author: NAJAM, Judge.

text:
    CITY OF ELKHART, Indiana, Appellant-Petitioner, v. SFS, LLC and Jefferson Group, LLC, Appellees-Respondents.
    No. 20A04-1104-MI-213.
    Court of Appeals of Indiana.
    June 1, 2012.

      Amber J. Bressler, City of Elkhart, Indiana, Elkhart, IN, Attorney for Appellant.
    Richard Wayne Greeson, Connersville, IN, Attorney for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

The City of Elkhart (“the City”) appeals the trial court’s grant of a motion to correct error jointly filed by SFS, LLC (“SFS”) and Jefferson Group, LLC (“Jefferson”). The City raises the following three issues for our review:

1. Whether SFS and Jefferson lack standing to challenge the trial court’s order for issuance of a tax deed to certain real property to the City.
2. Whether the trial court abused its discretion in considering SFS and Jefferson’s designation of evidence.
3. Whether the trial court abused its discretion when it concluded that the City did not comply with Indiana law when it failed to provide SFS with notice of tax sale proceedings.
We affirm.

FACTS AND PROCEDURAL HISTORY

In 2007, real property in Elkhart located at 1701 Kilbourn Street (“the property”) was placed in a tax sale. SFS, a limited liability company based in Birmingham, Alabama, purchased the tax sale certificate for the property on October 29, 2007. The prior owner, Gary Kratzer, did not redeem the property within one year.

Accordingly, on November 17, 2008, SFS, by local counsel, petitioned the trial court for the issuance of a tax deed. The court granted SFS’ petition on January 23, 2009, and ordered the county auditor to execute and deliver a tax deed to SFS for the property.

However, before SFS had recorded its tax deed, the property was again placed in a tax sale based on SFS’ failure to timely pay property taxes. The second tax sale was held on November 30, 2009, and the property went unsold, which resulted in the Elkhart County Commissioners acquiring a lien against the property on December 1 by operation of law. See Ind.Code § 6-l.l-24-6(a). According to the second tax sale certificate, the property was still held in Kratzer’s name.

Just four days after the second tax sale, on December 4, 2009, SFS recorded its tax deed from the first tax sale. The recorded deed identifies SFS by name and states its address as 17 20th Street North, Suite 310, Birmingham, Alabama, 35203. See Appellant’s App. at 237. The deed also contains the county auditor’s stamp, noting that it had been “Duly Entered for Taxation.” Id.

On January 19, 2010, the City obtained a title report and title insurance commitment on the property. The purpose of the title report was “to ascertain the names of all persons entitled to receive notice” before the issuance of a second tax deed. Id. at 209. The City instructed a paralegal to review the title work. The title report disclosed that SFS had recorded its tax deed on December 4, 2009, and, thus, informed the City that SFS held title to the property. The paralegal sought SFS’ legal address but, rather than simply using the address that appears on the December 2009 tax deed, she instead “searched the records of the Indiana Secretary of State,” which listed the address of a “Domestic Limited Liability Company” named “SFS, LLC[,] as PO Box 6272, Fishers, Indiana 46038.” Id. at 279, 287.

On February 22, 2010, the Elkhart County Commissioners assigned their certificate of sale for the property to the City. See id. at 221. On February 26, the City mailed notice to Kratzer and attempted notice by mail to SFS at the Fishers address informing them of the expiration of the redemption period on March 31. Id. In March, the City published notice in the Elkhart Truth. After the expiration of the redemption period, on April 15, 2010, the City filed a petition for issuance of a tax deed. That same day, the City mailed notice of its petition to Kratzer and again attempted notice by mail to SFS at the Fishers address. See id. at 228.

Meanwhile, SFS had issued a quitclaim deed for the property to Jefferson. Id. at 238. Jefferson recorded its deed on May 11, 2010. On June 11, 2010, the trial court granted the City’s petition for the issuance of a tax deed.

On July 19, 2010, SFS and Jefferson filed a joint motion to set aside the tax deed due to lack of notice. The parties subsequently filed cross motions for summary judgment, and, on January 5, 2011, the trial court entered summary judgment for the City. On February 1, 2011, SFS and Jefferson filed a joint motion to correct error, and, after the City responded, the court held a hearing on the motion on March 11, 2011. On April 4, the court granted the motion to correct error and vacated its June 11, 2010, order for the issuance of a tax deed to the City. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

The City appeals the trial court’s grant of SFS and Jefferson’s motion to correct error. A trial court has discretion to grant or deny a motion to correct error and we reverse its decision only for an abuse of that discretion. Hawkins v. Cannon, 826 N.E.2d 658, 661 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

When the trial court granted the motion to correct error, it also vacated its summary judgment for the City, finding that genuine issues of material fact exist with regard to the issuance of the tax deed. Our standard of review for summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1. 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004).

Issue One: Standing

The City first contends that SFS and Jefferson lack standing to challenge the issuance of the tax deed to the City. “[Standing requires that an actual, injured party participate in this ease.” Simon v. Simon, 957 N.E.2d 980, 988 (Ind.Ct.App.2011). SFS and Jefferson allege that the City used the November 80, 2009, tax sale (conducted while SFS was the fee simple title holder) and the June 11, 2010, issuance of the tax deed (issued while Jefferson was the fee simple title holder) to deprive them of their interests in the real property without the notice required by law.

The City asserts that SFS and Jefferson lack standing because neither party was an owner of record entitled to notice at the time of the 2009 tax sale. As the trial court correctly found, “to qualify as an owner of record[ ] a party must record his or her deed prior to the time of the tax sale.” Appellant’s App. at 205. But, in this case, that rule alone does not resolve the question of standing. Here, the trial court also correctly found that SFS had recorded its tax deed before the City acquired the lien on the property from the County Commissioners, that the tax deed contained an accurate address on its face, and that SFS had “obviously” demonstrated a substantial property interest of record. Id. Accordingly, on these facts, both SFS and Jefferson, as SFS’ successor in interest, have demonstrated they have a substantial interest at stake and, therefore, have standing to challenge the City’s right to a tax deed.

Issue Two: Untimely Designation of Evidence

The City next alleges that the trial court “appears” to have considered SFS and Jefferson’s (hereinafter collectively referred to as “SFS”) designation of evidence in response to the City’s summary judgment motion, even though that designation was filed thirty-six days after SFS filed its response to the City’s motion. See Appellant’s Br. at 8. It is well settled that a trial court may not consider the untimely designation of evidence. See Seufert v. RWB Med. Income Props. I Ltd. P’ship, 649 N.E.2d 1070, 1072-73 (Ind.Ct.App.1995).

Here, however, the evidence designated by SFS was largely superfluous to the evidence already designated by the City. The only new evidence designated by SFS was proof that it is an Alabama-based corporation. Even assuming without deciding that the trial court erroneously considered that evidence, we are not persuaded that the evidence mattered. The City’s own evidence made it obvious that SFS had an Alabama mailing address, and the trial court’s order on the motion to correct error relies only on the City’s designated evidence. Thus, even if the trial court relied on materials that were not timely designated, any such error would be harmless.

Likewise, the City baldly asserts that the trial court relied on the arguments of SFS’ attorney as if they were evidence. See id. at 12. This argument is without cogent reasoning and is waived. See Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, again, the court’s order plainly relies only on the evidence designated by the City and, therefore, there is no reversible error on this issue.

Issue Three: Notice

Finally, we consider whether the City provided sufficient notice to SFS of the second tax sale proceedings. The Supreme Court of the United States has described the notice requirements of due process as follows:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied. The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations and quotations omitted); see also Jones v. Flowers, 547 U.S. 220, 229-30, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane).

In Indiana:

The tax sale process involves the issuance of three notices to the property owner. The first required notice is the county auditor’s notice of tax sale, which is governed by Ind.Code section 6 — 1.1— 24-4....
When tax sale notices are returned in their entirety as undeliverable, it is incumbent as a matter of both federal constitutional and state law that further action be taken to effectuate notice reasonably calculated to apprise an interested party of tax sale proceedings, if it is practicable to do so. Edwards v. Neace, 898 N.E.2d 343, 348 (Ind.Ct.App.2008). Additionally, the auditor is deemed to be aware of the contents of the records maintained in its office, and due process requires the county auditor to search the records that it maintains. Id.
The second required notice is the notice of the right of redemption, which the person who purchases the prpperty at a tax sale sends to the owner of the property. The governing statute, Indiana Code section 6-1.1-25-4.5, provides that a purchaser is entitled to a tax deed to a property that was sold at a tax sale only if “the purchaser .., gives notice of the sale to the owner of record at the time of the sale and any person with a substantial property interest of public record in the tract or real property.” Furthermore,
[t]he person required to give the notice ... shall give the notice by sending a copy of the notice by certified mail to the owner of record at the time of the ... sale of the property ... at the last address of the owner for the property, as indicated in the records of the county auditor....
I.C. § 6-l.l-25-4.5(d).
The third required notice is the notice of filing a petition for tax deed, which the person who purchases the property at a tax sale sends to the owner of the property. The relevant statute, Indiana Code section 6-l.l-25-4.6(a), provides,
[ajfter the expiration of the redemption period specified in section 4 of this chapter but not later than six (6) months after the expiration of the period of redemption ... the purchaser, the purchaser’s assignee, the county executive, or the purchaser of the cer-tifícate of sale under IC 6-1.1-24 may ... file a verified petition in the same court and under the same cause number in which the judgment of sale was entered asking the court to direct the county auditor to issue a tax deed if the real property is not redeemed from the sale. Notice of the filing of this petition shall be given to the same parties and in the same manner as provided in [I.C. § 6-1.1-25-4.5], except that, if notice is given by publication, only one (1) publication is required.
Title conveyed by a tax deed may be defeated if the three required notices were not issued in substantial compliance with the requirements prescribed by statute. See Ind.Code § 6-1.1-25-16(7); Reeder, 778 N.E.2d at 881.

In re 2007 Tax Sale in Lake County, 926 N.E.2d 524, 527-29 (Ind.Ct.App.2010) (some alterations and omissions original).

And, pursuant to the Indiana Code:

(b) A county executive is entitled to a tax deed to property on which the county executive acquires a lien under IC 6-1.1-24-6 and for which the certificate of . sale is not sold under IC 6-1.1-24-6.1 only if:
(1) the redemption period specified in section 4(b) of this chapter has expired;
(2) the property has not been redeemed within the period of redemption specified in section 4(b) of this chapter; and
(3) not later than ninety (90) days after the date the county executive acquires the lien under IC 6-1.1-24-6, the county auditor gives notice of the sale to:
(A)the owner of record at the time the lien was acquired; and
(B)any person with a substantial property interest of public record in the tract or real property.
(d) The person required to give the notice under subsection (a), (b), or (c) shall give the notice by sending a copy of the notice by certified mail to:
(1) the owner of record at the time of the:
(A) sale of the property;
(B) acquisition of the lien on the property under IC 6-1.1-24-6; or
(C) sale of the certificate of sale on the property under IC 6-1.1-24;
at the last address of the owner for the property, as indicated in the records of the county auditor; and
(2) any person with a substantial property interest of public record at the address for the person included in the public record that indicates the interest.
However, if the address of the person with a substantial property interest of public record is not indicated in the public record that created the interest and cannot be located by ordinary means by the person required to give the notice under subsection (a), (b), or (c), the person may give notice by publication in accordance with IC 5-S-1-4 once each week for three (3) consecutive weeks.

Ind.Code § 6-1.1-25-4.5 (emphasis added). Indiana law defines “substantial property interest of public record” as “title to or interest in a tract possessed by a person and recorded in the office of a county recorder or available for public inspection in the office of a circuit court clerk no later than the hour and date the sale is scheduled to commence....” I.C. § 6-1.1-24-1.9 (emphasis added).

In light of the statutory language and case law, we agree, to a point, with the City’s assessment of its notice obligations. Specifically, we agree with the City that it was required to give notice to all persons with a substantial property interest of public record, based on the public record at the time of the second tax sale on November 30, 2009. But on these facts, the City was not entitled to rely entirely on the public record at the time of the sale.

The City was required to use “ordinary means” to give notice to SFS. I.C. § 6-1.1-25-4.5(d). The City contends, however, that its obligation to use ordinary means is limited to the information available in the public record at the date and time of the second tax sale. Thus, the City continues, a review of the Secretary of State’s records and notice by publication were the only means available to the City to provide SFS with notice of the expiration of the redemption period and the City’s petition for issuance of a tax deed. For the reasons discussed below, we cannot agree with the City’s assessment.

On January 19, 2010, the City, through its paralegal, obtained actual notice of SFS’ December 4, 2009, recorded tax deed, which contained SFS’ Alabama address on the face of the deed. As we have explained:

Actual notice can be divided into two categories: express ... and implied, which is inferred from the fact that the person charged had means of knowledge which he did not use. Whatever fairly puts a person on inquiry is sufficient notice where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. Notice is actual where the [party] is aware ... or has such information as would lead to knowledge.

Crown Coin Meter Co. v. Park P, LLC, 934 N.E.2d 142, 148 (Ind.Ct.App.2010) (emphasis added; citations and quotations omitted).

It is not clear whether or when the City’s paralegal actually saw the Alabama address on the face of SFS’ deed, but it is undisputed that she knew that SFS had recorded its deed. And the applicable statute concerning the county auditor’s transfer book provides that:

(a) Except as provided in section 9 of this chapter, the county auditor shall keep a transfer book, arranged by townships, cities, and towns. In the transfer book he shall enter a description, for the purpose of taxation, of land that is conveyed by deed or partition, the date of the conveyance, the names of the parties, and the post office address of the grantee.
(b) In addition, the auditor shall endorse on the deed or instrument of conveyance the words “duly entered for taxation subject to final acceptance for transfer”, “not taxable”, “has already been listed for taxation”, or “duly entered for taxation”. The deed or instrument must include on its face the post office address of the grantee.

I.C. § 6 — 1.1—5-^1 (emphases added). Because this statute requires that a recorded deed contain the post office address of the grantee, we conclude, as a matter of law, that when the City’s paralegal learned that SFS had recorded its deed, the City was on inquiry notice that it could obtain SFS’ address for tax purposes from the public records of the county auditor, recorder, or treasurer. Thus, the City is charged with actual notice of SFS’ out-of-state address. See Crown Coin Meter Co., 934 N.E.2d at 148.

Accordingly, the City was on inquiry notice of SFS’ correct address more than two months before the redemption period had expired and well before the City petitioned the trial court for issuance of the second tax deed. Nevertheless, the City disregarded that information and resorted to alternative measures in an attempt to satisfy the statutory notice requirements for the tax sale proceedings.

Our case law does not define the “ordinary means” requirement of Indiana Code Section 6-1.1-25-4.5, and we need not explore every possible meaning of that term on these facts. See Oliverio v. Chumley, 817 N.E.2d 660, 668 (Ind.Ct.App.2004) (noting that the legislature changed the prior requirement of “diligent inquiry” to the current, lower burden of “ordinary means”). Instead, we hold simply that where, as here, a governmental entity has knowledge or the means of knowledge at hand of the address of a person with a substantial property interest of public record, it is not ordinary to disregard that knowledge when providing notice to that person. Indeed, we agree with SFS that to permit the holder of a tax sale certifí-cate to ignore such knowledge while divesting a person of his or her property rights would raise a serious constitutional issue. See, e.g., Jones, 547 U.S. at 229-30, 126 S.Ct. 1708; Mulleme, 339 U.S. at 314-15, 70 S.Ct. 652.

Neither do we agree with the City’s comment that the trial court’s holding “imposes a greater notice requirement on the City than is found in the tax sale statutes.” Appellant’s Br. at 19. The “ordinary means” requirement is a statutory requirement, and our holding today neither increases nor decreases the City’s statutory burden. See I.C. § 6 — 1.1—25—4.5(d). Rather, as SFS correctly states, the trial court’s holding merely requires the City “to use the actual[,] crucial address information it had found by its own title search in the public records in the office of the county recorder.” Appellee’s Br. at 26. It would not be ordinary but, rather, extraordinary to permit the City to obtain a tax deed after it had failed to send notice to the property owner’s address as it appears on the public records when it had the means of knowledge at hand two months before the redemption period had expired.

Accordingly, we hold that the trial court did not abuse its discretion when it granted SFS’ motion to correct error and that its order was correct both as a matter of fact and as a matter of law. Because the City failed to provide adequate notice, the City’s tax deed is void. See In re 2007 Tax Sale in Lake County, 926 N.E.2d at 529. We affirm the trial court’s order rescinding its previous order that a tax deed be issued to the City.

Affirmed.

CRONE, J., and BROWN, J., concur.

      . We note that SFS and Jefferson's summary of the argument in their appellate brief is six pages long, although their argument section is only sixteen pages long. We also note that the City uses footnotes to cite sources throughout its brief rather than citation sentences. Citation sentences are required under our appellate rules. Ind. Appellate Rule 22 (requiring adherence to Bluebook rules); see The Bluebook: A Uniform System of Citation R. B2, at 4 (Columbia Law Review Ass'n et al. eds., 19th ed. 2010) (“In non-academic legal documents, citations appear within the text of the document as full sentences or as clauses within sentences directly after the propositions they support.”).


source: Caselaw Access Project

license: Public Domain

text:
    A.R.M., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 71A05-1111-JV-613.
    Court of Appeals of Indiana.
    June 7, 2012.

      Mark F. James, Anderson, Agostino & Keller P.C., South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

A.R.M. appeals his adjudication as a delinquent child for committing child molesting, as a Class C felony when committed by an adult, and battery, as a Class B misdemeanor when committed by an adult. A.R.M. presents a single issue on appeal, namely, whether the juvenile court admitted a videotape of an interview with the victim contrary to the provisions of Indiana Code Section 35-37-4-6, the Protected Person Statute (“PPS”). We hold that the juvenile court did not err when it determined that the child victim’s videotaped statement to a forensic interviewer was reliable and that, on the facts presented, the child victim had testified at the fact-finding hearing, which was equivalent to the trial required by the PPS.

We affirm.

FACTS AND PROCEDURAL HISTORY

In February 2011, T.M. and her four children lived with friends in South Bend. One of the friends had two teenage children, including A.R.M., who was then thirteen years old. T.M.’s youngest child, S.M., was seven years old at the time. On February 8, A.R.M.’s mother was looking for him at bedtime and found him in the bathroom. A.R.M. was clothed, but he was handling the zipper/button area and waistband of his jeans. S.M. had just been in the bathroom with A.R.M., and he sat down in the hallway outside the bathroom with his head hanging down. A.R.M.’s mother demanded from A.R.M. to know what had happened.

T.M. heard the voices and stood in the bathroom doorway with AR.M.’s mother. When T.M. asked S.M. if “anything [had] happened between” S.M. and A.R.M. and “if there was any inappropriate touching involved,” transcript at 28-29, S.M. nodded yes.

After finding alternate housing, T.M. and her children moved out of A.R.M.’s home two days later, and on February 14 they moved to the Y.W.C.A. T.M. reported the incident to personnel at the Y.W.C.A., who in turn relayed her report to DCS. And on February 16, a CASIE Center forensic interviewer conducted an interview of S.M. The State filed a petition alleging A.R.M. to be a juvenile delinquent for having committed child molesting, as a Class C felony, when committed by an adult. The State later filed an amended delinquency petition to add an allegation that A.R.M. had committed battery, as a Class B misdemeanor, when committed by an adult.

On August 2, the juvenile court convened for the fact-finding hearing. When the State offered into evidence the videotaped statement S.M. had given to the CASIE Center interviewer, A.R.M. objected that the State had not met the requirements of the Protected Person Statute, Indiana Code Section 35-37-4-6. As a result, the juvenile court first heard evidence on the admissibility of S.M.’s videotaped statement under the PPS.

S.M. testified at the hearing but, when the State asked him about the February 8 incident in the bathroom with A.R.M., S.M. answered that he could not remember anything. At the conclusion of the State’s direct examination, A.R.M. was given an opportunity to cross-examine the victim but declined and moved for a directed verdict. Following argument by counsel and recesses to allow the juvenile court to research the matter, the juvenile court ruled that S.M.’s videotaped statement was admissible, and it denied the motion for a “directed verdict.” The court then heard additional evidence and viewed the videotaped statement. The following day, the juvenile court issued an order finding that the State had proved the allegations in the delinquency petition beyond a reasonable doubt.

On August 16, A.R.M. filed a motion requesting the juvenile court to certify its fact-finding order for interlocutory appeal. The juvenile court obliged on August 17, but this court denied A.R.M.’s request to accept jurisdiction over the appeal. On November 1, the juvenile court held a dis-positional hearing and adjudicated A.R.M. to be a delinquent child for having committed the offenses of child molesting, as a Class C felony, and battery, as a Class B misdemeanor, and committed him to the Indiana Department of Correction for placement at the Indiana Boys School. A.R.M. now appeals.

DISCUSSION AND DECISION

A.R.M. contends that the juvenile court abused its discretion because it admitted S.M.’s videotaped statement from the CA-SIE Center contrary to the Protected Person Statute. Specifically, A.R.M. contends that the videotape did not meet the standard under the PPS to be reliable and that the State did not meet the requirement of having S.M. testify or showing, through medical testimony or other evidence, that S.M. was unavailable to testify at the fact-finding hearing. We conclude that the juvenile court did not abuse its discretion when it determined that the videotape was reliable and that S.M. testified at the fact-finding hearing. As such, the State satis-fled the requirements of the PPS for the videotape to be admitted at the fact-finding hearing.

The PPS provides, in relevant part:

(a) This section applies to a criminal action involving the following offenses where the victim is a protected person under subsection (c)(1) or (c)(2):
(1) Sex crimes (IC 35-42-4).
(2) Battery upon a child (IC 35-42-2-1(a)(2)(B)).
(c) As used in this section, “protected person” means:
(1) a child who is less than fourteen (14) years of age;
(d) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met.
(e) A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) ór (b) if, after notice to the defendant of a hearing and of the defendant’s right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) [IC 35-37-4-8(f) and IC 35-37-4-8(g) ] of this chapter;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person’s testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for medical reasons.
(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

Ind.Code § 35-37-4-6. The PPS applies in juvenile delinquency cases. J.A. v. State, 904 N.E.2d 250, 255 (Ind.Ct.App.2009), trans. denied. And the statute applies in this case because S.M. was a victim of a sex crime, Ind.Code § 35-37-4-6(a)(1), and was under fourteen years of age, Ind.Code § 35-37-4-6(c).

Further, the decision to admit statements under the Protected Person Statute will not be reversed absent a showing of a manifest abuse of discretion by the trial court resulting in the denial of a fair trial. Mishler v. State, 894 N.E.2d 1095, 1099 (Ind.Ct.App.2008) (citing M.T. v. State, 787 N.E.2d 509, 511 (Ind.Ct.App. 2003)). An abuse of discretion occurs only when the trial court’s action is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id. (citing Myers v. State, 718 N.E.2d 783, 789 (Ind.Ct.App.1999)).

Before we consider the merits of A.R.M.’s claims, we must consider the State’s claim that A.R.M. waived his challenge to the admissibility of the videotaped statement by failing to include the same in the record on appeal. In support the State cites Davis v. State, 935 N.E.2d 1215 (Ind.Ct.App.2010), where we held that “[i]t is a defendant’s duty to present and adequate record clearly showing the alleged error, and where he fails to do so, the issue is waived.” Id. at 1217. We agree with the State that the preferred course would be to include in the record on appeal all juvenile evidence so as to aid our review. But, except for the narrow exception discussed below, the issues on appeal concern whether the procedural requirements of the PPS were followed and do not require review of the videotape itself. The State does not show how review of the videotaped statement in this case is necessary to review of the procedural issues raised by A.R.M., nor does it argue that such is necessary. Therefore, the State has not shown that A.R.M.’s failure to include the videotaped statement hinders our review. As such, A.R.M. has not waived review, and we consider the merits of A.R.M.’s issues on appeal. However, as discussed below, any argument based on the content of the videotape is waived.

A.R.M. first contends that the admission of S.M.’s videotaped statement to the CASIE interviewer does not meet the reliability requirements under the PPS. Again, the statute requires the juvenile court to determine whether a statement is reliable by holding a hearing outside the presence of the jury on the admissibility of the tape, and the protected person must attend the hearing in person or via closed circuit television testimony. Ind.Code § 35-47-4-6(e)(1). The hearing affords a juvenile court an opportunity to consider the competency and credibility of the child, as well as the circumstances surrounding the out of court statement to ensure its reliability. See Stahl v. State, 497 N.E.2d 927, 929 (Ind.Ct.App.1986). Considering the evidence admitted at the hearing, the juvenile court must determine whether “the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.” Ind.Code § 35 — 37—4—6(e)(1).

In challenging the reliability of the videotape, A.R.M. contends that

the testimony of [S.M.’s] mother suggests a clear opportunity for the victim to [have been] coached. She believed an incident [had] occurred between the victim and A.R.M. She testified that the victim “agreed with her” when she questioned him about anything that [had] occurred between the victim and A.R.M. Additionally, because over a week passed between the alleged incident and the video, the victim’s statement is not spontaneous.

Appellant’s Brief at 5-6. But “the lack of spontaneity between the child’s first molestation revelation and the time that statement is videotaped, standing alone, does not render the statement inadmissible under [Indiana Code Section] 35-37-4-6.” Stahl, 497 N.E.2d at 930. And the fact that S.M.’s mother, immediately after the incident and in the hallway outside the bathroom, asked S.M. whether something happened and he nodded to agree does not, without more, indicate coaching. Indeed, A.R.M.’s mother had already been asking A.R.M. what had happened after realizing that he and S.M. had been in the bathroom together.

There is no evidence that T.M. discussed the incident with S.M. again before S.M. was interviewed at the CASIE Center, let alone coached him. Further, the CASIE Center interviewer testified regarding her extensive training and experience in conducting child interviews like the one at issue in this case. Thus, the setting and circumstances of the videotape do not weigh against a finding of reliability. Because the tape was not submitted as part of the record on appeal, we cannot review it to consider the content of the tape, and any argument regarding reliability based on the content of the videotape is waived. Therefore, on the record before us, we cannot say that the juvenile court abused its discretion when it determined that the time, content, and circumstances of the videotape provide sufficient indications of reliability. See Ind.Code § 35-37-4-6(e)(1).

A.R.M. next contends that the juvenile court erred when it admitted the videotape because S.M. did not testify at the fact-finding hearing and was not found to be unavailable to testify under the PPS. Again, the relevant part of the PPS provides that, once a statement is determined to be reliable, it may be admitted into evidence at the trial if:

(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person’s testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for medical reasons.
(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

Ind.Code § 35-37-4-6(e)(2).

Here, although the admissibility of the videotape was the focus of the first part of the fact-finding hearing, the parties treated the entirety of the fact-finding hearing as the “trial” contemplated in the PPS. 5.M. testified at the hearing, and immediately after that examination, A.R.M. moved for a “directed verdict.” S.M.’s inability to recall the incident does not change the fact that he testified. And, as noted above, A.R.M. had the opportunity to cross-examine S.M. but declined to do so. As such, we conclude that S.M. testified at the fact-finding hearing, and subsection (e)(2) of the PPS was satisfied.

In sum, A.R.M. has not shown that the juvenile court abused its discretion when it determined that S.M.’s videotaped statement to the CASIE Center interviewer was reliable. And S.M. testified at the fact-finding hearing. The requirements under the PPS for admission of S.M.’s videotaped statement at the CASIE Center were satisfied. Therefore, A.R.M. has not shown that the trial court abused its discretion when it admitted S.M.’s videotaped statement under the PPS, and we affirm the adjudication that A.R.M. is a juvenile delinquent for having committed the offenses of child molesting, as a Class C felony, and battery, as a Class B misdemeanor.

We affirm.

RILEY, J., and DARDEN, J., concur.

      . The CASIE Center is the St. Joseph County Child Abuse Center. CASIE stands for Child Abuse Services Investigation and Education.

      . The PPS is also known as the child hearsay statute.

      . A party may move for judgment on the evidence under Trial Rule 50 in civil proceedings, such as a juvenile delinquency proceeding, not a motion for directed verdict, but only in a jury trial. A.R.M.’s motion for a "directed verdict" is more properly a motion for dismissal under Trial Rule 41. See Bowyer v. Ind. Dep’t of Natural Res., 944 N.E.2d 972, 981 n. 10 (Ind.Ct.App.2011).

      . The hearing regarding the admissibility of the out-of-court statement may be held in a hearing before the trial date and before a jury is convened or, instead, it may be held outside the presence of the jury after a jury trial has been convened. The present case implicates the latter situation but in a juvenile court setting without a jury.

      . A.R.M. does not assert that his rights under the Confrontation Clause were violated in this case. Nevertheless, we observe that A.R.M.’s counsel had the opportunity to cross-examine S.M. and could have played the videotaped statement and examined S.M. on the merits of S.M.’s statements. But A.R.M.’s counsel instead rested after moving for a directed verdict.

      . Because we conclude that S.M. testified as contemplated in Section 35-37-4-6(e)(2)(A), we need not consider A.R.M.'s argument that the State failed to show that S.M. was unavailable to testify at the trial under Section 35-37-4-6(e)(2)(B).

      . Because we conclude that the requirements under the PPS for admission of the videotape were satisfied in this case, we need not consider the State’s alternative argument that, even if the PPS requirements had not been satisfied, the videotape was properly admitted under Evidence Rule 803(5). However, we pause to note that such argument would not have prevailed. "The recorded recollection exception applies when a witness has insufficient memory of the event recorded, but the witness must be able to ‘vouch for the accuracy of the prior [statement].’" Kubsch v. State, 866 N.E.2d 726, 734-35 (Ind.2007), cert denied, 553 U.S. 1067, 128 S.Ct. 2501, 171 L.Ed.2d 791 (2008). No such vouching testimony was elicited from S.M. in this case.


author: BROWN, Judge.

text:
    Betwel BIRARI, Appellant-Defendant. v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1111-CR-1009.
    Court of Appeals of Indiana.
    June 8, 2012.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Betwel Birari appeals his conviction for attempted rape as a class B felony. Birari raises two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his conviction; and
II. Whether the prosecutor committed prosecutorial misconduct that resulted in fundamental error.

We affirm.

The relevant facts follow. Birari and A.J. both worked at a nursing home as certified nursing assistants and became friends. Birari told A.J. that he wanted to take their friendship to the “next level,” and A.J. indicated that she just wanted to remain friends. Transcript at 30. At one point, Birari sent A.J. a text message that stated: “I pray that we get married one day.” Id. at 42. Later, he sent A.J. a text message that stated: “To be honest with you, I like you much but you treat me like trash. Am sorry....” Id. A.J. responded with a message that stated: “Well, I’m sorry you feel that way. I think you are immature. I told you from the beginning I only wanted to be friends. I do not have strong feelings for you and you can’t understand that.” Id. at 43.

On July 22, 2011, A.J. finished her shift at work at 11:00 p.m. and went to her mother’s house with Birari. A.J. and Birari then went to pick up AJ.’s two-year-old cousin. The three then went to AJ.’s apartment which she shared with a roommate. A.J. had not discussed the possibility of taking her relationship with Birari to another level nor touched Birari in a romantic way during the evening.

It became late, and A.J. told Birari that he could stay over and that she would take him home in the morning. The apartment was not fully furnished and A.J. decided that Birari would sleep at the foot of the bed, A.J. would sleep in the middle, and her two-year-old cousin would sleep at the top of the bed. A.J. was wearing sweatpants and a tank top when she went to bed, and Birari was wearing sweatpants and a shirt.

Sometime after 4:00 a.m., A.J. went to sleep and later woke up and found Birari, who was wearing only boxer shorts, on top of her and “felt his penis near [her] vagina.” Id. at 58-59. Specifically, A.J. felt his penis touching her bare skin and that “it seemed like he was trying to find” her vagina, but his penis did not enter her vagina. Id. at 83. A.J. realized that she was no longer wearing her sweatpants. A.J. asked Birari what he was doing and Birari attempted to put his arms around her and said, “[A.J.], no, no.” Id. at 60. A.J. “got [Birari] off immediately,” turned on the light, put her pants on, and started swinging her fists at him. Id. at 61. Birari said, “Just let me go, please. Just let me go.” Id. at 68. A.J. screamed for help from her roommate who responded and “started swinging on [Birari] as well.” Id. at 64. A.J. and her roommate were able to remove Birari from the apartment despite his attempts to resist.

Once outside of the apartment, Birari, wearing only his boxer shorts, pushed back against the door. A.J. and her roommate were unable to close the door, and A.J. retrieved a knife to “try to get [Birari] away from the door.” Id. at 66. A.J. chased Birari out of the building with the knife and she returned to the apartment. A.J.’s roommate called the police while A.J. was hyperventilating, and Birari yelled, “Please, don’t call the police. Just kill me.” Id. at 96. The police arrived and arrested him.

On July 26, 2011, the State charged Birari with two counts of attempted rape as class B felonies. The State later filed a motion to dismiss the first count, and the court granted the motion. Specifically, the State charged Birari with attempting to:

knowingly have sexual intercourse with [A.J.], a member of the opposite sex, when [A.J.] was unaware that the sexual intercourse was occurring, by engaging in conduct that constituted a substantial step toward the commission of the crime of Rape, that is, [Birari], after removing [A.J.’s] pants, got on top of [A.J.] and rubbed his erect penis on [A.J.’s] bare vagina....

Appellant’s Appendix at 40.

During the trial, A.J. and her roommate testified to the foregoing facts. A.J. testified that she felt Birari’s penis near her vagina, that she felt his penis touching her bare skin and that “it seemed like he was trying to find” her vagina. Transcript at 83. During cross-examination, A.J. testified that Birari’s penis had not touched her vagina at the point that she started striking him. The following exchange then occurred during redirect examination of A.J.:

Q [A.J.], I was hoping to avoid this. It will be awkward for everyone, but I think we need to talk about the female sex organ. I’m going to use a Kleenex box, if I might. The female sex organ: the labia majora, the labia mi-nora, and the inner vagina. Please point — tell the jury where Mr. Birari’s penis was touching you on July 23, 2011, when you woke up?
A Around this area, on the side.
Q Okay.
THE COURT: Are you marking the Kleenex box, [prosecutor]? [Prosecutor]: On the Kleenex box she is talking about the inner portion of the labia majora.
Q And when you’re talking about the vagina, are [you] talking in medical terms or are you talking about the inside of the vagina as you see it? A I’m talking about the inside.
Q But as far as your genitals, Mr. Birari’s penis was touching them but not inside; is that right?
A Correct.

Id. at 81-82.

After the State rested, Birari moved for a directed verdict. Birari’s counsel argued:

They have to specifically prove that he rubbed his erect penis on her bare vagina, and there’s been no proof of that. “Vagina” is defined as: “A canal in a female mammal that leads from the uterus to the external orifice of the genital canal.” There hasn’t been any testimony of that. If you want to increase what the vagina definition means, no jury could reasonably find him guilty of that with the conflicting statements with her telling the officer that it didn’t touch her labia or her vagina and her statements in court today....

Id at 144. The court denied Birari’s motion and stated:

[T]he evidence before the jury is that [A.J.] awakened while Betwel Birari was on top of her with his penis near her genitals. [The prosecutor], using a Kleenex box in unfortunate ways, demonstrated to the jury where the touching allegedly occurred. There is now substantial evidence before the jury as to the female anatomy. The jury can draw its own conclusions on the touching that has been alleged and determine whether that is sufficient to sustain a conviction. I am not going to invade the province of the jury and make the ultimate conclusion.

Id at 144-145.

During closing argument, Birari’s counsel argued that there was no evidence that Birari touched A.J.’s vagina and that the word vagina is defined as “[t]he canal of a female mammal that leads from the uterus to the external orifice of the genital canal.” Id at 164. During rebuttal, the prosecutor argued that Birari “pulled his clothes off, pulled her pants off, took his bare penis and put it on her, whether it’s her vagina or her vulva or her labia minora, majora.” Id at 178. The prosecutor stated that A.J. was telling the truth and “the only bright spot I can see, that [A.J.’s two-year-old cousin] didn’t have to experience what he wanted her to. Whether or not he wanted her to watch, I don’t know....” Id. at 159. The jury found Birari guilty as charged. The court sentenced Birari to eight years in the Department of Correction.

I.

The first issue is whether the evidence is sufficient to sustain Birari’s conviction for attempted rape as a class B felony. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind.1991).

The offense of rape is governed in this circumstance by Ind.Code § 35-42-4-1(2), which provides that “a person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when ... the other person is unaware that the sexual intercourse is occurring ... commits rape, a Class B felony.” An attempt is defined by Ind.Code § 35-41-5-1, which states in part that “[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted.” A “substantial step” toward the commission of a crime, for purposes of the crime of attempt, is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind.Ct.App.1992). Whether a defendant has taken a substantial step toward the commission of the crime, so as to be guilty of attempt to commit that crime, is a question of fact to be decided by the trier of fact based on the particular circumstances of the case. Id “[W]hen determining whether the defendant has taken a substantial step toward a crime, the focus is on what has been completed, not on what remains to be done.” Hughes v. State, 600 N.E.2d 130, 132 (Ind.Ct.App.1992). Thus, to convict Birari of attempted rape as a class B felony, the State needed to prove that Birari: (1) knowingly or intentionally; (2) took a substantial step; (3) toward having sexual intercourse; (4) with A.J. when she was unaware that the sexual intercourse was occurring.

Birari argues that the evidence is insufficient because: (A) there was a failure to prove the substantial step alleged in the charging information; (B) he did not have the intent to rape A.J.; and (C) A.J. was not unaware of the situation.

A. Variance Between Charging Information & Proof at Trial

Birari argues that the charging information alleged that he rubbed his erect penis on A.J.’s bare vagina and that his conviction must be reversed because the State failed to prove the substantial step it specifically alleged in the charging information. The State contends that Birari was not misled by the variance in the evidence from the allegations and specifications in the charge in either the preparation or maintenance of his defense. The State argues that the variance between the allegation that Birari rubbed his erect penis on A. J.’s vagina as a substantial step in an attempted rape and the proof that Birari’s penis touched the inner labia majora of A.J.’s genitalia was not fatal. In his reply brief, Birari argues that the State incorrectly attempts to couch his argument as complaining of an immaterial variance between the charging information and the evidence presented.

Birari essentially argues that there is a material variance between the charging information and the evidence produced at trial which resulted in insufficient evidence to convict him as charged. See Rupert v. State, 717 N.E.2d 1209, 1211-1212 (Ind.Ct.App.1999) (addressing the defendant’s argument of whether a variance between the information and the evidence was fatal in the context of the issue of whether the evidence was insufficient to support the defendant’s conviction). Thus, we will address Birari’s argument as one of an alleged variance between the charging information and the proof at trial.

An information must be “a plain, concise, and definite written statement of the essential facts constituting the offense charged,” Ind.Code § 35 — 34—1—2(d), and “must be sufficiently specific to apprise the defendant of the crime for which he is charged and to enable him to prepare a defense.” Bonner v. State, 789 N.E.2d 491, 493 (Ind.Ct.App.2003) (quoting Jones v. State, 467 N.E.2d 1236, 1241 (Ind.Ct.App.1984)). “A criminal defendant has the right to be advised of the nature and cause of the accusation against him. There must be consistency between the allegations charged and the proof adduced.... ” Simmons v. State, 585 N.E.2d 1341, 1344 (Ind.Ct.App.1992) (citation omitted). A variance is an essential difference between proof and pleading. Allen v. State, 720 N.E.2d 707, 713 (Ind.1999). Not all variances are material or fatal, however. Id. The test to determine whether a variance between the proof at trial and a charging information or indictment is fatal is as follows:

(1) was the defendant misled by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in the future criminal proceeding covering the same event, facts, and evidence against double jeopardy?

Mitehem, v. State, 685 N.E.2d 671, 677 (Ind.1997) (quoting Harrison v. State, 507 N.E.2d 565, 566 (Ind.1987)). In other words, to award relief on the basis of a variance between allegations in the charge and the evidence at trial, the variance must be such as to either have misled the defendant in the preparation and maintenance of his defense with resulting harm or prejudice or leave the defendant vulnerable to double jeopardy in a future criminal proceeding covering the same event, facts, and evidence. Winn v. State, 748 N.E.2d 352, 356 (Ind.2001).

We find Rupert v. State, 717 N.E.2d 1209 (Ind.Ct.App.1999), instructive. In Rupert, the State charged the defendant with committing child molesting by forcing a one-year-old child to submit to an act of “deviate sexual conduct, to-wit: fellatio.” 717 N.E.2d at 1211. On appeal, the defendant argued that the State was constrained by the charging information to prove that he performed fellatio on the child to obtain a conviction, and that sucking and nibbling on the child’s scrotum did not constitute fellatio. Id. The court held that “[ajssuming without deciding that Rupert’s actions did not constitute fellatio, we conclude that the variance between the charging information and the evidence presented at trial is not material.” Id. The court observed that the defendant’s defense was not prejudiced by the charging information as the defendant was well aware of the allegedly criminal conduct of which he was accused. Id. at 1212. The court also held that it did not view double jeopardy as an issue. Id. The court concluded that “the variance between the specific act of criminal deviate conduct charged, fellatio, and the act upon which the conviction rests, sucking the scrotum, was not material” and that there was sufficient evidence to sustain the defendant’s conviction. Id.

Here, Birari was well aware of the alleged criminal conduct of which he was accused. Indeed, Birari states in his reply brief that he “does not complain of a lack of notice, nor does he complain that the allegations mislead him in his defense.” Appellant’s Reply Brief at 4. With respect to the second prong, Birari states: “Neither does [he] complain that he would be subject to future criminal prosecutions based upon this same incident.” Id. Under the circumstances, we conclude that any variance was not material.

B. Intent

Birari argues that his conduct does not demonstrate any intent to rape A. J. nor were his actions strongly corroborative of criminal culpability. Birari contends that his conduct showed that he liked A.J., hoped to have sex with her, and tried to initiate a consensual encounter. The State argues that “the fact that A.J. woke up and thwarted [Birari’s] plan to rape her while she was sleeping is the reason that this is an attempted crime, not a completed one.” Appellee’s Brief at 7.

With respect to Birari’s argument that he lacked the intent to commit rape, we observe that “a person’s intent may be determined from their conduct and the natural consequences thereof and that the intent may be inferred from circumstantial evidence.” Coleman v. State, 546 N.E.2d 827, 831 (Ind.1989), reh’g denied. “It is not required that a defendant make a direct statement of intent to rape nor is it necessary that clothing be removed in order to express such intent.” Id. The record reveals that A.J. repeatedly told Birari that she merely wanted to remain friends. While A.J. was asleep in bed with her two-year-old cousin, Birari removed his clothes, removed A.J.’s sweatpants, and placed his erect penis near A.J.’s vagina. After A.J. and her roommate were able to remove Birari from their apartment, Birari yelled, “Please, don’t call the police. Just kill me.” Transcript at 96. We conclude that the State presented evidence of probative value from which a reasonable jury could have found that Birari acted with the requisite intent.

C. Whether A. J. was Unaware

Birari contends that A.J. awoke and rejected his advances indicating that she was very much aware of the situation. To the extent that Birari argues that the statute governing rape “was not enacted to protect a woman who was both aware of her situation and capable of refusing consent” and attempts to distinguish this case from others where the victims had ingested alcohol or drugs which rendered them unable to consent, we find Birari’s argument does not have merit. In Glover v. State, the court adopted the following definition of the term “unaware” in the context of the rape statute:

“Unaware” is defined as “not aware: lacking knowledge or acquaintance; Unconscious.” Webster’s Third New International Dictionary 2483.(1986 ed.). We have noted that a person is unconscious during sleep. See Brooks v. Bloom, 151 Ind.App. 312, 279 N.E.2d 591, 595 (1972).
Moreover, it is the general, if not universal, rule that if a man has intercourse with a woman while she is asleep, he is guilty of rape because the act is without her consent.

760 N.E.2d 1120, 1124 (Ind.Ct.App.2002) (quoting Becker v. State, 703 N.E.2d 696, 698 (Ind.Ct.App.1998)), trans. denied. A. J. was asleep during the time that Birari removed his clothes and her sweatpants and only woke up when Birari was on top of her and attempting to insert his erect penis in her vagina. We conclude that the State presented evidence of probative value from which a reasonable jury could have found that A.J. was unaware. See Graham v. State, 736 N.E.2d 822, 828 (Ind.Ct.App.2000) (holding that the evidence was sufficient to support the defendant’s conviction for rape as a class B felony where the defendant proceeded to have sexual intercourse with the victim while she was asleep and unaware such intercourse was occurring), trans. denied. In summary, we conclude that the State presented evidence of probative value from which a reasonable jury could have found Birari guilty of attempted rape as a class B felony.

II.

The next issue is whether the prosecutor committed prosecutorial misconduct that resulted in fundamental error. In reviewing a properly preserved claim of prosecutorial misconduct, we determine: (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she should not have been subjected. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. Id.

When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. Id. If the party is not satisfied with the admonishment, then he or she should move for mistrial. Id. Failure to request an admonishment or to move for mistrial results in waiver. Id. Here, Birari did not object to the prosecutor’s closing argument and did not request an admonishment or a mistrial. Thus, Birari has waived the issue.

[20,21] Where, as here, a claim of prosecutorial misconduct has not been properly preserved, our standard for review is different from that of a properly preserved claim. Id. More specifically, the defendant must establish not only the grounds for the misconduct but also the additional grounds for fundamental error. Id. Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Id. It is error that makes “a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary principles of due process ... presenting] an undeniable and substantial potential for harm.” Id.

Birari argues that the prosecutor improperly informed the jury that A.J. was telling the truth. Birari cites the following portion of the prosecutor’s rebuttal:

To be dragged through the courtroom and being called a liar in front of strangers and her family and friends, to relive the most horrific moment in her recent memory? There’s no motivation to lie here, ladies and gentlemen, and that’s because she isn’t. She’s telling you the truth. She wasn’t prepped. She wasn’t given anything. She came in here and told you what happened.

Transcript at 172. Birari also points to the following portion of the prosecutor’s closing argument:

That’s the only bright spot I can find, besides the fact that he didn’t get to complete this act, is that that [A.J.’s two-year-old cousin] didn’t have to wake up to this. That’s the only bright spot I can see, that she didn’t have to experience what he wanted her to. Whether or not he wanted her to watch, I don’t know, but when you take the pants off and you take your clothes off and you do that next to her, then whatever is coming to you, quite frankly, you deserve.

Id. at 159 (emphasis added). Birari argues that there was no testimony regarding his interactions with the two-year-old and that the prosecutor “improperly intimated [that he] wanted the two year old to watch him having sex.” Appellant’s Brief at 28.

The State argues that the prosecutor properly argued that the jury could believe A.J. because the evidence indicated that she had no motive to lie and that it was an undisputed fact that a two-year-old child was sleeping in the bed with A.J. and Birari during the attempted rape. The State also argues that even if the prosecutor’s arguments were improper, there is no indication that the arguments resulted in fundamental error.

While we believe that the prosecutor’s comments were improper, we cannot say that such conduct resulted in fundamental error. In addition to AJ.’s testimony, the State also presented the testimony of her roommate as well as a recording of the 911 call which included A. J. hyperventilating in the background. Also, before the prosecutor made the comments that Birari challenges on appeal, the prosecutor stated:

The statements of the attorneys, what I am saying, what [the defense attorney] has said and what he will say is not evidence. We argue our positions to you, but it doesn’t mean that what we say is evidence. So the things that you’ve heard that come from that table today, aren’t evidence. None of them are.

Transcript at 157. Further, the jury was instructed:

When the evidence is complete, the attorneys may make final arguments. These final arguments are not evidence. The attorneys are permitted to characterize the evidence, discuss the law and attempt to persuade you to a particular verdict. You may accept or reject those arguments as you see fit.

Appellant’s Appendix at 58. The jury was also instructed as follows: ‘You are the exclusive judges of the evidence, which may be either witness testimony or exhibits,” “[statements made by the attorneys are not evidence,” and “[y]our verdict should be based on the law and the facts as you find them.” Id. at 55, 65-66. Under the circumstances, we cannot say that the prosecutor’s comments resulted in fundamental error.

For the foregoing reasons, we affirm Birari’s conviction for attempted rape as a class B felony.

Affirmed.

BAKER, J., and KIRSCH, J., concur.

      . Birari also argues that the State never established that his penis was erect as alleged in the charging information. However, the record reveals that Indianapolis Police Detective Jeremy Warman testified that A.J. told him that she "was awakened by Mr. Birari on top of her attempting to insert his erect penis in her vagina.” Transcript at 137.

      . Birari cites portions of Chief Justice Emmert’s opinion in Madison v. State, 234 Ind. 517, 130 N.E.2d 35 (1955), in his briefs in support of his argument. In Madison, Chief Justice Emmert concluded that a jury instruction was fatally defective and that there was a fatal variance amounting to a failure of proof between the averments of the charging affidavit and the evidence produced at trial. 234 Ind. at 526, 540, 130 N.E.2d at 39, 45. However, the four remaining Justices concurred in the reversal for the giving of the jury instruction, but disagreed with the reasoning on the variance. Id. at 541, 130 N.E.2d at 46.

      . The Court in Mitchem noted:
      Applying this test is essential because it addresses two constitutional guaranties of the accused in criminal prosecutions. Part one of the test meets the requirements under Art. 1, § 13 of the Indiana Constitution which entitles defendant "to demand the nature and cause of the accusation against him, and to have a copy thereof.” The second part of the test for variance meets the requirements of Art. 1, § 14 of the Indiana Constitution which provides that "no person shall be put in jeopardy twice for the same offense.” See Madison, 234 Ind. at 545-46, 130 N.E.2d at 48 (concurring opinion of Arterburn, J., in which three other justices concurred).
      685 N.E.2d at 677 n. 8.

      . Birari also argues that “[p]erhaps due to cultural differences, [he] misunderstood A.J.'s invitation and thought inviting him to sleep in her bed demonstrated a romantic interest in him.” Appellant’s Brief at 11-12. Birari does not cite to the record for this proposition and our review of the record does not reveal support for this statement.


author: SHEPARD, Senior Judge. BAILEY, Judge,

text:
    Delmas SEXTON II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1110-CR-465.
    Court of Appeals of Indiana.
    June 11, 2012.
    Rehearing Denied August 6, 2012.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

Delmas Sexton II appeals his sixty-five-year sentence for felony murder. Principally, Sexton contends that the trial court abused its discretion in sentencing him when it found as an aggravating circumstance the fact that as a multiple-conviction felon he was unlawfully possessing the gun he used to kill his victim. This is a question about which there is some disagreement in the reported decisions, but we affirm.

FACTS AND PROCEDURAL HISTORY

On March 24, 2009, Sexton went to Donald McKee’s residence in Allen County, ordered McKee at gunpoint to write him checks, bound him with duct tape, covered his head, and forced him into a truck. As McKee begged for his life, Sexton shot him in the head three times. McKee’s body was found over a week later in the truck inside an unattached garage.

The State charged Sexton with murder, felony murder, class A robbery, criminal confinement and unlawful possession of a firearm by a serious violent felon, both as class B felonies, and two counts of class C forgery. It also alleged that Sexton was an habitual offender.

In December 2010, on the day his jury trial was to begin, Sexton punched his attorney in the face in open court. The jury trial was cancelled. Shortly after, Sexton sent a death threat targeting the presiding judge and his family. This eventually led to the appointment of a new special judge. In September 2011, on the day his jury trial was to begin anew, Sexton pled guilty to felony murder pursuant to a plea agreement in which the State agreed to dismiss all the remaining charges. The trial court accepted the plea and entered judgment of conviction.

At the sentencing hearing, Judge Terry Shewmaker entered an exceptionally thorough statement about aggravating and mitigating circumstances.

Among the aggravators, the court identified: (1) Sexton’s criminal history, namely, two convictions for battery as misdemeanors and two as felonies, two felony convictions for criminal confinement, and a felony conviction for intimidation; (2) Sexton’s previous violation of probation; (3) his lack of respect for the court process; (4) the escalating nature of his crimes of violence; (5) his juvenile history, which includes three adjudications for attempted child molesting; (6) his use of illegal drugs, running from cocaine to heroin to methamphetamine to acid and more; (7) his attempt to manipulate evidence in this case (a witness testified that he signed an affidavit under threat by Sexton that he would otherwise have him or his family killed); (8) that Sexton is in need of correctional rehabilitation best provided in a penal facility for a lengthy period of time; (9) that McKee was “left languishing,” Sent. Tr. p. 63; (10) that Sexton is at very high risk of reoffending, according to an assessment under the Indiana Risk Assessment System; and (11) that Sexton possessed a handgun despite his prior felony convictions.

Among the mitigators, the trial court identified: (1) Sexton’s acceptance of responsibility, tempered by the fact that his guilty plea occurred on the day of trial; (2) that he is intelligent; (3) his mental health issues, which the court gave minimal weight because evidence on that point was from mental health records nearly twenty years old; and (4) his drug addiction, which the court gave minimal weight because previous intensive inpatient treatment had not been successful.

In evaluating the aggravators and miti-gators, the trial court stated, “Any one of the aggravators that I have listed is substantial enough alone or taken in conjunction with the other[s] to warrant the imposition of a full ten[-]year enhanced sentence.” Id. at 67. The trial court sentenced Sexton to the maximum term of sixty-five years executed. Sexton now appeals his sentence.

DISCUSSION AND DECISION

Sexton challenges a number of the aggravating circumstances found by the trial court. Such findings rest within the sound discretion of the trial court, and we review them on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007).

Principally, Sexton argues that his illegal possession of the murder weapon was an improper aggravator because the charge of unlawful possession of a firearm by a serious violent felon was dismissed pursuant to his plea agreement.

The legal basis for this contention flows from Hammons v. State, 493 N.E.2d 1250 (Ind.1986). Hammons stood trial for murder, and the jury found him guilty of the lesser included offense of voluntary manslaughter. In sentencing the defendant, the trial court repeatedly declared that the jury had been wrong, that Hammons had in fact committed murder, and that the maximum penalty for manslaughter should be imposed in recognition of that fact. The Supreme Court reversed, holding that this invaded the province of the jury and was tantamount to sentencing the defendant for the crime on which he had been acquitted. Id. at 1253.

This Court later took a similar approach in the context of a guilty plea. Conwell v. State, 542 N.E.2d 1024 (Ind.Ct.App.1989). The State had charged Conwell with burglary as a class B felony, but the parties submitted a plea bargain under which Conwell pled to burglary as a class C. This Court held that the sentencing judge could not find as an aggravator the fact that the burglary had occurred at a residence because that was the very fact that distinguished the class B and class C versions of the offense. Id. at 1025.

These holdings about sentencing on lesser included offenses were later applied in a somewhat different setting.

In Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), the defendant was charged with attempted murder, burglary resulting in bodily injury, intimidation, and resisting law enforcement. He pled guilty to attempted murder, and the State dismissed the remaining charges. In sentencing the defendant, the trial court identified as aggravators that the offense occurred in the victim’s home, that the defendant screamed threats at the victim, and that he disobeyed a police officer’s command to release the victim. Farmer argued on appeal that the court improperly relied on these facts because they supported the burglary, intimidation, and resisting law enforcement charges that were dismissed as a part of his plea agreement. A panel of this Court agreed, stating that if the defendant “were sentenced more harshly in reliance upon these facts, he would not receive the full benefit of his plea agreement.” Id. at 1027.

Whether Farmer represents appropriate practice or not has recently been the subject of disagreement in this Court. In Bethea v. State, 964 N.E.2d 255 (Ind.Ct.App.2012), trans. granted, the defendant faced multiple charges, including burglary resulting in bodily injury, two counts of robbery, and three counts of confinement. Bethea pled guilty to one count each of robbery and confinement in exchange for dismissal of the other charges. In sentencing Bethea, the trial court noted as an aggravator that one of the victims suffered injury. On appeal, Bethea argued that the court abused its discretion by treating the injury as an aggravator because the injury had been an element of the burglary-charge that was dismissed pursuant to his plea agreement. The lead opinion declared that a defendant receives the full benefit of his bargain when multiple charges are dismissed in accordance with the agreement (there having been no provision that the sentencing court could not take into account aspects of the crime that were admitted or established by proper evidence, in Bethea’s case that the victim was injured in the course of the crimes for which Bethea was being sentenced). This observation produced two other opinions, both of which adhered to the view that Farmer and Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007), trans. denied, correctly prohibited considering such facts. Bethea, 964 N.E.2d at 269 (May, J., concurring in result), 271 (Brown, J., dissenting).

While this author finds himself aligned with the lead opinion in Bethea, two members of this panel joined in Farmer, and we thus hold here that it was an abuse of discretion for the trial court to consider the fact that Sexton shot his victim using a handgun it was illegal for a person with five felony convictions to possess.

In any event, given that the trial court identified a multitude of other aggra-vators and stated that any one of them alone or in conjunction with the others warranted the maximum sentence, we are confident that the court would have imposed the same sentence even without this aggravator. See McDonald v. State, 868 N.E.2d 1111, 1114 (Ind.2007) (clear that the trial court would have imposed the same sentence regardless of the challenged aggravators).

Second, Sexton argues that the court’s finding that McKee was left languishing is unsupported by the record. As respects this aggravator, the trial court said, “[T]he victim was left languishing, left without seeking medical attention. That is evidence of callousness, it’s reprehensible conduct_” Sent. Tr. p. 63. Sexton is correct that the available evidence does not actually tell us whether McKee languished after being shot -three times in the head or died quickly. On the other hand, it is apparent that the incident lasted for quite some time and that McKee suffered fear and anxiety for a prolonged period. While it may be that “languished” was not quite the right word, the court was plainly warranted in finding that Sexton acted with “callousness.” Taken as a whole, we are hard put to call these observations an abuse of discretion.

Third, Sexton challenges the use of his prior juvenile adjudications as an ag-gravator. The Supreme Court has upheld the use of prior juvenile adjudications to enhance a sentence on multiple occasions. See, e.g., McDonald, 868 N.E.2d at 1114; Mitchell v. State, 844 N.E.2d 88, 92 (Ind.2006); Ryle v. State, 842 N.E.2d 320, 321-23 (Ind.2005).

Finally, Sexton argues that the trial court’s use of various aspects of his criminal history as separate aggravators is improper because it violates the federal and state prohibitions against double jeopardy. The Federal Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Its Indiana counterpart provides, “No person shall be put in jeopardy twice for the same offense.” Ind. Const, art. 1, § 14.

Sexton says the trial court’s finding of multiple aggravators relating to his criminal past (like his criminal convictions, his drug use, the escalating nature of his crimes of violence, that he is at high risk of reoffending) is akin to being punished multiple times for the same offense. We disagree. A trial court may consider multiple factors relating to a defendant’s criminal past at the sentencing stage. The trial court here convicted Sexton of felony murder. For that crime, the trial court imposed one sentence. There is no double jeopardy violation.

CONCLUSION

For the reasons stated, we affirm Sexton’s sentence.

Affirmed.

NAJAM, J., concurs.

BAILEY, J., concurs with separate opinion.

BAILEY, Judge,

concurring.

I fully concur in this opinion but write separately to reaffirm my view that the holding set forth in Farmer v. State is a proper application of the principle expressed in Hammons.

. As pointed out, Hammons involved a defendant who was acquitted of murder but found guilty of voluntary manslaughter. The trial court disagreed with the jury’s verdict and imposed the maximum penalty for manslaughter based upon that disagreement. The Supreme Court reversed. Hammons, 493 N.E.2d at 1253. In essence, the defendant had not received the benefit of the acquittal.

Conwell extended Hammons to the guilty plea context. Conwell, 542 N.E.2d at 1025. There, pursuant to a plea agreement, the defendant pled guilty to burglary as a class C felony rather than burglary as a class B felony, as charged. We held that the trial court could not find as an aggravator the fact that the burglary occurred in a residence, as that was the fact distinguishing the class B and C felonies. Id. In essence, the defendant had not received the benefit of having pled guilty to the lesser-included offense.

Here, the prosecutor charged Sexton with eight counts: murder; felony murder; robbery; criminal confinement; two counts of forgery; and unlawful possession of a firearm by a serious violent felon; the State also alleged that Sexton is an habitual offender. Yet, pursuant to a plea agreement, Sexton pled guilty to felony murder and the State dismissed all remaining charges. Nevertheless, when imposing the sentence, the trial court identified as an aggravator facts underlying a dismissed charge, i.e., that Sexton possessed a handgun despite his prior felony convictions. I believe that, by so doing, the court deprived Sexton of the benefit of his bargain, although in this instance the error was harmless.

A plea agreement is a contract, “an explicit agreement between the State and defendant” that is binding upon the trial court and both parties once the court has accepted the agreement. Griffin v. State, 756 N.E.2d 572, 574 (Ind.Ct.App.2001) (citations omitted), trans. denied; Wright v. State, 700 N.E.2d 1153, 1154 (Ind.Ct.App.1998). Both parties bargain for and receive substantial benefits from the agreement. Wright, 700 N.E.2d at 1154. “When a plea agreement rests in any significant degree on a promise by the prosecutor, so that the promise can be said to be part of the inducement or consideration for the plea, such promise must be fulfilled.” Id.

When, as here, the defendant is induced to plead guilty by a promise to dismiss charges, the defendant’s reasonable expectation under the contract is that there will be no concomitant penal consequences from those dismissed charges. Likewise, when the prosecutor enters into a plea agreement providing for the dismissal of certain charges, the prosecutor agrees that there will be no conviction or sentence attendant to the dismissed charges. When accepted, the trial court is bound by that agreement. Thus, I must conclude that, in the context of the plea agreement, the trial court should not have identified as an ag-gravator that Sexton possessed a handgun despite his prior felony convictions, as that charge had been dismissed.

I recognize that, to avoid misunderstandings with regard to such a binding agreement, the better practice is for counsel to reduce to writing all terms of a plea agreement. Griffin, 756 N.E.2d at 574. Thus, if the prosecutor chooses to argue that the trial court should consider evidence of dismissed charges as an aggravator, the plea agreement should provide as much and the defendant could then make an informed decision regarding the benefits of such an agreement. A “meeting of the minds” in this context is not inconsequential. Therefore, absent such a provision, I remain convinced that, in the context of a plea agreement, the trial court abuses its discretion when it uses conduct forming the basis of a dismissed charge to enhance the sentence for the offense to which the defendant pled guilty.

      . The Roney court acknowledged that “the trial court is permitted to consider uncharged misconduct when enhancing a sentence,” 872 N.E.2d at 200, but also said: "If a trial court accepts a plea agreement under which the State agrees to drop or not file charges, and then uses facts that give rise to those charges to enhance a sentence, it in effect circumvents the plea agreement.” Id. at 201 (citing Farmer, 772 N.E.2d at 1027).


author: ROBB, Chief Judge.

text:
    Canon HARPER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A01-1012-CR-687.
    Court of Appeals of Indiana.
    June 11, 2012.

      Bart M. Betteau, Betteau Law Office, LLC, New Albany, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

ROBB, Chief Judge.

Canon Harper has petitioned for rehearing of this court’s decision in Harper v. State, 963 N.E.2d 653 (Ind.Ct.App.2012), in which we affirmed Harper’s convictions for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D felony. We held, inter alia, sufficient evidence existed to support Harper’s convictions. We grant the petition for rehearing to clarify our conclusion that Harper constructively possessed the contraband that led to his convictions for dealing, possession, and maintaining a common nuisance. In all other respects, we reaffirm our opinion.

Harper contends insufficient evidence supported the conclusion that he constructively possessed contraband found in either his vehicle or motel room. “Constructive possession will support a possession conviction if the State shows that the defendant had both the capability and the intent to maintain dominion and control over the contraband.” White v. State, 772 N.E.2d 408, 413 (Ind.2002). He argues the evidence was insufficient to conclude he had either the requisite intent or capability to maintain dominion and control over the contraband. Pursuant to Gray v. State, 957 N.E.2d 171, 174-75 (Ind.2011), under the possessory interest rule, a defendant’s possessory interest establishes both the intent and capability to maintain dominion and control over contraband so long as the possession is exclusive. If such possession is not exclusive, a non-exhaustive list of circumstances was articulated in Gray, and other cases, for the court to consider in determining whether the defendant had the requisite intent. Id. at 175. The capability to maintain dominion and control is established by a possessory interest even if it is non-exclusive. Id.

Here, we concluded, based on the possessory interest rule, Harper had constructive possession of contraband located both in a purse that was carried out of his vehicle and in his motel room. However, Harper did not have exclusive possession of either the vehicle or motel room, and thus, additional circumstances must be present to establish the intent prong of constructive possession. Based on the articulated factors in Gray and other cases, we still conclude Harper had the requisite intent to maintain dominion and control of the contraband, and, therefore, that Harper had constructive possession of the contraband.

One of the articulated factors is whether the defendant attempted to flee or made furtive gestures. Here, when an officer attempted to arrest Harper, Harper fled on foot. Once caught, he assaulted a police officer before he was apprehended. Another factor is the proximity of contraband to the defendant. Here, the contraband in the vehicle was in close physical proximity to Harper, and the contraband in the motel was discovered relatively soon after Harper cheeked into the room and not long after he left and came back with a friend. Sufficient evidence existed for a reasonable finder of fact to conclude Harper constructively possessed the contraband.

Accordingly, we again affirm Harper’s convictions.

NAJAM, J., and VAIDIK, J., concur.