text:
    Termination: T.B., et al., Appellants v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied
   All Justices concur.

Pyle, J., Vaidik, C.J., Barnes, Sr. J.


source: Caselaw Access Project

author: All Justices concur.

license: Public Domain

text:
    STATE of Indiana, Appellee v. Andrew HER
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied
   All Justices concur.

Altice, J., Najam, J., Robb, J.


text:
    Derrick D. ARMSTEAD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied.
   All Justices concur.

Bailey, J., Mathias, J., Bradford, J.


text:
    Terry L. BALZ, Appellant v. CLAIMS PROFESSIONAL REPRESENTATIVES, LLC
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied.
   All Justices concur.

Barnes, Sr.J., Vaidik, C.J., Pyle, J.


text:
    Andrew U.D. STRAW, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied.
   All Justices concur.


text:
    Kevin L. GOVAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied.
   All Justices concur.


author: Crone, J., Bailey, J., Brown, J.

text:
    Robert M. NOLAN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    October 25, 2018
    Transfer Denied.
    All Justices concur, except Rush, C.J., and Goff, J., who vote to grant the petition to transfer.
   Crone, J., Bailey, J., Brown, J.


author: Bradford, Judge.

text:
    J.T., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-707
    Court of Appeals of Indiana.
    FILED September 13, 2018
    Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] In July of 2016, fourteen-year-old J.T. stole a vehicle and was subsequently put on probation. In December of 2016, J.T. stole his mother's car and crashed it into a ravine. J.T. was placed on home detention with electronic monitoring. In January of 2017, J.T. violated the terms of home detention by not reporting to school as required. J.T. was placed in problem-solving court and soon violated its conditions. In March of 2017, J.T. removed his electronic monitor and sneaked out to see his girlfriend. Based on these acts, J.T. was adjudged to be a juvenile delinquent for committing what would be Level 6 felony auto theft, Class A misdemeanor conversion, Class A misdemeanor unauthorized absence from home detention, and Level 6 felony escape if committed by an adult.

[2] In March of 2017, J.T. was placed in the Youth Opportunity Center ("the YOC") for residential treatment, where, over the next several months, he had behavioral issues, including some incidents involving violence. J.T. returned to problem-solving court in August of 2017 and committed many violations over the course of the next several months. At some point, the juvenile court ordered J.T.'s father to pay $30 per month as reimbursement for services rendered to J.T., an amount agreed to by J.T.'s father. Finally, in February of 2018, the problem-solving court moved to terminate J.T.'s participation, and the State requested a commitment to the Department of Correction ("the DOC"). J.T.'s counsel indicated that J.T. also wanted a DOC commitment. The juvenile court ordered DOC commitment and, in April of 2018, ordered that J.T.'s mother pay $20 per month against the total of $7463 for services rendered to J.T. J.T. contends that the juvenile court abused its discretion in ordering his parents to make monthly reimbursement payments and in ordering him committed to the DOC. Because we disagree, we affirm.

Facts and Procedural History

[3] J.T. was born on November 4, 2001, and his divorced parents split custody of him. On July 29, 2016, while staying with his father in Bedford, J.T. and two other juveniles stole a vehicle belonging to Joe Pritchett. A witness reported the stolen vehicle being operated erratically, resulting in the police stopping the vehicle. The vehicle was ultimately returned to Pritchett, and it was reported that $363 worth of items were missing from inside the vehicle.

[4] On August 8, 2016, in cause number 47C01-1608-JD-264 ("Cause No. JD-264"), the State filed a delinquency petition alleging that J.T. committed what would be Level 6 felony auto theft if committed by an adult. At a hearing held on October 31, 2016, J.T. entered an admission to the offense and was adjudicated delinquent. J.T. was released to supervised probation pending the dispositional hearing and went back to live with his father.

[5] On December 25, 2016, J.T. was visiting his mother in Bedford. When J.T.'s mother fell asleep, J.T. took her car keys and drove off in her vehicle, which she had not given him permission to take. Shortly thereafter, the authorities received a call from a male indicating that his vehicle was involved in a "slideout[.]" Tr. Vol. II p. 8. When officers responded to the scene, they encountered J.T. with the stolen vehicle, which he had wrecked by driving into a ravine. J.T. was arrested and detained in the Jackson County Juvenile Detention Center ("the Detention Center"). While detained, on December 31, 2016, J.T. had two disciplinary notices because he spoke with other juveniles and scraped paint from the door to his room in violation of the rules. On January 4, 2017, in cause number 47C01-1612-JD-492 ("Cause No. JD-492"), the State filed a second delinquency petition alleging that J.T. committed what would be Level 6 felony auto theft if committed by an adult. After a hearing, J.T. was released to electronic monitoring and home detention at his father's home.

[6] On January 19, 2017, J.T. left home at 7:22 a.m. but did not report to school as was required by his home-detention agreement. J.T. was unaccounted for until 11:16 a.m. That same day, the State filed a request for J.T. to be taken into custody because he was in violation of his home-detention agreement. On January 27, 2017, in cause number 47C01-1701-JD-58 ("Cause No. JD-58"), the State filed a third delinquency petition alleging that J.T. committed what would be Class A misdemeanor unauthorized absence from home detention if committed by an adult.

[7] On February 2, 2017, J.T. admitted to the allegations in JD-58 and to an amended allegation of conversion in JD-492. On February 6, 2017, J.T. was placed on supervised probation and ordered into problem-solving court. At that time, J.T.'s parents were informed of their responsibility to pay the fees and costs of problem-solving court and indicated that they desired him to be placed there and understood their financial obligations.

[8] On February 7, 2017, J.T. violated the conditions of problem-solving court by associating with a negative peer group and violating curfew, and he was sanctioned with community service. On February 14, 2017, J.T. violated the conditions of problem-solving court by associating with a negative peer group, violating curfew, and disrespecting his mother, and was sanctioned by being placed on home detention with electronic monitoring. On February 28, 2017, J.T. violated the conditions of problem-solving court by violating home detention, associating with a negative peer group, and being sent home from school, and he was sanctioned with community service.

[9] A 12:30 a.m. on March 7, 2017, J.T. removed his electronic monitor, left his mother's home, and went to the hotel where his girlfriend was living with her family. J.T.'s mother contacted the police and reported him missing from home detention. The police located J.T. hiding in the bushes at 1:30 a.m., and he was taken into custody. J.T. was detained again at the Detention Center.

[10] On March 8, 2017, in cause number 47C01-1703-JD-128 ("Cause No. JD-128"), the State filed a fourth delinquency petition alleging that J.T. committed what would be Level 6 felony escape if committed by an adult. On March 9, 2017, the probation department filed a petition to modify J.T.'s probation in the other three cause numbers based on the most recent offense. That same day, a hearing was held on the petition In Cause No. JD-128, and J.T. admitted to committing the offense of escape and to the allegations in the petition to modify probation. After an advisement on costs and fees and with his mother's approval, J.T. was placed into the YOC for residential treatment.

[11] J.T. progressed through the phases of the YOC program but continued to have problems. On March 23, March 28, and April 30, 2017, J.T. received incident reports for bad behavior in the YOC. On other occasions, J.T. exited the program without permission, stayed up until 4:00 a.m., failed to follow staff directives, instigated incidents, and struggled to control himself. On July 3, 2017, J.T. was physically aggressive with another resident, threw chairs at tables, emptied a shampoo bottle on another resident's bed, tried to rip another resident's clothing, and ran away into an office and had to be restrained.

[12] J.T. was discharged from the YOC on August 14, 2017, and returned to the problem-solving court, electronic monitoring, and supervised probation. On December 18, 2017, a review hearing was held for the purposes of resolving costs and fees for J.T.'s father. J.T.'s probation officer testified that the following fees were still due in J.T.'s cases:

• Cause No. JD-264: $363 for restitution, jointly and severally with two co-defendants; $181 for court costs; $4200 for detention costs; and $260 for problem-solving court
• Cause No. JD-492: $181 for court costs
• Cause No. JD-58: $181 for court costs
• Cause No. JD-128: $181 for court costs and $700 for detention costs
• $615 in home-detention fees

The total owed at that point was $6862. J.T.'s father's attorney proposed that J.T.'s father pay an amount between $20 and $30 per month. J.T.'s father indicated that he received $735 a month from SSI and that he was able to pay $30 per month.

[13] J.T.'s second stint in problem-solving court did not go well, and he violated its conditions on several occasions. Below is a list of dates on which J.T. was found to have committed violations, the nature of the violations, and the sanctions imposed:

• September 5, 2017: J.T. violated home detention and missed school assignments and was sanctioned with attending "ZAP."
• September 10 and 11, 2017: J.T. violated curfew and canceled an appointment with therapist Lynn Minton and was sanctioned with community service.
• October 24, 2017: J.T. failed to bring in his journal.
• October 31, 2017: J.T. was absent from school on two separate occasions, failed to attend a scheduled appointment with Ireland Home-Based Services ("Ireland"), had poor academics, and failed to complete case plan objectives and was sanctioned with community service.
• December 12, 2017: J.T. failed to attend a scheduled appointment with Ireland, report to community service on two separate occasions, report to drug screens on two separate occasions, participate in tutoring, and provide his complete work schedule and was sanctioned with a suspended commitment to the Detention Center.
• December 19, 2017: J.T. was terminated from his employment and was not honest about the reason for the termination with his probation officer and was sanctioned with community service.
• January 9, 2018: J.T. had poor academics and failed to attend an appointment with Minton and provide a verification of employment and was sanctioned with community service.
• January 30, 2018: J.T. failed to attend work as scheduled and lied about it and was sanctioned with having his 7:00 p.m. curfew revoked.
• February 6, 2018: J.T. associated with negative peers, used an unknown substance that caused impairment, violated curfew, was absent from school, and failed to take prescribed medication and was sanctioned with commitment to the Detention Center.

[14] On February 8, 2018, the problem-solving court moved to terminate J.T.'s participation in problem-solving court because of his numerous violations, and the State filed a memorandum in support of the court's motion. On February 12, 2018, a petition to modify J.T.'s probation was filed based on his unsuccessful termination from problem-solving court. At a hearing held that same day, J.T.'s probation officer testified that probation was recommending a DOC commitment because J.T. and his family were refusing to be honest with the probation department and refusing to address their issues. J.T.'s counsel informed the juvenile court that J.T. had requested to be committed to the DOC. J.T. then admitted to violating the terms of his probation by being terminated from problem-solving court. The juvenile court determined-and noted the parties' agreement-that it was in J.T.'s best interests to be committed to the DOC so that he could receive services to rehabilitate. J.T. then requested to be immediately transported to the DOC.

[15] On April 19, 2018, the juvenile court had another review hearing on fees for J.T.'s mother because J.T.'s father had been incarcerated. J.T.'s probation officer testified that the following amounts were still outstanding:

• Cause No. JD-264: $100 for restitution, $181 for court costs, $5100 for detention costs, and $260 for problem-solving court • Cause No. JD-492: $181 for court costs and $579 in home detention fees
• Cause No. JD-58: $181 for court costs
• Cause No. JD-128: $181 for court costs and $700 for detention costs

The total amount owed was $7463. J.T.'s mother specifically stated that she could pay $20 a month. J.T.'s probation officer indicated that she had spoken with J.T.'s mother and that J.T.'s mother told her that she was "in agreement with starting to get some payments made" and could pay between $20 and $30 per month. Add. Tr. Vol. II p. 6. When asked by the juvenile court if she had any questions about what J.T.'s probation officer had said, J.T.'s mother said, "That's what we agreed-or that's what we talked about outside, so that's fine." Add. Tr. Vol. II. P. 7. The juvenile court ordered J.T.'s mother to pay $20 a month towards the total amount owed.

Discussion and Decision

I. Payment for Services

[16] J.T. contends that the juvenile court abused its discretion in ordering his parents to reimburse Lawrence County for various costs and fees incurred in his various delinquency proceedings. Currently, J.T.'s mother is the only one of his parents ordered to make payments, of $20 per month. An order of restitution lies within a trial court's discretion and will be reversed only for abuse of discretion. Kays v. State , 963 N.E.2d 507, 509 (Ind. 2012). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Priore v. Priore , 65 N.E.3d 1065, 1072 (Ind. Ct. App. 2016), trans. denied. A trial court also abuses its discretion if it misinterprets or misapplies the law. Baker v. State , 70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied.

[17] Indiana Code section 31-40-1-3 provides, in part, as follows:

(a) A parent or guardian of the estate of:
(1) a child adjudicated a delinquent child[...] is financially responsible [...] for any services provided by or through the department.
[....]
[T]he juvenile court shall order the child's parents or the guardian of the child's estate to pay for, or reimburse the department for the cost of services provided to the child or the parent or guardian unless the court makes a specific finding that the parent or guardian is unable to pay or that justice would not be served by ordering payment from the parent or guardian.

[18] In general, the burden is on the juvenile and/or the parents to present evidence to support the findings that would relieve them of the obligation to reimburse. See J.W. v. Hendricks Cty. Office of Family & Children , 697 N.E.2d 480, 483 (Ind. Ct. App. 1998) (affirming an order of reimbursement where "the juvenile court found that the [parents] 'failed to carry their burden of proof to show that they are unable to pay or that justice would not be served by ordering payment from the parents....' "). So, to prevail on his claim, J.T. must establish that the juvenile court abused its discretion in declining to find that his parents were unable to pay or that justice would not be served by ordering them to pay, despite having produced evidence such that no reasonable person could find otherwise. J.T. has failed to carry this burden.

[19] Notably, J.T. never asked the juvenile court to make a finding that his parents could not pay or that justice would not be served by ordering them to. Even if J.T. had asked, there is nothing in the record that would support such findings. Both of J.T.'s parents had been made aware that additional costs would be incurred when J.T. was placed in problem-solving court and agreed that they would be responsible for them. Before his incarceration, J.T.'s father indicated that he received $735 a month from SSI and that he was able to pay $30 per month. J.T.'s mother indicated in court that she and J.T.'s probation officer had discussed making payments of $20 to $30 per month and agreed that such a payment would be acceptable to her. J.T. has failed to establish that the juvenile court abused its discretion in failing to find that his parents were unable to pay or that justice would not be served by ordering them to pay.

[20] J.T. claims essentially that the juvenile court misapplied the law by failing to make explicit inquiries and findings regarding whether his parents were unable to pay or that justice would not be served by ordering them to pay, drawing our attention to authority for this proposition. This rule, adding requirements not in the statute, first appeared in the case of Matter of C.K. , 695 N.E.2d 601 (Ind. Ct. App. 1998), trans. denied , in which the parents were ordered to pay $100 per week against a balance of $52,276 for the costs of out-of-home detention following C.K.'s adjudication as a juvenile delinquent. Id. at 603. We reversed the juvenile court's order and remanded for further proceedings, concluding that "[s]ound public policy dictates that the court consider [whether the parent or guardian is unable to pay or that justice would not be served by ordering payment] and state its findings thereon before placing such a large financial burden on a delinquent child's parents." Id. at 605 ; see also In re M.L.K. , 751 N.E.2d 293, 298 (Ind. Ct. App. 2001) (adopting the C.K. approach of requiring the juvenile court to consider the statutory factors and state its findings before ordering parents to reimburse $21,777.44).

[21] Both C.K. and M.L.K. are distinguishable on the facts from this case. The extremely large balance of over $52,000 in C.K. was one of the bases of its holding, as the court required a hearing and findings, in part, because the order was placing such a "large financial burden" on the parents. Here, the total amount owed is not nearly so large, approximately one seventh the balance in C.K . and one third the balance in M.L.K . Moreover, the amount of the payments ordered in this case, $20 per month, is less than one twentieth the amount ordered in C.K ., at $100 per week, or approximately $400 per month. If J.T.'s parents considered the balance or the monthly payments to be a "large financial burden," they were free to say so, but did not. Both in total amount owed and in terms of immediate financial burden, this case is not comparable to C.K . While we decline to declare an amount beyond which explicit findings must be made in cases such as this, we conclude that the balance in this case falls below that threshold.

II. DOC Commitment

[22] J.T. also contends that the juvenile court abused its discretion in ordering him committed to the DOC. As the State points out, J.T. instructed his attorney to request commitment to the DOC and may not now complain that the juvenile court ordered just that. Under the doctrine of invited error, "a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct."

Wright v. State , 828 N.E.2d 904, 907 (Ind. 2005) (citation omitted). That said, given the gravity of the situation, we choose to address the merits of J.T.'s claim.

[23] A juvenile court is accorded "wide latitude" and "great flexibility" in its dealings with juveniles. J.S. v. State , 881 N.E.2d 26, 28 (Ind. Ct. App. 2008). "[T]he choice of a specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound discretion of the juvenile court and will only be reversed if there has been an abuse of that discretion." Id. (citing E.L. v. State , 783 N.E.2d 360, 366 (Ind. Ct. App. 2003) ). The juvenile court's discretion in determining a disposition is subject to the statutory considerations of the welfare of the child, the safety of the community, and the policy of favoring the least-harsh disposition. Id. (citing C.C. v. State , 831 N.E.2d 215, 216-17 (Ind. Ct. App. 2005) ). An abuse of discretion occurs when the juvenile court's action is "clearly erroneous" and against the logic and effect of the facts and circumstances before it. Id.

[24] The goal of the juvenile process is rehabilitation rather than punishment. R.H. v. State , 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). "Accordingly, juvenile courts have a variety of placement options for juveniles with delinquency problems, none of which are considered sentences." Id. Indiana Code section 31-37-18-6(1)(A) provides that "[i]f consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that is in the least restrictive (most family like) and most appropriate setting available." "[T]he statute contains language that reveals that a more restrictive placement might be appropriate under certain circumstances." J.S. , 881 N.E.2d at 29 (citing K.A. v. State , 775 N.E.2d 382, 387 (Ind. Ct. App. 2002), trans. denied ). The law requires only that the disposition selected be the least restrictive disposition that is "consistent with the safety of the community and the best interest of the child." D.S. v. State , 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005).

[25] Given the nature of J.T.'s acts of delinquency and the failure of less-restrictive alternatives, we cannot say that the juvenile court abused its discretion in this case. After being given chance after chance to reform himself, even J.T. himself realized that what had been tried was not working. In July of 2016, J.T. began by stealing a vehicle at the age of fourteen and taking hundreds of dollars of items from within. A few months later, J.T. stole his mother's vehicle, eventually wrecking it in a ravine. Less than a month later and while on home detention, J.T. did not report to school as required. Two months after that, J.T. removed his electronic monitor and went to visit his girlfriend. Four delinquency adjudications arose from these incidents-two for what would felonies and two for what would be misdemeanors if committed by an adult.

[26] Once in the juvenile justice system, all attempts to rehabilitate J.T. were consistently resisted and have, to date, ended in failure. While being detained after the second auto theft, J.T. received two disciplinary notices. As mentioned, efforts by J.T. to escape home detention resulted in two additional juvenile adjudications. When J.T. was initially placed in problem-solving court in February of 2017, he was sanctioned for violating its conditions three times within a month. In March of 2017, J.T. was placed in the YOC, where he continued to have problems. J.T. received three incident reports within two months of placement, and in July of 2017, was involved in an incident where he was physically aggressive, threw furniture, and had to be restrained.

[27] In August of 2017, J.T. was again placed in problem-solving court, and it went no better the second time than it had the first. Over the next several months, J.T. was sanctioned for, inter alia , violations of home detention, poor scholastic performance, missed therapy appointments, school absenteeism, missed drug screens, failure to provide work information, lying about the reason for termination from a job, association with negative peers, use of an unknown substance that caused impairment, curfew violation, and failure to take medicine as prescribed. After approximately six months of this, the problem-solving court moved to terminate J.T.'s participation and the probation department recommended commitment to the DOC, a recommendation with which J.T. concurred.

[28] In summary, over the course of approximately one-and-one-half years, J.T. was found delinquent four times and was offered many more less-restrictive options than commitment to the DOC, to no avail. J.T. has consistently failed to take advantage of the leniency shown him, including placement on home detention, problem-solving court, and the YOC and the provision of services such as counseling and therapy. Despite all of these opportunities, the record indicates that J.T. never went more than a few weeks without violating the conditions of these less-restrictive options. Moreover, there do not seem to be many alternatives left. J.T.'s father is incarcerated, and his mother has indicated that she could not control his behavior and that he has refused to follow her rules. Conventional education has also not been able to help J.T., as he has been suspended from school several times for such acts as fighting, tardiness, failure to put forth sufficient effort, and threatening other students. We believe that it is worth noting that the placement in which J.T. seemed to have the most relative success was also the most restrictive, the residential YOC. Given J.T.'s history and the failure of the measures attempted to date, the juvenile court did not abuse its discretion in ordering a DOC commitment. See, e.g. , J.J. v. State , 925 N.E.2d 796, 802 (Ind. Ct. App. 2010) (affirmed DOC commitment where "[i]n just a few short years, J.J. has participated in every juvenile program offered by the county[,] seen countless therapists, taken medication, and taken part in individual, group, and family counseling [but] continued to reoffend and disrespect the rule of law and his fellow citizens"), trans. denied.

[29] We affirm the judgment of the juvenile court.

Affirmed.

Mathias, J., concurs.

Bailey, J., concurs in part and dissents in part with opinion.

[30] I concur with the majority in affirming the dispositional order committing J.T. to the DOC. However, I respectfully dissent from the affirmance of the parental financial contribution order. I, unlike the majority, am convinced that a "large financial burden," Op. at 1025, was imposed on the parents, in that they are subject to a judgment that, at the current rate of payment, would not be satisfied for approximately thirty-five years. And this financial burden was imposed upon a parental agreement that allows a few dollars per month to be paid but is wholly absent of findings that address the long-term ability to pay the aggregate obligation.

[31] The reimbursement statute, Indiana Code Section 31-40-1-3, provides that the juvenile court shall order reimbursement unless the court makes a specific finding of inability to pay or that justice would not be served by ordering payment. (emphasis added). The statute further provides that a parental reimbursement obligation shall be paid directly to the department during a juvenile delinquency case; the department shall keep track of all payments; at the end of the action, the department shall provide an accounting of payments received; the court may consider additional evidence and determine parental reimbursement that remains unpaid; and "the court shall reduce the unpaid balance to a final judgment that may be enforced in any court having jurisdiction over such matters." I.C. § 31-40-1-3(d).

[32] I agree that it is incumbent upon parents to come forward with evidence of their financial circumstances and ultimately, parents bear the burden of showing (1) inability to pay or (2) that justice would not be served by ordering payment. See J.W. v. Hendricks Cty. Office of Family & Children , 697 N.E.2d 480, 483 (Ind. Ct. App. 1998). Here, parents have done just that. Mother offered to pay $20.00 monthly from her meager wages. Father was in prison at the last review hearing but previously had an SSI income of $735.00 per month. The willingness and agreement of Mother to contribute does not necessarily render her able to satisfy an $8,363.00 judgment without extreme hardship.

[33] "A juvenile court's order regarding payment of services must abide by [statutory] provisions." Id. However, the language of the reimbursement statute neither requires nor prohibits the entry of a judgment in an amount less than the full amount of reimbursement sought. As such, I believe that the juvenile court is not constrained to order parents to pay "all or nothing." Indeed, in In re Matter of C.K. , 695 N.E.2d 601, 605 (Ind. Ct. App. 1998), we specifically stated "the court's ability to order reimbursement is not unlimited" and recognized the duty of the trial court to consider whether justice would be served by an order in excess of that which a parent would have paid under child support orders during the child's minority.

[34] The majority acknowledges that the C.K. panel concluded that public policy dictates the court's consideration of parental ability to pay and that the court be required to state its findings before placing "such a large financial burden on a delinquent child's parents." I additionally observe that the C.K. Court specified that its order of remand was "for a consideration of both Father's and C.K.'s mother's ability to pay the entire reimbursement amount sought by the OFC , and a consideration of whether justice would be served by ordering the parents, or either of them, to pay the entire reimbursement amount. Id. (emphasis added.)

[35] I would, as in C.K. , reverse and remand for specific findings regarding the ability of the parents to pay and whether justice would be served by ordering these parents to pay the entire reimbursement amount, an amount undoubtedly far in excess of that for which the parents would have been obligated under the Indiana Child Support Guidelines.

Order

[1] Appellant, by counsel, filed a Motion to Publish Memorandum Opinion.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellant's Motion to Publish Memorandum Opinion is granted.
2. This Court's opinion heretofore handed down in this cause on September 13, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 10/1/2018.

[4] Bailey, Mathias, Bradford, JJ., concur.

      The on-call probation officer in Lawrence County at the time made the decision to transfer J.T. to Jackson County.

      "ZAP" refers to the "Zeros Aren't Permitted" program at Bedford North Lawrence High School. See BNL School Improvement Plan 2016-17, https://www.nlcs.k12.in.us/index.php/programs/schoolimprovement/school-plans/24-bedford-north-lawrence-high-school/file (last visited August 15, 2018).

      The State notes that the juvenile court ordered another fee-review hearing for July 26, 2018, and argues that this issue could very well be moot at this point. Even assuming the hearing occurred as scheduled, it is not part of the record on appeal.

      The juvenile court's order of April 19, 2018 provided in relevant part:
      The Court now orders the following amounts be paid and orders that [Parents] are responsible for said amounts:
         47C01-1608-JD-264:   Court costs - $181.00      Restitution - $100.00      Detention costs - $5,100.00      PSC fee - $260.00      Additional Detention Fees of $900.00     47C01-1612-JD-492   Court costs - $181.00      Home Detention fees - $579.00     47C01-1701-JD-58   Court costs - $181.00     47C01-1703-JD-128   Court costs - $181.00      Detention Costs - $700.00
      This aggregates to $8,363.00. At the payment rate of $20.00 per month, 418 payments would be required (over almost 35 years). The order makes no reference to an ascertainable event that would trigger termination of payments, such as emancipation of J.T. or cessation of juvenile placement services.

      C.K.'s father was admittedly liable for a child support arrearage; his admission was not treated as an admission that he could pay the entire amount of reimbursement sought. C.K. , 695 N.E.2d at 605.

      Although parents are required to complete child support worksheets, the reimbursement statute does not require the juvenile court to refer to the Guideline amounts in fixing reimbursement.


author: Vaidik, Chief Judge.

text:
    Timothy C. TROXEL, Appellant-Defendant, v. Dale WARD, successor in interest to original Plaintiff, Plan Administrators, Inc., Appellee-Plaintiff
    Court of Appeals Case No. 18A-PL-597
    Court of Appeals of Indiana.
    FILED September 17, 2018
    Attorney for Appellant: Kevin E. Steele, Burke Costanza & Carberry LLP, Valparaiso, Indiana
    Attorney for Appellee: James R. Schrier, Reiling Teder & Schrier, LLC, Lafayette, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] A Wisconsin corporation obtained a default judgment against Timothy C. Troxel in Wisconsin state court and later sought to enforce that judgment in Indiana. The LaPorte Circuit Court ultimately ordered the sale of Troxel's stock in an Indiana corporation to satisfy the Wisconsin judgment. Upon learning of the sale of his stock, Troxel filed a motion to set aside the sale pursuant to Indiana Trial Rule 60(B). Because Troxel was not properly served with notice of the Wisconsin lawsuit, the Wisconsin court did not have personal jurisdiction over him. Accordingly, the Wisconsin judgment and any Indiana orders based upon it are void. We therefore reverse the trial court's denial of Troxel's Trial Rule 60(B) motion.

Facts and Procedural History

[2] In late 2013 or early 2014, Troxel moved from Indiana to Florida. See Appellant's App. Vol. II pp. 77 (Troxel's affidavit stating that he has been a Florida resident since December 2013), 11 (trial court's order stating that Troxel became a Florida resident in 2014); Tr. p. 19 (Troxel testifying that in late 2013, he bought a condo in Florida and "intended to stay there"). In November 2014, Plan Administrators, Inc., a Wisconsin corporation with its principal place of business in Wisconsin, filed a lawsuit against Troxel and WK Payroll, Inc. (Troxel's company) in Wisconsin state court. The complaint alleged that in 2013 WK Payroll executed a promissory note agreeing to pay Plan Administrators $653,000, Troxel executed a guaranty for the $653,000 promissory note, WK Payroll breached the promissory note by failing to make payments, and Plan Administrators was accelerating the amount due. The complaint also alleged:

Timothy Troxel is an adult resident of the state of Indiana. His address is unknown but he utilizes P.O. Box 637, Franc[e]sville, Indiana 47946 as his mail box for delivery of mail, notices and the like.

Appellant's App. Vol. II p. 83. On December 29, 2014, Plan Administrators left a copy of the summons and complaint for Troxel and WK Payroll at 106 E. Montgomery Street in Francesville, Indiana. According to Troxel, he owned a company called ASI Property Management and that company owned the brick building at 106 E. Montgomery Street from "2003 until roughly 2015," when it was foreclosed. Tr. p. 14.

[3] When neither WK Payroll nor Troxel responded to the Wisconsin lawsuit, Plan Administrators filed a motion for default judgment in April 2015 alleging that the complaint and summons "were properly served on [WK Payroll and Troxel] on December 29, 2014" and they have "failed to answer or otherwise respond." Appellant's App. Vol. II p. 153. In support, Plan Administrators filed, among other things, an Affidavit of Service explaining how service was attempted on Troxel in Indiana. The Affidavit of Service, executed by the process server, provides:

?

Id. at 159. A second affidavit from the process server similarly provides:

4 attempts made [at 106 E. Montgomery Street] with no evidence of occupancy-neighbors, businesses & city offices were canvassed and opinion of those persons is that defendant moved when his business closed. Business is now vacant.

Id. at 161.

[4] Before the Wisconsin court entered default judgment, the clerk asked Plan Administrators' attorney for the "citation for the Indiana Stat. that permits posting a summons & Complaint as a substitute for personal service." Id. at 143. This is because the Wisconsin service rules provide that if a defendant is not personally served "within or without" Wisconsin, the defendant may be served in another state according to that state's service rules. See Wis. Stat. § 801.11(1)(b)(2) ; Judicial Council Notes, 1986, Wis. Stat. § 801.11. Plan Administrators gave the Wisconsin court a copy of Indiana Trial Rule 4.1, which provides that service may be made on an individual by "leaving a copy of the summons and complaint at his dwelling house or usual place of abode." Ind. Trial Rule 4.1(A)(3). Plan Administrators argued that it satisfied Indiana Trial Rule 4.1(A)(3) because its process server "left a copy of the Summons and Complaint at the dwelling." Appellant's App. Vol. II p. 150.

[5] On April 16, 2015, the Wisconsin court entered default judgment in favor of Plan Administrators and against WK Payroll and Troxel in the amount of $490,010.13 plus costs. Id. at 16.

[6] Over a year later, in May 2016, Plan Administrators filed in LaPorte Circuit Court a Notice of Filing of Foreign Judgment and a Complaint to Enforce Foreign Judgment against Troxel pursuant to Indiana Code chapter 34-54-11, Indiana's Uniform Enforcement of Foreign Judgments Act (UEFJA). Pursuant to the UEFJA, Plan Administrators also filed an affidavit setting forth that Troxel was an Indiana resident "living in LaPorte County, with a last-known address of 412 South Washington Street, La Crosse, Indiana 46348." Id. at 21; see also Ind. Code § 34-54-11-2(a). A summons and complaint were sent via certified mail to Troxel at the La Crosse, Indiana address; however, they were marked "return[ed] to sender" and "unable to forward." Appellant's App. Vol. II p. 24; see also I.C. § 34-54-11-2(d) (providing that the judgment creditor shall "(1) mail a notice of the filing of the [foreign] judgment to the judgment debtor; and (2) file proof of mailing with the clerk.").

[7] Nevertheless, Plan Administrators moved forward. The next month, June 2016, Plan Administrators filed a motion for proceedings supplemental against Troxel and Adaptasoft, Inc., as garnishee defendant (based on Troxel's ownership of stock in Adaptasoft). A hearing was scheduled for July 18. Notice of the hearing was published in the Herald Argus, a daily newspaper in LaPorte, on June 22, June 29, and July 6. Appellant's App. Vol. II pp. 29-32. Troxel did not appear at the hearing.

[8] In February 2017, Plan Administrators filed a notice that it had assigned its right, title, and interest in the Wisconsin judgment to Dale Ward, and Ward was substituted as a party in this case. Id. at 34. Ward then asked the LaPorte Circuit Court for an order authorizing the sale of 8578 shares of Adaptasoft stock (which was valued at approximately $300,000) owned by Troxel. Id. at 36, 42. In May, the LaPorte Circuit Court entered an order authorizing the sale of Troxel's stock, which was to take place on June 29 at the courthouse in LaPorte. Id. at 44, 48. Notice of the sale was published in The News Dispatch, a daily newspaper in Michigan City, on June 1 and 8. Id. at 54. Ward purchased Troxel's stock at the sale. Id. at 50.

[9] After learning of the sale of his Adaptasoft stock, Troxel filed a motion to set aside the sale pursuant to Indiana Trial Rule 60(B) in August 2017. Id. at 55. Following a hearing, the LaPorte Circuit Court issued an order denying the motion to set aside. Id. at 11.

[10] Troxel now appeals.

Discussion and Decision

[11] Troxel contends, among other things, that the LaPorte Circuit Court's order authorizing the sale of his Adaptasoft stock is void pursuant to Trial Rule 60(B)(6) because he "was not properly served with either the institution of the underlying [Indiana] action or the attempt to sell his Adaptasoft stock." Appellant's Reply Br. p. 8. Indiana Trial Rule 60(B)(6) provides that a court may relieve a party from a judgment, including a default judgment, because the judgment is void. Rather than addressing whether Troxel was properly notified of the Indiana proceedings, we find that the LaPorte Circuit Court's order authorizing the sale of Troxel's stock is void for purposes of Trial Rule 60(B)(6) for a more fundamental reason. That is, "[a] judgment which is void in the state where it is entered is also void in Indiana" and cannot be the basis for a subsequent judgment in Indiana. Jenkins v. Futch , 640 N.E.2d 379, 381 (Ind. Ct. App. 1994) (concluding that because a Texas order was void for lack of personal jurisdiction, the Indiana trial court "erred in enforcing this void order"); P.M.S., Inc. v. Jakubowski , 585 N.E.2d 1380, 1382-83 (Ind. Ct. App. 1992) (concluding that because a New York default judgment was void for lack of personal jurisdiction, the Indiana trial court's order enforcing it was also void); see also GIW Indus., Inc. v. Patriot Materials, Inc ., 926 N.E.2d 491, 495 (Ind. Ct. App. 2010) ; Commercial Coin Laundry Sys. v. Enneking , 766 N.E.2d 433, 439 (Ind. Ct. App. 2002).

[12] The United States Constitution requires state courts to give full faith and credit to the judgments of the courts of all states. U.S. Const. art. IV, § 1. However, an out-of-state judgment is always open to collateral attack for lack of personal or subject-matter jurisdiction. GIW Indus., 926 N.E.2d at 494. Thus, before an Indiana court is bound by a foreign judgment, it may inquire into the jurisdictional basis for that judgment; if the first court did not have jurisdiction over the parties or the subject matter, then full faith and credit need not be given. Id. The party attacking the judgment of a sister state bears the burden of rebutting the presumption that a foreign judgment, which is regular and complete on its face, is valid. Id. In assessing a collateral attack on a foreign judgment, we apply the law of the state where the judgment was rendered. Id.

[13] We recognize that Troxel does not argue that the Wisconsin judgment is void for lack of personal jurisdiction in the context of Trial Rule 60(B)(6) ; however, he does challenge the Wisconsin judgment in his brief. See Appellant's Br. pp. 21-22. And on appeal, Ward recognizes that Troxel has challenged the Wisconsin judgment. See Appellee's Br. p. 23 ("Troxel appears to suggest that the Wisconsin judgment is void because that court lacked personal jurisdiction ...."); see also Tr. p. 23 (trial court acknowledging at the hearing that Troxel had attacked the validity of the Wisconsin judgment "back handedly"). Ward argues, however, that the scope of jurisdictional review is limited. See V.L. v. E.L. , --- U.S. ----, 136 S.Ct. 1017, 1020, 194 L.Ed.2d 92 (2016) (explaining that jurisdictional inquiry into a foreign court's judgment is limited: "[I]f the judgment on its face appears to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself." (quotations omitted) ). Ward claims that personal jurisdiction should be presumed in this case because "[t]here is nothing in the record itself or in the evidence submitted to suggest that jurisdiction was not proper in the Wisconsin lawsuit." Appellee's Br. p. 23.

[14] But there is such evidence. In accordance with the Wisconsin service rules, Plan Administrators attempted to serve Troxel pursuant to Indiana Trial Rule 4.1(A)(3), which provides that service may be made on an individual by "leaving a copy of the summons and complaint at his dwelling house or usual place of abode ." (Emphasis added). Plan Administrators argued that leaving a copy of the summons and complaint at 106 E. Montgomery Street in Francesville, Indiana, satisfied Indiana Trial Rule 4.1(A)(3) because the documents were left "at the dwelling." Appellant's App. Vol. II p. 150.

[15] However, service upon a defendant's former residence is not sufficient to confer personal jurisdiction. Mills v. Coil , 647 N.E.2d 679, 681 (Ind. Ct. App. 1995), reh'g denied , trans. denied ; see also Poteet v. Bethke , 507 N.E.2d 652, 654 (Ind. Ct. App. 1987) (concluding that service was defective because the complaint and summons were left at an address that the defendant had permanently moved from ten months earlier). Here, the Affidavit of Service, submitted by Plan Administrators, establishes that 106 E. Montgomery Street was not Troxel's dwelling house or usual place of abode when the process server left the summons and complaint there on December 29, 2014. The Affidavit of Service provides that on four separate occasions the process server went to the property but there was "no response." Appellant's App. Vol. II p. 159. Moreover, the process server stated that the property was "vacant" with "no one ... living there now." Id. ; see also id. at 161 ("4 attempts made with no evidence of occupancy ...."). The process server also spoke with several people in the area, and it was believed that Troxel had moved from the vacant address two to three weeks earlier. Even if we assume that Troxel had previously lived at 106 E. Montgomery Street, it was not his dwelling house or usual place of abode when service was attempted there on December 29, 2014. Accordingly, Troxel was not properly served with notice of the Wisconsin lawsuit pursuant to Indiana Trial Rule 4.1(A)(3).

[16] According to Wisconsin law, a court gains personal jurisdiction over a party only by valid personal or substituted service. PHH Mortg. Corp. v. Mattfeld , 333 Wis.2d 129, 799 N.W.2d 455, 458 (Wis. Ct. App. 2011) ; see also Wis. Stat. § 801.04 (providing that a court who has subject-matter jurisdiction may render a judgment against a party personally only if a summons is served upon the person pursuant to Section 801.11 or the person appears and waives the defense of lack of personal jurisdiction). Wisconsin compels strict compliance with its service rules even though the consequences may appear to be harsh. PHH Mortg. , 799 N.W.2d at 458, 333 Wis.2d 129. Because Troxel was not properly served with notice of the Wisconsin lawsuit, the Wisconsin court did not have personal jurisdiction over Troxel when it entered default judgment against him and therefore that judgment is void. Accordingly, any Indiana orders based on the void Wisconsin judgment are also void. See, e.g. , Jenkins , 640 N.E.2d at 381. We therefore reverse the LaPorte Circuit Court's denial of Troxel's Trial Rule 60(B) motion and remand with instructions for the court to vacate its order authorizing the sale of Troxel's stock.

[17] Reversed and remanded.

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

      Notably, the guaranty that Plan Administrators attached to the complaint states that Troxel is a Florida resident. See Appellant's App. Vol. II p. 90.

      Plan Administrators' attorney submitted an Affidavit of Default along with the motion for default judgment. The Affidavit of Default erroneously provides that the summons and complaint were "personally served" on WK Payroll and Troxel on December 29, 2014. Appellant's App. Vol. II p. 160.

      The Affidavit of Service for WK Payroll is identically worded. See Appellant's App. Vol. II p. 158.

      Ward nevertheless argues that the Wisconsin court had personal jurisdiction over Troxel because Plan Administrators' attorney informed Troxel's attorney about the Wisconsin lawsuit in a telephone call. See Appellee's App. Vol. II p. 2. Even if Troxel knew about the Wisconsin lawsuit from his attorney, which he denied at the hearing, see Tr. p. 18, it is the law in both Wisconsin and Indiana that the mere fact that a defendant has knowledge of the action does not grant a court personal jurisdiction, Goodson v. Carlson , 888 N.E.2d 217, 220 (Ind. Ct. App. 2008) ; Hill v. Ramey , 744 N.E.2d 509, 512 (Ind. Ct. App. 2001) ; Span v. Span , 52 Wis.2d 786, 191 N.W.2d 209, 211 (1971).


author: Pyle, Judge.

text:
    Jamie Lynn GISH, Appellant-Respondent, v. Patrick Michael GISH, Appellee-Petitioner.
    Court of Appeals Case No. 15A05-1711-DR-2628
    Court of Appeals of Indiana.
    FILED September 28, 2018
    Attorney for Appellant: R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana
    Attorney for Appellee: Leanna Weissmann, Lawrenceburg, Indiana
   Pyle, Judge.

Statement of the Case

[1] The trial court dissolved the marriage of Jamie Gish ("Wife") and Patrick Gish ("Husband") and divided their assets. When dividing the property, the trial court awarded Husband the entirety of what is now known as the Hilliard Lyons retirement account ("the Hilliard Lyons account"). Husband had funded this account with a $15,000 deposit in 1987, two years before the parties' marriage. During the course of the parties' twenty-six-year marriage, although no additional contributions were made to the Hilliard Lyons account, the account grew to $206,950, all of which the trial court awarded to Husband. Wife now appeals and argues that the trial court abused its discretion when it awarded the entire Hilliard Lyons account to Husband.

[2] Finding that the trial court abused its discretion when it concluded that Husband had rebutted the presumption that an equal division of marital property was just and reasonable and awarded the entire Hilliard Lyons account to Husband, we reverse and remand with instructions for the trial court to equally divide between the parties the interest on the Hilliard Lyons account that accrued during the course of the parties' marriage.

[3] We reverse and remand with instructions.

Issue

Whether the trial court abused its discretion when it concluded that Husband had rebutted the presumption that an equal division of property was just and reasonable and awarded the entire Hilliard Lyons account to Husband.

Facts

[4] Husband received an engineering degree from Rose Hulman Institute of Technology in 1982 and has worked primarily in the aviation industry since that time. In 1987, Husband opened the Hilliard Lyons account in his name and deposited $15,000 in it, intending to let the money grow until his retirement. In 1989, Husband married Wife, who had received an associate's degree in cosmetology in 1985 and who worked as a hair stylist. The parties had two children who were born in February 1991 and May 1996.

[5] In May 2016, Husband filed a petition to dissolve his twenty-six-year marriage to Wife. At the dissolution hearing, Husband testified that his yearly salary was "slightly over a hundred thousand dollars per year ...." (Tr. at 11). Husband further testified that the Hilliard Lyons account was a deferred tax annuity and that he had not made any additional contributions to the account after he had opened it. Husband agreed that the growth in the account was "an example of the wonders of compounding [interest]." (Tr. 26). He also agreed that "through the twenty-some years of marriage, [it] was the intent that [the Hilliard Lyons account] be used for [he] and [his] wife for retirement [and that] if [his] wife was still around, yes, it would be used for her, too." (Tr. 60). However, Husband requested that this account "be set over to [him] without [Wife] receiving any credit or set off." (Tr. 27).

[6] Wife testified that she is a self-employed hair stylist with "a one chair, one sink, one dryer salon" and that she could "only see one client, sometimes a second, at a time." (Tr. 78). Wife's salon is located in a trailer that she rents, and Wife does "not have a walk-in business. [She's] just established with ... referrals and regular clientele." (Tr. 79). When asked if she "was capable of making fifteen thousand [dollars], a little more, a year," Wife explained that "with [her] age and [her] health, [she'd] had some issues." (Tr. 79). Wife further explained that she was "looking at" eight hundred dollars per month out of pocket for her health insurance. (Tr. 80). Wife also testified that although Husband had "controlled the money" during the course of the marriage, she had known that he had retirement investments. (Tr. 87). She asked the trial court to award her one half of the "interest income and investment increase that occurred during the marriage on [the Hilliard Lyons account]." (Tr. 87).

[7] After the hearing, the trial court issued an order that provides, in relevant part, as follows:

6. Pursuant to I.C. 31-15-7-4, the [Hilliard Lyons account is a] marital asset[ ] subject to division by this Court. However, the equal division starting point set forth in I.C. 31-15-7-5 may be rebutted by evidence that an equal division would not be just and reasonable due to the following factors applicable to this case: (1) the contribution of each spouse to the acquisition of the property; and (2) the extent to which the property was acquired by each spouse before the marriage or through inheritance or gift. Regarding [the Hilliard Lyons account], it should be set over to [Husband] without a corresponding credit given to [Wife] because only [Husband] contributed to its acquisition, he acquired it prior to the marriage and during the marriage, no contributions were made by either party to it or expense by either party for it.... Based on the above, [Husband] ha[s] rebutted the presumption that an equal division of their marital property is just and reasonable.

(App. 52). The trial court equally divided the remainder of the parties' property. According to the trial court's order, Husband received a net value distribution of $199,730, and Wife received a net value distribution of $199,731. Wife now appeals.

Decision

[8] At the outset we note that the trial court properly concluded that the Hilliard Lyons account was a marital asset. In Montgomery v. Faust , 910 N.E.2d 234, 238 (Ind. Ct. App. 2009), this Court explained that the "requirement that all marital assets be placed in the marital pot is meant to insure that the trial court first determines the value before endeavoring to divide the property." Here, however, the trial court "set over" the Hilliard Lyons account to Husband and improperly failed to include its value in the marital pot. Thus, although the trial court's order indicates that it equally distributed the marital assets, when the value of the Hilliard Lyons account is factored back in, the resulting division is 67% of the estate to Husband and 33% of the estate to Wife. See Doyle v. Doyle , 756 N.E.2d 576, 578 (Ind. Ct. App. 2001) (explaining that "[a]lthough the trial court's Order indicate[d] that it divided the marital estate on a 50/50 basis, in reality, the resulting division when the premarriage value of assets [was] factored in [was] 56.7/43.3 in favor of [the husband"). It is with this resulting division in mind that we turn to the issue in this case.

[9] Wife argues that the trial court abused its discretion when it awarded the entire Hilliard Lyons account to Husband. Specifically, Wife contends that the trial court abused its discretion when it concluded that Husband had rebutted the presumption that an equal division of marital property is just and reasonable.

[10] The disposition of marital assets is within the sound discretion of the trial court. Hatten v. Hatten , 825 N.E.2d 791, 794 (Ind. Ct. App. 2005), trans. denied . When we review a claim that the trial court improperly divided marital property, we must determine whether the trial court's decision constitutes an abuse of discretion. Id. In so doing, we consider only the evidence most favorable to the trial court's disposition of the property, without reweighing or assessing the credibility of witnesses. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law or disregards evidence of factors listed in the controlling statute. Id.

[11] By statute, the trial court must divide the property of the parties in a just and reasonable manner, including the property owned by either spouse prior to the marriage, acquired by either spouse after the marriage and prior to final separation of the parties, or acquired by their joint efforts. IND. CODE § 31-15-7-4. An equal division of marital property is presumed to be just and reasonable. IND. CODE § 31-15-7-5. This presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) final determination of the property rights of the parties.

Id.

[12] All of these factors are to be considered together, with no one factor alone necessarily proving or requiring an unequal division. In re Marriage of Marek , 47 N.E.3d 1283, 1290-91 (Ind. Ct. App. 2016) (citing Fobar v. Vonderahe , 771 N.E.2d 57, 59-60 (Ind. 2002) (explaining that the trial court's distribution is to be considered as a whole, not item by item and therefore, "[e]ven if some items meet the statutory criteria that may support an unequal division of the overall pot, the law does not require an unequal division if overall considerations render the total resolution just and equitable."). Further, the mere fact of traceability of assets should not be the basis for deviation from the presumptive equal division. Hatten, 825 N.E.2d at 796.

[13] Here, our review of the trial court's order reveals that the trial court considered only two factors set forth in INDIANA CODE § 31-15-7-5, the statute governing the division of marital property. Specifically, the trial court considered that Husband had contributed to the acquisition of the Hilliard Lyons account and that he had acquired it prior to the marriage. However, the trial court disregarded evidence of additional factors set forth in the controlling statute.

[14] For example, one of the statutory factors is the earning ability of the parties as related to a final division of the property. Our review of the testimony at the dissolution hearing reveals that the trial court disregarded evidence that Husband has the ability to earn four times the yearly salary than Wife has the ability to earn. Further, Wife's ability to earn is restricted by her "one chair, one sink, one dryer salon," and, in light of Wife's age and health, it appears unlikely that her earning ability will increase in the future. (Tr. 79). In addition, another of the statutory factors is the economic circumstances of each spouse at the time the disposition of the property is to become effective. The trial court disregarded evidence that despite the vast difference in the parties' earning abilities, Husband was receiving 67% of the marital estate and Wife was only receiving 33% of the estate.

[15] We further note that although Husband established the Hilliard Lyons account two years before the marriage, most of the appreciation occurred during the parties' twenty-six-year marriage. Further, Wife knew that Husband had retirement investments, and Husband had intended to use funds in the Hilliard Lyons account for Wife's retirement as well as his own.

[16] Our review of this evidence leads us to conclude that the trial court abused its discretion when it concluded that Husband had rebutted the presumption that an equal division of the parties' property was just and reasonable and when it awarded the entire Hilliard Lyons account to Husband. We reverse the trial court's property division as to the Hilliard Lyons account and remand with instructions for the trial court to equally divide between the parties the interest on the Hilliard Lyons account that accrued during the course of the parties' marriage.

[17] Reversed and remanded with instructions.

Vaidik, C.J., and Barnes, Sr.J., concur.

      The trial court set aside to Wife real estate having a value of $2,000 and a one-half interest in three accounts having a total value of $1,850. Wife's mother had transferred the real estate and accounts to Wife for estate planning purposes. Husband does not challenge the trial court's distribution of this property.

      The trial court recognized this unequal distribution of property when it concluded in its order that Husband had rebutted the presumption that an equal division of property was just and reasonable.

      Husband's reliance on Doyle , 756 N.E.2d at 578, is misplaced. In Doyle , the wife came into the marriage with $14,000 in funds she had received to compensate her for injuries she had sustained in a serious automobile accident that had occurred eleven years before the 1996 marriage. During the course of the four-year marriage, the invested $14,000 appreciated by $11,400. When the parties divorced, the trial court divided the property such that the husband shared equally in the appreciation of the funds. On appeal, this Court pointed out that the wife had: (1) acquired the funds eleven years before entering into the four-year marriage; (2) never commingled the funds with any other assets; (3) earmarked the funds specifically for the provision of future medical expenses arising out of her back injury; (4) never contributed any marital assets to the accounts; and (5) maintained the funds solely in her name. We noted the "unique circumstances surrounding the personal injury settlement funds, where the sole purpose of the funds was to provide for future medical expenses arising from the wife's serious injuries. Id. Based on these facts, we concluded that "effectively splitting the appreciation in [the] funds between [the husband and the wife] equally, would lead to an unjust and unreasonable result." Id. at 580. Therefore, to achieve a just and reasonable result, we ordered the trial court to award the funds and their appreciation exclusively to the wife and to not use them to reduce the amount of marital property to which she was otherwise entitled. Id. The facts before us are distinguishable from those in Doyle in two important respects. First, Husband established the Hilliard Lyons account just two years before the almost thirty-year marriage. Second, Husband established the account as a retirement account that he fully expected to share with Wife in their later years. Because of these distinctions, Doyle does not compel the award of the Hillary Lyons account exclusively to Husband.


author: Riley, Judge.

text:
    Bruce T. EATON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-1248
    Court of Appeals of Indiana.
    FILED September 28, 2018
    Attorney for Appellant: Thomas C. Allen, Fort Wayne, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Bruce Eaton (Eaton), appeals his conviction for unlawful possession of a firearm by a serious violent felon, a Level 4 felony, Ind. Code § 35-47-4-5(c) ; and resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44-1-3(1)(a)(1).

[2] We affirm.

ISSUE

[3] Eaton raises one issue for our review, which we restate as whether the trial court abused its discretion when it admitted evidence obtained in violation of his federal and state constitutional rights.

FACTS AND PROCEDURAL HISTORY

[4] On January 19, 2018, Detective Marc DeShaies (Detective DeShaies) of the Fort Wayne Police Department was performing surveillance on a home suspected to be the site of gang-related activity. The purpose of the surveillance was to generate probable cause so that law enforcement could procure and serve a search warrant there. Detective DeShaies observed a group of people exit the home and drive away in a black vehicle. While following the vehicle, Detective DeShaies noted that two of the vehicle's turn signals were malfunctioning and that its windows were heavily tinted such that it was not possible to discern the occupants. In addition, Detective DeShaies observed the driver of the vehicle driving above the posted speed limit.

[5] Detective DeShaies activated his vehicle's emergency lights and chirped his siren, and the driver of the black vehicle pulled over to the curb. Immediately after the black vehicle came to a stop and before Detective DeShaies had radioed in the traffic stop, Eaton opened the rear passenger door and started to exit. Given the immediacy of Eaton's attempt to exit the car, Detective DeShaies believed that he was about to be attacked or that Eaton would flee. Detective DeShaies, who was wearing a full police uniform, exited his car and quickly closed the distance between himself and Eaton, loudly shouting for Eaton to get "back in the car." (State's Exhibit 1 at 0:47). When Detective DeShaies was at the car door, Eaton looked at him and attempted to place his legs outside the vehicle. Detective DeShaies observed Eaton place his hand at his waistband, which Detective DeShaies knew from experience was where a gun could be carried. Detective DeShaies could see that there were seven passengers in the car, some of whom were known to him to be gang members who had been involved in recent shootings. Detective DeShaies feared that he would be attacked.

[6] Detective DeShaies gave multiple commands to the occupants of the vehicle to stop moving and place their hand on their heads, but not all of them complied. Detective DeShaies observed another passenger in the back seat reaching between his legs to the floor of the vehicle, which Detective DeShaies knew from his experience could be an attempt to hide contraband or a weapon. Eaton continued to touch his waistband with one hand while using the other hand to attempt to pull himself from the vehicle. Detective DeShaies, who still had not had an opportunity to call for assistance, grew even more concerned that he was about to be attacked. Detective DeShaies placed his hand on Eaton's chest to keep Eaton inside the vehicle, but Eaton continued to struggle and push back. Detective DeShaies drew his gun and issued an ultimatum that he would be forced to shoot if his commands were not obeyed. Detective DeShaies then radioed for assistance using the most urgent call available, and other officers quickly arrived.

[7] Eaton was handcuffed and taken from the vehicle. When he stood to be led away from the vehicle, Eaton's loose-fitting athletic pants fell down. He was seated on a curb for a short time. When he stood prior to being transported, a fully loaded Smith and Wesson nine-millimeter handgun was discovered in his pants pocket. Eaton, who had a previous conviction for burglary, later admitted during an interview with police that he carried the weapon for protection. Eaton did not have a valid permit to carry a handgun.

[8] On January 25, 2018, the State filed an Information and charged Eaton with one Count of unlawful possession of a firearm by a serious violent felon and one Count of resisting law enforcement. Eaton filed a motion to suppress the evidence gathered from the traffic stop, arguing that Detective DeShaies lacked the necessary reasonable suspicion of criminal activity to detain him, as he was merely a passenger in a vehicle that was subject to traffic violations. Eaton reiterated this argument at the hearing held on his motion. On April 17, 2018, the trial court denied Eaton's motion to suppress, and Eaton waived his right to a jury trial. On April 18, 2018, the trial court found Eaton guilty on both Counts. On May 8, 2018, the trial court sentenced Eaton to ten years for the firearm conviction and to one year for the resisting law enforcement conviction, to be served concurrently, for an aggregate sentence of ten years.

[9] Eaton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[10] Although Eaton presents the issue as an appeal from the trial court's denial of his motion to suppress, the issue is better framed as whether the trial court erred in admitting evidence obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution. We review a trial court's decision on the admission of evidence for an abuse of the trial court's discretion. Fansler v. State , 100 N.E.3d 250, 253 (Ind. 2018). We will reverse "only where the decision is clearly against the logic and effect of the facts and circumstances." Id. We do not reweigh the evidence and consider conflicting evidence in a light most favorable to the trial court's ruling. Buckley v. State , 886 N.E.2d 10, 13 (Ind. Ct. App. 2008). However, we also consider any uncontested evidence favorable to the defendant. Id. We will affirm the trial court's ruling if it is supported in the record by substantial evidence of probative value. Id. at 13-14. The ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo . Carpenter v. State , 18 N.E.3d 998, 1001 (Ind. 2014).

II Fourth Amendment

[11] The Fourth Amendment protects "[t]he right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. A traffic stop constitutes a "seizure" for purposes of the Fourth Amendment. Whren v. United States , 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An officer may properly stop a vehicle when the driver of the vehicle is observed committing even a traffic infraction. Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). Once a vehicle is stopped for a traffic infraction, any passengers within the vehicle are also effectively "seized" for purposes of the Fourth Amendment. Arizona v. Johnson , 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

[12] In Tawdul v. State , 720 N.E.2d 1211, 1216-17 (Ind. Ct. App. 1999), trans. denied , cited by the State on appeal but not by Eaton, this court held that, under the Fourth Amendment, an officer has the limited right to briefly detain a passenger who exits a vehicle after it has been lawfully stopped for a traffic violation. As part of that limited right, an officer may order a passenger who has exited a vehicle to return, but that authority lasts only long enough for the officer to make an initial assessment of the situation and alleviate any concerns the officer has for his or her safety. Id. at 1217. In addition, "[i]f probable cause or reasonable suspicion develop during this short period of time, then the officer may be justified in detaining the individual longer in order to further investigate." Id.

[13] The Tawdul Court observed that another panel of this court had reached a contrary conclusion in Walls v. State , 714 N.E.2d 1266 (Ind. Ct. App. 1999). Id. at 1216. In declining to follow Walls , the Tawdul court noted the trend in other jurisdictions holding that the public interest in officer safety outweighs the potential intrusion on passengers' personal liberty interests during a traffic stop and that, thus, it is not unreasonable for an officer to order a passenger to return to the vehicle, even without independent reasonable suspicion of wrongdoing by the passenger. Id. at 1216-17.

[14] We apply Tawdul and find that Detective DeShaies' initial detainment of Eaton was reasonable under the Fourth Amendment. Detective DeShaies had observed the car in which Eaton was a passenger making at least three traffic code violations, precipitating a valid stop of the vehicle. Reinhart, 930 N.E.2d at 45. When Eaton opened the car door and attempted to exit, Detective DeShaies was constitutionally permitted to order Eaton back into the car for a brief period so that he could assess the situation and address any safety issues. Tawdul , 720 N.E.2d at 1217. Although Tawdul did not involve the forcible detainment of a passenger such as occurred here, we note that Detective DeShaies' act of using his hand to keep Eaton in the vehicle did not entail the excessive use of force and was a reasonable attempt to control Eaton while assessing the situation and addressing safety concerns. Eaton did not comply with Detective DeShaies' commands to stop moving and remain in the car. Eaton pushed back against Detective DeShaies' hand and struggled to get out of the car, which provided probable cause for his arrest for resisting law enforcement. See Ind. Code § 35-44.1-3-1(a)(1) ("A person who knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in the execution of the officer's duties ... commits resisting law enforcement."). The gun was then found in Eaton's pocket during a search incident to his arrest for resisting law enforcement. See Neely v. State , 240 Ind. 362, 164 N.E.2d 110, 110 (1960) ("It is well settled that a search reasonably incident to a lawful arrest can properly be made although accomplished without a search warrant.").

[15] Eaton contends that his Fourth Amendment rights were violated because he was arrested and seized without probable cause when Detective DeShaies drew his weapon and held it upon him. However, Eaton's argument is unpersuasive given that, by pushing against Detective DeShaies and struggling to get out of the car while being lawfully detained during the execution of the traffic stop, Eaton had supplied Detective DeShaies with probable cause to arrest him for resisting law enforcement before Detective DeShaies drew his weapon. His arguments pertaining to why Detective DeShaies' actions exceeded the authority of an investigative stop are also unpersuasive given that we have determined that Eaton's initial detainment was valid and that the subsequent search of his person was done incident to a valid warrantless arrest for resisting law enforcement. The brief detainment and subsequent search incident to arrest yielding the gun did not run afoul of Eaton's Fourth Amendment rights.

II. Article 1, Section 11

[16] Article 1, Section 11, of the Indiana State Constitution provides in relevant part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure, shall not be violated." Although this language largely tracks that of the Fourth Amendment, we interpret and apply it independently. Mitchell v. State , 745 N.E.2d 775, 786 (Ind. 2001). The reasonableness of a search or seizure under the Indiana Constitution "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). Those circumstances may include 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 citizen's ordinary activities, and 3) the extent of law enforcement needs. Id. at 361. In determining the reasonableness of law enforcement's actions under Section 11, we recognize that Indiana citizens are concerned with personal privacy interests but that they are also concerned with safety, security, and protection from crime. Saffold v. State , 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied . As such, we consider officer safety as a factor when assessing reasonableness. Id.

[17] The Tawdul court held that an officer's brief detainment of a passenger in a vehicle stopped for a traffic violation does not run afoul of the Indiana Constitution. Tawdul , 720 N.E.2d at 1214, 1216-17. Thus, Detective DeShaies was constitutionally permitted to order Eaton to get back in the car. Detective DeShaies' act of placing his hand on Eaton's chest to detain him there briefly to assess the situation, even before Detective DeShaies developed any concern, suspicion, or knowledge that Eaton had committed any criminal violation was reasonable: after approaching the vehicle, Detective DeShaies surmised he was outnumbered seven-to-one, some of the passengers in the vehicle he knew to be armed gang members, he had not had the opportunity to call for back up, Eaton and at least one other passenger had made furtive movements indicating they may be armed, and the detective feared he was about to be attacked. In addition, the intrusion on Eaton was minimal given that he had already been stopped to effectuate the traffic stop and the degree of force used by Detective DeShaies was minimal.

[18] When Eaton continued to push back against Detective DeShaies and struggled to exit the vehicle, he supplied probable cause for his arrest for resisting law enforcement, which justified Eaton's continued detainment. See Ind. Code § 35-33-1-1(a)(4) (providing that a law enforcement officer may arrest a person when the officer has probable cause to believe the person is committing a misdemeanor in the officer's presence). After probable cause for Eaton's arrest developed, officers were then allowed to search Eaton incident to this valid arrest. See Edwards v. State , 759 N.E.2d 626, 629 (Ind. 2001) ("[O]nce a lawful arrest has been made, authorities may conduct a 'full search' of the arrestee for weapons or concealed evidence.") (citation omitted).

[19] Eaton argues that Detective DeShaies did not have the necessary degree of knowledge and concern of criminal activity on Eaton's part to justify an investigative stop, the intrusion on Eaton was "immense" given that he was stopped from leaving the vehicle at gunpoint, and that Detective DeShaies actions were not justified for safety reasons. (Appellant's Br. p. 17). In light of Tawdul , we note that the balance of these factors as regards the detainment of a passenger in a vehicle stopped for a traffic violation has already been struck in favor of constitutionality. Tawdul , 720 N.E.2d at 1214, 1216-17. These arguments are also unpersuasive given the fact that Detective DeShaies had probable cause to effect a warrantless arrest on Eaton for resisting law enforcement when he drew his weapon. Inasmuch as Eaton argues that Detective DeShaies was not justified in drawing his weapon on Eaton because his safety concerns did not bear any indicia of reliability, we find this to be an invitation to reweigh the evidence, which, given our standard of review, we decline. Buckley , 886 N.E.2d at 13. Eaton's state constitutional rights were not violated by any government action, and the trial court did not abuse its discretion in admitting the challenged evidence.

CONCLUSION

[20] We conclude that the trial court did not abuse its discretion when it admitted evidence garnered from a traffic stop that did not violate Eaton's federal or state constitutional rights.

[21] Affirmed.

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


author: Darden, Senior Judge.

text:
    James Wade BAKER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 30A01-1710-CR-2511
    Court of Appeals of Indiana.
    Filed October 9, 2018 Rehearing Denied November 29, 2018
    Attorney for Appellant: Nicole A. Zelin, Pritzke & Davis, LLP, Greenfield, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
   Darden, Senior Judge.

Statement of the Case

[1] James Wade Baker, Jr., appeals his convictions by jury of resisting law enforcement by use of a vehicle, a Level 6 felony, and driving while suspended with a prior similar offense within the past ten years, a Class A misdemeanor. We affirm.

Issues

[2] Baker raises three issues, which we consolidate and restate as:

I. Whether under the circumstances, the trial court erred in admitting into evidence a witness's statement by an unnamed, absent person; and
II. Whether under the circumstances, the trial court erred in admitting into evidence a witness's description of Baker's statement while in custody.

Facts and Procedural History

[3] On the evening of May 23, 2017, Deputy Donald Stegman of the Hancock County Sheriff's Department was on patrol in a fully marked police car. He encountered a black Honda sedan and checked the vehicles license plate number in the Bureau of Motor Vehicle's online records. Stegman discovered the license plate number was assigned to a tan Chevy SUV.

[4] At that point, Deputy Stegman activated his red and blue flashing lights to signal the driver of the Honda to stop. Instead of stopping, the Honda accelerated and fled from Stegman. Stegman pursued the Honda from Hancock County into Marion County on Washington Street. The Honda traveled at a very high rate of speed in a high-traffic area, driving through several red lights. Stegman notified dispatch he was going to end his emergency pursuit due to the Honda's unsafe speed and the driver's erratic behavior in a busy area.

[5] Meanwhile, Mindy Castaneda was a passenger in a car at the intersection of Washington Street and Mitthoefer Road in Marion County, waiting for the light to change. She saw a car drive into the intersection at a high rate of speed, crash into a median, and come to a stop. Two people exited the car: a male from the driver's seat and a female from the front passenger's seat. Castaneda later testified that she observed both the driver and the passenger run away from the scene of the incident. Castaneda testified in court that she identified Baker as being the driver of the car. There were other witnesses who observed two people run away from the scene as well. The female passenger ran toward a dumpster. The male ran in another direction.

[6] Shortly thereafter, Deputy Stegman arrived at the intersection and saw the wrecked, empty Honda. Castaneda and other eyewitnesses described Baker and the female passenger to Stegman and the directions in which they fled from the scene. Other officers arrived at the scene and set up a perimeter around the area.

[7] Officers quickly apprehended the female suspect behind a dumpster. Meanwhile, Officer Kevin Stickford responded to the scene with his K-9 unit, Pepo. Testimony was presented as to how Pepo was trained to track suspects and to perform area searches. Officer Stickford and Pepo searched in the direction where the male suspect had fled and found a long-sleeved shirt on the ground. Next, Pepo led Stickford to a fenced area, where Stickford saw an individual, later identified as Baker, lying on the ground. Stickford ordered Baker to surrender, but he got up and jumped over the fence. Another officer was waiting on the other side of the fence and captured him. No one else was found in the area where Baker was apprehended except Baker and the officers.

[8] The officers placed Baker in handcuffs and moved him to a location where he was ordered to sit on a curb surrounded by several officers. Stickford, over objection, later testified that he saw and heard another officer ask Baker "why he ran." Tr. Vol. 2, p. 131. Stickford further testified that Baker responded, "because he was scared." Id. at 132. Upon arriving at Baker's location, Deputy Stegman saw that Baker had a cut on the bridge of his nose. Stegman testified that in his experience, the type and location of the injury to Baker was consistent with a person being in an automobile accident while driving a car.

[9] Baker and the female suspect were taken to the Hancock Country Jail. The two were placed together on a bench during processing, and Deputy Stegman observed them whispering to one another as if they previously knew each other.

[10] On May 24, 2017, the State charged Baker with resisting law enforcement by use of a vehicle, a Level 6 felony; auto theft, a Level 6 felony; and driving while suspended with a prior similar offense within the past ten years, a Class A misdemeanor. The State further charged Baker with being an habitual offender.

[11] The case was tried by jury on August 22, 2017. Prior to trial, the State dismissed the count of auto theft. The jury found Baker guilty of resisting law enforcement and driving while suspended. Next, Baker waived his right to a jury trial on the habitual offender enhancement. The trial court heard evidence and determined Baker was an habitual offender. The court subsequently imposed a sentence, and this appeal followed.

Discussion and Decision

I. Admission of Officer's Testimony About Another Officer's Question

[12] Baker argues the trial court erred in allowing Officer Stickford to testify that another officer asked Baker "why he ran." Tr. Vol. 2, p. 131. Specifically, he argues that under the circumstances, Officer Stickford's description of the unidentified and absent officer's question was inadmissible hearsay.

[13] A trial court has broad discretion to admit or exclude evidence, including purported hearsay. Blount v. State , 22 N.E.3d 559, 564 (Ind. 2014). We therefore disturb its ruling only if it amounts to an abuse of discretion, meaning the court's decision is clearly against the logic and effect of the facts and circumstances or it is a misinterpretation of the law. Id.

[14] Hearsay is a statement that "is not made by the declarant while testifying at the trial or hearing; and ... is offered in evidence to prove the truth of the matter asserted." Ind. Evid. Rule 801(c). Hearsay is not admissible in court. Ind. Evid. Rule 802. On the other hand, an utterance that does not assert a fact susceptible of being true or false cannot be hearsay. Powell v. State , 714 N.E.2d 624, 627 (Ind. 1999).

[15] In Powell , an eyewitness testified that prior to being shot at by a group of men, one of the men asked, "you think we ain't got guns, too, or whatever." Id. at 626. The eyewitness testified about the matter at trial. On appeal, Powell claimed the question was inadmissible hearsay. The State responded that a question cannot be considered hearsay because there is no assertion of fact. The Indiana Supreme Court determined that "an utterance that is in the form of a question can in substance contain an assertion of fact." Id. at 628. The Court further stated, "The classic example is 'Joe, why did you stab Bill?" Id. "[S]uch an utterance clearly carries a factual allegation within it, and [the original declarant] should be subject to cross-examination unless exempt for some other reason." Id. The Court concluded the question about gun possession was offered for the truth of the matter asserted and was hearsay. Id.

[16] In this case, Officer Stickford testified that he observed and heard an unidentified officer ask Baker, "why he ran." That question, like the "classic example" discussed in the Powell case, 714 N.E.2d at 628, contains a factual utterance that is capable of being proven true or false, specifically that Baker ran away. We conclude the question was offered for the truth of the matter asserted and should not have been admitted into evidence. See id.

[17] The State notes that a statement that otherwise meets the definition of hearsay is not considered hearsay if the statement is "offered against an opposing party" and that party "manifested that it adopted" it or "believed [it] to be true." Ind. Evid. Rule 801(d)(2). The State further claims Baker effectively adopted the officer's question as his own statement by answering it. We disagree. The Indiana Supreme Court has stated with respect to adoption of another person's statement: "Silence or an equivocal response to an assertion of fact, which, if true, a reasonable man would be expected to deny, is admissible as evidence tending to show the truth of the assertion, if the person is not in custody when the assertion is made, and the person has an opportunity to speak." Robinson v. State , 266 Ind. 604, 611-12, 365 N.E.2d 1218, 1223 (1977) (citations omitted). Herein it is undisputed that Baker had been apprehended, handcuffed, and ordered to sit on a curb, and was surrounded by several police officers when the unnamed officer asked Baker the question at issue. Baker was obviously in custody, and so Rule 801(d)(2) does not apply.

[18] However, our analysis does not end with our determination that the admission of the question and response was an abuse of discretion by the trial court. The erroneous admission of hearsay testimony does not necessarily require reversal unless it prejudices the defendant's substantial rights. Blount , 22 N.E.3d at 564. To determine whether an evidentiary error was so prejudicial, we assess the probable impact the evidence had upon the jury's verdict in light of all the other evidence that was properly presented. Id. If we are satisfied the conviction is supported by independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the verdict, the error is harmless. Id.

[19] In this case, witness Mindy Castaneda testified that she saw Baker exit the wrecked automobile from the driver's seat and run away. She further identified Baker in court as the person she saw at the scene. She also observed a female suspect exit the car and run toward a dumpster. Deputy Stegman arrived at the scene soon thereafter and recognized the wrecked car as the Honda he had been pursuing.

[20] Other officers established a perimeter around the area of the wreck and quickly arrested the female suspect behind the dumpster. Meanwhile, Officer Stickford and his K-9 performed an area search within the perimeter, moving north in the same direction Baker had been seen running. The K-9 located a long-sleeved shirt. Next, Stickford saw Baker lying on the ground near a fence and ordered him to surrender. Baker instead jumped over the fence, where he was apprehended by another officer. When Deputy Stegman arrived where Baker was being kept in custody, the deputy noticed that Baker had an injury to the bridge of his nose. The location of the injury was consistent with the type of injury Stegman had seen other motorists sustain in car accidents.

[21] Later, at the Hancock County Police station, Baker was seated on a bench with the female suspect. Deputy Stegman observing them conversing in whispers in a manner that indicated that they knew one another. This independent evidence of guilt is sufficient to establish that there is little likelihood the officer's question contributed to the jury's verdict. We conclude admission of the officer's question and response into evidence was harmless error.

[22] Baker further argues that admission of Officer Stickford's testimony about the unnamed officer's question also violated his Sixth Amendment right to confront witnesses because the officer should have been brought to court to testify. Baker acknowledges he did not cite the Sixth Amendment when he objected to Stickford's testimony. Appellant's Br. p. 17. As a result, the claim is waived. See Torres v. State , 12 N.E.3d 272, 274 (Ind. Ct. App. 2014) (Sixth Amendment claim waived due to failure to raise it during trial), trans. denied .

[23] We have already determined that admission of the question into evidence was an abuse of discretion because it was hearsay. Even if Baker had not waived his Sixth Amendment claim, and even if admission of the question violated Baker's right to confront witnesses, such violations "do not require reversal if the State can show beyond a reasonable doubt that the error did not contribute to the verdict." Koenig v. State , 933 N.E.2d 1271, 1273 (Ind. 2010). That is to say, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Id.

[24] In light of the considerable evidence we have set forth above, we conclude beyond a reasonable doubt that Officer Stickford's description of the unnamed officer's question did not contribute to the jury's verdict. As a result, any Sixth Amendment violation was harmless.

II. Admission of Officer's Testimony About Baker's Response to Another Officer's Question

[25] Baker next argues the trial court erred in allowing Officer Stickford to testify about Baker's response to the unidentified and unnamed officer's question of why he ran. Baker specifically claims that when the officer questioned him, he was in custody, had not been read his Miranda rights, and as a result his statement was inadmissible. As noted above, we generally review the admission of evidence for an abuse of discretion. However, Baker concedes that he did not contemporaneously object to Stickford's description of his response. Appellant's Br. p. 20. As a result, Baker further concedes he must demonstrate that the admission of testimony describing his answer was fundamental error.

[26] A contemporaneous objection at the time the evidence is introduced at trial is required to preserve the issue for appeal, whether or not the appellant has filed a pretrial motion to suppress. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010). The purpose of this rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors. Id.

[27] Fundamental error is an "extremely narrow exception" to the contemporaneous objection requirement. Gavin v. State , 41 N.E.3d 1038, 1042 (Ind. Ct. App. 2015). In evaluating the issue of fundamental error, our task is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury - including evidence admitted at trial, closing argument, and jury instructions - to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. Id. Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred. Id.

[28] The Fifth Amendment provides, in relevant part, that no person "shall be compelled in any criminal case to be a witness against himself ... without due process of law." As a result, the State may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612.

[29] In this case, Baker was undoubtedly in custody when he responded to the officer's question by stating that he was scared. Baker was in handcuffs and had been moved from the site of his apprehension to an area where he was surrounded by police officers, and he was ordered to sit on a curb. Further, the State does not point to any evidence that any of the officers had informed Baker of his Miranda rights before the officer asked Baker why he ran.

[30] Nevertheless, considering the extensive evidence presented at trial, we cannot conclude any error in the admission of Baker's response amounted to fundamental error. Eyewitness testimony established that Baker drove the car that Deputy Stegman followed from Hancock County into Marion County. Further, officers found Baker by searching in the direction where the eyewitness stated he had run. No other persons were found in the area of Baker's apprehension. Stegman noted that Baker had a nose injury that commonly occurs to drivers involved in auto accidents. We cannot conclude herein that admission of Baker's answer to the officer's question, although in error, was so egregious as to render a fair trial impossible. Baker has failed to demonstrate fundamental error.

Conclusion

[31] For the reasons stated above, we affirm the judgment of the trial court.

[32] Affirmed.

Vaidik, C.J., and Baker, J., concur.

      Ind. Code § 35-44.1-3-1 (2016).

      Ind. Code § 9-24-19-2 (2016).