author: FRIEDLANDER, Judge.

text:
    Bret Lee SISSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 09A02-1102-CR-199.
    Court of Appeals of Indiana.
    Dec. 5, 2012.

      Mark Leeman, Leeman Law Offices, Lo~ gansport, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for. Appellee.
   OPINION

FRIEDLANDER, Judge.

Bret Lee Sisson appeals following his convictions for Burglary as a class B felony, Receiving Stolen Property as a class D felony, and Unlawful Possession of a Firearm by a serious Violent Felon (SVF) as a Class B felony, and his adjudication as a Habitual Offender. Sisson raises the following restated issues for our review:

1. Did fundamental error occur when the State réfiled the previously dismissed SVF charge and habitual offender allegation after Sisson’s first trial ended in a mistrial due to jury deadlock?
2. Did the State’s failure to respond to Sisson’s notice of alibi by narrowing the time period' during which the offense was alleged to have occurred constitute a violation of the alibi statute?
3. Did the trial court abuse its discretion by denying Sisson’s motion to exclude evidence due to alleged discovery violations by the State?
4. Did the trial court abuse its discretion by admitting evidence that Sis-son had threatened a witness for the State?
5. Did the trial court abuse its discretion by excluding evidence of a witness’s prior criminal convictions?
6. Did the trial court err in denying Sisson’s motion for change of judge for sentencing purposes only?
We affirm.

One evening in late May or early June of 2009, Sisson and Belinda Myers drove to the Cass County home of Judith and Richard Baber. Sisson parked near the home and told Myers to honk the horn if she saw anyone approaching. Sisson then walked away in the direction of the Baber home. About ten minutes later, Sisson returned to the car and placed something in the trunk, and the two drove away.

Later that night, Sisson told Myers that they were going to Logansport to sell several guns that he had stolen from the Baber residence. The pair then drove to the home of Jack Sturdivant, who had sold marijuana to Sisson and Myers, on previous occasions. Once there, Sisson removed something from the trunk of the car and went inside while Myers waited in the car. Upon entering the home, Sisson showed Sturdivant and Sturdivant’s cousin, Mitchell DeFord, several guns. Sisson stated that the guns “were so hot that the people don’t even know they are gone yet.” Transcript Vol. 13 at 385. Sturdivant gave Sisson marijuana and cash in exchange for the guns. Sturdivant subsequently gave one of the guns to Glen Pierce in an attempt to keep Pierce from reporting him to the police for his involvement in a prior burglary of Pierce’s home.

On June 15, 2009, Sisson and Myers sold two items of jewelry — a man’s ring with three stones and a two-piece wedding set — to Cashland in Lafayette. Two days later, on June 17, 2009, Sisson and Myers were arrested on unrelated charges, and they remained incarcerated for months. A few days after the arrest, Judith noticed that' some jewelry was missing from her jewelry box, including her wedding set and Richard’s ring, which had three stones and had been cut off of his finger. Judith mentioned the missing items to Richard, and the next day, Richard discovered that several guns were missing from his extensive gun collection. The Babers also discovered that a screen on a bedroom window was up and off track and that a vase near their front door was broken. The Babers notified police and an investigation ensued.

On September 23, 2009, Sisson was charged with burglary, theft, and receiving stolen property, and the State added an SVF charge on February 2, 2010. The State filed a habitual offender allegation on March 2, 2010, the day before Sisson’s jury trial. On the same date, the State'filed a motion to strike the habitual offender allegation because it was inadvertently filed under this cause of action, which motion was granted by the trial court. Also on March 2, a conference was held concerning pending motions in limine and jury instructions. During the conference, the trial court sua sponte dismissed the SVF charge, concluding that the charging information for that offense did not allege a crime. Specifically, the court observed that the SVF charge alleged that Sisson was a serious violent felon because he had committed the burglary of the Baber residence, and Sisson had obviously not been convicted of that crime at the time.of the alleged SVF offense.

The next day, prior to the beginning of the trial, the State filed an amended charging information. The original charging information had alleged that the offenses were committed “on or about June 20, 2009.” Appellant’s Appendix at 15. The amended information alleged that the offenses were committed “on or about June 2009.” Id. at 28, 30. Additionally, the State amended the SVF charge to allege that Sisson was a serious violent felon because he had previously been convicted of rape. At a hearing held prior to jury selection, the State voluntarily dismissed the amended SVF charge after the trial court expressed concerns over the propriety of allowing the State to allege a different predicate offense mere hours before trial. Over Sisson’s objection, the trial court permitted the State to amend the dates alleged in the charging information with respect to the remaining charges. Thereafter, a jury was selected and sworn, and the matter proceeded to trial on the burglary, receiving stolen property, and theft charges. At the close of the evidence, the jury retired for deliberations, but subsequently informed the court that it was unable to reach a verdict. Consequently, the trial court declared a mistrial.

Approximately a week later, the State refiled the amended SVF charge and habitual offender allegation without objection from Sisson. Sisson filed a notice of alibi defense on September 7, 2010, in which he alleged that he had been incarcerated on June 21, 2009, which he claimed was “the date of the alleged offense as testified to by the victims[.]” Appellant’s Appendix at 44. The State did not file a response to Sisson’s notice of alibi defense. On October 7, 2010, Sisson filed a motion to dismiss the charges against him, asserting that the Babers had testified at his first trial that the burglary of their home occurred on June 21, 2009, and that he could not have committed the charged offenses because he was incarcerated on that date. The State filed a response, in which it noted that the State had already amended the charging information to assert that the offense occurred on or about June 2009, as opposed to a specific date, and that the State was not required to respond to Sis-son’s notice of alibi because it intended to rely on the date range specified in the charging information. The State asserted further that Sisson alleged that he had been arrested on June 17, and there was evidence supporting a conclusion that the burglary occurred before that date. The State also argued that the facts of the case made it impossible for the State to identify the date of the offense with precision, and that Sisson had not asked the State to narrow the date range alleged in the charging information because his theory of defense was that the crime occurred on June 21, while he was incarcerated. After a hearing, the trial court denied Sisson’s motion to dismiss.

On November 18, 2010, Sisson filed a motion to exclude evidence due to alleged discovery violations by the State. Specifically, Sisson alleged that the State had taken statements from several witnesses in August, but had not provided Sisson with transcripts of the interviews until November, in violation of the court’s order requiring that discovery be supplemented every thirty days. The trial court heard the motion at pretrial conferences on November 22 and 29, at which the State argued that it provided Sisson with the evidence as soon as the interviews were transcribed. The trial court ultimately concluded that the State had violated the continuing discovery order, but that it had not acted in bad faith. The trial court denied the motion to exclude, but offered to continue the December 1 trial date in order to give Sisson additional time to prepare. Sisson declined the continuance, and the matter proceeded to trial as scheduled.

After three days of evidence, the jury found Sisson guilty of burglary, theft, and receiving stolen property. Thereafter, in a bifurcated proceeding, the jury also found Sisson guilty of the SVF charge and determined that he was a habitual offender. The trial court scheduled a sentencing hearing for January 3, 2011. On December 30, Sisson filed a motion for change of judge arguing that Judge Richard Maugh-mer, who had presided over the jury trial, should recuse himself from sentencing because he had acted as the prosecuting attorney on Sisson’s rape conviction, which formed part of the basis for the habitual offender enhancement. Judge Maughmer denied the motion and sentenced Sisson to an aggregate term of fifty-three years in the Department of Correction. This appeal ensued.

1.

Sisson argues that the State should not have been allowed to refile the previously dismissed SVF charge and habitual offender allegation after his first trial ended in a mistrial. Specifically, Sisson argues that the refiling was vindictive and violated double jeopardy principles and prejudiced his substantial rights. Sisson concedes, however, that he failed to raise these arguments below or object in any way to the refiling. Therefore, unless he can show that fundamental error occurred, these issues are waived. See Caron v. State, 824 N.E.2d 745 (Ind.Ct.App.2005), trans. denied.

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

Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).

A prosecuting attorney may obtain a dismissal at any time prior to sentencing, and the granting of such a motion does not by itself bar a subsequent trial of the defendant for the same offense. Malone v. State, 702 N.E.2d 1102 (Ind.Ct.App. 1998) (citing Ind.Code Ann. § 35-34-1-13 (West, Westlaw current through 2012 Second Regular Session)); Joyner v. State, 678 N.E.2d 386, 393 (Ind.1997), trans. denied. “Absent the attachment of jeopardy, the State’s dismissal of criminal charges does not preclude it from refiling and prosecuting a charge for the identical offense.” Id. at 1103. Additionally, the State may not refile if doing so will prejudice the defendant’s substantial rights. Malone v. State, 702 N.E.2d 1102. But even where an order sustaining a motion to dismiss by a prosecuting attorney would otherwise constitute a bar to further prosecution, the granting of such a motion does not bar a subsequent trial on the same charge unless the defendant objects to the dismissal. I.C. § 35 — 41—1—13(b); Joyner v. State, 678 N.E.2d 386 (Ind.1997).

Because Sisson did not object to the dismissal of the SVF charge and habitual offender allegation, the refiling was not barred. Moreover, even if Sisson had objected to the dismissal, his arguments on appeal are unavailing. As an initial matter, we note that the double jeopardy clause protects a person from suffering multiple prosecutions and punishments for the same offense. Moore v. State, 769 N.E.2d 1141 (Ind.Ct.App.2002). The status of a habitual offender is not an offense or crime in itself; rather, it is a circumstance calling for a sentencing enhancement for the last crime charged. Id. Accordingly, this court has held that Indiana’s double jeopardy clause does not apply to bar retrial of habitual offender proceedings even where the initial habitual offender determination is reversed due to insufficient evidence. Id. It follows a forti-ori that Indiana’s double jeopardy clause would not bar refiling of a habitual offender allegation where, as here, no trial was held on the allegation in the first instance. See also Monge v. California, 524 U.S. 721, 118 S.Ct. 2246,141 L.Ed.2d 615 (1998) (holding that the federal Double Jeopardy Clause does not apply to noncapital sentencing enhancement proceedings). Thus, Sisson’s claim that double jeopardy principles prohibited the State from refiling the habitual offender allegation fails.

With respect to the SVF charge, we note that jeopardy attaches in a jury trial after the jury is empaneled and sworn. Willoughby v. State, 660 N.E.2d 570 (Ind.1996). Here, the SVF charge was dismissed prior to jury selection in Sisson’s first trial; accordingly, jeopardy never attached with respect to that charge and refiling was not barred. See Cherry v. State, 275 Ind. 14, 414 N.E.2d 301 (1981) (holding that double jeopardy did not bar refiling of charge on which there had been no trial), cert, dismissed, 453 U.S. 946, 102 S.Ct. 17, 69 L.Edüd 1033.

Sisson also argues that the refiling was prohibited because it violated his substantial rights. Specifically, he argues that the State’s refiling permitted the State to evade his speedy trial rights. See Jones v. State, 701 N.E.2d 863 (Ind.App. 1998) (holding that the State’s power to dismiss and refile charges may not be used to evade a defendant’s speedy trial rights). Sisson moved for a speedy trial on March 8, 2010, less than a week after his first trial ended in a mistrial due to jury deadlock. On March 12, 2010, the State refiled the SVF charge and habitual offender allegation. On March 18, 2010, Sisson filed a motion to withdraw his speedy trial request, in which Sisson stated that he had “determined that it would be in his best interest to withdraw his previous request for a fast and speedy trial in order to permit ... counsel [to] conduct further discovery.” Appellant’s Appendix at 36. Sisson has not directed our attention to any evidence suggesting that Sisson’s withdrawal of his speedy trial request was in any way related to the refiling of the SVF charge and habitual offender allegation, or that the State’s purpose in refiling was to prevent Sisson from receiving a speedy trial. And even assuming that Sisson’s withdrawal of his speedy trial request was related to the refiling, Sisson has not established that the alleged deprivation of his speedy trial rights made it impossible for him to receive a fair trial so as to support a claim of fundamental error.

Sisson also, claims that the refiling of the SVF charge and habitual offender allegation was vindictive. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits prosecutorial vindictiveness. Blaclcledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). To find a due process violation, we need not conclude that the prosecutor actually acted vindictively; rather, it is sufficient if the prosecutor’s actions raise the apprehension of vindictive motive. Id.

Sisson argues that under the circumstances of this case, a presumption of pros-ecutorial vindictiveness should arise. In Cherry v. State, our Supreme Court held that:

when the prosecution has occasion to file more numerous or more severe charges for the same basic criminal conduct against an accused after the accused has successfully exercised his statutory or constitutional rights to an appeal, the prosecution bears a heavy burden of proving that any increase in the number or severity of the charges was riot motivated by a vindictive purpose.

275 Ind. 14, 414 N.E.2d 301, 305 (1981). Here, however, the State did not file more numerous or severe charges following a successful appeal; rather, the State refiled previously dismissed counts after Sisson’s first trial ended in a mistrial due to jury deadlock. Our Supreme Court has held that unless there is new evidence or information discovered to warrant additional charges, prosecutorial vindictiveness is presumed where more serious charges are brought against a defendant after he successfully moves for a mistrial. Warner v. State, 773 N.E.2d 239 (Ind.2002). But in this case, Sisson did not move for a mistrial in an effort to preserve his right to a fair trial as the result of some error. Rather, the trial court sua sponte declared a mistrial, without objection from Sisson or the State, after the jury indicated that it was unable to reach a verdict.

Sisson has not directed our attention to any Indiana cases addressing the application of the presumption of vindictiveness where additional charges are filed after the declaration of a mistrial due to jury-deadlock. He does, however, rely heavily on United States v. Whaley, 830 F.2d 1469 (7th Cir.1987), abrogated on other grounds as recognized in United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir.1990). This case is not at all supportive of Sisson’s position on appeal and in fact supports the conclusion that the presumption of vindictiveness does not apply under these circumstances.

In United States v. Whaley, the Seventh Circuit addressed whether the presumption of vindictiveness should apply when the United States filed additional charges against the defendant after his first trial ended in a mistrial as a result of a deadlocked jury. The court first noted that the United States Supreme Court “has made clear that ‘the Due Process Clause is not offended by all possibilities of increased punishment ... but only by those that pose a realistic likelihood of vindictiveness.’ ” Id. at 1477 (quoting United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, .73 L.Ed.2d 74 (1982)). The court held that in determining whether the presumption of vindictiveness applies in the context of a mistrial, the initial inquiry is into the cause of the .mistrial. United States v. Whaley, 830 F.2d 1469. The court also stated that “[cjourts have consistently held that no realistic likelihood of vindictiveness is found when a jury is deadlocked and both parties agree that a declaration' of mistrial is a necessity.” Id. at 1478-79.

The court concluded that there was no realistic likelihood of vindictiveness in the case before it because the trial court had sua sponte declared a mistrial due to the jury’s inability to reach a verdict. United States v. Whaley, 830 F.2d 1469. Specifically, the court reasoned that “Appellant Whaley took no action; he exercised no statutory or constitutional right, and cannot now claim that he was penalized for exercising such a right.” Id. at 1479. The court noted further that the appellant had not alleged or demonstrated that the additional indictment was filed in order to discourage him from exercising such a right. United States v. Whaley, 830 F.2d 1469. The court therefore concluded that no presumption of vindictiveness had arisen. Id.; see also United States v. Perry, 335 F.3d 316 (4th Cir.2003) (finding no prosecutorial vindictiveness where unopposed mistrial resulted from jury deadlock).

Despite Sisson’s arguments to the contrary, these are precisely the. circumstances presented here. When the jury in Sisson’s first trial indicated that it was unable to reach a verdict, the trial court sua sponte declared a mistrial without objection from Sisson or the State. Because the mistrial did not result from Sisson’s exercise of any statutory or constitutional right, Sisson cannot claim that he was punished by the State for exercising such a right. Nor does Sisson argue that the additional charges were filed to discourage him from exercising such a right. Accordingly, there is no reasonable likelihood of vindictiveness, and the presumption of prosecutorial vindictiveness is not warranted.

2.

Next, Sisson argues that “the State’s charging information unlawfully identified the entire month of June as the date of the crime.” Appellant’s Brief at 22. Specifically, he claims that because he filed a notice of alibi defense asserting that he had been incarcerated since June 17, 2009, the State was required to narrow the time frame alleged in its charging information from “on or about June 2009.” Appellant’s Appendix at 28, 80. According to Sisson, the State’s failure to do so constituted a violation of Indiana’s alibi statute.

Sisson has waived appellate review of this argument by failing to raise it at trial. See Whitfield v. State, 699 N.E.2d 666 (Ind.Ct.App.1998) (holding that arguments raised for the first time on appeal are waived and will not be considered on appeal), trans. denied. Sisson seems to suggest that he preserved this argument by filing his October 7, 2010 motion to dismiss. But Sisson raised none of these arguments in that motion or at the hearings thereon. Sisson’s motion to dismiss asserted only that Sisson had filed a notice of alibi defense to which the State had not responded, that the Babers had previously testified that the burglary occurred on June 21, 2009, and that Sisson could not have committed the offense because he was incarcerated on that date. Thus, Sis-son sought dismissal on the basis that it was factually impossible for him to have committed the offense. The trial court properly denied Sisson’s motion because the date of the burglary was a heavily contested factual issue to be determined by the jury.

Sisson never argued that the State was required to narrow the timeframe alleged in the charging information or that the State had violated the alibi statute. Indeed, the State noted in its response to Sisson’s motion to dismiss that Sisson had not asked the State to narrow the date range alleged in the charging information because his theory of defense was that he could not be guilty because the crime occurred on June 21, while he was incarcerated. “An appellant cannot sit idly by without objecting, await the outcome of trial, and thereafter raise an issue for the first time on appeal.” Cheek v. State, 567 N.E.2d 1192, 1195 (Ind.Ct.App.1991). If Sisson believed that the lack of precision in the charging information impaired his ability to present a defense, he should have raised the issue prior to trial. His failure to do so constitutes waiver of any error in this regard.

To the extent Sisson argues that the State’s failure to narrow the time frame set forth in the charging information to exclude the time during which he was incarcerated was fundamental error, we conclude that he has not satisfied his burden of showing that the alleged violation made it impossible for him to receive a fair trial. Sisson argues that the imprecision in the charging information impaired his ability to present a defense because he “could not tell whether he should prepare and marshal an alibi defense or pursue another defense altogether.” Appellant’s Brief at 24. Sisson also argues that the State’s failure to narrow the date specified in the charging information forced him to reveal to the jury that he had been incarcerated on other charges in order to refute any possible inference that he had committed the burglary after June 17.

Both the State and Sisson were aware well before Sisson’s second jury trial that Sisson was incarcerated from June 17 forward and that the State would have to prove that he committed the burglary pri- or to that date in order to secure a conviction. The date of the burglary was heavily contested at trial. The State presented evidence that the burglary occurred prior to June 17, and Sisson attempted to establish that the burglary occurred after that date and, consequently, that he could not have committed the crime due to his incarceration.

Because Sisson was aware that the State intended to present evidence that Sisson committed the crime prior to the date of his incarceration before trial, his claim that the State’s failure to narrow the time frame alleged in the charging information impaired his ability to formulate a defense is unpersuasive. And given that Sisson’s defense strategy at both trials was to argue that the burglary took place during his incarceration, we are likewise unconvinced by his suggestion that he was unfairly forced to reveal to the jury that he had been incarcerated. Moreover, even if we accept Sisson’s assertions as true, he has not established that the alleged harm was so serious as to render a fair trial impossible. Accordingly, Sisson has not met the necessary threshold for establishing fundamental error.

3.

Next, Sisson argues that the trial court abused its discretion in denying his motion to exclude the testimony of various witnesses based on alleged discovery violations by the State. Trial courts have broad latitude with respect to discovery matters, and their rulings receive great deference on appeal. Cain v. State, 955 N.E.2d 714 (Ind.2011). Where a discovery violation has occurred, a continuance is the preferred remedy. Id. “Exclusion of evidence is only appropriate if the defendant shows ‘that the State’s actions were deliberate or otherwise reprehensible, and this conduct prevented the defendant from receiving a fair trial.’ ” Id. at 718 (quoting Warren v. State, 725 N.E.2d 828, 832 (Ind.2000)). “Failure to alternatively request a continuance upon moving to exclude evidence, where a continuance may be an appropriate remedy, constitutes a waiver of any alleged error pertaining to noncompliance with the court’s discovery order.” Warren v. State, 725 N.E.2d at 832.

Here, Sisson not only failed to alternatively request a continuance, he declined the trial court’s offer to grant a continuance. Nevertheless, Sisson claims he has not waived this issue because a continuance was not an appropriate remedy. In support of this argument, Sisson argues that he had filed a motion for a speedy trial and that he had “made it clear that he did not want the case to continue being prolonged and was incarcerated at the time the court refused to exclude the untimely produced evidence.” Appellant’s Brief at 41. We note that Sisson filed a request for a speedy trial after his first trial ended in a mistrial; we note further, however, that Sisson withdrew that request on March 18, 2010, months before the alleged discovery violation in this case took place. Sisson’s choice to proceed to trial as scheduled rather than accept the trial court’s offer of additional time to prepare was an expression of his preference and in no way indicates that a continuance was not an adequate remedy for the alleged discovery violation. Accordingly, Sisson has waived appellate review of this issue.

4.

Next, Sisson argues that the trial court abused its discretion in admitting into evidence a letter and photograph Sisson sent to Myers while they were both incarcerated. The decision to admit or exclude evidence lies within the trial court’s sound discretion. Filice v. State, 886 N.E.2d 24 (Ind.Ct.App.2008), 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 it. Dixon v. State, 967 N.E.2d 1090 (Ind.Ct.App.2012). We will not reverse absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Johnson v. State, 831 N.E.2d 163 (Ind.Ct.App.2005), trans. denied.

On appeal, Sisson argues that the trial court abused its discretion when it allowed the State to introduce on redirect examination of Myers a letter and photograph that Sisson had written to Myers because the evidence exceeded the scope of cross-examination. Questions concerning the scope and extent of redirect examination fall within the sound discretion of the trial court. Meagher v. State, 726 N.E.2d 260 (Ind.2000). “The role of redirect examination is to address new matters brought up upon cross-examination, and to correct false or misleading impressions left after cross-examination.” Lycan v. State,. 671 N.E.2d 447, 455 (Ind.Ct.App.1996).

On direct examination, Myers testified that she accompanied Sisson to the Baber residence and waited in the car during the burglary and that she later accompanied Sisson to Sturdivant’s house to sell the stolen guns. On cross-examination, Sisson introduced into evidence a letter Myers wrote to Sisson while they were both incarcerated, in which she wrote that the police had “scared her so bad she just told them what they wanted to hear.” Transcript Vol. 13 at 238. On redirect, the State was permitted to introduce into evidence over Sisson’s objection a letter and photograph Sisson sent to Myers in response. In the letter, Sisson accused Myers of lying to the police, demanded that she “fix it,” threatened to go to the police and tell them the “real deal” if Myers did not comply, and stated that Myers would end up doing “some serious time.” Exhibit Vol., State’s Exhibit 8. The photograph was a picture of Sisson’s mother’s gravestone, and Sisson wrote a message on the back again demanding that Myers “fix [her] lies.” Id., State’s Exhibit 9. The State argues that the letter and photograph were not beyond the scope of cross-examination because they were admitted to rehabilitate Myers’s credibility, which Sisson had attacked on cross-examination by introducing evidence suggesting that Myers had not been truthful with police. Sisson argues that the letter and photograph did nothing to rehabilitate Myers’s credibility in this regard.

Even assuming that the letter and photograph were improperly admitted on redirect, reversal is not warranted because the error was harmless. “The improper admission of evidence is harmless error when the conviction is supported by substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood the questioned evidence contributed to the conviction.” Martin v. State, 779 N.E.2d 1235, 1242 (Ind.Ct.App.2002), tram, denied. Myers testified that she and Sisson drove to the Baber residence, she waited in the car while Sisson went inside, and Sisson emerged shortly thereafter and put something in the trunk of the car. Myers testified further that she accompanied Sis-son to Sturdivant’s house later that day to sell guns Sisson had stolen from the Baber residence. Sturdivant testified that he purchased the guns from Sisson and that-Sisson had told him that they “were so hot that the people don’t even know they are gone yet.” Transcript Vol. 13 at 385. DeFord also testified that Sisson sold Sturdivant guns, and Pierce testified that Sturdivant gave him a gun that was later determined to have been stolen from the Baber residence. Because of the overwhelming nature of the evidence against Sisson, there is no substantial likelihood .that the letter and photograph contributed to his conviction.

Nevertheless, Sisson argues that admission of the letter and photograph was not harmless because Sisson’s threats were “highly inflammatory and incendiary” and “likely to inflame the sympathies of the jury in [Myers’s] favor.” Reply Brief at 14. We disagree. Prior to offering the letter and photograph on redirect, the State had already elicited testimony from Myers on direct examination that Sisson had threatened her. Specifically, Myers testified that Sisson had told her not to testify and that “he would hurt [her] husband and [her] mom and [her] if [she] did.” Transcript Vol. 13 at 263. Myers testified further that she was afraid to testify and had nightmares about Sisson as a result. Sisson objected to the admission of this testimony on the grounds that it had “no probative value” and was irrelevant under Ind. Evidence Rule 402. Id. at 264. Sis-son raises no such argument on appeal, and even if he did, the argument would fail. See Cox v. State, 422 N.E.2d 357, 361 (Ind.Ct.App.1981) (holding that “threats made against a witness by the defendant are in the nature of an attempt to manufacture or suppress evidence and are therefore viewed as an admission of guilt” and “their relevance on the issue of guilt normally renders them proper for jury consideration”). Thus, because the jury had already been presented with evidence that Sisson had made overt threats of violence against Myers, her husband, and her mother in an attempt to intimidate Myers and prevent her from testifying, it is highly unlikely that the relatively veiled threats contained in the letter and photograph stood out in the minds of the jurors as particularly shocking or distasteful. For all of these reasons, we conclude that any error in the admission of the letter and photograph was harmless.

5.

Sisson next argues that the trial court abused its discretion by excluding evidence of Sturdivant’s lengthy criminal history, including three burglary convictions. Sis-son argues that such evidence was admissible for impeachment purposes under Indiana Evidence Rule 609 and to prove that Sturdivant committed the burglary of the Baber residence.

As an initial matter, we note that Sisson never argued at trial that Stur-divant’s criminal history was probative of whether or admissible to prove that Stur-divant committed the burglary of the Ba-ber residence. Accordingly, Sisson’s argument in this regard is waived. Waiver notwithstanding, Sturdivant’s criminal history, including his burglary convictions, was clearly inadmissible for this purpose. See Ind. Evidence Rule 404(b) (providing that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”); Britt v. State, 937 N.E.2d 914 (Ind.Ct.App.2010) (holding that the prohibition in Evidence Rule 404(b) applies to persons other than the defendant). Contrary to Sisson’s argument on appeal, evidence that Sturdivant had committed burglary in the past has no direct bearing on whether he committed the burglary at issue in this case. The only possible purpose for admitting evidence of his past crimes as substantive evidence would be to show that Sturdivant had a propensity to commit burglary and acted in conformity therewith. As such, the evidence would fall squarely within the prohibition of Evidence Rule 404(b). See Barker v. State, 695 N.E.2d 925, 930 (Ind.1998) (noting that Rule 404(b) “is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt”).

Nevertheless, the inadmissibility of Sturdivant’s criminal history for substantive purposes does not necessarily preclude its admission for impeachment purposes under Ind. Evidence Rule 609. Rule 609 provides, in relevant part:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect....

“The party seeking to overcome the Rule 609(b) presumption of exclusion must support its probative value argument with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Hall v. State, 769 N.E.2d 250, 253 (Ind.Ct.App.2002). Trial courts may consider a broad range of factors in balancing the probative value of an aged conviction against the risk of unfair prejudice, including: (1) the impeachment value of the prior crimes; (2) the point in time of the conviction and the witness’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the witness’s testimony, and (5) the centrality of the credibility issue. Saunders v. State, 848 N.E.2d 1117 (Ind.Ct.App.2006), trans. denied.

It is undisputed that all of Sturdi-vant’s prior convictions, aside from one mail fraud conviction from 1985 that will be discussed further below, fell outside the time limit set forth in Evid. R. 609(b). Thus, Sisson was required to establish that the probative value of the convictions substantially outweighed their prejudicial effect. Aside from the 1985 mail fraud conviction, Sturdivant’s criminal history included burglary convictions from 1977, 1978, and 1979, and convictions for vehicle theft, robbery, and kidnapping from 1983. Thus, at the time of Sisson’s trial, all of the convictions were more than twenty-five years old. Additionally, Sturdivant’s testimony was in large part cumulative of the testimony of Myers and DeFord that Sisson sold the stolen guns to Sturdivant. Under these facts and circumstances, the trial court did not abuse its considerable discretion in determining that Sisson failed to establish that the probative value of Sisson’s aged convictions substantially outweighed their prejudicial effect.

As for Sturdivant’s federal mail fraud conviction, the record is unclear concerning when he was released from confinement for that offense. But even assuming this conviction was admissible under Evid. R. 609, reversal is not warranted. “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.” Dixon v. State, 967 N.E.2d at 1092. Here, the jury was presented with ample evidence of Sturdivant’s criminal activities around the time of the burglary of the Baber residence. Sturdi-vant testified that he was a drug dealer, that he had helped orchestrate a burglary of Pierce’s residence, and that he knowingly purchased stolen guns from Sisson. Evidence was also presented that Sturdivant was initially uncooperative with police and that he had been granted immunity for his testimony. In short, there were many reasons to doubt Sturdivant’s credibility, and the exclusion of evidence concerning one mail fraud conviction from 1985 would not have affected the jury’s ultimate determination in this regard. Accordingly, any error in excluding evidence of Sturdivant’s 1985 mail fraud conviction was harmless.

6.

Finally, Sisson argues that the trial court erred in denying his motion for change of judge filed after the conclusion of his trial, but prior to his sentencing hearing. Sisson argues that he was entitled to a change of judge for the purposes of sentencing because Judge Maughmer had acted as the prosecuting attorney in Sisson’s previous rape conviction, which was the predicate offense for his SVF conviction and formed part of the basis for his habitual offender adjudication.

A trial court’s ruling on a motion for change of judge is reviewed under the clearly erroneous standard, and the law presumes that a judge is unbiased and unprejudiced. Garland v. State, 788 N.E.2d 425 (Ind.2003). Indiana Criminal Rule 12 provides that the State or a defendant may request a change of judge by timely filing an affidavit alleging that the judge has a personal bias against the State or the defendant and setting forth the facts and reasons supporting the allegation of bias. The rule sets forth the following requirements with respect to timeliness:

(D) Time Period for Filing Request for Change of Judge or Change of Venue. In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.
(1) Ten Day Rule. An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial....
(2) Subsequently Discovered Grounds. , If the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, the applicant may file the application, which shall be verified by the party specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

The law is settled that a defendant is not entitled to a change of judge where the mandates of Criminal Rule 12 have not been followed. Flowers v. State, 738 N.E.2d 1051 (Ind.2000). Moreover, our Supreme Court has held that there is no right to a change of judge for the sentencing phase of proceedings. Johnson v. State, 472 N.E.2d 892 (Ind.1985)

Here, Sisson did not file his motion for change of judge until December 30, 2010, nearly a month after his jury trial resulted in the convictions at issue in this appeal. Thus, the motion was clearly untimely under Crim. R. 12(D)(1). And although Sisson alleged facts he contended supported a finding that a change of judge was required due to bias, Sisson failed to allege when he first learned of the grounds ■ for a change of judge or why these grounds could not have been discovered earlier in the exercise of due diligence. Because Sisson did not comply with the requirements of Crim. R. 12, the trial court properly denied his motion for change of judge. See Flowers v. State, 738 N.E.2d 1051.

Sisson also argues that Judge Maugh-mer was required to recuse himself under Indiana’s Code of Judicial Conduct. Our Supreme Court has held that “the Judicial Canons may provide an independent basis requiring disqualification even if the analysis required for determination under Criminal Rule 12(B) would not require a change of judge.” Foss v. State, 856 N.E.2d 1211, 1221 (Ind.2006). Rule 2.11(A) of the Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned!)]” The comments to Rule 2.11 provide that “[a] judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is. filed.” Jud. Cond. R. 2.11, cmt. 2. Whether the trial court harbors actual bias against the defendant is not the dispositive issue under the rule; the true question is whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality. Patterson v. State, 926 N.E.2d 90 (Ind.Ct.App. 2010).

Sisson does not allege that Judge Maughmer was actually biased against him; rather, according to Sisson, Judge Maughmer’s participation as the prosecutor on the rape charge that formed the predicate offense for the SVF charge and part of the basis for the habitual offender adjudication created an appearance of bias sufficient to warrant recusal. Indiana courts have rejected similar arguments where, as here, the existence of the prior conviction is not factually contested at trial. See Dishman v. State, 525 N.E.2d 284 (Ind.1988) (holding that defendant was not entitled to a change of judge where the presiding judge had acted as the prosecuting attorney in the cases forming the basis for the habitual offender allegation because there 'was no factual dispute concerning the prior convictions); Gunter v. State, 605 N.E.2d 1209 (Ind.Ct.App.1993) (acknowledging that a judge’s involvement as the prosecuting attorney on the convictions supporting a habitual offender allegation was not cause for disqualification). Sisson attempts to distinguish Dishman v. State, 525 N.E.2d 284, arguing that the court in that case merely held that the judge was not disqualified from presiding over the jury’s determination of the defendant’s habitual offender status, and here, Sisson is arguing that Judge Maughmer was disqualified from sentencing him.

Sisson has not directed our attention to any authority supporting the argument that a judge may be qualified to preside over a jury trial, yet disqualified for the purposes of sentencing. As a general matter, the same judge who presides over the defendant’s trial will sentence the defendant, and there is no reason to doubt that this was the case in Dishman v. State, id. See also Gunter v. State, 605 N.E.2d at 1210 (holding that “our criminal law contemplates that the same judge will preside throughout a criminal trial”), trans. denied. Moreover, Jud. Cond. R. 2.11 draws no distinction between trial and sentencing; if there is a reasonable basis for doubting a judge’s impartiality, he or she may not preside over any phase of the proceedings. Thus, because Judge Maughmer was not disqualified from presiding over Sisson’s jury trial due • to an appearance of bias stemming from his involvement as the prosecuting attorney on Sisson’s prior rape conviction, there is no basis to conclude that he was disqualified from pronouncing sentence for that reason. Under these facts and circumstances, we cannot conclude that Judge Maughmer was required to recuse himself prior to Sisson’s sentencing hearing.

Judgment affirmed.

BROWN, J., and PYLE, J., concur.

      . Ind.Code Ann. § 35-43-2-1 (West, Westlaw current through 2012 Second Regular Session).

      . Ind.Code Ann. § 35-42-4-2 (West, Westlaw current through 2012 Second Regular Session).

      . Ind.Code Ann.,§ 35-47-4 — 5 (West, Westlaw current through 2012 Second Regular Session).

      . Ind.Code Ann. § 35-50-2-8 (West, Westlaw current through 2012 Second Regular Session).

      . Sisson asserts that "the mistrial was due to the State’s failure to introduce basic evidence necessary for the jury to reach a decision.” Appellant's Brief at 35. Specifically, Sisson notes that during deliberations, the jury requested a list of the stolen property, which the court declined to provide, and he argues that the jury deadlocked as a result. Sisson’s argument is unconvincing. The trial court declared a mistrial because the jury was unable to reach a verdict. Inquiry into why the jury deadlocked would be speculative and wholly inappropriate.

      . In his motion to dismiss, Sisson asserted that the State had not responded to his notice of alibi defense. The State, however, is not required to respond to a defendant's notice of alibi defense in all cases. Ind.Code Ann. § 35-36-4-2 (West, Westlaw current though 2012 Second Regular Session) (providing that a prosecutor need not respond to a notice of alibi if he intends to present evidence that the offense took place at the time and place listed in the charging information). Sisson made no argument in his motion to dismiss that the State was required to respond to his notice of alibi defense under the circumstances of this case.

      . Sisson also argues that the State’s failure to narrow the time frame set forth in the charging information “risked placing Sisson in jeopardy for the same crime twice.” Appellant's Brief at 25. Sisson seems to be referencing the law applicable when there is a variance between the allegations in a charging information and the evidence presented at trial. See Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979) (noting that "a variance, in order to be fatal, must be of such substantial nature as to mislead the accused in preparing and maintaining his defense or be of such a degree as is likely to place him in second jeopardy for the same offense"). Here, the charging information alleged that Sisson committed the offenses “on or about June 2009.” Appellant’s Appendix at 28. The evidence presented at trial established that the offenses occurred in late May or in June of 2009 — in other words, on or about June 2009. Thus, there was no variance between the allegations in the charging information and the evidence presented at trial. Nor is there any realistic risk that Sisson will be prosecuted again for the same burglary of the Baber residence.

      . In an attempt to avoid waiver, Sisson argues in his reply brief that the State's discovery violation constituted fundamental error. But, as our Supreme Court has recently noted, "parties may not raise an issue, such as fundamental error, for the first time in a reply brief.” Curtis v. State, 948 N.E.2d 1143, 1148 (Ind.2011). Because Sisson failed to allege fundamental error in this regard in his principal appellate brief, the issue is waived.

      . Sisson also argues that the letters were inadmissible under Ind. Evidence Rule 403. Because Sisson did not object on this basis at trial, this argument is waived. Small v. State, 736 N.E.2d 742 (Ind.2000) (noting that a defendant may not object on one ground at trial and then raise a different claim of error on appeal).

      . Sisson did not dispute his prior rape conviction, in which Judge Maughmer acted as the prosecuting attorney. Sisson did, however, dispute the other felony conviction set forth in the habitual offender allegation, an auto theft conviction out of Carroll County. Sisson does not suggest that Judge Maughmer had any involvement in the prosecution of his auto theft conviction.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    Amy Jean KRISTOFF, Appellant-Petitioner, v. CENTIER BANK, Appellee-Respondent.
    No. 45A03-1204-TR-186.
    Court of Appeals of Indiana.
    Feb. 15, 2013.

      D. Eric Neff, Crown Point, IN, Attorney for Appellant.
    Robert G. Berger, Highland, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Amy Jean Kristoff (“Amy”) appeals the Lake Circuit Court’s grant of summary judgment in favor of Centier Bank (“the Bank”), the trustee of the Amy Jean Kris-toff Exempt Trust, in Amy’s action to modify the terms of a trust established by her late mother.

We affirm.

Facts and Procedural History

The essential facts of this case are undisputed. On October 4, 1985, Sally Jean Kristoff (“Sally”) executed a trust document establishing a trust known as the Sally Jean Kristoff Trust. The trust document was amended in 1988 to its present form. Sally was the settlor and the initial trustee of the Trust. Sally had two daughters: Amy and Laurie Ann Kristoff (“Laurie”). On May 8, 2000, twelve years after the amendment of the trust document, Sally died, leaving an estate worth approximately $17,000,000.

The trust documents provided that, upon Sally’s death, two separate trusts would be created for her daughters, with each trust funded with an amount equal to the then-existing generation skipping tax exemption:

6. As of the date of my death, the GST [Generation Skipping Tax] Exempt Share created above shall be divided and allocated per stirpes among my then living descendants, and property so allocated to a descendant of mine shall be retained in trust as a separate exemption trust named for that descendant of mine and any other exemption trusts created under the following provisions of this paragraph shall be held and disposed of as follows:
(a) The trustee may pay to or apply for the benefit of a beneficiary for whom an exemption trust is named such amounts of the income and principal of the trust as the trustee, in the trustee’s sole discretion, from time to time believes desirable and so directs for the comfortable maintenance, health, education and welfare of the beneficiary and his or her dependents.
(b) If a beneficiary for whom an exemption trust is named dies before the complete distribution of that exemption trust, then on the death of such beneficiary any part or all of the principal of the exemption trust and the accrued or undistributed income thereof shall be distributed to or for the benefit of such one or more persons or organizations in such proportions and subject to such trusts, powers and conditions as such beneficiary may provide and appoint by will specifically referring to this power to appoint, except that no beneficiary shall have the power to appoint an exemption trust to or for the benefit of such beneficiary, his or her estate or the creditors of either.
(c) On the death of a beneficiary for whom an exemption trust is named, any principal of the exemption trust not effectively disposed of by any other provisions of this paragraph shall be divided and allocated per stirpes among the then living descendants of the beneficiary, if any, otherwise per stirpes among the then living descendants of the nearest lineal ancestor of the beneficiary who also was a descendant of mine and of whom one or more descendants then are living, or, if non, per stirpes among my then living descendants. Property so allocated to a beneficiary for whom an exemption trust is named shall be added to that exemption trust, and property so allocated to any other beneficiary shall be retained in trust as a separate exemption trust named for him or her and disposed of as provided in this paragraph 6.

Appellant’s App. pp. 19-20. The Bank is' currently the trustee of the trusts created by Sally.

Neither of Sally’s daughters has had any children. After the creation of the trust, Amy received regular distributions from the trust upon her request and at the discretion of the trustee. She admitted, however, that she had never been denied any of her requests.

Amy filed a petition to terminate the trust on November 12, 2010. In her petition, Amy argued that the purpose of the trust was to benefit Sally’s grandchildren, that no such grandchildren existed or would exist, that these circumstances were not foreseen by the settlor, and that the continuing existence of the trust was impractical and wasteful. The Bank subsequently filed a motion for summary judgment on October 3, 2011. After receiving an extension of time, Amy responded to the summary judgment motion on December 1, 2011. A summary judgment hearing was held on January 19, 2012, after which the trial court took the matter under advisement. The trial court issued an order on March 23, 2012, granting summary judgment in favor of the Bank and denying Amy’s request to terminate the trust. Amy now appeals.

Standard of Review

Our standard for reviewing a trial court’s order granting a motion for summary judgment is well settled:

A trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The trial court’s grant of a motion for summary judgment comes to us cloaked with a presumption of validity. An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. But a de novo standard of review applies where the dispute is one of law rather than fact. We examine only those materials designated to the trial court on the motion for summary judgment.... Although we are not bound by the trial court’s findings and conclusions, they aid our review by providing reasons for the trial court’s decision. We must affirm the trial court’s entry of summary judgment if it can be sustained on any theory or basis in the record.

Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App.2012) (citations omitted).

Discussion and Decision

Amy first contends that the trial court erred in granting summary judgment in favor of the Bank because there was a genuine issue of material fact regarding whether the Bank was the trustee of the generation-skipping tax exempt . trust, or of a primary trust that was also created by Sally for the benefit of Amy.

We note, however, that Amy’s own petition to terminate the trust claimed that the Bank was trustee of the “Amy Jean Kris-toff Exempt Trust[.]” Appellant’s App. p. 14. Amy’s response in opposition to the Bank’s motion for summary judgment similarly noted that “the trust at issue” in this case was “the Amy Jean Kristoff Exempt Trust[.]” Id. at 96. In fact, at no point before the trial court did Amy claim that another trust was at issue or that the Bank was not the trustee. This issue cannot be presented on appeal for the first time. See T.S. v. Logansport State Hosp., 959 N.E.2d 855, 857 (Ind.Ct.App.2011) (noting that a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court and the corresponding rule that an argument or issue not presented to the trial court is generally waived for appellate review).

Amy next argues that the primary purpose ' of the trust was to escape ' or minimize the consequences of the generation-skipping tax, and that because neither she nor her sister have, or will ever have, any children, the purpose of the trust has been defeated or substantially impaired by circumstances that were unforeseen by her mother.

The interpretation of a trust document is a question of law for the court. Paloutzian v. Taggart, 931 N.E.2d 921, 925 (Ind.Ct.App.2010). The primary purpose of the court in construing a trust instrument is to ascertain and .give effect to the settlor’s intention. Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind.2006). “Indiana follows ‘the four corners rule’ that ‘extrinsic evidence is not admissible to add to, vary or explain the terms of a written instrument if the terms of the instrument are susceptiblé of a clear and unambiguous construction.’ ” Id. (quoting Hauck v. Second Nat’l Bank of Richmond, 153 Ind.App. 245, 260, 286 N.E.2d 852, 861 (1972)). Thus, if a trust document is capable of clear and unambiguous construction, we must give effect to the' trust’s clear meaning without resort to extrinsic evidence. Id. We are not at liberty to rewrite the trust agreement. Paloutzian, 931 N.E.2d at 925.

In support of her position, Amy cites to Indiana Code section 30^-3-26(a), which provides in relevant part:

Upon petition by the trustee or a beneficiary, the court shall direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purposes of the trust. In that case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust, or may prohibit the trustee from performing acts required by the terms of the trust.

(emphasis added).

The first part of Amy’s argument is that the purpose of the trust was to provide for Sally’s potential grandchildren while avoiding the consequences of the generation-skipping tax. We are unable to agree. While certainly tax-avoidance was part of the purpose of the trust, the plain language of the Paragraph 6(a) of the trust document indicates that the main purpose of the trust was to provide for the “comfortable maintenance, health, education and welfare of the beneficiary and his or her dependents.” Appellant’s App. p. 20. The trustee was granted sole discretion regarding the distribution of both the principal and the income of the trust to accomplish this goal. Id. Indeed, there is nothing in this language to prevent the trustee from distributing to the beneficiary the entire principal and income of the trust— leaving nothing for any potential children of the beneficiary — if the trustee determined that such was required to accomplish the purpose of the trust.

Paragraph 6(b) provides that if the trust beneficiary, i.e. Amy, dies before the complete distribution of the trust, then the remaining funds are to be distributed as the beneficiary may provide and appoint by will, with the exception that “no beneficiary shall have the power to appoint an exemption trust to or for the benefit of such beneficiary, his or her estate or the creditors of either.” Id. Thus, the trust document again anticipates that all of the assets of the trust might be distributed before the death of the beneficiary, leaving nothing for any children of the beneficiary. If, however, the beneficiary dies before the distribution of all of the trust’s assets, the beneficiary has the power of appointment to distribute the remaining assets. And there is nothing that requires the beneficiary to distribute the remaining assets of the trust to her children upon her death.

Paragraph 6(c) provides that if the beneficiary dies before the distribution of the assets of the trust and the beneficiary has not exercised the power of appointment to distribute the remaining assets of the trust, only then will the principal of the trust be distributed “per stirpes among the then living descendants of the beneficiary, if any, otherwise per stirpes among the then living descendants of the nearest lineal ancestor of the beneficiary who also was a descendant of mine and of whom one or more descendants then are living, or, if not, per stirpes among my then living descendants.” Id. (emphasis added). That is, distribution of the assets of the trust to Sally’s grandchildren is possible under the trust document, but it is in no way required.

Thus, the trust document first anticipates that the entire assets of the trust might be distributed during the life of the beneficiary. If not, the trust documents provides that the beneficiary has a power of appointment to distribute the remaining assets on her death. If this option is not exercised, only then does the trust document call for the distribution of the trust assets to the beneficiary’s descendants if any. Given this clear and unambiguous language, we reject the premise of Amy’s argument that the purpose of the trust was to provide for Sally’s non-existent grandchildren. Nor will we consider any extrinsic evidence because the language of the trust document is not ambiguous.

Nor can we agree with Amy that her and her sister’s lack of children was an unforeseen circumstance. Amy and her sister had no children at the time of the execution of the trust document and still had no children twelve years later at the time of their mother’s death. Thus, Sally could have very well foreseen that she would have no grandchildren. But more importantly, the language of the trust document itself anticipates that the beneficiaries might have no children even at the time of their death. As noted in the paragraph above, if the trust assets are not exhausted when the beneficiary dies, and the beneficiary fails to exercise her power of appointment, the trust principal is to be “distributed per stirpes among the then living descendants of the beneficiary, if any [.] ” Appellant’s App. p. 20 (emphasis added). It is therefore clear that Amy’s failure to have children was not unanticipated.

Amy also refers to Indiana Code section 30-4-3-24.4(a), which provides in relevant part:

The court may modify the administrative or dispositive terms of a trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor’s probable intention.

(emphasis added). But again, this section requires the existence of circumstances not anticipated by the settlor, and we have already concluded that the trust document itself anticipates the beneficiaries not having children. This section is therefore inapplicable.

The terms of the trust document are clear and unambiguous, and the primary purpose of the trust was not for the benefit of the beneficiaries’ children. Nor was the beneficiaries’ failure to have children an unforeseen circumstance. Amy has identified no genuine issue of material fact, and the Bank has demonstrated that it is entitled to judgment as a matter of law.

Affirmed.

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

      . See26U.S.C. § 2631.

      . Even if this issue were not waived, it would appear to be invited error on Amy’s part, as she is the party who claimed that the Bank was the trustee of the exemption trust in her initial petition. See Beeching v. Levee, 764 N.E.2d 669, 674 (Ind.Ct.App.2002) (noting that error invited by the complaining party is not subject to review by this court).


author: SHARPNACK, Senior Judge.

text:
    Jose MALDONADO-MORALES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A05-1205-CR-255.
    Court of Appeals of Indiana.
    Feb. 25, 2013.

      Peter D. Todd, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Jose Maldonado-Morales appeals his conviction of domestic battery in the presence of a child, a Class D felony. Ind. Code § 35-42-2-1.3 (2006).

We affirm.

ISSUE

The sole issue in this appeal is whether the trial court abused its discretion when it instructed the jury on the doctrine of transferred intent.

FACTS AND PROCEDURAL HISTORY

In November 2009, Maldonado-Morales was involved in an altercation with his ex-wife and mother of his child, Ana Justo, and Justo’s boyfriend, Victor Ortega. Late in the evening, Maldonado-Morales went to Justo’s apartment and left a note on her truck. Thinking Maldonado-Morales had gone, Justo and Ortega went outside to retrieve the note; however, Maldonado-Morales had not gone but -had remained in the parking lot. Maldonado-Morales and Ortega began arguing. When Justo saw the two men approach each other, she stepped in between them. Ortega and Maldonado-Morales began to hit one another, and Maldonado-Morales punched Justo, causing her to fall to the ground and cut her ankle. The toddler daughter of Maldonado-Morales and Jus-to was present for the entire altercation.

Based upon this incident, Maldonado-Morales was charged with domestic battery in the presence of a child as a Class D felony. At Maldonado-Morales’ jury trial, the court instructed the jury on transferred intent. Maldonado-Morales objected to the instruction, but the trial court overruled the objection. The jury returned a verdict of guilty, and Maldonado-Morales was sentenced to two years with all but 116 days suspended. It is from this conviction that he appeals.

DISCUSSION AND DECISION

Maldonado-Morales contends that the trial court erroneously instructed the jury as to transferred intent. We review the trial court’s decisions on instruction of the jury for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind.2010). When determining whether a trial court erroneously gave or refused to give a tendered instruction, we consider the following: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support the giving of the instruction; and (3) whether the substance of the tendered instruction was covered by other instructions that were given. Mayes v. State, 744 N.E.2d 390, 394 (Ind.2001). We will reverse a conviction only if the appellant demonstrates that the instructional error prejudices his substantial rights. Treadway, 924 N.E.2d at 636.

Maldonado-Morales’ claim of error with regard to the transferred intent instruction is that the instruction incorrectly stated the law. The instruction stated, in relevant part:

If one intends to injure a person and by mistake or inadvertence injures another person, his intent is transferred from the person to whom it was directed to the person actually injured and he may be found guilty of domestic battery.

Appellant’s App. p. 27. In a muddled argument, Maldonado-Morales appears to claim that the transferred intent instruction was improper in this case because domestic battery (the offense he commit-, ted by hitting Justo) and battery (the offense he would have committed had he hit Ortega) are distinct offenses that require a different mens rea such that transferred intent cannot apply.

Maldonado-Morales’ assertion is similar to the claim raised by the respondent in D.H. v. State, 932 N.E.2d 236 (Ind.Ct.App.2010). In that case, D.H., a juvenile, engaged in an altercation with another student at school. When D.H. attempted to punch the other student, he struck a teacher instead. The juvenile court found that D.H. committed an act that would be a D felony battery if committed by an adult. On appeal, D.H. asserted that the doctrine of transferred intent should not apply in his case because striking the other student would have amounted to a Class A or Class B misdemeanor, while striking the teacher elevated the offense to a Class D felony.

In D.H., this Court noted that Indiana Code section 35-41-2-2(d) (1977) provides .that the level of culpability required for the commission of an offense is required with respect to “every material element of the prohibited conduct” and that thé terms “prohibited conduct” and “element”, are not synonymous. D.H., 932 N.E.2d at 238. Therefore, the culpability requirement applies only to that conduct which is prohibited by the statute. Id. (citing Markley v. State, 421 N.E.2d 20, 21-22 (Ind.Ct.App.1981)). Thus, the Court held that, with respect to the battery statute, the culpability requirement of “knowingly or intentionally” applies only to the prohibited conduct elements of touching another in a rude, angry, or insolent manner. Id. The Court further held that aggravating circumstances- that increase the penalty for the crime, such as bodily injury to a school employee in the course of her duties, must be proved beyond a reasonable doubt but do not require separate proof of culpability. Id. Therefore, the State was required to prove beyond a reasonable doubt that D.H. knowingly or intentionally struck a person in a rude, insolent, or angry manner. Then, in order to elevate the act to a Class D felony, the State was required to prove beyond a reasonable doubt that the person that was struck was a school employee in the course of her duties. Id. at 289.

Turning to the instant case, we apply the reasoning in D.H. to the facts before us. Both the offense of battery, as set forth in Indiana Code section 35-42-2-1 (2009), and the offense of domestic battery, as set forth in Indiana Code section 35^2-2-1.3, prohibit touching another in a rude, insolent, or angry manner. In addition, the culpability requirement in both statutes is the same: knowing or intentional. See Ind.Code §§ 35-42-2-1, -1.3. Pursuant to Indiana Code section 35-41-2-2(d) and the holding in D.H., the required culpability in both statutes (i.e., knowingly or intentionally) applies only to the prohibited conduct elements of touching another in a rude, insolent, or angry manner. Thus, here, the State was required to prove beyond a reasonable doubt that Maldonado-Morales knowingly or intentionally touched a person in a rude, insolent, or angry manner.

The element in the present case that sets domestic battery apart from a general battery is the requirement that the person touched (1) is or was a spouse of the other person, (2) is or was living as if a spouse of the other person, or (3) has a child in common with the other person. See Ind. Code § 35^12 — 2—1.3(a). This is an additional element akin to the aggravating circumstances discussed in D.H., 932 N.E.2d at 239. A second additional element present in this case is the commission of the offense in the presence of a child. See Ind.Code § 35-42-2-1.3(b)(2); see also Appellant’s App. 72. This element is an aggravating circumstance of domestic battery that increases the penalty for the crime to a D felony. See Ind.Code § 35-42-2-1.3(b)(2). Both of these additional elements require proof beyond a reasonable doubt but do not require proof that Maldonado-Morales acted knowingly or intentionally with regard to these facts. In summary then, the State was required to prove beyond a reasonable doubt that Maldonado-Morales knowingly or intentionally struck a person, and then prove beyond a reasonable doubt that the person that was struck is or was the spouse of Maldonado-Morales and that Maldonado-Morales committed the offense in the presence of a child.

Thus, the two offenses of battery and domestic battery do not require a different mens rea as suggested by Maldonado-Morales; rather, both offenses require a showing beyond a reasonable doubt of a “knowing or intentional” touching in a rude, insolent, or angry manner. The additional elements are facts that the State must prove beyond a reasonable doubt; however, there is no requirement that the state prove that Maldonado-Morales acted knowingly or intentionally as to the status of the victim or the presence of a child.

CONCLUSION

For the reasons stated, we conclude that the trial court did not abuse its discretion by instructing the jury as to the doctrine of transferred intent.

Affirmed.

NAJAM, J., and CRONE, J., concur.


author: PYLE, Judge.

text:
    Alexander NIKOLAYEV, Appellant-Respondent, v. Natalia NIKOLAYEV, Appellee-Petitioner.
    No. 49A05-1207-DR-372.
    Court of Appeals of Indiana.
    Feb. 28, 2013.
    Alexander Nikolayev, Indianapolis, IN, Appellant Pro Se.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Alexander Nikolayev (“Alexander”) appeals the trial court’s child support and property division orders in the dissolution of his marriage to Natalia Nikolayev (“Natalia”). The trial court entered the orders, which include findings of fact and conclusions of law, after this Court remanded the matter for further findings in an unpublished opinion, Nikolayev v. Nikolayev, No. 49A05-1108-DR-393, 2012 WL 1964104 (Ind.Ct.App. May 21, 2012).

We affirm.

ISSUES

1. Whether the trial court erred as a matter of law in determining that the money Alexander voluntarily contributed to his 401 (k) account should be included as income for purposes of determining child support; and

2. Whether the trial court erred in holding a hearing and subsequently valuing Natalia’s household goods and personal property for purposes of determining the division of marital property.

FACTS AND PROCEDURAL HISTORY

The facts pertinent to this appeal were stated in our previous unpublished opinion as follows:

Alexander and Natalia were married in November 2001, and they had one child during the marriage, V.N., who was born in 2003. Alexander, who has a Master’s Degree in science from the former Soviet Union, immigrated to the United States from Russia in 1992. He began working for a pharmaceutical company within a few months of arriving in America. In 2002, he secured employment with Eli Hilly & Company (“Lilly”) and currently earns over $100,000 per year, including bonuses.
At the end of 2008, Natalia moved out of the marital residence. She used $7,000 to $8,000 she had received from recent art restoration work she had done, along with some funds received from her older son [from a previous marriage] and sister, to establish a separate household, including renting an apartment and buying furniture, utensils, and linens. Natalia also used some the money to pay a consultation and retainer fee to an attorney for divorcing Alexander.
It appears that- one of the primary motivations Natalia had for leaving Alexander was her belief'that he was too controlling with respect to finances. For example, between 2002 and 2008, Alexander consistently received raises and bonuses from Lilly to the point where he was earning over $100,000 annually. However, the available income to the Nikolayev family remained constant during this time, because Alexander directed that any additional amount earned through raises be saved and/or diverted to his voluntary 401(k) account through Lilly, and the money was not spent on current family expenses. By .2010, Alexander was contributing over $1,700 per-month to his 401(k). The net effect of these 401 (k) and savings contributions was that the amount available for current family expenses remained constant at approximately $51,000 per year throughout the marriage.
Alexander did not allow Natalia to have a credit card until near the end of the marriage, and even then he would review every expense she charged to it and would take the card away if he did not approve of it. According to Natalia, the marital home was sparsely furnished, they slept on a thin mattress on the floor for about year after buying the . home, and they had no cell phones, cable TV, or a washing machine; Natalia had to do laundry at a nearby apartment complex. Natalia indicated that Alexander had a “[S]oviet ... mentality” toward finances that she did not believe was in V.N.’s best interests and said that Alexander’s reluctance to spend any money on things like ice cream at the zoo or going out to eat made things “miserable.”
Alexander argued [at the dissolution hearing] that ... his income should be calculated only after deducting the 401(k) contributions he had been regularly making during the marriage....

Slip Op. at 1-2.

The trial court entered findings of fact and conclusions of law in support of its dissolution order; however, this Court determined that the trial court failed to make any findings to support its decision to include Alexander’s 401(k) contributions as part of his income for purposes of calculating his child support obligation. Accordingly, we remanded with instructions that the trial court issue findings on the issue. Slip Op. at 8-9.

With reference to the value of Natalia’s household goods/personal property, the trial court also found that “[Alexander] had household goods with a value of $1,000.00 and [Natalia] had household goods with a value of $300 at the time of separation.” Slip Op. at 15. This Court determined that the trial court’s finding was “clearly erroneous.” Id. We remanded to the trial court with instructions that the trial court consider “purchases Nátalia made after she moved out of the marital residence but before the date of final separation, to include that property as marital property, and recalculate the total value of the marital estate.” Id.

On remand, the trial court held a hearing to clarify what evidence had been submitted and to determine the fair market value of the household goods/personal property. On June 26, 2012, it issued its “Findings of Fact and Conclusions Thereon.” (App. 15). With regard to the money Alexander voluntarily contributed to his 401 (k), the trial court made the following findings:

1. [Alexander] controlled all the finances in the parties’ household.
2. [Natalia] was required to give [Alexander] paychecks she received for her earnings.
3. [Alexander] made all decisions of whether or in what amount retirement contributions were made to his 401(k).
4. [Alexander] increased his contribution throughout the parties’ marriage, maintaining the same household income of approximately $51,000.00 over the 7 years of the marriage.
5. Over the 7 years of the parties’ marriage, [Alexander] accumulated substantial funds in his 401(k).
6. Contributions to [Alexander’s] 401 (k) are not mandatory.
7. [Alexander’s] income increased to over $100,000.00 per year, but because of the increasing contributions to the 401 (k), the household income did not increase.
8. [Alexander’s] contributions to his 401 (k) were increased during the pendency of this case.
9. [Natalia] had no control over the amounts of [Alexander’s] continued voluntary contributions to his 401 (k).
10. [Alexander] continued to maintain the household income level at approximately $51,000.00 per year, despite his income level increasing steadily and substantially during his marriage and employment at Eli Lilly.
11. [Alexander’s] 401(k) savings bene-fitted the intact family in increased credit worthiness and benefitted the family as it provided available funds in the event withdrawals were necessary. With the family no longer intact, the 401 (k) contributions, if not considered income for purposes of child support, will no longer benefit the parties’ child as it did during the marriage.
12. [Alexander’s] base income is regular and consistent and contributions to his 401(k) are voluntary.
13. [Alexander’s] voluntary contributions have increased to $1,715.99 per month and he continued to withhold any income received from his substantial increases in income from being used throughout the parties’ marriage.
14. These contributions are pre-tax contributions from his income.
15. The Indiana Child Support Guidelines advocate a “total income approach” to calculating weekly gross income for the purposes of calculating a parent’s child support obligation. Child Support Guideline I.A.I.
16. All monies contributed to the 401 (k) by [Alexander] are actual income he receives as compensation for his employment at Eli Lilly.
17. The calculation of a parent’s income for child support purposes is more inclusive than for income tax purposes. Bass v. Bass, 779 N.E.2d 582, 593 (Ind.Ct.App.2002), trans. denied.
18. Weekly gross income for child support calculations is broadly defined to include not only actual income from employment but also potential income and imputed income from in-kind benefits. Ratliff v. Ratliff, 804 N.E.2d 237, 245 (Ind.Ct.App.2004).
19. This is not a modification of support issue, but rather determination of the appropriate child support order after a final hearing.
20. Public policy considerations embodied in the Child Support Guidelines such as the “total income approach,” imputed income and the use of potential income in calculating a parent’s gross income for purposes of a child support calculation, point toward the inclusion of income, not the exclusion of it.
21. [Alexander’s] argument that he has withheld this income from the family consistently and therefore it should not be included in his income does not comport with public policy or the intent of the Indiana Child Support Guidelines.
22. [Alexander’s] incentive. to make substantial voluntary contributions to his 401(k) was to maintain control over the funds.
23. All [Alexander’s] voluntary 401 (k) contributions which are based upon his actual income will be considered as income for the purpose of calculating his child support obligation. [Alexander’s] child support obligation remains calculated at $186.00 per week, effective July 8, 2011.

(App. 15-18) (emphasis in original).

With regard to the distribution of marital assets issue, the trial court issued its June 27, 2012 “Order on Hearing Regarding Personal Property.” (App. 20). In pertinent part, the trial court found that Natalia had in her possession “an additional Two Thousand Dollars ($2,000) of personal property for a total of Two Thousand Three Hundred Dollars ($2,300.00) personal property on the date of filing ... [Alexander] may deduct Eight Hundred Dollars ($800.00) from the last One Thousand Dollar ($1,000.00) payment due [to Natalia].” (App. 20-21).

Alexander now appeals.

DISCUSSION AND DECISION

1. Child Support

Alexander argues that the trial court erred in including the money he voluntarily contributes to his 401 (k) as income for purposes of determining child support. In reviewing findings made pursuant to Indiana Trial Rule 52, we first determine whether the evidence supports the findings and then whether the findings support the judgment. In re Paternity of K.I., 903 N.E.2d 453, 457 (Ind.2009). On appeal, we “shall not set aside the findings or the judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Id. (quoting Ind. Trial Rule 52(A)). We will not reweigh the evidence and will consider only the evidence favorable to the trial court’s judgment. Allen v. Proksch, 832 N.E.2d 1080, 1099 (Ind.Ct.App.2005). Findings are clearly erroneous only when the record contains no facts to support them “either directly or by inference.” Id. A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. In re K.I., 903 N.E.2d at 457. In order to determine that a finding or conclusion is clearly erroneous, we must come to the firm conviction that a mistake has been made. Allen, 832 N.E.2d at 1099. However, “while we defer substantially to findings of fact, we do not do so to conclusions of law.” Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001). A judgment is also clearly erroneous under Indiana Trial Rule 52 if it is based on an incorrect legal standard. Id. “We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.” Id.

Here, Alexander does not dispute the trial court’s finding that his income is regular and consistent and contributions to his 401 (k) are voluntary. He also does not dispute the trial court’s finding that all money contributed to his 401 (k) is income he receives as direct compensation for his employment at Eli Lilly. Furthermore, Alexander does not dispute the trial court’s findings that his voluntary contributions have increased to $1,715.99 and that he continues to maintain the household income level at approximately half of his salary and regular bonuses.

Instead, Alexander disputes the trial court’s application of the law to the facts. Specifically, he argues that the trial court’s judgment fails to consider the standard of living V.N. would have enjoyed if the marriage had not been dissolved. He cites Indiana Code § 31-16-6-1; Thompson v. Thompson, 868 N.E.2d 862 (Ind.Ct.App.2007); and Saalfrank v. Saalfrank, 899 N.E.2d 671, 680 (Ind.Ct.App.2008) in support of his argument.

Indiana Child Support Guideline 1 advocates an “income shares model” that “is predicated on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together.” The basic support obligation is determined by using the weekly gross income of the parent. Commentary to Guideline 1. Guideline 3 mandates that weekly gross income includes “income from any source,” including income from salaries, wages, and bonuses. As the trial court determined, the term weekly gross income for support calculation is based upon a “total income approach” that generally points toward the “inclusion of income, not the exclusion of it.” See App. 17-18. The guideline approach is promulgated in Indiana Code § 31-16-6-l(a), which considers, among other things, the standard of living the child would have enjoyed if the marriage had not been dissolved and the financial resources and needs of the noncustodial parent.

It is true, as Alexander argues, that the guidelines and Indiana Code § 31-16-6-1(a) consider the standard of living the child would have enjoyed if the marriage had not been dissolved. However, that standard is measured by the parent’s weekly gross income for purposes of determining child support, and it is not the parent’s prerogative to decrease the amount of weekly gross income for determining child support by his decision to invest part of the income. In short, the trial court did not err in ordering that the entire amount of Alexander’s salary and regular bonuses be treated as weekly gross income for purposes of determining his child support obligation.

The Saalfrank case does not alter our determination. In Saalfrank, this Court emphasized that voluntary contributions should be included as weekly gross income for child support purposes while certain mandatory contributions should not. See, 899 N.E.2d at 680.

2. Marital Property

Alexander contends that the trial court erred in holding a hearing upon remand and determining the fair market value of property acquired by Natalia after she moved out of the marital residence but before the date of final separation two months thereafter. Alexander argues that the trial court improperly determined that the household goods/personal property purchased by Natalia could have depreciated from his estimated value of approximately $6,000.00 to the $2,000.00 determined by the trial court.

Our remand to the trial court included the following specific instructions:

It does appear that Natalia clearly purchased a significant amount of personal property in the month or two leading up to the filing of the dissolution petition, well in excess of $800 worth. On the other hand, the trial court is not required to blindly accept Alexander’s assertion of how much personal property/household goods Natalia purchased before the filing of the petition. It is, however, required to consider purchases before the date of final separation, to include that property as marital property, and recalculate the total value of the marital estate.

Slip Op. at 15.

In this appeal, it appears that the trial court held a hearing to help it determine what household goods/personal property Natalia had purchased and their fair market value at the time of the final separation. Our remand neither required. nor prohibited the trial court from holding an additional hearing to clarify the values of the property at issue. Unfortunately, only a portion of the hearing was recorded. However, it is clear from the recorded portions of the hearing that the trial court was attempting to determine the fair market value of the household goods/personal property purchased by Natalia. It is apparent that the trial court heard relevant argument or received relevant evidence during the unrecorded portion of the hearing.

In order to challenge the trial court’s findings on this issue, Alexander should have created a verified statement of the evidence from the best sources and then obtained certification of the statement by the trial court under Indiana Rule of Appellate Procedure 31. This statement would have enabled this Court to conduct an informed review of all of the evidence before the trial court. Alexander’s failure to comply with Appellate Rule 31 results in waiver of the issue on appeal. See, Graddick v. Graddick, 779 N.E.2d 1209, 1210-11 (Ind.Ct.App.2002).

Affirmed.

ROBB, C.J., and MAY, J., concur.

      . Natalia did not file an appellee's brief in this matter. “When an appellee fails to submit a brief, we do not undertake the burden of developing an appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error.” Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). “However, we review de novo questions of law, regardless of the appellee’s failure to submit a brief.” McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

      . The Thompson case, which discusses the availability of a credit for Social Security benefits received by the child, is inapposite.