charges, Smith filed a motion to dismiss the Dearborn County charges, contending that further prosecution was barred by statutory double jeopardy. The trial court denied Smith’s motion to dismiss, and Smith now appeals.

DISCUSSION AND DECISION

Smith claims that the trial court erred by denying his motion to dismiss the state-court charges against him. The defendant bears the burden of proving, by a preponderance of the evidence, those facts necessary to support a motion to dismiss. Swenson v. State, 868 N.E.2d 540, 541-42 (Ind.Ct.App.2007). The clearly erroneous standard of review depends upon whether the party is appealing a negative judgment or an adverse judgment. Baird v. ASA Collections, 910 N.E.2d 780, 785 (Ind.Ct.App.2009). Where the party bearing the burden of proof at trial appeals from the trial court’s ruling, he appeals from a negative judgment and will prevail only upon establishing that the judgment is contrary to law. Id. The judgment is contrary to law when the evidence is without conflict and all reasonable inferences drawn from the evidence lead to one conclusion, but the trial court reached a different one. Id.

Here, Smith asserts that Klee Jr. and Hinsky are specifically mentioned in the federal charges, and argues that the State has acknowledged that the federal charges addressed the same victims as those named in the Dearborn County charges. The federal charges specifically identify two of the victims as “V.K.” and “T.H.” Dearborn App. at 103-05. At the hearing on Smith’s motion to dismiss, the following exchange occurred between the trial court and the State:

THE COURT: Now the U.S. District Court in Cincinnati does that involve any of the victims that are filed here in Dearborn County?
THE STATE: Those are the same victims your honor.
THE COURT: Same acts, same victims?
THE STATE: Not, not the same acts.
THE COURT: Same money?
THE STATE: Same money.

TV. at 4-5. (Emphasis added.)

As we decided in the appeal involving Smith’s Franklin County charges, we conclude that the trial court erred by denying Smith’s motion to dismiss and incorporate by reference our discussion of the issue here. In this appeal, the victims specifically named in the Dearborn County charges are among the victims specifically named in the federal indictment, and the State conceded to the trial court that the federal charges involved the same victims.

Both the federal indictment and the state charges arise from the same overarching Ponzi scheme involving numerous victims in multiple states who were harmed by the actions of Smith and Snell-ing. The Ponzi scheme was a single scheme to defraud multiple victims including those identified in the Dearborn County charges. The Ponzi scheme resulted in combined investment losses by the victims in excess of $8, 900, 00.00 including the losses sustained by the Dearborn County victims.

The federal court’s judgment included all of the victims and all of the losses identified in the Dearborn County indictment. The federal court’s judgment ordered the Smith to pay restitution of $5,000,000.00. Specifically included in the federal restitution order were each of the victims identified in the Dearborn County prosecution.

Indiana Code section 35-41-4-5 provides that a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana if the former prosecution resulted a conviction of the defendant. Here, the conduct for which Smith was prosecuted in the federal proceeding was the overarching Ponzi scheme. That scheme also formed the basis of the federal charges and those brought by Dearborn County. Accordingly, we conclude that Dearborn County prosecution of Smith is for the same conduct as that included in his federal conviction.

Furthermore, as we held in Smith’s appeal from the Franklin County charges, we conclude that the allegations that Smith transacted business as a broker-dealer without having registered with the Indiana Secretary of State, Securities Division as required by law, and without being exempt from registration, involve different conduct from that which formed the basis of Smith’s federal conviction for devising and participating in the Ponzi scheme to defraud investors. We incorporate the analysis from Smith’s Franklin County appeal here and adopt it.

Therefore, we reverse the trial court’s ruling denying Smith’s motion to dismiss Counts 1 through 3 and Counts 7 through 18. However, we affirm the trial court’s ruling denying Smith’s motion to dismiss Counts 4 through 6, and remand this matter to the trial court.

Affirmed in part, reversed in part, and remanded.

PYLE, J., concurs.

VAIDIK, J., concurs in part and dissents in part with separate opinion.

VAIDIK, Judge,

concurring in part and dissenting in part.

For the reasons set forth in my dissent in Smith v. State, No. 24A01-1210-CR-469, 993 N.E.2d 1185, 2013 WL 5010978 (Ind.Ct.App. Sept. 13, 2013), I do not agree that Counts 4-6 can stand. I believe those charges, which allege that Smith knowingly, transacted business as a broker-dealer without being registered to do so, are also barred by double jeopardy. I therefore dissent as to these charges.


text:
    Jerry A. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 24A01-1210-CR-469.
    Court of Appeals of Indiana.
    Sept. 13, 2013.

      Robert W. Hammerle, Kathryn Dinardo, Hammerle Law Office, Indianapolis, IN, Victoria L. Bailey, Beech Grove, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Jerry A. Smith (“Smith”) brings this interlocutory appeal from the trial court’s order granting in part and denying in part his motion to dismiss the charges against him. Smith contends that further prosecution in state court after his plea of guilty to charges of federal conspiracy to commit mail and wire fraud is barred by statutory double jeopardy principles. The State cross-appeals from the trial court’s order granting, in part, Smith’s motion to dismiss.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Between 2004 and 2010, Smith and Ja-sen Snelling (“Snelling”) ran a Ponzi scheme out of CityFund Advisory (“City-Fund”) and Dunhill Investment Advisors Ltd. (“Dunhill”). Central Registration Depository records showed that Snelling was listed as the President of CityFund, and Smith was listed as the Secretary/Treasurer. CityFund’s investment advisor license with the U.S. Securities and Exchange Commission (“SEC”) was withdrawn in 2004, and Dunhill’s registered trust with the SEC was withdrawn in 2002. Smith has not been registered to sell securities since May of 2008 and was never registered to sell securities through CityFund or Dunhill. Of the securities sold through CityFund and Dunhill, none were registered as required by law.

In December, 2011, the Franklin County Prosecutor’s Office filed a twenty-five count information against Smith related to this Ponzi scheme. Four victims, who were Indiana residents, were identified in the charges. Smith and Snelling told the victims that they were involved in day trading, were licensed to sell securities, and promised unusually high returns on the investments.

A sealed federal indictment was filed against Smith by the United States Attorney’s Office for the Southern District of Ohio on June 4, 2012. The federal indictment charged Smith with conspiracy to commit mail and wire fraud, obstruction, and tax evasion. The indictment generally alleged that between 2003 and 2011, in the Southern District of Ohio and elsewhere, Smith and Snelling conspired to commit mail fraud and wire fraud by using the U.S. Mail and interstate wire communications to execute a scheme to defraud investors in CityFund and Dunhill and to obtain money from investors by means of false and fraudulent promises and representations.

Smith and Snelling were alleged to have told investors that they were involved in day trading, all investments were liquidated to cash at the close of each day, and that this strategy guaranteed profits of 10-15%. Smith and Snelling held themselves out as being licensed to sell securities. Those representations were false because neither was licensed to sell securities nor were the firms licensed brokerage firms, and the investors’ money was never invested in anything or used in day trading; instead, it was used to enrich Smith and Snelling. Smith and Snelling prepared and sent to investors, through both the mail and electronic mail, falsified quarterly statements for Dunhill and CityFund purporting to show positive account balances and fictitious earnings, all as part of the scheme. A total of approximately seventy-two investors in Ohio, Kentucky, and Indiana collectively lost over $8,900,000.00 in this investment scheme.

Smith entered a guilty plea to the three federal charges against him on June 12, 2012. Smith signed an agreed statement of facts acknowledging the Ponzi day trading scheme in which he and Snelling falsely represented that they were licensed to sell securities when they were not and the investors’ money was never invested. Smith acknowledged that he and Snelling performed the specific overt acts set forth in the indictment.

After pleading guilty in federal court, Smith filed a motion to dismiss the Franklin County charges, contending that the State’s prosecution was barred by Indiana Code section 35-41-4-5, our statutory double jeopardy provision pertaining to prosecution by dual sovereigns. The Franklin Circuit Court dismissed Counts 11 through 25 setting out the charges alleging that Smith committed securities fraud and securities fraud involving a victim over sixty years of age on the basis that the conduct alleged was the same or substantially the same as the conduct alleged in the federal indictment to which Smith pleaded guilty. However, the trial court denied Smith’s motion to dismiss Counts 1 through 10 setting out the charges alleging that Smith engaged in unlawful acts related to the offer or sale of a security and alleging Smith’s failure to comply with the requirement of broker-dealer registration. Both parties now appeal.

DISCUSSION AND DECISION

Smith now appeals from the trial court’s order denying in part his motion to dismiss, and the State cross-appeals from the trial court’s partial grant of Smith’s motion to dismiss. The defendant bears the burden of proving by a preponderance of the evidence those facts necessary to support a motion to dismiss. Swenson v. State, 868 N.E.2d 540, 541-42 (Ind.Ct.App.2007). The clearly erroneous standard of review depends upon whether the party is appealing a negative judgment or an adverse judgment. Baird v. ASA Collections, 910 N.E.2d 780, 785 (Ind.Ct.App.2009). Where the party bearing the burden of proof appeals from the trial court’s ruling, he appeals from a negative judgment and will prevail only upon establishing that the judgment is contrary to law. Id.

When a party appeals from a negative judgment, we will reverse the trial court’s ruling only if the evidence is without conflict and leads inescapably to the conclusion that the party was entitled to dismissal. Swenson, 868 N.E.2d at 542.

A party appeals from an adverse judgment, as the State does here in its cross-appeal, when the judgment is entered against a party defending on a particular question. McCarty v. Walsko, 857 N.E.2d 439, 443 (Ind.Ct.App.2006). Where the trial court enters findings in favor of the party bearing the burden of proof, the findings are clearly erroneous if they are not supported by substantial evidence of probative value. Romine v. Gagle, 782 N.E.2d 369, 376 (Ind.Ct.App.2003). The judgment will be reversed even if we find substantial supporting evidence, if we are left with a definite and firm conviction that a mistake has been made. Id.

Smith argues that the trial court erred by partially denying his motion to dismiss the state-court charges against him contending that further prosecution is barred by the previous federal prosecution.

“The Indiana and United States Constitutions provide no protection from double jeopardy as between federal and state prosecutions.” State v. Allen, 646 N.E.2d 965, 967 (Ind.Ct.App.1995). As we explained further in Swenson,

Although the Indiana and United States Constitutions provide no protection from double jeopardy as between “dual sovereigns,” Indiana has provided statutory protection against double jeopardy in such situations.

868 N.E.2d at 542. That statutory protection is codified by Indiana Code section 35-34-1-4, which provides in relevant part as follows:

(a) The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: ... (7) The prosecution is barred by reason of a previous prosecution.

“Therefore, the double jeopardy question involved in this case is one of statutory construction, rather than constitutional construction.” Allen, 646 N.E.2d at 968. Federal governments are considered to be separate or dual sovereigns. Id.

Indiana Code section 35-41-4-5 provides as follows:

In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.

“Whether a prosecution is barred by double jeopardy is a question of law.” Swenson, 868 N.E.2d at 542 (citing Allen, 646 N.E.2d at 968).

“The primary rule in statutory construction is to ascertain and give effect to the intent of the legislature.” Brown v. State, 790 N.E.2d 1061, 1063 (Ind.Ct.App.2003) (citing Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.2001)). We have found the best evidence of legislative intent is the language of the statute itself. Id. All words must be given their plain and ordinary meaning unless otherwise indicated by statute. Id. at 1063-64. Our presumption is that the legislature intended the language actually used in the statute to be applied logically and not to bring about an unjust or absurd result. Id. at 1064-65.

The plain language of the statute requires a comparison of the conduct alleged to constitute an offense in Indiana with the conduct alleged to constitute an offense in another jurisdiction, here, in federal district court. In both, Smith and Snelling were alleged to have operated a Ponzi scheme. They stated to investors that they were involved in day trading, meaning all investments were liquidated to cash at the close of each day, and that this strategy guaranteed a large return in profits. Smith and Snelling held themselves out as being licensed to sell securities when neither was licensed to sell securities nor were the firms licensed brokerage firms, and the investors’ money was never invested in anything or used in day trading, but rather to enrich Smith and Snell-ing.

Unlike state constitutional double jeopardy analysis, we do not engage in application of the statutory elements test or the actual evidence test to determine if Smith was subjected to repeated prosecution for the same offense. See Richardson v. State, 717 N.E.2d 32, 49-50 (Ind.1999) (“Both of these considerations, the statutory elements test and the actual evidence test, are components of the double jeopardy ‘same offense’ analysis under the Indiana Constitution.”). Statutory double jeopardy shields a defendant from subsequent prosecution for the same conduct that resulted in an acquittal or a conviction in the former prosecution. I.C. § 35-41-4-5.

Both the federal indictment and the state charges arise from the overarching Ponzi scheme involving numerous victims in multiple states who were harmed by the actions of Smith and Snelling. The Ponzi scheme was a single scheme to defraud multiple victims including those identified in the Franklin County charges. The Pon-zi scheme resulted in combined investment losses by the victims in excess of $8,900,000.00 including the losses sustained by the Franklin County victims.

The federal court’s judgment included all of the victims and all of the losses identified in the Franklin County indictment. The federal court’s judgment ordered Smith to pay restitution of $5,000,000.00. Specifically included in the federal restitution order were each of the victims identified in the Franklin County prosecution.

Indiana Code section 35-41-4-5 provides that a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana if the former prosecution resulted a conviction of the defendant. Here, the conduct for which Smith was prosecuted in the federal proceeding was the overarching Ponzi scheme. That scheme also formed the basis of the federal charges and those brought by Franklin County in Counts 1-5 and 11-25. Accordingly, we conclude that Franklin County prosecution of Smith as to these counts is for the same conduct as that included in his federal conviction.

However, Counts 6 through 10 are different. Smith was alleged to have violated Indiana Code section 23-2-1-8, which was repealed by P.L. 27-2007 SEC. 37, eff. July 1, 2008, under Count 10 for acts occurring in 2004, and Indiana Code sections 23-19-4-1 and 23-19-5-8 under Counts 6 through 9 for acts occurring in October 2008 and thereafter. The counts allege that Smith knowingly transacted business as a broker-dealer without being registered as such with the Indiana Secretary of State, Securities Division, as required by law, and without being exempt from registration. In those counts the offense is failing to register as a broker-dealer as required by law before transacting business as such and does not involve the same conduct as the conduct forming the basis for Smith’s federal conviction, i.e., devising and participating in the scheme to defraud investors.

There is no overlap between the failing to register counts in this proceeding and Smith’s federal conviction. On one hand, had Smith been registered as a broker-dealer, he would still have faced the federal prosecution for his fraudulent acts. On the other, had Smith sold legitimate securities, he would have still have faced prosecution in this proceeding for his failure to register as a broker-dealer.

Accordingly, we affirm the trial court’s order of dismissal dismissing Counts 11 through 25 and its order denying Smith’s motion to dismiss Counts 6 through 10, and we reverse the trial court’s order denying Smith’s motion to dismiss the remaining state-court charges (Counts 1 through 5), and we remand to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

PYLE, J., concurs.

VAIDIK, J., concurs in part and dissents in part with separate opinion.

VAIDIK, Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusion that Counts 1-5 and 11-25 of the Franklin County charges (“the state charges”) against Smith are barred by the statutory prohibition against double jeopardy, Indiana Code section 35-4141-5. But respectfully, I do not agree that the remaining state charges, Counts 6-10, can stand. I believe those charges, which allege that Smith knowingly transacted business as a broker-dealer without being registered to do so, are also barred. Indiana’s double-jeopardy statute provides:

In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.

Ind.Code § 35-41-4-5. Thus, a conviction in any other jurisdiction bars a later prosecution in this State for the “same conduct.” State v. Allen, 646 N.E.2d 965, 968 (Ind.Ct.App.1995), reh’g denied, trans. denied. Whether a prosecution is barred by double jeopardy is a question of law. Id. at 972. Importantly, “this determination is made by considering the ‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the allegation in the State’s charge.” Id.

The majority concludes that Counts 6-10 may go forward because those charges are not based on the same conduct underlying Smith’s federal conviction. The majority reaches this conclusion by reasoning that Smith could have been charged in federal court for conspiracy to commit fraud even if he was a registered dealer-broker, and likewise could have been charged in state court for failing to register as a dealer-broker even if he sold legitimate securities. I believe this hypothetical reasoning ignores the directive of our previous decisions to look to “consider[ ] the ‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the allegation in the State’s charge.” Id.

The overt act alleged in the state charges is Smith’s sale of a security despite not being registered as a dealer-broker. The federal charging information cites the same conduct. Describing the operation of Smith’s conspiracy and scheme to defraud, the federal charging information states that Smith was not licensed to sell securities as required by Indiana law. While Smith’s failure to register as a dealer-broker was not specifically mentioned in the section describing acts in furtherance of the conspiracy, we should view the federal charging information as a whole, given that the federal prosecutor controlled its content. And here, the federal prosecutor chose to include Smith’s failure to register as a dealer-broker. When reviewing the federal charging information as a whole, I conclude that both the federal and state charges rely in part on Smith’s failure to register as a dealer-broker. For this reason, I respectfully disagree with the majority’s conclusion that Counts 6-10 can stand. Because I find that these charges are barred by Indiana’s statutory prohibition against double jeopardy, I would dismiss Counts 6-10.

      . We held oral argument in this appeal and an appeal involving the same defendant and issues, but arising from orders issued in different counties, on July 10, 2013 in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We commend counsel for the quality of their oral and written arguments.


author: BRADFORD, Judge.

text:
    Larry LYONS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 36A01-1208-CR-331.
    Court of Appeals of Indiana.
    Sept. 16, 2013.

      Brooke N. Russell, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Larry Lyons Jr. was charged with and tried for Class B felony dealing in methamphetamine (Count I), Class D felony methamphetamine possession (Count II), Class D felony unlawful possession of a syringe (Count III), and Class A misdemeanor paraphernalia possession (Count IV). A jury found Lyons guilty of Counts I and II, and the trial court merged Count II into Count I and sentenced Lyons to eight years of incarceration with two years suspended. Lyons contends that the trial court committed fundamental error in instructing the jury in the following respects: (1) failing to adequately instruct the jury that it was not to deliberate or reach any conclusions pri- or to the close of evidence, (2) failing to advise the alternate jurors that they were not to participate in deliberations, and (3) failing to instruct the bailiff to confiscate all electronic devices prior to deliberations. Because we conclude that no fundamental error occurred, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 22, 2011, the State charged Lyons with Counts I-IV. On March 20 and 21, 2012, Lyons’s jury trial was held. A jury of twelve with two alternates was seated. Prior to the opening of evidence, the trial court instructed the jury, in part, as follows:

You are permitted to discuss the evidence among yourselves in the jury room during recesses from trial, but only when all jurors and alternates are present. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the court submits the case to you for your deliberations. You must not talk about this case with anyone else. Do not talk to any of the parties, their lawyers or any of the witnesses. If anyone tries to talk about the case in your presence, you should tell the bailiff immediately and privately. If there is any publicity about this trial, you must not read, listen to or watch it.
You are instructed that until your jury service is complete, you shall not use computers, laptops, cellular telephones or other electronic devices, during discussions or during deliberations unless specifically authorized by the court.

Tr. pp. 1-2, 9.

At the conclusion of the first day of Lyons’s trial, the trial court advised the jury as follows: “Remember, you are not to discuss these matters under consideration with anyone else. If somebody asks you at home this evening about whatever you heard in court, you can tell them I’ll tell you tomorrow night, but for now I can’t discuss it.” Tr. p. 132. Lyons made no objection to any of the trial court’s jury instructions, he did not object to the trial court’s advisement at the end of the first day of his trial, and he offered no alternate instructions at any point. The jury convicted Lyons of Counts I and II and found him not guilty of Counts III and IV. On July 18, 2012, the trial court merged Count II into Count I and sentenced Lyons to eight years of incarceration with two years suspended.

DISCUSSION AND DECISION

Lyons concedes that he failed to preserve below any of the claims he now makes on appeal. Lyons contends, however, that the trial court committed fundamental error by failing to (1) adequately instruct the jury that it was not to deliberate or reach any conclusions prior to being given the case, (2) instruct the jury that the alternates could not participate in deliberations, and (3) failing to instruct the bailiff to confiscate electronic devices prior to deliberations.

A claim that has been waived by a defendant’s failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred. See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind.2002); Hayworth v. State, 904 N.E.2d 684, 694 (Ind.Ct.App.2009). The fundamental error exception is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). The error claimed must either “make a fair trial impossible” or constitute “clearly blatant violations of basic and elementary principles of due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind.2009). This exception is available only in “egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.2003).

Brown v. State, 929 N.E.2d 204, 207 (Ind.2010).

I. Whether the Trial Court Committed Fundamental Error in Instructing the Jury

“Instructing the jury lies solely within the discretion of the trial court, and we will reverse only upon an abuse of that discretion.” Schmid v. State, 804 N.E.2d 174, 182 (Ind.Ct.App.2004), trans. denied. A defendant is entitled to have the jury instructed correctly on an essential rule of law. McCarthy v. State, 751 N.E.2d 753, 755 (Ind.Ct.App.2001), trans. denied. “Generally, we will reverse a trial court for failure to give a tendered instruction if: 1) the instruction is a correct statement of the law; 2) it is supported by the evidence; 3) it does not repeat material adequately covered by other instructions; and 4) the substantial rights of the tendering party would be prejudiced by failure to give it.” Creager v. State, 737 N.E.2d 771, 776 (Ind.Ct.App.2000). Jury instructions are to be considered as a whole, and we will not find that the trial court abused its discretion unless we determine that the instructions taken as a whole misstate the law or otherwise mislead the jury. Schmid, 804 N.E.2d at 182.

A. Failure to Adequately Instruct the Jury not to Deliberate or Reach Conclusions

Indiana Code section 35-37-2-4 provides, in relevant part, that

The court shall admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day, that it is their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.

As Lyons points out, the trial court failed to advise the jurors at the end of the first day of trial that they were not to form or express an opinion about the case until it was given to them. Lyons argues that this omission was a blatant violation of basic principles that potentially harmed him, necessitating a new trial. We cannot agree.

While we acknowledge that the trial court failed to admonish the jury pursuant to the letter of Indiana Code section 35-37-2-4, we cannot conclude that its failure amounts to fundamental error. Fundamental error occurs only in egregious cases where the harm or potential for harm is substantial, and we are unpersuaded that this is one of those cases. First, the jurors were, in fact, given a preliminary instruction that they were not to form or express an opinion until the case was given to them. Second, the trial was only two days long, meaning that the trial court missed only one opportunity to so advise the jurors. Third, there has been no showing of harm or that the potential for harm was substantial: Lyons points to nothing in the record indicating that the jury made up its mind before receiving the case from the trial court. Under the circumstances of this case, where the trial court did correctly instruct the jury once and there is no indication of prejudice, we cannot say that the trial court committed fundamental error in this regard.

B. Failure to Instruct Alternates not to Participate in Deliberations

Lyons argues that the trial court’s failure to advise the two alternate jurors that they were not to participate in deliberations amounts to fundamental error. Again, we cannot agree. While the failure to so advise the alternates was, in fact, erroneous, we cannot agree that Lyons has established fundamental error. “An alternate is not, of course a member of the jury, and he or she qualifies as an outside influence under [Evidence] Rule 606(b).” Griffin v. State, 754 N.E.2d 899, 903 (Ind.2001), clarified on reh’g on other grounds, 763 N.E.2d 450 (Ind.2002). Pursuant to Evidence Rule 606(b),

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror.

Although Lyons is correct that Indiana precedent indicates that “[i]f an alternate juror participates in deliberations, a new trial may be granted[,]” we conclude that Lyons has failed to establish that he is entitled to one. Weatherspoon v. State, 912 N.E.2d 437, 441 (Ind.Ct.App.2009), trans. denied. Both Griffin and Weather-spoon seem to require that evidence regarding outside influence must be put into the record pursuant to Rule 606(b) in order to allow review of a claim that an alternate improperly influenced deliberations, and that did not happen here. There is absolutely no evidence that the alternates participated in deliberations or affected the jury’s decision in any way. Lyons has not established harm or substantial risk of harm.

II. Whether the Trial Court Committed Fundamental Error in Instructing the Bailiff

Lyons contends that the trial court committed fundamental error in failing to instruct the bailiff to confiscate electronic devices from the jurors. Indiana Jury Rule 26(b) provides as follows:

The court shall instruct the bailiff to collect and store all computers, cell phones or other electronic communication devices from jurors upon commencing deliberations. The court may authorize appropriate communications (i.e. arranging for transportation, childcare, etc.) that are not related to the case and may require such communications to be monitored by the bailiff. Such devices shall be returned upon completion of deliberations or when the court permits separation during deliberations. Courts that prohibit such devices in the courthouse are not required to provide this instruction. All courts shall still admonish jurors regarding the limitations associated with the use of such devices if jurors are permitted to separate during deliberations.

Even assuming that the trial court gave no such instruction to the bailiff, Lyons has failed to establish fundamental error. The jurors were explicitly instructed that “until your jury service is complete, you shall not use computers, laptops, cellular telephones or other electronic devices, during discussions or during deliberations unless specifically authorized by the court[,]” Tr. p. 9, and “we presume the jury follows the instructions it is given.” Tormoehlen v. State, 848 N.E.2d 326, 332 (Ind.Ct.App.2006), trans. denied. Lyons points to nothing in the record to rebut the presumption that the jurors followed the trial court’s instruction, even if they were still in possession of electronic communication devices. The mere possibility that a juror may have used an electronic device during deliberations is insufficient to establish fundamental error.

The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.


text:
    In the Matter of Lori Ann HITTLE, Respondent.
    No. 29S00-1304-DI-273.
    Supreme Court of Indiana.
    Sept. 12, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on an incident in April 2012, while serving as a part-time deputy prosecutor in Howard County, Respondent pled guilty to operating a vehicle while intoxicated, as class A misdemeanor.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent is remorseful; (4) Respondent was suspended for one month without pay from her position as deputy prosecutor; and (5) prior to the filing of criminal charges, Respondent began and is continuing individual substance abuse counseling.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(d), which prohibits engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of James C. KOTZ, Respondent.
    No. 45S00-1308-DI-510.
    Supreme Court of Indiana.
    Sept. 12, 2013.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.l)(a), has filed a “Notice of Guilty Finding and Request for Suspension,” asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following felony under federal law: Interference with Administration of Internal Revenue Laws.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective the date of this order. Respondent is ordered to fulfill’the duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

The Clerk of this Court is directed to send notice of this Order to Respondent or Respondent’s attorney by certified or registered mail, to the Indiana Supreme Court Disciplinary Commission, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.