author: RILEY, Judge.

text:
    Gabriel J. SHARKEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A04-1110-CR-550.
    Court of Appeals of Indiana.
    May 23, 2012.

      William S. Frankel, IV, Wilkinson Goel-ler Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Gabriel J. Shar-key (Sharkey), appeals his sentence following a guilty plea for intimidation as a Class D felony, Ind.Code § 35-45-2-1(a)(1).

We affirm.

ISSUE

Sharkey raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly sentenced Sharkey.

FACTS AND PROCEDURAL HISTORY

On February 10, 2010, Sharkey's daughter was apprehended at her high school in Terre Haute, Indiana for possession of a legend drug. When the arresting officer called Sharkey and informed him that his daughter was being arrested, Sharkey asked if he could see his daughter before she was transported to the detention center. When he received a negative reply, Sharkey told the officer that he would "come down with [his] guns blaring ... I've got a twelve gauge, I'll come down and I'll let everybody have it." (Sentencing Transcript p. 10). In response to Shar-key's threats, the school was locked down and no one was allowed out of the classrooms.

On February 12, 2010, the State filed an Information charging Sharkey with Count I, intimidation, a Class D felony, I.C. § 85-45-2-1(a)(1) and Count II, contributing to the delinquency of a minor, a Class A misdemeanor, I.C. § 35-46-1-8. On August 23, 2011, Sharkey entered into a plea agreement with the State in which he agreed to plead guilty to the Class D felony intimidation in exchange for the State dismissing the A misdemeanor charge of contributing to the delinquency of a minor. The plea agreement capped Sharkey's maximum sentence at one and one-half years and permitted him to argue that his Class D felony conviction should be entered as a Class A misdemeanor.

On September 13, 2011, the trial court conducted a sentencing hearing. At the close of the evidence, the trial court stated the following:

I think it's important for a number of reasons for me to read the following statement. This is from [the arresting officer], "[ ], I'm responding to the proposed plea agreement that was emailed to me several hours ago from [Sharkey]. I would like to discuss some recent events that had a lot of police officers in our community and nationwide on edge. There were eleven police officers shot in a twenty-four hour period. Fifteen police officers nationwide have paid the ultimate sacrifice for a community already this year, with eleven of those being killed by gunfire. The media has been all over the police shootings and community members are outraged. [Sharkey's] threat was not an idle threat. His threat was serious and he meant it. [Sharkey] did not just threaten me, he threatened nearly eighteen hundred students, hundreds of faculty members and the general security of Terre Haute South High School. [Shar-key's] threat completely disrupted the normal operation of Terre Haute South High School, and even though the students didn't know they were in danger, several faculty members did and were frightened. The school was locked down and no one was allowed out of their classroom. I truly do not feel the plea agreement comes close to justice for the crimes and fear [Sharkey] inflicted on me and this community. I feel this act should not just get swept under the rug and members of the community need to know that threats and acts of violence towards our police and public servants will not be tolerated, and maybe, just maybe, this will prevent an extreme act of violence like the one that usually [takes] place in Indianapolis and around the country." Signed by [the arresting officer].
I am very troubled by your attempts to minimize what you did. Don't speak, it's my turn. Until you were confronted with the actual transcribed statement by the prosecutor, you continued up to that point to deny that you made the specific threat. I even heard you say that you didn't even say you were going to bring a shotgun down there and shoot anybody that got in your way, and then you admitted after being confronted with the statement, that that's what you did, although you continued to deny that it was a specific threat to [the arresting officer}. That troubles me greatly. A normal reaction of a person who wakes up and is told that his daughter is in trouble, is not, I'm going to get my gun and come down there[.] ... That is a response of a bully. For that reason I am not going to enter this conviction as a misdemeanor. I think to do so rewards and confirms your efforts to minimize this event. So, I'm entering it as a D [flelony conviction. I don't think I have to go into any further with respect to the effect that your threat had, do I? I have reviewed the statutory aggravating and mitigating factors. Of the statutory aggravating factors, I'm finding specifically that the harm cause[d] was greater than that necessary to prove the commission of the offense. I don't find any other statutory aggravators. I do not find any evidence of statutory mitigating factors.

(Sent. Tr. pp. 13-16). The trial court sentenced Sharkey to a suspended sentence of one and one-half years.

Sharkey now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Sharkey contends that the trial court abused its discretion when it imposed a suspended sentence of one and one-half years for intimidation, a Class D felony. A person who commits a Class D felony shall be imprisoned for a fixed term of between six months and three years, with the advisory sentence being one and one-half years. 1.0. § 35-50-2-7. The plea agreement capped the sentence to the advisory term and the trial court imposed a one and one-half year sentence.

As long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), aff'd on reh'g, 875 N.E.2d 218 (Ind.2007). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and cireumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. One way in which a trial court may abuse its discretion is by failing to enter a sentencing statement at all. Id. Another example includes entering a sentencing statement that explains reasons for imposing a sentence, including aggravating and mitigating factors, which are not supported by the record. Id. at 490-91.

Because the trial court no longer has any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence, a trial court cannot now be said to have abused its discretion by failing to properly weigh such factors. Id. at 491. This is so because once the trial court has entered a sentencing statement, which may or may not include the existence of aggravating and mitigating factors, it may then impose any sentence that is authorized by statute and permitted under the Indiana Constitution. Id.

This does not mean that eriminal defendants have no recourse in challenging sentences they believe are excessive. Id. Although a trial court may have acted within its lawful discretion in determining a sentence, Appellate Rule 7(B) provides that the appellate court may revise a sentence authorized by statute if the appellate court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Id. It is on this basis alone that a criminal defendant may now challenge his sentence where the trial court has entered a sentencing statement that includes a reasonably detailed recitation of its reasons for imposing the particular sentence that is supported by the record, and the reasons are not improper as a matter of law. Id.

A. Aggravator

Sharkey first contends that the trial court's consideration of the single aggravator was improper. Specifically, Sharkey asserts that the aggravator-the harm caused was greater than that necessary to prove the commission of the offense-was a mere generalized reference to the nature and cireumstances of the offense without any evidence to reflect that the arresting officer suffered greater harm than the elements necessary to prove the commission of the offense.

Our supreme court has held that the nature and circumstances of a crime can be a valid aggravating factor. McCann v. State, 749 N.E.2d 1116, 1120 (Ind.2001). However, a trial court must give more than a generalized reference to the nature and circumstances. Smith v. State, 872 N.E.2d 169, 179 (Ind.Ct.App.2007), trans. denied. The trial court may assign aggravating weight to the harm, injury, loss or damage suffered by the victim if such harm was significant and greater than the elements necessary to prove the commission of the offense. Filice v. State, 886 N.E.2d 24, 39 (Ind.Ct.App.2008), trans. denied. In finding this ag-gravator, the trial court relied on the letter of the arresting officer which described the effects Sharkey's threats had on himself and on the school community. The letter detailed the enormous safety concerns triggered by Sharkey's vivid threat of blazing guns onto the school community at large. This was a concern that not only affected the victim of the intimidation but spilled over to eighteen hundred high school students and hundreds of faculty members. We conclude that this was a proper aggravator.

B. Mitigator

Next, Sharkey contends the trial court's lack of finding any mitigators was an abuse of discretion. Specifically, he claims that the trial court overlooked his remorse as a mitigator. During the sentencing hearing, he admitted that he was guilty and that his threat was "extremely dumb, absolutely, ignorant, searey [sic], and all of the above." (Sent. Tr. p. 7). It is well within the trial court's dis-eretion to determine the existence and weight of a mitigating factor. Phelps v. State, 914 N.E2d 283, 291 (Ind.Ct.App.2009). A defendant must demonstrate that the mitigating evidence is both significant and supported by the record to establish that the trial court failed to identify the evidence as a mitigating factor. Id.

We recognize that substantial deference must be given to a trial court's evaluation of remorse. Allen v. State, 875 N.E.2d 783, 788 (Ind.Ct.App.2007). "Remorse, or lack thereof, by a defendant is something better guarded by a trial judge who views and hears a defendant's apology and demeanor first hand and determines the defendant's credibility." Phelps v. State, 914 N.E2d 283, 298 (Ind.Ct.App.2009). Therefore, we are unable to conclude that the trial court abused its discretion when it determined that Sharkey's remorse was not a significant mitigator.

C. Nature and Character

With respect to Sharkey's argument pursuant to Appellate Rule 7(B), we find his one and one-half year suspended sentence is not inappropriate in light of the nature of the crime and his character.

With respect to Sharkey's conviction for intimidation, we note that by threatening the arresting officer that he would come to the school with his guns blazing, he placed an entire school community at risk. The school building had to be locked down and all students and faculty had to remain inside. During his testimony, Sharkey attempted to downplay the severity of his actions. He initially denied that he threatened to go to the school with his guns, and it was only when the State confronted him with his own words that Sharkey conceded making this particular threat.

Turning to Sharkey's character, it should be noted that he has no significant criminal history. However, we cannot ignore that Sharkey lied during his sentencing hearing, downplaying the threat that was unprovoked and generated fear and anxiety in an entire school community. We agree with the State that this act of dishonesty suggests that he failed to genuinely accept responsibility for his crime. Under these cireumstances, we find that Sharkey's sentence is not inappropriate. We affirm the trial court's imposition of a one and one-half year suspended sentence.

CONCLUSION

Based on the foregoing, we conclude that the trial court did not abuse its discretion in sentencing Sharkey.

Affirmed.

NAJAM, J. and DARDEN, J., concur.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    FINANCE CENTER FEDERAL CREDIT UNION, Appellant-Defendant, v. Ronnie D. BRAND, Debora J. Brand and GMAC Mortgage, LLC, Appellee-Plaintiff.
    No. 49A02-1111-MF-1089.
    Court of Appeals of Indiana.
    May 24, 2012.

      Jeffrey K. Graham, Bingham Farrer & Wilson, P.C., Elwood, IN, Attorney for Appellant.
    Craig D. Doyle, Kurt V. Laker, Doyle Legal Corporation, P.C., Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Ronnie D. Brand and Debora J. Brand (collectively, "the Brands") refinanced their first and second mortgages with GMAC Mortgage, LLC. Despite GMAC fully paying off the Brands' first and see-ond mortgages as part of the refinancing process, the Brands' second mortgage-a home equity line of credit with Finance Center Federal Credit Union-was never released. Finance Center later advanced additional funds to the Brands. When the Brands thereafter defaulted on the GMAC mortgage, a dispute erupted over the priority of the GMAC and Finance Center mortgages. The trial court entered partial summary judgment in favor of GMAC, finding that the GMAC mortgage had first priority pursuant to the doctrine of equitable subrogation. Finance Center now appeals, arguing that the GMAC mortgage does not have first priority because GMAC was "culpably negligent." Concluding that equity should not allow the Finance Center mortgage to gain an unexpected elevated priority because of any negligence of GMAC that did Finance Center no harm, we affirm.

Facts and Procedural History

In 1989, the Brands acquired title to 8732 Deer Run Drive in Indianapolis by means of a warranty deed. Over a decade later, on July 12, 2002, the Brands executed and delivered to Meridian Group Mortgage Corp. a mortgage securing repayment of a loan in the principal amount of $107,200 ("Meridian Group mortgage"). This mortgage was recorded on July 19, 2002.

On July 23, 2002, the Brands granted a second mortgage to Finance Center securing repayment of a $25,000 home equity line of credit ("Finance Center mortgage"). This second mortgage was recorded on September 24, 2002.

In March 2007, the Brands refinanced their mortgages with First Republic Mortgage Corporation. In anticipation of the refinance, Stewart Title Services of Indiana performed a title search that revealed the two existing mortgages. Stewart Title requested payoff statements from both Meridian Group and Finance Center. Meridian Group provided a payoff amount of $103,769.57. Finance Center provided a payoff statement.

Closing occurred on March 30, 2007. The Brands executed a note and mortgage in favor of First Republic in the principal amount of $163,516.99. First Republic later assigned its interest to GMAC. This mortgage ("GMAC mortgage") was recorded on April 13, 2007. Proceeds from the GMAC mortgage were used to pay off the Meridian Group and Finance Center mortgages. Stewart Title sent payment in the amount of $103,769.57 in full satisfaction of the Meridian Group mortgage. Meridian Group then released the mortgage. Stewart Title also sent two checks to Finance Center-one for $25,175.07 and the other for $10,399.76-in order to fully satisfy the amounts the Brands owed to Finance Center at the time, including their line of credit. GMAC, as the refinancing lender, intended to obtain a first-priority lien on the real estate. GMAC would not have made the loan unless its mortgage had first priority.

Although the payments received from the closing of the GMAC mortgage fully satisfied the Brands' obligation to Finance Center at the time, Finance Center did not release the mortgage. Notably, the Finance Center mortgage and the underlying note each contain a provision requiring the borrower to send notice requesting release of the lien. See Appellant's App. p. 24 ("You are required to give 15 days prior written notice of your account is to be paid off and closed [sic] all unused drafts returned with the notice."), 28 ("The Secured Debt includes a revolving line of credit, Although the Secured Debt may be reduced to a zero balance, this Security Instrument will remain in effect until released."). Because notice was apparently not sent to Finance Center with the payoff checks, Finance Center left the line of credit open and later advanced additional funds to the Brands.

In September 2009, GMAC filed a Complaint on Note and to Foreclose Mortgage on Real Estate against the Brands and Finance Center. GMAC alleged that the Brands defaulted pursuant to the terms of the note and the mortgage by failing to tender the monthly mortgage payment as promised. Id. at 7. GMAC also alleged that Finance Center "may assert an interest in the subject property by virtue of a mortgage executed by [the Brands] to [Finance Center] on July 23, 2002 and recorded on [September] 24, 2002. ..." Id. at 8. GMAC, however, claimed that its mortgage was first in priority. Id.

Finance Center filed a cross-complaint and counterclaim. Finance Center alleged that it was due $25,215.69 plus interest and that its mortgage, not GMAC's, was first in priority. Id. at 22.

In December 2010, Finance Center filed a motion for summary judgment seeking to establish and foreclose a first-priority lien on the real estate. GMAC filed a cross-motion for partial summary judgment seeking only to establish the priority of its mortgage over the Finance Center mortgage. A hearing was held at which the parties argued whether the doctrine of equitable subrogation allowed GMAC to place its mortgage into the shoes of the Meridian Group mortgage and retain its priority. The trial court granted partial summary judgment in favor of GMAC:

GMAC is entitled to a first lien against the real estate at issue in this action in the amount of $103,769.57, plus interest on that amount from March 80, 2007, through the date of judgment at the rate of 6.25 percent per year, which lien shall have priority over the mortgage lien asserted by Finance Center Federal Credit Union. This entry of partial summary judgment shall not adjudicate or prejudice any rights of GMAC to seek foreclosure of its mortgage in the future. The Court expressly finds that there is no just reason for delay, and directs that this entry of partial summary judgment shall be a final judgment as to the issues decided, pursuant to Trial Rule 54(B).

Id. at 4-5.

Finance Center now appeals.

Discussion and Decision

Finance Center contends that the trial court erred in granting partial summary judgment in favor of GMAC. Specifically, Finance Center argues that GMAC is not entitled to a first lien against the real estate pursuant to the doctrine of equitable subrogation because GMAC was "culpably negligent."

We review a summary judgment order de novo. Bules v. Marshall Cnty. 920 N.E.2d 247, 250 (Ind.2010). The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 1153 (Ind.Ct.App.2001), trans. denied. We must determine whether the evidence that the parties designated to the trial court presents a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Bules, 920 N.E.2d at 250. We construe all factual inferences in the nonmoving party's favor and resolve all doubts as to the existence of a material issue against the moving party. Bules, 920 N.E.2d at 250.

Our Supreme Court redefined the doctrine of equitable subrogation, which has been recognized in Indiana for more than a century, in Bank of New York v. Nally, 820 N.E.2d 644, 651 (Ind.2005). "The nature of equitable subrogation is, as its name indicates, equity." Neu v. Gibson, 928 N.E2d 556, 560 (Ind.2010). "Subrogation arises from the discharge of a debt and permits the party paying off a creditor to succeed to the creditor's rights in relation to the debt." Nally, 820 N.E.2d at 651 (citation omitted). In other words, "[the doctrine substitutes one who fully performs the obligation of another, secured by a mortgage, for 'the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment'" Neu, 928 N.E.2d at 560 (quoting Restatement (Third) of Property § 7.6(a) (1997)); see also Nally, 820 N.E.2d at 658. "This avoids an inequitable application of the general principle that priority in time gives a lien priority in right." Neu, 928 N.E.2d at 560 (citation omitted). "In considering whether to order subrogation and thus bypass the general principle of priority, courts base their decisions on the equities, particularly the avoidance of windfalls and the absence of any prejudice to the interests of junior Henholders." Id.; see also Nally, 820 N.E.2d at 653. Equitable subrogation is " 'a highly favored doctrine, which is to be given a liberal application.' " Nally, 820 N.E.2d at 652 (quoting Osterman v. Baber, 714 N.E.2d 735, 738 (Ind.Ct.App.1999), trans. denied ).

In Nally, our Supreme Court quoted the following excerpt from the Third Restatement of Property:

"Perhaps the case occurring most frequently is that in which the payor [ie. the party asserting a right to equitable subrogation] is actually given a mortgage on the real estate, but in the absence of subrogation it would be subordinate to some intervening interest, such as a junior lien. Here subrogation is entirely appropriate, and by virtue of it the payor has the priority of the original mortgage that was discharged. This priority is often of critical importance, since it will place the payor's security in a position superior to intervening liens and other interests in the real estate. The holders of such intervening interests can hardly complain of this result, for it does not harm them; their position is not materially prejudiced, but is simply unchanged."

Id. at 653 (quoting Restatement (Third) of Property § 7.6 emt. e) Our Supreme Court agreed with this portion of the Restatement as it applied to a conventional refinancing:

A lender providing funds to pay off an existing mortgage expects to receive the same security as the loan being paid off. Reﬁnancirigs are commonplace in today's economy. Permitting a junior lienholder to leapfrog the priority of the current senior mortgage would impair the owner's access to more favorable interest rates. Unless a junior lienholder is disadvantaged by permitting subro-gation, we see no reason to give the junior lienholder in effect the right to block or object to the refinancing. We conclude that a mortgagee who refinances an existing mortgage is entitled to equitable subrogation even if it had actual or constructive knowledge of an existing lien on the property unless the junior lienholder is disadvantaged or the mortgagee is "culpably negligent" ..., but this remedy is subject to the rights and limitations of the subrogor.

Id. at 658-54. Accordingly, as long as the refinancing lender is not culpably negligent, the refinancing lender is entitled to stand in the shoes of the senior lien and retain its priority status. Id. at 654.

Here, it is undisputed that as part of the refinancing process, GMAC paid off the Meridian Group mortgage in full and the lien was discharged. And notably, Finance Center does not argue that its mortgage was somehow superior to the Meridian Group mortgage. Accordingly, unless Finance Center was prejudiced or GMAC was "culpably negligent," GMAC, as the refinancing lender, is entitled to stand in the shoes of Meridian Group to the extent of its $103,769.57 payoff. Finance Center, however, argues that GMAC was culpably negligent.

A volunteer or one charged with "culpable negligence" may not be entitled to equitable subrogation. Id. Culpable negligence "contemplates action or inaction which is more than mere inadvertence, mistake or ignorance" and "focuses on the activity of the party asserting subrogation." Id. (quotation omitted). Although preserving the rights of intervening creditors who record their interests is "plainly equitable," leapfrogging a senior claim is "precisely what equitable subrogation is designed to prevent." Id. at 655.

Finance Center claims that GMAC was culpably negligent in failing to obtain a release of the Finance Center mortgage and that this negligence bars equitable subrogation. We addressed a similar issue in JPMorgan Chase Bank v. Howell, 883 N.E.2d 106 (Ind.Ct.App.2007), and found no culpable negligence in the refinancing lender's failure to ensure that it had properly paid off the junior line-of-eredit mortgage.

In Howell, Howell refinanced his real estate, which was subject to a senior conventional mortgage and a junior line-of-credit mortgage. The refinancing lender paid off the senior mortgage in full and attempted to pay off the junior line-of-credit mortgage. However, the refinance ing lender's payoff of the junior line-of-credit mortgage was $300 short; accordingly, the line of credit remained opened. After additional funds were drawn from the line of credit (with a final balance of $42,235.63), a priority dispute erupted. In addressing the line-of-credit lender's culpable-negligence argument, we held:

[AJny negligence in [the refinancing lender's] failure to confirm whether it had fully satisfied [the line-of-credit] mortgage-a failure for which [the line-of-credit lender] bears some responsibility[]-did not prejudice [the line-of-credit lender] and in fact benefited [the line-of-credit lender] to the tune of over $42,000. In sum, [the refinancing lender] was not culpably negligent. See [Nally, 820 N.E.2d] at 655 ("Equity should not allow the [junior] mortgage to gain an unexpected elevated priority status because of the negligence of [the senior lienholder's subrogee] or its as-signee that did the [Junior lienholder] no harm.").

Howell, 883 N.E.2d at 112.

The same can be said here. That is, any negligence in GMAC's failure to ensure that the Brands' second mortgage with Finance Center was released did not prejudice Finance Center because the Finance Center mortgage was always junior to the senior Meridian Group mortgage, which was fully satisfied with the loan proceeds from the GMAC refinancing. Allowing GMAC to step into the shoes of the Meridian Group mortgage will leave Finance Center in the very same junior position. This is a clearly equitable result. See Nally, 820 N.E.2d at 655 ("The mere fact that a person seeking subrogation was negligent does not bar him or her from relief where such negligence is as to his or her own interests and does not affect prej-udicially the interest of the person to whose rights subrogation is sought." (quotation omitted)). Although GMAC failed to ensure that the Brands gave proper notice to Finance Center to release the lien, GMAC was not culpably negligent. The doctrine of equitable subrogation thus applies to this case. Accordingly, we affirm the trial court's grant of partial summary judgment in favor of GMAC.

Affirmed.

CRONE, J., and BRADFORD, J., concur.

      . Although the assignment did not occur until August 28, 2009, we refer to GMAC for sake of clarity.

      . Finance Center argues that two additional cases from this Court are dispositive, but we find them distinguishable on several grounds. See Bank of Am., N.A. v. Ping, 879 N.E.2d 665 (Ind.Ct.App.2008); Liberty Mortg. Corp. v. Nat'l City Bank, 755 N.E.2d 639 (Ind.Ct.App. 2001), trans. denied. One of these distinguishing grounds is that the line-of-credit lenders in Liberty Mortgage and Ping had senior liens. Here, however, the line-of-credit lender, Finance Center, had a junior lien.

      . This is an apparent reference to the fact that the line-of-credit lender did not advise the refinancing lender of the $300 shortfall in the attempted payoff. Likewise, GMAC argues here that Finance Center bore some responsibility in this case for not including instructions for closing the line of credit with its payoff statement. Appellee's Br. p. 14 n. 7.


author: MAY, Judge.

text:
    Mark GASSER, Appellant-Plaintiff, v. Lesa B. DOWNING, Auto-Owners Insurance Company, and Property Owners Insurance Company, Appellees-Defendants.
    No. 19A05-1108-PL-419.
    Court of Appeals of Indiana.
    May 25, 2012.

      John E. Birk, James E. Stoltz, Birk & Birk, Jasper, IN, Attorneys for Appellant.
    D. Timothy Born, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born, LLP, Evansville, IN, Attorneys for Appellees.
   OPINION

MAY, Judge.

Mark Gasser was injured in an automobile accident while a friend was driving him to a golf course. He sued Auto-Owners Insurance Co. for underinsured motorist coverage, claiming the car in which he was a passenger was a temporary substitute for his own vehicle. The trial court granted Auto-Owners motion for summary judgment and denied Gasser's. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 27, 2008, Gasser was scheduled to meet three friends for a Saturday morning tee time. As he prepared to leave home, he discovered the battery was dead in his Toyota pickup truck. That was the only vehicle available to him because the antique cars at his residence were not running and his girlfriend was driving his GMC Yukon. He did not call his girlfriend because he did not know where she was or how long it might take her to return. Instead, he called one of the people in his golfing party, Rex Kam-man, and asked Kamman to pick him up. Gasser and Kamman were on the way to the golf course, with Kamman driving, when Kamman's car was involved in a collision.

Gasser's business, Huntingburg Machine Works ("HMW"), owned Gasser's truck and other vehicles, and Auto-Owners insured them. The HMW policy applies "to an automobile you do not own which is temporarily used as a substitute for your automobile. Your automobile must be out of use because of breakdown, repair, servicing, loss or destruction." (App. at 172) (footnote added). "Substitute" is not defined.

DISCUSSION AND DECISION

When reviewing a summary judgment, we apply the same standard as does the trial court,. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 858 (Ind.Ct.App.2010). Summary judgment is appropriate if the pleadings and evidence demonstrate there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule 56(C). We construe the pleadings, affidavits, and designated evidence in the light most favorable to the non-moving party, and the moving party has the burden of demonstrating the absence of a genuine issue of material fact, Lacy-McKinney, 937 N.E.2d at 858-59. Because a summary Judgment comes to us clothed with a presumption of validity, the appellant must persuade us that error occurred. Id. at 859. If the judgment can be sustained on any theory or basis in the record, we must affirm. Id. Still, we must carefully review a summary judgment to ensure a party was not improperly denied his or her day in court. Id.

Interpretation of an insurance policy, as with other contracts, is primarily a question of law for the court, even if the policy contains an ambiguity needing resolution. Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind.1992). It is only where a contract is ambiguous and its interpretation requires extrinsic evidence that the fact finder must determine the facts on which the contract rests. Id. If policy language is clear and unambiguous, it should be given its plain and ordinary meaning. Id. If there is an ambiguity, the policy should be interpreted most favorably to the insured. Id. "It should be construed to further the policy's basic purpose of indemnity." Id.

Policy terms are interpreted from the perspective of an ordinary policyholder of average intelligence. Westfield Cos. v. Knapp, 804 N.E.2d 1270, 1273-74 (Ind.Ct.App.2004), reh'g denied, trans. de-nmied. If reasonably intelligent persons may honestly differ as to the meaning of the policy language, the policy is ambiguous. Id. Terms in a contract are given their usual and common meaning unless, from the contract, it can be determined some other meaning was intended. Id.

Kamman's car was not a "temporary substitute" for purposes of the Auto Owners policy because it was being used as a favor or friendly accommodation, not to fulfill a legal or contractual obligation Gasser had.

In Deadwiler v. Chicago Motor Club Ins. Co., 603 N.E.2d 1365 (Ind.Ct.App.1992), trans. denied, we addressed when a vehicle is a "temporary substitute." There, a policy provision defined "your covered auto" as: "Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use" because of breakdown or repair. Id. at 1366 n. 1. Deadwiler addressed this question as one of first impression in Indiana, and it does not appear our courts have addressed it at any length since.

In Deadwiler we noted "[the well recognized intent of a 'temporary substitute clause is not to narrow the coverage of an insurance policy, but to provide the insured with continuous coverage for one operating vehicle on one policy." Id. at 1367. We reviewed authorities from various jurisdictions including a line of decisions flowing from Tanner v. Pennsylvania Threshermen & F.M.C. Ins. Co., 226 F.2d 498 (6th Cir.1955). The Tanner court found a substitute vehicle was one that was "in the possession or under the control of the insured to the same extent and effect as the disabled car of the insured would have been except for its disablement." Id. at 500. We followed Tanner.

In Tanner, brothers Mike and Louis owned separate cafes in the same city. Mike's car, which was covered by insurance, was in the shop for repairs. Louis helped Mike get his car to the shop and took Mike back to his cafe. On arriving there, Mike realized that he did not have any beef at his cafe. He asked Louis to go to his cafe and bring back some beef. Louis agreed. He went home to pick up his wife and children, then headed for his cafe to pick up the beef. On his way, he was involved in an auto accident.

Louis tried to obtain coverage under Mike's insurance policy on the premise Louis's car was a temporary substitute vehicle. The district court found it was not, because Louis's errand was "in the nature of a friendly or brotherly accommodation," id., and the Sixth Circuit affirmed.

We noted in Deadwiler that courts applying the Tanner rule have required that for a vehicle to be a "temporary substitute," it must be under the control of the insured, or the insured's designee. 603 N.E.2d at 1369. To "designate" has been defined as "to indicate, select, appoint, nominate or set apart for a purpose or duty, as to designate an officer for a command." Id. (quoting Black's Law Dictionary at 402 (5th ed. 1979)). "Designation in the present context necessarily implies the existence of a duty or obligation owed by designator." Id. (eraphasis added).

In Deadwiler, Gena Deadwiler was asked by her mother to check on Gena's sister. Her mother's car was insured by Chicago Motor Club, and Gena's car was not insured. On her way back from checking on her sister, Gena's car was involved in an accident. Gena claimed her car was a "temporary substitute vehicle" covered under her mother's policy. We determined it was not: "Dorothy had neither possession nor control over Gena's car. Dorothy requested that Gena check on her sister. No designation occurred. Therefore, the car was not entitled to temporary substitute status." Id.

We noted, in the context of the Deadwiler facts, "a prior undertaking on the part of the insured has been noted as a key factor in differentiating those cases in which a car is found to be a temporary substitute, from those cases in which the car is found not to be a temporary substitute." Id. at 1368. We characterized such a prior undertaking as one to "fulfill a previous legal or contractual obligation" of the insured. Id. at 18369.

In reaching that decision, we examined a number of decisions from other jurisdictions. In Babineaux v. Lavergne, 321 So.2d 401 (La.Ct.App.1975), an employer asked an employee to deliver paychecks for the employer because the employer's car had broken down. The employee took on the task "strictly as a personal favor." Id. at 404. Therefore, the employee's car was not a "temporary substitute" for the employer's vehicle when the employee was involved in a car accident while driving to a relative's house before delivering the checks.

Similarly, in Carnes v. Schram, 232 Neb. 282, 440 N.W.2d 451 (1989), a truck used to pick up hogs for Schram was not a temporary substitute vehicle entitled to coverage under Schram's policy. The "legal and contractual compulsion regarding the use of the vehicles in [decisions finding a vehicle was a temporary substitute] is replaced in the instant case by a simple act of courteous reciprocity." Id. at 456.

There was, by contrast, a legal or contractual undertaking in Roberts v. Gonzalez, 495 F.Supp. 1310 (D.Vi.1980). Caribbean Airlines was scheduled to fly passengers between San Juan and Saint Thomas. Its plane malfunctioned, so Caribbean transferred the passengers to a Conquest Airways flight. The Conquest plane crashed, and the district court found the Conquest plane was a temporary substitute for a Caribbean plane. It distinguished Tanner based on the fact the errand in Tanner "was a spur of the moment accommodation; it was not to fulfill any prior undertaking of the insured's." Id. at 1321.

Similarly, in Fulton v. Woodford, 17 Ariz.App. 490, 498 P.2d 564 (1972), Sanner contracted with Conway to provide trucks for the delivery of dirt. Conway hired Fulton to provide additional trucks, and Fulton in turn hired Patterson for even more trucks. Patterson was involved in an accident. The court found Patterson's truck was a temporary substitute for trucks owned by Fulton, such that Fulton's policy covered Patterson's truck. The Fulton court distinguished Tanner because "the errand performed [in Tanner] was no more than a brotherly accommodation and was not for the purpose of fulfilling a prior undertaking of his brother." Id. at 570.

Applying those cases to the facts in De-adwiler, we determined Gena's actions could be better characterized as a favor to her mother than as fulfillment of a prior contractual or legal obligation her mother owed:

While Dorothy may have felt some moral or maternal obligation to check on the welfare of her daughter, her obligation did not rise to the level of the contractual obligations present in Lumbermens, Roberts, or Fulton. Gena's checking on her sister did not fulfill a previous legal or contractual obligation which her mother owed, it constituted a favor to her mother, and nothing more.

603 N.E.2d at 1369.

Gasser's ride to the golf course similarly is best described as a "favor" by Kamman, and not a "fulfillment of a prior contractual or legal obligation." Auto-Owners therefore was entitled to summary judgment, and we affirm..

Affirmed.

BAKER, J., and BAILEY, J., concur.

      . We heard oral argument April 26, 2012, in Mount Vernon, Indiana as part of the Posey Circuit Court's Law Day observance. We thank the court for its hospitality and commend counsel on the quality of their advocacy.

      . In its Statement of Facts, Auto-Owners quotes this provision, but leaves out the words "do not." (Br. of Appellees at 9.)

      . As we find the Kamman's vehicle was not a temporary substitute because Gasser had no legal or contractual obligation, we need not address Auto-Owners' alternative argument Gasser, as a mere passenger, was not "using" Kamman's vehicle.


author: BAILEY, Judge.

text:
    Tyjuan J. DIXON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1110-CR-482.
    Court of Appeals of Indiana.
    May 25, 2012.

      Kristin A. Mulholland, Appellate Division, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Tyjuan J. Dixon ("Dixon") was convicted of Murder, a Felony, and two counts of Attempted Murder, as Class A felonies. He now appeals.

We affirm.

Issue

Dixon raises a single issue for our review, which we restate as whether the trial court abused its discretion when it permitted the State to introduce extrinsic evidence, in the form of testimony from a police detective, as impeachment of another of the State's witnesses.

Facts and Procedural History

On the morning of October 12, 2009, Dixon's half-brother, Edward Bond ("Bond") was living with his girlfriend, Ca-trenna Walker ("Walker"), in one unit of a two-unit duplex in the Delaney housing project in Gary. Bond's car was not operating at the time, and Bond had asked one of his neighbors, James Smith ("Smith") for a ride.

Around 10:00 a.m., Bond went to Smith's residence and knocked on the door. Smith was eating breakfast with his wife, Lakeisha Randolph ("Lakeisha"), and sister-in-law, Gabrielle Randolph ("Gabrielle"). Gabrielle answered the door, and Bond eventually asked for "the man of the house." Tr. at 200. Gabrielle told Smith; Smith looked out the window, saw Bond, and decided not to give Bond a ride at that time. ‘

Soon afterward, Smith and Gabrielle went outside to clean the interior of Gabrielle's car. Bond again approached Smith, and an argument ensued that eventually involved both men, Gabrielle, Lakeisha, and Walker. A crowd assembled in a nearby yard, and at some point during the argument, Walker called Dixon, hoping that Dixon would calm Bond.

Dixon arrived soon thereafter and walked to the door of the unit Bond and Walker shared. Dixon spoke briefly with Bond and Walker and tried to hand Bond a handgun, which Bond refused to take. Walker moved to push Bond into the home. Dixon, however, remained outside, turned the handgun on Smith, Lakeisha, and Gabrielle, and began to fire the weapon.

All three attempted to flee from Dixon, but were unsuccessful. Smith was shot six times, with wounds in his head, chest, arm, and hip; Smith died at the seene. Lakeisha was shot six times, with wounds to her chest and right arm; Lakeisha was hospitalized for five months because of her injuries, was comatose for some portion of her hospital stay, and after release from the hospital endured ongoing respiratory problems and medical difficulties related to the loss of her spleen and injury to her panere-as. Gabrielle was shot twice in her hip and onee on her buttocks, was hospitalized for two weeks, and required rehabilitation.

On October 14, 2009, Detective Arturo Azcona ("Detective Azcona") spoke with Gabrielle and showed her a photographic line-up of individuals matching the description of the shooter at the scene; Gabrielle identified a photograph of Dixon. On March 22, 2010, after Lakeisha was released from the hospital, Detective Azcona showed her a different photographic lineup; Lakeisha also identified Dixon as the shooter.

On October 23, 2009, the State charged Dixon with one count of Murder and two counts of Attempted Murder. A warrant for Dixon's arrest was issued that day; Dixon was arrested on December 28, 2009.

A jury trial was conducted from July 25, 2011, to July 28, 2011. During the trial, Walker testified about the incident and stated that she could not recall whether Dizon got out of his ear upon arriving at the duplex. The State showed Walker a signed, written version of her statement to police wherein she stated that Dixon got out of his car and walked toward the house. Walker reaffirmed her testimony and indicated that she did not recall telling police that Dixon had gotten out of his car upon arriving at the duplex. As a result, at the close of its evidence, the State called Detective Azcona, who had taken Walker's statement, to provide extrinsic impeachment of Walker's testimony. Dixon objected, and the trial court overruled the objection and instructed the jury that Detective Azcona's testimony was for impeachment purposes only.

At the conclusion of the trial, the jury found Dixon guilty of all three charges. On October 6, 2011, the trial court entered judgments of conviction against Dixon and sentenced him to sixty-two years imprisonment for Murder and thirty-seven years imprisonment for each count of Attempted Murder, with the sentences to be served consecutively, for an aggregate sentence of 136 years.

This appeal followed.

Discussion and Decision

Dixon appeals his conviction, arguing that the trial court erred when, for impeachment purposes, the court permitted the State to recall Detective Azcona and admitted into evidence the detective's testimony concerning Walker's statement to police and the written statement itself. We review a trial court's decision concerning the admission of evidence for an abuse of discretion, which occurs when the trial court's decision is against the logic and effect of the facts and cireumstances before it. Kendall v. State, 790 N.E.2d 122, 126 (Ind.Ct.App.2003), trans. denied. Even when a decision on the admissibility of evidence is an abuse of discretion, we will not reverse a judgment where that error is harmless, that is, where the error did not affect the substantial rights of a party. Ind. Trial Rule 61; Appleton v. State, 740 N.E.2d 122, 124 (Ind.2001).

The Indiana Rules of Evidence govern the use of extrinsic evidence for impeachment of a witness. "The credibility of a witness may be attacked by any party, including the party calling the witness." Ind. Evidence Rule 607. Where a party seeks to examine a witness concerning a prior statement, the party need not show the statement to the party or disclose the statement's contents to the witness, though it must be disclosed to opposing counsel upon request. Evid. R. 613(a). "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon." Evid. R. 613(b). Extrinsic evidence of impeachment is not, however, admissible where impeachment is complete because the witness "admitted himself a lar," that is, where the witness acknowledges having made the prior inconsistent statement. Appleton, 740 N.E.2d at 126 (citing United States v. Soundingsides, 820 F.2d 1232, 1240-41 (10th Cir.1987), for the proposition that there is no basis for introduction of extrinsic evidence of prior inconsistent statement where witness does not deny making the inconsistent statement).

Here, Dixon contends that Walker's testimony that she did not remember telling Detective Azcona that she saw Dixon get out of his car was not inconsistent with her statement to Detective Azcona that Dixon did get out of his car and a description of Dixon's clothes. Dixon directs our attention to Dunlap v. State, 761 N.E.2d 837 (Ind.2002), in which our supreme court held that, for the purposes of Rule 618(b), "a statement at trial of 'I am not sure' or 'I don't remember is not necessarily inconsistent with an earlier statement that provides the answer to the question being asked." Id. at 845.

In Dunlap, a witness testified that she had attempted to turn the defendant around to prevent a shooting, but was unsure whether she was holding onto or touching the defendant when the shots were fired. Id. at 844. The defendant confronted the witness with a transcription of her statement to police, during which she told police that she did not have hold of the defendant until after the first shot was fired, and asked whether the witness recalled making that statement to police. Id. The witness did not recall giving police that description of the events. Id. Dunlap then attempted to introduce into evidence the entirety of the witness's transcript for the purpose of impeachment under Rule 613(b); the State objected that the statements were not inconsistent, and the trial court agreed. Id. Our supreme court concluded, "the differences between [the witness's] trial testimony and her statements in the transeribed police interview [are] within the ambit of the trial court's discretion to determine inconsistency," and thus found no error in the trial court's decision to deny admission of the transeript. Id. at 845.

A similar situation obtains here. Walker neither admitted nor denied making the prior statement regarding Dixon's attire and conduct, but testified that she did not recall making the statement, could not recall at trial whether she saw Dixon get out of the ear, and reading the written transcript of her statement did not refresh her memory. As in Dunlap, this does not take the decision on whether to admit Detective Azcona's testimony and the written version of Walker's statement outside "the ambit of the trial court's discretion to determine inconsistency." Id. at 845. We therefore find no error in the trial court's decision to admit this evidence.

Even if the trial court had abused its discretion, however, any error was harmless. Both Lakeisha and Gabrielle testified that they saw Dixon get out of his car and go toward the front of the duplex and identified Dixon both at trial and during their respective statements to police. Gabrielle testified that she saw Dixon attempting to hand a handgun off to Bond, that she saw Bond refuse to take possession of the firearm, and that she was looking in Dixon's direction as he began shooting. Lakeisha testified that the gunshots came from where Dizon was standing. Both Lakeisha and Gabrielle testified that a large number of shots were fired at them. Lieutenant Henry Hatch, a ballisties analyst with the Lake County Sheriff's Department crime lab, testified that all of the bullets and cartridge casings recovered from the seene that were capable of being analyzed came from a single firearm. Thus, there is substantial independent evidence upon which a jury could have convicted Dixon, and we therefore conclude that any error in the admission of Detective Azcona's testimony and Walker's prior statement was harmless. T.R. 61; Appleton, 740 N.E.2d at 126.

Affirmed.

ROBB, C.J., and MATHIAS, J., concur.

      . Ind.Code § 35-42-1-1.

      . 1C. §§ 35-41-5-1 & 35-42-1-1.

      . The transcript was labeled as Exhibit 63 at trial, but was not included among the exhibits submitted to this Court along with the trial record.


author: DICKSON, Chief Justice.

text:
    Michael W. BAKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 89S01-1109-CR-543.
    Supreme Court of Indiana.
    June 12, 2012.

      Amy K. Noe, Richmond, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Janine S. Huffman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Transfer from the Indiana Court of Appeals, No. 89A01-1010-CR-536.

DICKSON, Chief Justice.

Defendant Michael W. Baker challenges the sufficiency of the evidence underlying his conviction for burglary. He contends that the State failed to adduce any evidence that would permit a reasonable jury to conclude that he acted with the requisite intent. We disagree and hold that there was sufficient evidence of intent to support the defendant’s conviction.

On the morning of Monday, January 22, 2008, a member of Harvest Time Tabernacle Church visited the church to pray. The member was the only person present that morning and let himself in using his key to the church. Upon entering, the member proceeded downstairs to the basement where he noticed a broken window and blood nearby. The member then called the pastor of the church and the police, both of whom arrived shortly thereafter. Further inspection of the church revealed dents and scratches on the front door which were characterized by witnesses as pry marks, blood and glass near the front door, a lacerated window screen on another unbroken window, blood on the door leading into the church nursery, and several kitchen cabinets and drawers standing ajar with blood stains on the outside of them. No other evidence of the apparent intruder was discovered, and it appeared that nothing had been removed from the church. DNA collected from the scene matched that of the defendant, and the parties later stipulated that the defendant was the source of the DNA collected at the church.

The State charged the defendant with burglary of a structure used for religious worship with the intent to commit theft, a class B felony under Indiana Code Section 35 — 43—2—l(l)(B)(ii). The State also filed an Information seeking to have the defendant sentenced, if convicted, as a habitual offender under Indiana Code Section 35-50-2-8 based on two of the defendant’s unrelated felony convictions. The defendant pled “not guilty” to the burglary charge and pled “guilty” to the habitual offender charge. At his trial, the jury-found the defendant guilty of class B burglary. The defendant has appealed his conviction on the ground that there was insufficient evidence to support a conviction for burglary. The Court of Appeals reversed the defendant’s conviction for burglary, concluding that “[t]here is insufficient evidence of Baker’s intent to commit theft within the church.” Baker v. State, No. 89A01-1010-CR-5S6, 2011 WL 2436932, at *4 (Ind.Ct.App. June 17, 2011). We granted transfer and now affirm the defendant’s conviction for burglary.

When reviewing a claim of insufficient evidence, an appellate court “considers only the evidence most favorable to the verdict and any reasonable inferences that may be drawn from that evidence. If a reasonable finder of fact could determine from the evidence that the defendant was guilty beyond a reasonable doubt, then we will uphold the verdict.” Freshwater v. State, 853 N.E.2d 941, 942 (Ind.2006) (citing Justice v. State, 530 N.E.2d 295, 296 (Ind.1988)) (citations omitted) (internal quotation marks omitted). We do not reweigh the evidence or judge the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005); Walker v. State, 442 N.E.2d 696, 698 (Ind.1982). These evaluations are for the trier of fact, not appellate courts. In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented. Kidd v. State, 530 N.E.2d 287, 287 (Ind.1988).

Burglary is the breaking and entering of the building or structure of another person with the intent to commit a specific felony therein. Ind. Code § 35-43-2-1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind.1987); Yeagley v. State, 467 N.E.2d 730, 736 (Ind.1984). The defendant admits that the evidence is sufficient to prove that he broke and entered the church, Appellant’s Am. Br. at 4, but he argues that the State failed to produce any evidence that would support the inference that he broke and entered with the intent to commit theft inside the church. He claims that the “evidence only establishes that [he] entered through a window, went to the kitchen, and opened cupboards and drawers” but not that he “rummaged through” them in any manner that would evince an intent to commit theft. Id. He also asserts that there is no evidence that he took anything or “went anywhere near valuable property.” Id. The State responds that evidence suggesting that the defendant opened the cupboards and drawers in the kitchen is enough to support a reasonable inference that the defendant “was looking for something to steal” and thus enough to support an inference that he broke and entered the church with the intent to commit theft inside. Appellee’s Br. at 5. We agree with the State.

“Burglars rarely announce their intentions at the moment of entry,” Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around to hear them even if they were to do so. Hence, a burglar’s intent to commit a specific felony at the time of the breaking and entering “may be inferred from the circumstances.” Id.; see also Hampton v. State, 961 N.E.2d 480, 487 (Ind.2012) (“[T]he mens rea element for a criminal offense is almost inevitably, absent á defendant’s confession or admission, a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323-24, 235 N.E.2d 703, 705 (1968) (“[T]he intent to commit a felony may be inferred from the circumstances which legitimately permit it.”). “Circumstantial evidence alone is sufficient to sustain a burglary conviction.” Kidd, 530 N.E.2d at 287; accord Cash v. State, 557 N.E.2d 1023, 1025 (Ind.1990) (“A conviction for burglary may be sustained by circumstantial evidence alone.”).

Evidence of intent “need not be insurmountable,” Gilliam, 508 N.E.2d at 1271, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony,” Freshwater, 853 N.E.2d at 944. The evi-dentiary inference pointing to the defendant’s intent must be separate from the inference of the defendant’s breaking and entering. Justice, 530 N.E.2d at 297; Kondrup, 250 Ind. at 323, 235 N.E.2d at 705. The inference of intent must not derive from or be supported by the inference of breaking and entering. In other words, the evidence must support each inference — felonious intent and breaking and entering — independently, and neither inference should rely on the other for support. This is not to say, however, that the same piece of evidence cannot support both inferences.

Requiring independent evidence of intent is necessary to maintain the distinction between burglary and other criminal offenses involving property invasion such as criminal trespass, Ind.Code § 35-43-2-2, or residential entry, Ind.Code § 35-43-2-1.5. Permitting the felonious intent element to be inferred from the inference of breaking and entering would render the intent element meaningless and read it out of the statute. See Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the Legislature had intended to punish a breaking and entry by itself, as we have here, they would not have added the second element of specific intent. A reading of the statute clearly indicates that both elements are included.”).

Here, there was evidence that the defendant had been in the church kitchen and opened several cupboards and drawers while there. This evidence, standing alone, permits a reasonable inference of the defendant’s felonious intent at the time of entry. Looking through the kitchen cupboards and drawers was not a necessary step in the act of breaking and entering the church. It was an additional act, separate and distinct from the breaking and entering, in which the defendant chose to engage. The opening of cabinets and drawers by an intruder suggests, among other things, that the person opening them was looking for something to take. From this, the jury reasonably could have concluded that the defendant broke and entered the church with an intent to commit theft. That there was no evidence that the defendant had rummaged through the drawers or cabinets, as the defendant argues, is of no consequence. The act of opening the drawers and cabinets alone was enough to support an inference of intent to commit theft. Evidence of rummaging would simply bolster the already reasonable inference of intent.

The defendant also argues that there is no evidence that he was near or approaching any valuable property while inside the church, drawing on brief discussions in Freshwater, 85B N.E.2d at 944-45 (declining to permit inference of intent to commit felony inside building where only evidence of intent was that defendant had been seen inside building at time of breaking and entering, but not seen near any valuable property, and fleeing after alarm sounded), and Justice, 530 N.E.2d at 297 (declining to permit inference of intent to commit specific felony from fact that defendant was seen wearing black socks on hands inside building he had broke and entered). Neither of these cases, however, should be understood to suggest that sufficient evidence of intent necessarily requires evidence that the defendant was near or approaching valuable property. A defendant’s close proximity to valuable property may serve as an independent basis from which a reasonable inference of intent to commit a felony can be drawn. But, the absence of such evidence will not preclude conviction because the statutory definition of the crime of theft places no minimum threshold on the value of property necessary to constitute the felony. Ind. Code § 35-43-4-2(a) (“A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.”). Thus, it is enough that in this case there was evidence that the defendant committed an act which could support an inference that he was searching for something to steal, no matter the value.

Conclusion

From this evidence presented, we conclude that a reasonable jury could have found beyond a reasonable doubt that the defendant committed breaking and entering of the church with the intent to commit theft. The judgment of the trial court is affirmed.

SULLIVAN, RUCKER, DAVID, and MASSA, JJ., concur.

      . An “Information” is "[a] formal criminal charge made by a prosecutor without a grand-jury indictment.” Black’s Law Dictionary 849 (9th ed. 2009).

      . By statute, burglary is generally a class C felony. Ind. Code § 35-43-2-1. It is a class B felony, however, if “committed while armed with a deadly weapon” or the building or structure is a "dwelling” or the “structure [is] used for religious worship." Id. § 35-43-2-1(1). It is a class A felony if the burglary "results in: (A) bodily injury; or (B) serious bodily injury; to any person other than a defendant.” Id. § 35-43-2-1(2). Here, Baker was charged with class B felony burglary because the structure was a church used for religious worship.

      . Theft is a felony pursuant to Indiana Code Section 35-43-4-2(a).

      . Faulkner was explicitly overruled by Carter v. State, 265 Ind. 535, 537, 356 N.E.2d 220, 222 (1976), which found sufficient evidence of intent to commit a felony where there was evidence that a defendant broke and entered a beauty salon at 2:00 a.m. armed with a revolver. Though it does not explicitly acknowledge the similarity, Carter employs the same reasoning as Lisenko v. State, 265 Ind. 488, 355 N.E.2d 841 (1976), which held that, "[i]n the absence of evidence that this forced entry was made with some lawful intent, we think that the intent to commit a felony may be reasonably inferred from the time, force, and manner in which the entry here was made.” 265 Ind. at 490-91, 355 N.E.2d at 842-43. Both Lisenko and Carter, however, have been abrogated by subsequent pronouncements of this Court. See Justice, 530 N.E.2d at 297 (holding that "some fact in evidence must point to an intent to commit a specific felony” and finding insufficient evidence of an intent to commit a felony where defendant broke and entered the home of another and was found wearing socks over his hands); Gilliam, 508 N.E.2d at 1271 (distinguishing Lisenko and holding that there must be evidence providing a "solid basis to support a reasonable inference that the defendant intended to commit the underlying felony charged” and finding insufficient evidence of intent where only evidence was that defendant had broke and entered dwelling); see also Sumner v. State, 540 N.E.2d 1253, 1255 (Ind.Ct.App.1989) ("The cleavage between Li-senko and Justice and Gebhart [v. State, 531 N.E.2d 211 (Ind. 1988),] is too strong to ignore. Lisenko and the numerous cases following it have been impliedly overruled.”); Hahn v. State, 533 N.E.2d 618, 620-21 (Ind. Ct.App.1989) ("Accordingly, to the extent that prior cases, beginning with Lisenko v. State,
        have held that intent to commit theft may be inferred by time and manner of entry, even when coupled with flight, they have been impliedly overruled.” (citation omitted)). Accordingly, Faulkner remains good law.


author: NAJAM, Judge. DARDEN, Judge,

text:
    Todd WALTERS and Matenia Walters, Appellants-Plaintiffs, v. Aaron AUSTIN and Herman & Goetz, Inc., Appellees-Defendants.
    No. 20A04-1106-CT-342.
    Court of Appeals of Indiana.
    April 18, 2012.
    Rehearing Denied June 28, 2012.
    Douglas A. Mulvaney, Stutsman & Mul-vaney, Elkhart, IN, Attorney for Appellants.
    Kristy M. Rans, Martin J. Gardner, Gardner & Rans P.C., South Bend, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Todd and Matenia Walters (collectively “the Walterses”) appeal the trial court’s judgment on a jury verdict in favor of Aaron Austin and his employer, Herman & Goetz, Inc., (collectively “Defendants”) on the Walterses’ complaint for damages arising from a multi-vehicle accident. The Walterses present several issues for review. However, because we determine that we do not have jurisdiction, we do not reach the merits of this appeal.

We dismiss.

FACTS AND PROCEDURAL HISTORY

On February 28, 2005, Todd Walters was involved in a multi-vehicle accident in the eastbound lane of the U.S. 20 bypass in northern Indiana. Several vehicles, including Walters’ truck, hit a patch of black ice on an overpass. Walters was able to maneuver his vehicle to the right side of the road, where it came to a stop. Austin, driving his employer’s van, then lost control on' the ice and hit Walters, who was standing on the driver’s side of his vehicle. Walters was thrown by the impact and suffered serious injuries.

On February 27, 2007, the Walterses filed a complaint against the Defendants seeking damages for his injuries. Following a four-day trial, the jury returned a verdict in favor of the Defendants on April 21, 2011, and the trial court entered judgment on May 3. The Walterses filed a motion to correct error on May 20, which the trial court denied on May 28. Unaware of that ruling, the Walterses filed an amended motion to correct error and a motion to relate the amended motion back to the filing date of the original motion to correct error. On May 24, the trial court granted the motion to relate back but denied the amended motion to correct error.

The Walterses filed their notice of appeal on June 23. On January 20, 2012, the Defendants filed a motion to dismiss the appeal for failure to timely file a notice of appeal. On February 7, the Walterses filed their response. A motions panel of this court held the motion to dismiss in abeyance pending the completion of briefing and assignment of this case to the writing panel.

DISCUSSION AND DECISION

During the briefing process in this case, the Defendants filed a motion to dismiss the Walterses’ appeal, alleging that the Walterses had not timely filed the notice of appeal. In 2011, the rule governing the initiation of an appeal provided:

A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first....

Ind. Appellate Rule 9(A)(1). The timely filing of a notice of appeal is a jurisdictional prerequisite. State v. Hunter, 904 N.E.2d 371, 373 (Ind.Ct.App.2009). Failure to conform to the applicable time limits results in forfeiture of an appeal. Ind. App. R. 9(A)(5).

Here, the trial court entered judgment in favor of the Defendants on May 3, 2011. The Walterses timely filed a motion to correct error on May 20, and the trial court denied that motion on May 23. Unaware of that order, the Walterses filed an amended motion to correct error also on May 23 as well as a motion requesting that the amended motion relate back to the original filing date of May 20. The Wal-terses have conceded that the amended motion to correct error “is essentially the same Motion to Correct Errors and Memorandum of Law in Support with the exception of typographical and grammatical changes.” Motion to Dismiss, Exhibit D (Motion to Relate Filing Back to Original Filing Date) at 2. The trial court granted the motion to relate back but denied the amended motion to correct error. The Wal-terses then filed their notice of appeal on June 23, 2011.

The Defendants contend that the appeal should be dismissed because the notice of appeal was filed thirty-one days after the trial court denied the first motion to correct error. The Walterses maintain that the relevant date for determining the timeliness of the notice of appeal is May 24, 2011, the date the trial court denied the amended motion to correct error. In support, they assert that the amended motion to correct error was “not filed in an effort to extend the filing deadline [for the notice of appeal] nor was it an attempt to ask the Trial Court to reconsider the motion as the Amended Motion to Correct Errors was filed before counsel for plaintiff[s] was notified that the original Motion to Correct Errors had been denied.” Response to Motion to Dismiss at ⅜2. Therefore, the Walterses believe that they timely filed their notice of appeal. We cannot agree.

Indiana Trial Rule 53.4 provides in relevant part that repetitive motions “shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” We find that rule applicable here. The Walterses’ amended motion to correct error was nearly identical to the original motion to correct error, amending only non-substantive, typographical and grammatical errors in the original motion. Further, the amended motion was to “relate back” to the original motion. In effect, the amended motion was merged with the original motion, and the denial date of the original motion was May 23. We conclude that the amended motion to correct error was a repetitive motion and, therefore, the filing of the amended motion did not change the date for filing the notice of appeal. See Peters v. Perry, 873 N.E.2d 676, 678-79 (Ind.Ct.App.2007), modified on other grounds on reh’g, 877 N.E.2d 498 (Ind.Ct.App.2007) (treating subsequent motion to correct error as motion to reconsider, which did not alter time for filing appeal). The Walterses’ notice of appeal was filed thirty-one days after the trial court denied the first motion to correct error. Because the notice of appeal was not timely filed, we do not have jurisdiction to consider the merits of this appeal and must dismiss this appeal.

Dismissed.

RILEY, J., concurs.

DARDEN, J., dissents with separate opinion.

DARDEN, Judge,

dissenting.

I respectfully dissent.' I do not agree with the majority’s holding that the Walterses’ amended motion to correct error was a repetitive motion for the purposes of Indiana Trial 53.4, which was designed to prevent delay through the filing of repetitive motions. See Stephens v. Irvin, 734 N.E.2d 1133, 1134 (Ind.Ct.App.2000), trans. denied.

The Walterses filed both of their motions to correct error well within the time period to do so; filed the amended motion to correct error only three days after filing the original motion; and filed the May 23 motion prior to receiving notice that the trial court had denied the May 20 motion. The Walterses clearly did not file the May 23 motion in an effort to extend the time for filing their notice of appeal. Accordingly, I do not believe that the interest of justice is served by treating the May 23 motion as a repetitive motion. I therefore would review this case on the merits.

      . Indiana Appellate Rule 9 was amended effective January 1, 2012. Although the amendments do not materially affect the disposition of this case, we refer to the rule in effect at the time the Walterses filed their notice of appeal.


author: VAIDIK, Judge. CRONE, Judge,

text:
    ALEBRO, LLC, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Jason Scheidell, Appellee.
    No. 93A02-1110-EX-970.
    Court of Appeals of Indiana.
    April 18, 2012.

      Dustin Stohler, Law Office of Dustin Stohler, Pendleton, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie L. Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Alebró, LLC, appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) granting its terminated employee, Jason Scheidell, unemployment benefits. Alebró argues that the Review Board erred in failing to admit documents as evidence at the hearing, used the wrong burden of proof, and erred in allowing Scheidell to rebut Aleb-ro’s prima facie case of just cause for termination by arguing instead that he had committed a different terminable offense. We hold that if an employee’s explanation for the behavior that led to his termination is another terminable offense, that provides just cause for termination. We therefore reverse.

Facts and Procedural History

Alebró, LLC, is a retail seller of salt that employed Jason Scheidell from June 16, 2004, until June 20, 2011. Alebró had noticed for some time that it had been missing inventory, but it did not know why. In June 2011, a customer of Alebró, Mr. Adams, notified Alebró that Scheidell had offered to sell him what he claimed was his own salt at a price lower than that at which Alebró would sell it. Alebró instructed Mr. Adams to go through with the transaction, so Mr. Adams agreed to buy one pallet of salt from Scheidell for $150. The purchase took place at Alebro’s warehouse at the far end of the loading dock.

Alebró fired Scheidell for theft, alleging that the salt that he sold to Mr. Adams was actually Alebro’s missing salt. Schei-dell filed for unemployment compensation and was denied. Scheidell appealed. The Administrative Law Judge (ALJ) conducted a telephonic hearing, during which documents Alebró claimed proved the salt was its own were not admitted into evidence because proper procedure was not followed, specifically, Alebró did not send the documents to Scheidell before the hearing. Also, Scheidell attempted to rebut Alebro’s prima face case of theft by admitting instead that he only breached his duty of loyalty to Alebró by selling salt on Alebro’s property at a lower price than Alebró sold it for, another terminable offense. The ALJ reversed, determining that Scheidell had not been terminated for just cause for theft. The ALJ did not consider that Scheidell’s explanation for his behavior was an admission that he committed another terminable offense. The finding was upheld by the Review Board, which adopted the findings and conclusions of the ALJ.

Alebró now appeals.

Discussion and Decision

The Indiana Unemployment Compensation Act (“the Act”) provides that any decision of the Review Board shall be conclusive and binding as to all questions of fact. Ind.Code § 22 — 4-17-12(a). When the Review Board’s decision is challenged as contrary to law, the reviewing court is limited to a two-part inquiry into (1) the sufficiency of the facts found to sustain the decision and (2) the sufficiency of the evidence to sustain the findings of fact. Ind.Code § 22-4-17-12(f). Under this standard, courts are called upon to review: (1) determinations of specific or basic underlying facts; (2) conclusions or inferences from those facts, or determinations of ultimate facts; and (3) conclusions of law. Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 122 (Ind.2012). The Review Board’s findings of basic fact are subject to a “substantial evidence” standard of review. Id. In this analysis, the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Review Board’s findings. Id. The Review Board’s conclusions as to ultimate facts involve an inference or deduction based on the findings of basic fact. Id. Accordingly, they are typically reviewed to ensure that the Review Board’s inference is “reasonable” or “reasonable in light of [the Review Board’s] findings.” Id. at 13-18. Legal propositions are reviewed for their correctness. Id.

The Act was enacted to “provide for payment of benefits to persons unemployed through no fault of their own.” Ind.Code § 22-4-1-1; P.K.E. v. Review Bd. of Ind. Dep’t of Workforce Dev., 942 N.E.2d 125, 130 (Ind.Ct.App.2011), trans. denied. An individual is disqualified for unemployment benefits if he or she is discharged for “just cause,” Ind.Code § 22-4-15-1; P.K.E., 942 N.E.2d at 130, which includes gross misconduct, Ind.Code § 22-4-15-6.1. As set forth in Indiana Code section 22 — 4-15-6.1,

(b) “gross misconduct” means any of the following committed in connection with work, as determined by the department by a preponderance of the evidence:
(5) Theft or embezzlement....

When an employee is alleged to have been discharged for just cause, the employer bears the burden of proof to make a prima facie showing of just cause. P.K.E., 942 N.E.2d at 130. Once the employer meets its burden, the burden shifts to the employee to rebut the employer’s evidence. Id. Here, the ALJ found that Scheidell was not terminated for just cause for theft of Alebro’s salt. The Review Board adopted the ALJ’s findings and conclusions.

Alebró contends that the Review Board erred in determining that Scheidell was not properly terminated for just cause because: (1) the ALJ failed to admit documents into evidence that showed that Scheidell stole salt from Alebró; (2) the ALJ improperly put the burden of proof on Alebró to prove that Scheidell was ineligible for benefits; and (3) Scheidell attempted to rebut the allegation that he stole from Alebró by admitting instead that he only breached his duty of loyalty to Alebró, another terminable offense. We address each of these arguments in turn.

I.Admission of Documents

Alebró contends that the ALJ erred in failing to admit into evidence certain documents showing that the salt sold by Scheidell belonged to Alebró. We disagree. The Indiana Administrative Code squarely addresses this issue, stating in relevant part:

(d) When a hearing before an administrative law judge, or the review board, is scheduled by telephone, either with one (1) or both parties participating by telephone, the parties shall:
(1) exchange any exhibits to be introduced into the record at the hearing; and
(2) mail a copy of those exhibits to the administrative law judge, or to the review board, no later than four (4) days prior to the scheduled hearing date.

646 Ind. Admin. Code 5 — 10—24(d) (emphasis added).

Additionally, in the hearing instructions sent to both parties with the Notice of Hearing is a section concerning the admission of evidence. The instructions said, in relevant part:

If you wish to have exhibits/evidence considered at your hearing, you must label each document with a letter or number, as well as your case number so the judge can easily refer to them. You must confirm you have sent copies to the other party. Failure to do so may result in the judge refusing to allow them to be used or discussed at the hearing.

Ex. 8-9 (emphasis added). It is clear that Alebró was required to send the documents in question to Scheidell before the telephonic hearing. Alebró failed to do so, and based on the rules of the hearing, the ALJ was acting well within his discretion when he properly refused to admit the documents into evidence.

II.Burden of Proof

Alebró also contends that the ALJ improperly placed the burden of proof on Alebró to prove that Scheidell was ineligible for benefits. When an employee is alleged to have been discharged for just cause, the employer bears the burden of proof to make a prima facie showing of just cause. P.K.E., 942 N.E.2d at 130. Once the employer meets its burden, the burden shifts to the employee to rebut the employer’s evidence. Id. Alebró argues that the ALJ required it to initially prove its case against Scheidell instead of just providing a prima facie case of his theft. We disagree.

A review of the ALJ’s decision shows that Alebró provided a prima facie case and Scheidell rebutted that case by claiming the salt was his. With no evidence to disprove Scheidell’s claim as a result of certain documents being excluded from evidence, the ALJ found that Scheidell had sufficiently rebutted Alebro’s prima facie case. Appellant’s App. p. 6.

The ALJ did not require Alebró to first prove its case against Scheidell; it merely found that Scheidell provided enough evidence to rebut the prima facie case that Alebró presented without the documents that may have proved the theft. We therefore find that the ALJ did not place the wrong burden of proof on Alebró.

III.Breach of Duty of Loyalty

Finally, Alebró contends that Scheidell is ineligible for benefits because he attempted to rebut the allegation that he stole salt from Alebró by admitting instead that he only breached his duty of loyalty to Alebró by selling salt on Alebro’s property cheaper than Alebró did, another terminable offense. We agree.

Scheidell argues that our review is limited to Alebro’s stated grounds for discharge, in this case, theft. See Voss v. Review Bd. of Dep’t of Emp’t and Training Servs., 538 N.E.2d 1020, 1021 (Ind.Ct.App.1989). In Voss, Voss was fired for unauthorized and excessive use of the company phones for personal phone calls. Id. The Review Board found that Voss was terminated for just cause, but considered other grounds for his termination besides his unauthorized and excessive use of the company phones. We held that the Review Board’s decision was “in error to the extent it determined that any other basis existed for Voss’s discharge,” and that our review of his unemployment benefit denial was confined solely to his employer’s stated grounds for termination. Id.

While we agree that Voss limits the scope of the review that may be conducted, we must limit the breadth of Voss so that we do not create illogical and absurd results. The rule in Voss limits the scope of unemployment-benefit hearings to the stated offense or offenses that were the reason for terminating an employee. The reasoning of Voss is so employees are not surprised with additional allegations that were not charged. Put differently, the policy reason behind Voss is fair notice of the allegations so the employee may defend against them. In that sense, Voss is a logical limitation on unemployment-benefit hearings. However, the reasoning of Voss is no longer applicable when an employee defends his behavior against a stated offense by admitting another terminable offense. He no longer requires the protection of fair notice because he is the one setting forth the allegations of his terminable offenses, not his employer. To do otherwise would allow an employee to turn the shield of Voss into a sword, using his own terminable offenses to obtain undeserved unemployment benefits. This would turn Voss on its head and accomplish the opposite of what the holding in Voss is designed to do..

In this case, Scheidell denies that the salt that he sold to Mr. Adams was Aleb-ro’s salt; instead, he claims it was his own. Since the documents that may have showed that the salt was Alebro’s were excluded from evidence, Alebró cannot refute Scheidell’s claim. However, Schei-dell’s refutation of theft included an admission that he sold the salt on Alebro’s property at a lower price than Alebró sold it for, a clear breach of duty reasonably owed to his employer.

The Indiana Administrative Code defines a breach of duty reasonably owed to an employer, in relevant part, as: conduct which establishes that the claimant:

⅜: ⅜ ⅜ ⅜ ⅜: ⅜
(8) chose a course of action that the claimant knew, or should have known, would negatively impact the employer’s financial interests;
(4) demonstrated an intentional or substantial disregard for the employer’s interests;
(5) intentionally or knowingly injured, or attempted to injure, the employer’s financial interests;
(6) intentionally chose a course of action that pitted the claimant’s interests against the employer’s interests to the detriment of the employer;

646 Ind. Admin. Code 5-8-6(b). Scheidell breached the duty he reasonably owed to Alebró by undercutting its price for salt and selling to one of its customers. Schei-dell acted contrary to Alebro’s financial interests and stole one of its customers, a blatant violation of his fiduciary duty to Alebró.

We therefore find that Scheidell’s explanation for the theft alleged by Alebró was another terminable offense. Because we limit the holding in Foss, we hold that the Review Board erred in finding Scheidell eligible for unemployment-insurance benefits.

Reversed.

BRAFORD, J., concurs.

CRONE, J., concurs with separate opinion.

CRONE, Judge,

concurring.

I fully concur in the majority’s reasoning and result, but I write separately to express my disagreement with its disclosure of the full names of both the unemployment claimant and the employer in what I believe to be a contravention of Indiana law.

Indiana Administrative Rule 9(G)(1) says, “The following information in case records is excluded from public access and is confidential: ... [(b) ](xviii) All records of the Department of Workforce Development as declared confidential by Ind.Code § 22-4-19-6.” Indiana Code Section 22-4-19-6 says,

Except as provided in subsections (d) and (f) [which are not relevant here], information obtained or obtained from any person in the administration of this article and the records of the department relating to the unemployment tax or the payment of benefits is confidential and may not be published or be open to public inspection in any manner revealing the individual’s or the employing unit’s identity, except in obedience to an order of a court or as provided in this section.

Ind.Code § 22-4-19-6(b). Finally, Administrative Rule 9(G)(4)(d) says,

Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.

(Emphasis added.)

As I said in my concurring opinion in S.S. LLC v. Review Board of Indiana Department of Workforce Development, 953 N.E.2d 597 (Ind.Ct.App.2011), I do not see how the foregoing provisions “can be read to allow the disclosure of the full names of unemployment claimants and employers in decisions issued by this Court.” Id. at 607 (Crone, J., concurring). Our supreme court’s recent decision in Recker v. Review Board has not changed my mind.

In that case, the court “acknowledge^] that the identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code Section 22-4-19-6(b)” as “expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(l)(b)(xviii).” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 n. 4 (Ind.2011). The court then said that Administrative Rule 9(G)

further provides, however, that when information excluded from public access is presented in court proceedings open to the public, “the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.” Adm. R. 9(G)(1.2) (emphasis added).

Id. The court went on to say,

The decisions of the ALJ and the Review Board in this case were each expressly labeled as a “Confidential Record” pursuant to Indiana Code Section 22-4-19-6. Appellant’s App’x at 2, 5. In the course of this appeal, the Appellee’s Appendix filed by the employer was identified as “Confidential,” but the Appellant’s Appendix filed by the employee was not so labeled, and it disclosed her full name. Both the claimant-appellant and the Board-appellee used only initials to identify the claimant in their briefs, but the briefs of both revealed the identity of the employer. Neither the claimant, the employer, nor the Review Board, made any affirmative request pursuant to Administrative Rule 9(G)(1.2) to continue the exclusion from public access the identities and information confidential under the statute and rule. Pursuant to Administrative Rule 9(G)(1.2), in light of the absence of an affirmative request for continued confidentiality of the identities of the employee and the employing entity, we fully identify the parties. As to the facts of the case that derive from the records of the Department and are discussed in this opinion, we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law. Adm. R. 9(G)(3) and 9(G)(4)(d).

Id.

The Recker court’s rationale for disclosing the parties’ identities omits a critical component of Administrative Rule 9(G)(1.2), which reads in its entirety as follows:

During court proceedings that are open to the public, when information in case records that is excluded from public access pursuant to this rule is admitted into evidence, the information shall remain excluded from public access only if a party or a person affected by the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively requests that the information remain excluded from public access.

(Emphasis added.) Because appellate courts do not conduct trials or evidentiary hearings and thus do not admit “information in case records ... into evidence,” I fail to see how Administrative Rule 9(G)(1.2) can be used to justify the disclosure of parties’ identities in unemployment cases for the first time on appeal. Until the relevant provisions of Administrative Rule 9(G) are amended by our supreme court, I intend to continue to use initials in unemployment cases that I write.

      . In the even more recent case of Chrysler Group, LLC v. Review Board of Indiana Department of Workforce Development, 960 N.E.2d 118 (Ind.2012), our supreme court elected to identify the individual claimant by initials but identified the employer by name because it saw "little merit in attempting to conceal the identity of a global automotive manufacturer that faced a massive economic collapse in 2008 and whose initials are ‘C.G.’” Id. at 121 n. 1. No such considerations are at play here.