source: Caselaw Access Project

author: BROWN, Judge. BRADFORD, Judge,

license: Public Domain

text:
    Derek HALE, Appellant, v. STATE of Indiana, Appellee.
    No. 25A04-1301-CR-15.
    Court of Appeals of Indiana.
    Aug. 6, 2013.

      Bradley A. Rozzi, Andrew A. Achey, Hil-Iis, Hillis, Rozzi & Knight, Logansport, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Derek Hale appeals the trial court’s order on his Verified Petition for Writ of Habeas Corpus. Hale raises two issues which we consolidate and restate as whether the court abused its discretion when it entered its order clarifying Hale’s sentence. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 25, 2010, the State charged Hale in the Fulton Superior Court with Count I, dealing methamphetamine within 1,000 feet of a public park as a class A felony; Count II, possession of methamphetamine within 1,000 feet of a public park as a class B felony; and Count III, illegal drug lab as a class C felony. On June 7, 2011, Hale and the State filed a written plea agreement, in which Hale agreed to plead guilty to Count II and the State agreed to dismiss Counts I and III. The agreement stated the following regarding sentencing:

There is no agreement as to the sentence to be imposed by the Court except that the parties do agree that no more than six years of any sentence may be executed time, with the parties being otherwise free to present evidence and make argument for any sentence within that limitation and allowed by law. The Court may suspend any portion of the sentence, including a sentence in excess of the six year limit on executed time, and the limitation on the amount of the executed sentence shall not apply to any suspended sentence if there is a subsequent proceeding for revocation of probation, but rather only applies at the time of the original sentencing.

Appellant’s Appendix at 10. On June 22, 2011, the court, by Judge Wayne E. Steele, held a guilty plea hearing, Hale pled guilty to Count II, and the court took the plea agreement under advisement.

On November 22, 2011, the court accepted the plea agreement, entered a judgment of conviction for Count II, possession of methamphetamine as a class B felony, dismissed Counts I and III, and held a sentencing hearing. In pronouncing sentence, Judge Steele stated that he would impose an advisory term of ten years and stated specifically:

The Court is persuaded, I think, that the ten-year sentence, I’m gonna split up this way — and I don’t routinely do this, so — but the Court will order that you serve two years on work release, followed by a year on home detention; and that there’ll be five years then remaining of straight probation.

Transcript at 60. That same day, the court entered its written order of judgment of conviction, consisting of a general form which the court filled out by hand, noting that Hale would be sentenced to ten years suspended including five years of probation for Count II, and, under a section labeled “Other,” noted: “[Hale] to serve two (2) years on work release beginning Nov 28, 2011 at 8:00 am at FCJ followed by 1 year home detention.” Appellant’s Appendix at 12.

On December 19, 2012, Hale filed a Verified Petition for Writ of Habeas Corpus in the Fulton Superior Court stating:

1. This Petition is made and writ applied for on behalf of Derek Hale, who is unlawfully restrained of his liberty and falsely imprisoned in the Fulton County Jail, by Respondent, Walker Conley, herein in his capacity as Fulton County Sheriff.
2. To the best of [Hale’s] knowledge and belief, he is being held in said facility on the following basis:
a. On or about the 22nd day of November, 2011, [he] was sentenced in Cause Number 25D01-1001-FA-00043;
b. In pertinent part, [he] received a ten year suspended sentence with five years suspended to probation;
c. As a condition of [his] probation, he was ordered to serve two years on work release beginning November 28, 2011, at 8:00 a.m. at the Fulton County Jail followed by one year of in-home detention;
3. The detention is illegal for the following reasons:
a. As of November 28, 2012, [he] served one actual year (365 days) in the Fulton County Work Release Program;
b. Pursuant to I.C. 35-50-6-6, I.C. 35-38-2.5-5 and the case of Peterink v. State, 971 N.E.2d 735 [ (Ind.Ct.App.2012) ], [he] should have received one additional day of good time credit for each day served beginning on November 28, 2011, to the present;
c. As of the date of this Writ, Defendant Hale has served at least twenty (20) actual days in the Fulton County Jail in excess of the sentence handed down by the Court on November 22, 2011.
4. No previous application has been made for this Writ or the relief sought;
5. [Hale] is entitled to immediate release from the unlawful detention.

Id. at 13-14. Hale requested that the court “issue a Writ of Habeas Corpus directing Sheriff of Fulton County, Indiana, Walker Conley, to release [Hale] from the Fulton County Work Release Program,” direct Hale to “communicate with the appropriate Community Corrections Officer to immediately begin service of his one year of In-Home Detention,” and to further apply any additional time served credit to his in-home detention time. Id. at 14.

On January 2, 2013, the court, again by Judge Steele, held a hearing on Hale’s petition at which, following arguments of the parties, the court indicated that it intended to sentence Hale to “two years of actual time on work release and one year of actual time on home detention” which would have complied with the six-year cap on any executed time. Transcript at 76. The court also indicated it intended to “listen to the sentencing order and go back and look at the file” and that it would then enter an order on the petition. Id. at 78.

On January 4, 2018, the court entered the following order:

Parties appear for hearing on [Hale’s] Verified Petition For Writ of Habeas Corpus.... The Court being duly advised finds as follows:
1. The Sentencing Order of November 22, 2011 is clarified by the Court to read two (2) actual years of work release followed by one (1) actual year on home detention as terms and conditions of probation which was the original intent of the Court. If [Hale] is to receive credit time and good time credit the work release would be four (4) years and home detention two (2) years.
2. The Court sentenced [Hale] to a ten (10) year sentence which was suspended and [] placed [Hale] on probation for five (5) years with certain terms and conditions.
3. This sentence complies with the statutory sentence for a Class B felony and with [Hale’s] plea agreement to a Class B felony that had no agreement as to sentence except a six (6) year cap of any executed sentence.

Appellant’s Appendix at 15.

ISSUE/STANDARD OF REVIEW

The issue is whether the court abused its discretion when it entered its order clarifying Hale’s sentence. “Every person whose liberty is restrained, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered from the restraint if the restraint is illegal.” Ind.Code § 84-25.5-1-1. The purpose of a writ of habeas corpus is to determine the lawfulness of the defendant’s detention. Hardley v. State, 893 N.E.2d 740, 742 (Ind.Ct.App.2008). A trial court must provide a writ of habeas corpus if a petitioner is unlawfully incarcerated and entitled to immediate release. Id. “[A] petitioner may not file a writ of habe-as corpus to attack his conviction or sentence.” Partlow v. Superintendent, Miami Correctional Facility, 756 N.E.2d 978, 980 (Ind.Ct.App.2001) (citing Hawkins v. Jenkins, 268 Ind. 137, 140, 374 N.E.2d 496, 498 (1978) (citing Ind. Post-Conviction Rule l(l)(c) (stating that a writ of habeas corpus that attacks a conviction or sentence must be transferred to the court of conviction and treated as though filed as a post-conviction relief petition))).

We review for an abuse of discretion the trial court’s decision regarding the defendant’s petition. Id, We do not reweigh the evidence, and we consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Id. Any conclusions regarding the meaning or construction of law are reviewed de novo. Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002), reh’g denied.

ANALYSIS

We first note that here, it appears that a petition for habeas corpus relief was an acceptable vehicle for Hale to bring this challenge. We also note that the Indiana Supreme Court has observed that home detention is not a form of incarceration, and Hale’s petition challenged his eontin-ued placement on work release and argued that he should have been transferred to home detention. See Smith v. State, 971 N.E.2d 86, 88 (Ind.2012) (noting that the court credited the defendant for certain days he had spent incarcerated as well as certain days he served on home detention).

Next, we observe that the trial court did not follow the relevant procedures for ha-beas corpus petitions and, although we find that any procedural error on the court’s part does not affect the eventual outcome of Hale’s challenge, we discuss such procedures more generally. We note that the writ of habeas corpus itself is employed to bring a person before a court, although courts frequently use the term “writ” in reference to orders issued following hearings on petitions for habeas corpus, see, e.g., Randolph v. Buss, 956 N.E.2d 38, 40 (Ind.Ct.App.2011) (“After a hearing, the trial court denied Randolph’s petition.”), trans. denied, technically a court does not hold a hearing on a defendant’s “petition” for habeas corpus. See Baldi v. State, 908 N.E.2d 639, 641 (Ind.Ct.App.2009) (“The purpose of the writ of habeas corpus is to bring the person in custody before the court for inquiry into the cause of restraint.”) (quoting O’Leary v. Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941)), reh’g denied; see generally Holland v. Raisor, 256 Ind. 286, 287, 268 N.E.2d 102, 103 (1971) (observing that the appellant filed a petition for writ of habeas corpus, that the next day the writ was issued commanding the appellee to have appellant before the court for the purpose of conducting a hearing on the matter, and that prior to the hearing the sheriff filed his return to the writ), reh’g denied.

Specifically, Ind.Code § 34-25.5-2-1 allows for applications for writs of habe-as corpus. Ind.Code § 34-25.5-2-2(a) provides that “[w]rits of habeas corpus may be granted by” circuit or superior courts of the county in which the person applying for the writ may be restrained, or, if the judges of those courts are absent or unable to hear the application, by any judge of an adjoining circuit. Ind.Code § 34-25.5-2-2(b) provides that “[u]pon application, a writ granted under subsection (a) shall be granted without delay.” Further, Ind. Code § 34-25.5-2-4 provides that “[t]he writ shall be directed to the office or party restraining the applicant, commanding the party to have the applicant before the court or judge... ,” Next, the confining authority files a return stating the cause of restraint and includes a copy of the authority for restraining the person, Ind. Code § 34-25.5-3-5. The court then proceeds with a hearing to determine the cause of the restraint and judge its legality. Ind. Code § 34-25.5-1-1.

In the instant case, the court held a hearing on the petition filed by Hale and heard the arguments of the parties. Indeed, despite the fact that the court did not issue a writ of habeas corpus, it “proceeded as if it had done so.” Masden v. State, 265 Ind. 428, 432, 355 N.E.2d 398, 401 (1976). As noted above, there was not a disagreement about how many days Hale had served on work release, and the arguments revolved around questions regarding the interpretation of the original sentencing statement which the court examined, whether Hale was entitled to good time credit, the impact any good time credit would have on his aggregate sentence, and how his sentence should be served between work release, home detention, and straight probation. The court ultimately issued its order which neither granted nor denied Hale’s petition — rather, it merely “clarified” Hale’s sentence, which, for reasons discussed below, was improper. However, despite these deficiencies we find no error or defect in the proceedings affecting Hale’s substantial rights. Id., 355 N.E.2d at 401.

Hale contends that although the court’s original sentencing order is unclear regarding whether he is serving his work release portion of his sentence as a direct commitment or as a condition of probation, in either case he is entitled to credit time. He notes that this court recently awarded credit time to a defendant serving a sentence on home detention as a condition of probation, and that the same should apply to work release, which is a “more intensive form of supervision than in-home detention.” Appellant’s Brief at 7 (citing Peterink v. State, 971 N.E.2d 735 (Ind.Ct.App.2012), summarily aff'd in relevant part, 982 N.E.2d 1009, 1010 (Ind.2013)). Hale asserts that the court’s order in which it attempted to clarify his sentence had the effect of denying him such credit time and that, as a consequence, he should be “transitioned from Work Release to In-Home Detention.” Id. at 8. He maintains that Indiana case law is clear “that ‘[a] trial judge has no authority over a defendant after he pronounces sentence,’ ” and that specifically, the Indiana Supreme Court has explained that following sentencing, jurisdiction over the defendant lies with the Department of Correction, and “[t]here is no authority for a trial court to reopen a [sentence] after its imposition.... ” Id. at 8-9 (quoting Dier v. State, 524 N.E.2d 789, 790 (Ind.1988)). Hale further argues that the court’s clarification was actually an impermissible sentence modification following sentencing.

The State argues that the court clarified its sentencing order when it highlighted “the six-year cap on the executed portion” of the plea agreement and noted its intention to sentence Hale to “two actual years on work release and one actual year in home detention,” and accordingly the court made it “clear” that it “meant to give [Hale] good time credit for both” portions of his sentence. Appellee’s Brief at 3-4. The State’s position is that the court had jurisdiction to clarify Hale’s sentence when Hale filed his petition in the Fulton Superior Court and the court acquired personal and subject matter over him “to explain to [Hale] the cause of his restraint.” Id. at 5.

Our analysis begins by noting the circumstances of events at the trial court level. On November 22, 2011, Judge Steele initially sentenced Hale to a term of ten years suspended with five years of probation, noting that Hale would serve two years on work release in the Fulton County Jail, followed by one year of home detention with “five years then remaining of straight probation,” for possession of methamphetamine as a class B felony. Transcript at 60. The sentence was pursuant to a plea agreement which provided a “six year limit on executed time.” Appellant’s Appendix at 10. On December 19, 2012, Hale filed his Verified Petition for Writ of Habeas Corpus in the same Fulton Superior Court pursuant to Ind. Code § 34—25.5—2—2(a)(1), which provides that writs of habeas corpus may be granted by “the circuit or superior courts of the county in which the person applying for the writ may be restrained of his or her liberty-” (Emphasis added). Thus, when Hale filed his verified petition in the Fulton Superior Court, he did so because he was serving his work release in the Fulton County Jail, not because the Fulton Superior Court originally sentenced him. Accordingly, it was only by circumstance that Hale’s habeas petition was before Judge Steele, and to the extent that Judge Steele “clarified” Hale’s sentence based upon his own recollection of what sentence he intended to impose, rather than examining the sentencing order and determining from it whether Hale was being detained illegally, we find that Judge Steele abused his discretion in ruling upon that petition. Cf. Sanders v. State, 638 N.E.2d 840, 841 (Ind.Ct.App.1994) (“Generally, a trial judge has no authority over a defendant after he or she pronounces sentence.”) (citing Dier, 524 N.E.2d at 790); State v. Fulkrod, 735 N.E.2d 851, 852 (Ind.Ct.App.2000) (“Any continuing jurisdiction after final judgment has been pronounced must either derive from the judgment itself or be granted to the court by statute or rule.”) (citing Schweitzer v. State, 700 N.E.2d 488, 492 (Ind.Ct.App.1998), trans. denied), reh’g denied, summarily aff'd, 753 N.E.2d 630, 633 (Ind.2001).

We therefore turn to the trial court’s sentencing order to discern whether Hale’s continued detention in the Fulton County Jail is illegal, and we first address whether the work release and home detention portions of his sentence were to be served as a direct commitment or as conditions of probation. The judgment of conviction, which is again a form the court filled out by hand, notes under its sentence on Count II that Hale was sentenced to ten years suspended, including five years of probation. Following that portion of the form, there is a double line, and below that double line the form contains multiple fields in which the court could enter check-marks to indicate that certain text would apply to the sentence, including whether: 1) the sentence would run concurrent or consecutive to another Cause Number; 2) the defendant was entitled to credit for time served and, if so, how many such days; 3) a defendant’s driver’s license was suspended and for how long; 4) certain counts were dismissed; 5) a public defender’s appearance was withdrawn; 6) additional terms of probation would apply, and including a list from (a) to (m); and 7) a field labeled “Other:” which the court could use to write in other specific aspects of a defendant’s sentence. Appellant’s Appendix at 12. The court checked the field marked “Other:” and wrote: “[Hale] to serve two (2) years on work release beginning Nov 28, 2011 at 8:00 am at FCJ followed by 1 year home detention.” Id. The court did not orally state, nor does the form state, that these terms were to be served as conditions of probation. Thus, Hale was ordered to report to the Fulton County Jail to begin serving his sentence on work release as a direct placement under Ind.Code § 35-38-2.6, and nowhere in the record is the probation department notified to begin oversight of Hale’s sentence on either work release or home detention prior to his discharge from home detention, when he will begin his probationary term.

Having determined that Hale’s work release (as well as his upcoming home detention) term was a direct placement in community corrections, it follows that he is entitled to good time credit. Ind.Code § 35 — 38—2.6—6(b) (“A person who is placed in a community corrections program under this chapter is entitled to earn credit time-under IC 35-50-6.”). This does not lead to the conclusion, however, that Hale is finished with his term of work release and is being detained illegally in the Fulton County Jail.

Again, Hale was sentenced to a term of ten years, all of which were to be served as suspended time. The court ordered that Hale serve his first two years of his term on work release. See Ind.Code § 35-38-2.6-3(a) (“The court may, at the time of sentencing, suspend the sentence and order a person to be placed in a community corrections program....”); Ind.Code § 35-38-2.6-2 (“As used in this chapter, ‘community corrections program’ means a program consisting of residential and work release....”). While serving the work release portion of his sentence, Hale is entitled to credit time which is credited against his aggregate suspended term. Put another way, Hale’s sentence is not divided into executed and suspended portions, in which case the credit time accumulated while serving the executed term accrues against that portion and effects an earlier transition to the suspended portion of the sentence. Here, there is a suspended sentence only, and the court established a timeline on how that sentence is to be served. Thus, upon completion of his two years on work release, assuming Hale is not deprived of any credit time, he will have accumulated a total of four years against his ten-year suspended sentence. Hale will then transition to home detention, where he will serve one year and again will be able to earn one year of credit time. Once that portion of his sentence is complete, assuming no deprivation of credit time, Hale will have served a total of six years of his ten-year suspended sentence. He -will then be placed on probation for the remainder of his sentence.

CONCLUSION

For the foregoing reasons, we reverse the court’s order on Hale’s Verified Petition for Writ of Habeas Corpus, and we remand with instructions that the court enter an order instructing the Fulton County Sheriff to administer Hale’s sentence consistent with this opinion.

Reversed and remanded.

RILEY, J., concurs in result.

BRADFORD, J., dissents with separate opinion.

BRADFORD, Judge,

dissenting.

Because I believe that Hale met his burden of proof of showing that he is being illegally detained in the Fulton County work release program (“the work release program”) and, as a result, is entitled to immediate release, I respectfully dissent.

I. Credit Time

Credit time is a statutory reward for a lack of conduct that is in violation of institutional rules. State v. Mullins, 647 N.E.2d 676, 678 (Ind.Ct.App.1995). “The purpose of the legislature in enacting ‘good time’ credit statutes was to encourage inmates of penal institutions to behave well while confined, to improve their morale, and thus to help the prison authorities to maintain order and control.” State v. Eckhardt, 687 N.E.2d 374, 376 (Ind.Ct.App.1997) (citing Dunn v. Jenkins, 268 Ind. 478, 485, 377 N.E.2d 868, 873 (1978)). Receipt of credit is based upon the behavior of the confined and is conditional upon continued good behavior and may be revoked. Mullins, 647 N.E.2d at 678. Credit time is earned toward release from institutional placement or confinement. See generally id.

A. Whether Hale Earned Credit Time for Time Served in Work Release

Indiana Code section 35-38-2.6-6 explicitly provides that a person who is placed in a community corrections program is entitled to earn credit time. Work release is a community corrections program and, as such, falls under Indiana Code section 35-38-2.6-6. “A person who is not a credit restricted felon and who is imprisoned for a crime ... is initially assigned to Class I.” Ind.Code § 35-50-6-4(a). “A person assigned to Class I earns one (1) day of credit time for each day the person is imprisoned for a crime.” Ind.Code § 35-50-6-3(a).

Hale argues that he was entitled to earn credit time for the time he was confined in the work release program. For its part, the State concedes that Hale was entitled to earn credit time for the time he was confined in the work release program, and that it was irrelevant whether Hale was placed in the program as a direct placement or a condition of probation.

B. Application of Credit Time Earned

Again, credit time is earned toward the release from institutional placement or confinement. See generally Mullins, 647 N.E.2d at 678. Generally, under the statutory provisions regarding release from imprisonment and credit time, a person should be released when he completes his ordered term of imprisonment or confinement less the credit time earned. See generally Ind. Law Encyc, Prisons and Reformatories § 24 (citing Ind.Code §§ 35-50-6-1 to 85-50-6-8; Ind. Law En-cyc, Pardon and Parole § 7). It follows that in order for the purpose of the credit time statutes to be fulfilled, credit time earned should be applied to the term of confinement for the type or level of confinement for which it was earned. To apply credit time in any other manner would arguably be inconsistent with the statutorily created incentive for individuals to behave according to institutional rules while confined in the particular penal institution.

In the instant matter, Hale earned credit time while confined in the work release program. Nothing in the record indicates that Hale was placed in any class other than Class I, that he did not exhibit “good behavior” while serving his sentence in the work release program, or that any of his earned credit time was revoked by the restraining authority. As such, Hale was entitled to earn one day of credit for each day served. Pursuant to the above stated authorities and in consideration for fulfilling the purpose of the credit time statutes, I would conclude that the time earned by Hale while confined in the work release program should be applied to the term for which he was ordered to be confined in the work release program. In my view, any other application would be inconsistent with the intent of our legislature.

II. Hale’s Request for Immediate Release from the Work Release Program

Hale filed a verified petition seeking a writ of habeas corpus before the habeas court arguing that he was being unlawful confined in the work release program. Specifically, Hale argued that he was entitled to immediate release from the work release program because he had completed the term of confinement that was ordered by the trial court.

A. Habeas Corpus

Indiana Code section 34-25.5-1-1 states: “Every person whose liberty is restrained, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered from the restraint if the restraint is illegal.” Ind.Code § 34-25.5-1-1 (1998). “The purpose of the writ of habeas corpus is to bring the person in custody before the court for inquiry into the cause of restraint.” O’Leary v. Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941); see also Turner v. O’Neal, 237 Ind. 258, 259-60, 145 N.E.2d 1, 2 (1957); Bryarly v. Howard, 225 Ind. 183, 186, 73 N.E.2d 678, 679 (1947). “One is entitled to ha-beas corpus only if he is entitled to his immediate release from unlawful custody.” Hawkins v. Jenkins, 268 Ind. 137, 139, 374 N.E.2d 496, 498 (1978); see also Young v. Duckworth, 274 Ind. 59, 61, 408 N.E.2d 1253, 1254 (1980); Dunn v. Jenkins, 268 Ind. 478, 479-80, 377 N.E.2d 868, 870-71 (1978) (holding that a “prisoner can only obtain a discharge through habeas corpus relief, not a modification of his commitment”) (citations omitted); Hendrixson v. Lash, 258 Ind. 550, 282 N.E.2d 792 (1972). Lastly, a petitioner may not file a writ of habeas corpus to attack his conviction or sentence. Hawkins, 268 Ind. at 140, 374 N.E.2d at 498 (citing Ind. Post-Conviction Rule l(l)(c)) (stating that a writ of habeas corpus that attacks a conviction or sentence must be transferred to the court of conviction and treated as though filed as a post-conviction relief petition).

Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980 (Ind.Ct.App.2001).

We review the trial court’s habeas decision for an abuse of discretion. Benford v. Marvel, 842 N.E.2d 826, 828 (Ind.Ct.App.2006). Without reweighing the evidence, this court considers only that evidence most favorable to the judgment and reasonable inferences drawn therefrom. Id.

Hardley v. State, 893 N.E.2d 740, 742 (Ind.Ct.App.2008). Indiana adheres to the rule that in reviewing a writ of habeas corpus, courts are limited to the trial court’s intrinsic record. De Hart v. Blande, 233 Ind. 659, 660, 122 N.E.2d 90, 91 (1954).

A complaint for a writ of habeas corpus must specify (1) who is restraining the applicant’s liberty, the place where the applicant is being held, and the names of all the parties, if they are known, or descriptions of them if they are not known; (2) the cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant; (3) if the restraint is alleged to be illegal, the nature of the illegality. Ind.Code § 34-25.5-2-1. If the facts stated in a complaint for a writ of habeas corpus make a prima facie ease in the applicant’s favor, the burden shifts to the confining authority to make a return in which the confining authority must present evidence showing that the applicant’s confinement is not illegal. See generally Willis v. Bayles, 105 Ind. 363, 365, 5 N.E. 8, 9 (1886). If the confining authority’s return to the complaint is found to be insufficient, the applicant is entitled to be released from confinement. Holland v. Raisor, 256 Ind. 286, 288-89, 268 N.E.2d 102, 104 (1971).

In the instant matter, Hale’s verified petition stated that he had been confined in the work release program for more than one year and that he had earned one day of credit time for each day served. The confining authority did not present a return containing any evidence that would disprove the statements contained in Hale’s verified petition. As such, Hale’s complaint was sufficient to make a prima facie showing that he was entitled to immediate release because he had completed his two-year term of confinement in the work release program. See generally Willis, 105 Ind. at 365, 5 N.E. at 9. Because Hale is entitled to immediate release from the work release program, I would conclude that the habeas court abused its discretion in denying Hale’s complaint seeking a writ of habeas corpus, and, accordingly, would reverse the judgment of habeas court.

      . The portion of the form in which the sentence on Count II was entered contained fields with blanks, and in the blank for the sentence imposed the court entered the number "10” (years), and for the suspended portion the court entered the number "10" (years). Appellant’s Appendix at 12. In the field for "Probation” the court entered the number "5” (years). Id. Certain other fields were left blank.

      . We observe that although Hale’s counsel appeared at the hearing, Hale was not present. At the outset, Hale’s counsel noted for the court that the hearing had been rescheduled, that he appreciated "the Court putting this on in a prompt manner,” that his staff was unable to notify Hale of the hearing, and that he attempted to phone Hale that morning but found that Hale was presumably "out on the job site....” Transcript at 66. The court took judicial notice of the fact that Hale had been incarcerated since November 22, 2011.

      . This is not to say, however, that a trial court must grant a petition for writ of habeas corpus. For instance, improper claims brought by a habeas petition may be challenged in a motion to dismiss. Also, courts may summarily deny requests for relief where, upon examination of the petition, it is clear that the petitioner is not requesting immediate relief from incarceration. See Van Meter v. Heath, 602 N.E.2d 143 (Ind.1992) (noting that "The writ of habeas corpus cannot ... be used as a substitute for an appeal" and that "[w]here the proceedings leading to the petitioner's detention are not void by reason of matters apparent on the face of the record, the petitioner’s remedy is by way of appeal”); Baldi, 908 N.E.2d at 640-641 (affirming the trial court’s summary denial of the petitioner's request for relief because he was serving time on a separate conviction, and that he "is not claiming that he was entitled to immediate release from incarceration” but rather was "implying that he was entitled to a reduction of the total amount of his sentence”).

      . We also observe that habeas corpus proceedings are civil in nature, rather than criminal, and it was improper for Hale to file his habeas petition under the same criminal Cause Number in which his sentence was issued. Winn v. Fields, 247 Ind. 589, 591, 219 N.E.2d 896, 899 (1966) ("Habeas Corpus is not a criminal proceeding_”). We further discuss this below where we observe that habeas petitions are filed in the court of the county where the petitioner is detained, and it was only by circumstance that Hale's petition was properly filed in the Fulton Superior Court, the same court that sentenced Hale.

      . We note that the dissent rests its conclusion on the fact that here "[t]he confining authority did not present a return containing any evidence that would disprove the statements contained in Hale’s verified petition” and that ”[a]s such, Hale’s complaint was sufficient to make a prima facie showing that he was entitled to immediate release because he had completed his two-year term of confinement in the work release program.” Infra at 857. However, as the Indiana Supreme Court noted in Masden, "There being no writ in the record, there cannot be a return.” 265 Ind. at 431, 355 N.E.2d at 401; see also Ind. Code § 34-25.5-3-4 ("The sheriff or other person to whom the writ is directed shall return the writ immediately....”) (emphasis added).
      We further note that, had the court followed the applicable procedures and issued the writ prior to the hearing, it would have been error for the court to proceed with the hearing in Hale’s absence. Ind.Code § 34-25.5-3-5, the same section governing the return, provides that "[t]he person to whom the writ is directed shall produce the applicant at the hearing unless prevented by sickness or infirmity, which must be shown in the return.” Here, Hale was not produced at the hearing, and the stated reason was that he was at the job site serving his time on work release.

      . Hale also notes that although Ind.Code § 35-38-1-17 gives trial courts the authority to alter a defendant’s sentence, it is inapplicable for three reasons including: (1) Section 17 allows courts to only reduce or suspend a defendant’s sentence, not impose a harsher sentence; (2) Section 17 requires the court to act within 365 days and the order here occurred after 365 days had elapsed; and (3) Section 17 requires that the defendant be present and the record is clear that Hale was not present.

      . We note that if Hale earns all of his credit time, he will be discharged from probation earlier than the five years thereafter which the court initially ordered. Upon successfully completing the work release and home detention portions of his sentence, he will have four years of probation remaining.

      . Moreover, I agree with the majority’s conclusion that it was error for the habeas court, which also happened to be the trial court, to rely on information outside the record, i.e., its memory of the sentence it intended to impose rather than the sentence reflected by the sentencing order, to amend Hale’s sentence.


author: VAIDIK, Judge.

text:
    WESTMINSTER PRESBYTERIAN CHURCH OF MUNCIE, an Indiana Non-Profit Corporation, Appellant-Defendant, v. YONGHONG CHENG and Hongjun Niu, Husband and Wife, as parents of Matthew Cheng, deceased, Appellees-Plaintiffs.
    No. 18A02-1210-CT-791.
    Court of Appeals of Indiana.
    Aug. 7, 2013.

      Andrew M. Sumerford, Meils Thompson Dietz & Berish, Indianapolis, IN, Attorney for Appellant.
    James R. Williams, Scott E. Shockley, Matthew L. Kelsey, DeFur Voran LLP, Muncie, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

After the death of their four-month-old son while under the care of a babysitter recommended by a pastor at their church, Yonghong Cheng and Hongjun Niu (“June”) (collectively, “the Chengs”) brought suit against Westminster Presbyterian Church (“Westminster”) for wrongful death, invasion of privacy, and intentional infliction of emotional distress. Westminster moved for summary judgment on all counts; the trial court denied the motion in regards to the wrongful death and invasion of privacy claims, but it granted the motion in regard to the intentional infliction of emotional distress claim. Westminster appeals, and the Chengs cross-appeal.

Under a Webb v. Jarvis analysis, we find that there was no duty of care as a matter of law in this case, when a pastor recommended a babysitter to a parishioner and the child died while in the babysitter’s care. We also find that when the church issued a press release about the death that included the family and child’s names, there was no invasion of privacy because the church did not intrude upon the family’s physical seclusion or profit off of the family’s name, and no intentional infliction of emotional distress because the conduct did not rise to the level of outrageous. We therefore affirm in part, reverse in part, and remand with instructions for the trial court to enter summary judgment in favor of Westminster on all counts.

Facts and Procedural History

Westminster, located in Muncie, Indiana, has approximately 425 members. Dr. Gary Cox is the Pastor, and Kristofer Holroyd is the Associate Pastor. There is also a Chinese Christian fellowship at Westminster that uses the facility, but it has its own pastor, worship service, and fellowship time.

The Chengs began attending Westminster in 2005. They attended Westminster’s regular Sunday services and June sang in the choir; they were not members of the Chinese Christian fellowship. Their son, Matthew, was born in September 2009, and due to their fears Matthew would contract the flu, Matthew and Yon-ghong would usually stay home from services on Sundays.

Around January 1, 2010, June got a job with Love’s Tax Service and was expected to start on January 4, resulting in a search for a babysitter for Matthew. June contacted Joy Wegener, a woman she knew through Bible study at Westminster, and asked if she would babysit. Wegener initially agreed, but she later changed her mind and called June to decline. Wegener mentioned Tina Byrd as a possible alternative, telling June that Byrd was also from Westminster. Wegener gave Byrd’s phone number to June, and June called and left a message for her that day. However, June was still hoping that Wegener would change her mind, so she went over to Wegener’s house to talk to her. Weg-ener still declined; she then called another woman from Westminster who also declined. At this point, according to June, Wegener called Holroyd and told him that “June is here trying to find child care for Matthew.” Appellee’s App. p. 691. However, according to Holroyd, Wegener told him that her “Chinese friend” was looking for someone to babysit her baby and asked him if he knew anyone to recommend. Appellant’s App. p. 110. Holroyd said “Tina is taking babies.” Id. at 122. Weg-ener then asked Holroyd if any college students from Westminster could babysit, and Holroyd said he would send out an email to check. Holroyd testified he did not know that June was with Wegener at the time of the call, and he did not mention that a baby had died while in Byrd’s care just two months before. Id. at 110. Hol-royd also did not think that he was making a recommendation to anyone to use Byrd as a babysitter, nor did he consider the phone call to be one seeking pastoral advice. Id. at 112-13.

Before June left Wegener’s house, Byrd called back and indicated that she could babysit Matthew. Byrd asked June how old Matthew was and whether he was on formula, and she told June that if she decided to hire her, Byrd would email her a list of things to bring. Byrd also told June that she could start the next day, January 4. June did not hire Byrd at this time; she discussed the matter with Yon-ghong and called Byrd later to let her know that they were going to hire her. June said that they would be able to pay Byrd $80 per week, and Byrd agreed to the amount. June did not do any other research on Byrd, and Byrd gave June no more information.

About two months before, however, in mid-October 2009, Byrd started babysitting the baby of another family from Westminster. On November 3, 2009, Byrd put him down for a nap and the baby died. When the baby was discovered, he was unresponsive in his crib, so Byrd and her daughter called 911 and Byrd performed CPR. The baby’s death was ruled by the coroner to be “a case of Sudden Unexpected Infant Death (SUID),” with the official manner of death being “undetermined.” Id. at 260. Byrd was questioned by the police and the Indiana Department of Child Services, but she was never charged. The baby’s death was well known within the Westminster community.

After the baby’s death, Byrd did not think she would babysit again. However, Byrd’s father had helped her financially after she got divorced, and he passed away shortly after the baby’s death. Byrd’s ex-husband was also behind on child-support payments, so Byrd returned to babysitting in order to start earning money again.

Byrd began babysitting Matthew on January 4, 2010. The first day, June took Matthew to Byrd’s house, staying for thirty to forty minutes to feed him before going to work. Around 12:30 or 1:00 p.m., Byrd called June, telling her she “couldn’t do it,” so June called Yonghong to pick Matthew up from Byrd’s house. Id. at 132. Byrd said that Matthew “kept on crying” and that she could not handle it and did not want to babysit anymore. Id. at 133. When Yonghong picked Matthew up, Byrd suggested that they try bottle feeding him, and that when Matthew was ready, they could try having her babysit him again. The Chengs worked on weaning Matthew off of breast feeding, and the next week they dropped him back off at Byrd’s house without issue.

On January 19, 2010, June dropped Matthew off at Byrd’s house. At 2:15 that afternoon, when Matthew was sleeping, Byrd left the house to pick up her daughter from school and make another stop, leaving Matthew alone in the house. She had checked on Matthew about ten minutes before she left, and he seemed to be asleep on his side. Id. at 142. Byrd’s nineteen-year-old daughter, Kassey, worked at a preschool about five minutes from the house, and she was expected home soon after the school let out around 2:00 p.m. When Byrd returned home with her other daughter, Kataryna, Kassey was already there. Kataryna went into the room where Matthew had been sleeping and found him dead in the crib. Byrd started CPR and 911 was called. June was not notified about Matthew’s death until she came to Byrd’s house to pick him up and was met by Byrd’s son who told her, “your baby died.” Appellee’s App. p. 696. Byrd was questioned by the police and initially lied about her whereabouts that afternoon, as well as how she positioned Matthew for his nap. As a result, Byrd pled guilty to obstruction of justice.

Dr. Cox first learned of Matthew’s death around 3:00 p.m. that day, and he and his wife first went to the police station where Byrd was. They then went to the hospital where the Chengs were, along with Hol-royd and another Westminster member. Dr. Cox believed that the Chengs were part of the Chinese Christian fellowship, but he did not see anyone from the Chinese ministry there, so he advised the hospital chaplain that he was their pastor and prayed for the Chengs. Id. at 350. While at the hospital, Dr. Cox described June’s condition as: “In all my years of pastoral ministry, I have never seen someone that visibly distraught, wailing ... she was inconsolable at that time.” Id. at 349. Dr. Cox then drove the Chengs to their house and left at their request so that they could grieve as a family. Dr. Cox also gave the Chengs his phone number, telling them that he would call the next day, which he never did.

Later that night, Holroyd contacted Westminster’s media expert to craft a proposed media statement. The next day, Dr. Cox circulated a draft to all the church elders, and he later held a press conference, releasing the following statement to the press:

Yesterday was a tragic and heartrender-ing day for the Westminster Presbyterian Church family, and especially the Cheng family who lost their infant son, Matthew. Our congregation knew this family through a Chinese Christian fellowship that uses our facilities for their worship services. Tina Byrd, Matthew’s babysitter and a member of our church, was asked by the Chengs to care for Matthew in her home. This child care is not a ministry of Westminster Presbyterian Church, it is not a part of our outreach endeavors, nor do we refer anyone to any child care ministries.
I was called to the home at 3:00 PM yesterday to provide pastoral support and ministry to the Byrd family and then later, at Ball Memorial Hospital, to the Cheng family. As you can imagine, both the parents and the babysitter are devastated over the loss of Matthew, and our church family grieves and is praying for all of those impacted by Matthew’s sudden and unexpected death. In the days and weeks ahead our congregation will rally around these families and their children to love them in the Lord and care for them as much as possible. Thank you for your time.

Tr. p. 12-13. The accuracy of the facts in the statement was not checked by anyone else, and Dr. Cox erroneously referred to the Chengs as members of Westminster’s Chinese Christian fellowship.

An autopsy was performed on Matthew, and his cause of death was determined to be “Sudden Unexplained Infant Death (SUID), cause undetermined.” Appellant’s App. p. 150. The autopsy report also stated that “[r]isk factors identified for his death include prematurity, prone sleeping position, and death under uncertain household circumstances.” Id.

On March 15, the Chengs filed their wrongful death complaint against Westminster and Byrd. Eight months later, they filed an amended complaint, adding a count alleging intentional infliction of emotional distress. The parties attempted mediation, but they were unsuccessful. Westminster then filed a motion for summary judgment. The Chengs filed a memorandum in opposition, and Westminster moved to strike the affidavits of three experts designated by the Chengs because they were disclosed after the deadline for doing so. The trial court denied the motion to strike but granted Westminster leave to depose the experts and raise the issue later. The Chengs filed a second amended complaint, adding Holroyd as a party defendant. Westminster filed a reply brief and renewed its motion to strike the experts’ affidavits. Holroyd was later dismissed as a defendant.

The trial court held a hearing on Westminster’s motion for summary judgment on August 9, 2012. Two weeks later, it entered an order granting summary judgment for Westminster on the Chengs’ claim of intentional infliction of emotional distress but denying summary judgment in all other respects. The trial court also denied Westminster’s motion to strike the Chengs’ experts’ affidavits. Westminster asked the trial court to certify its order for interlocutory appeal, which the trial court did. This Court accepted jurisdiction over the interlocutory appeal on November 14, 2012.

Discussion and Decision

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

Westminster contends that the trial court erred in denying its motion for summary judgment in regards to the Chengs’ claims for wrongful death and invasion of privacy. It also contends that the trial court erred by not striking the affidavits of the Chengs’ expert witnesses. On cross-appeal, the Chengs contend that the trial court erred in granting summary judgment in favor of Westminster on their claim for intentional infliction of emotional distress. We hold that the trial court did not err in granting Westminster’s summary-judgment motion on the claim for intentional infliction of emotional distress, but that the trial court did err in denying Westminster’s summary-judgment motion on the claims for wrongful death and invasion of privacy. Since we find that summary judgment is appropriate for Westminster on all counts, we need not address the issue concerning the expert-witness affidavits.

I. Negligence

Westminster argues that the trial court erred in denying its motion for summary judgment on the wrongful death claim because it did not owe a duty to the Chengs as a matter of law. We agree.

Whether a duty exists is generally a question of law, Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind.2003), and in Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991), our Supreme Court articulated a balancing test to determine whether a duty exists. In order to impose a duty at common law, the court must balance (1) the relationship between the parties, (2) the reasonable foreseeability of the harm to the person injured, and (3) public-policy concerns. We hold that the trial court erred in denying Westminster’s motion for summary judgment on the negligence claim, as a balancing of the Webb factors under these circumstances shows that Westminster did not owe a duty of care to the Chengs as a matter of law.

A. Relationship Between the Parties

It is clear that there was some relationship between the parties involved in this case. Holroyd, an Associate Pastor at Westminster, provided Byrd’s name to the Chengs through Wegener as a potential babysitter for Matthew. This interaction is sufficient to create a relationship between the two parties.

The Chengs, however, contend that this created the pastor-parishioner relationship — one that this Court has said creates a fiduciary/confidential relationship. See, e.g., Leever v. Leever, 919 N.E.2d 118, 123 (Ind.Ct.App.2009). Regardless of whether Holroyd was aware that June was with Wegener during the phone conversation in which he provided Byrd’s name as a potential babysitter, it is clear that there was no special pastor-parishioner relationship created in this situation.

The fact that Holroyd was a pastor, standing alone, does not create a fiduciary relationship between him and the Chengs. See J.A.W. v. Roberts, 627 N.E.2d 802, 810 (Ind.Ct.App.1994) (“J.W. cites no authority in support of his position that status, standing alone, creates a special relationship and our own research reveals no such authority.”), abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (Ind.Ct.App.2002), trans. denied. “[Wjhether a special relationship exists is fact sensitive and dependent on the level of interaction or dependency between the parties that surpasses what is common or usual.” Id. In J.A.W., for example, a child was molested by his foster father and alleged, among other things, that three counselors and clergy had a duty to report the molesting because of their special relationship with the child. After first noting that status as a counsel- or or clergy alone did not automatically create a special relationship, we further evaluated the relationship between the adults and the child. In addressing those relationships, a significant factor that was relevant in the analysis was whether the counselor and clergy counseled the child specifically about the molesting that he was enduring. Id. at 810-11. When the counselor or clergy merely knew of the molesting or spoke generally to the child about the molesting, we did not find those interactions sufficient to create a special relationship. Id. It was only where the child sought confidential help from a clergy member specifically concerning the molesting that, we found that there was a question of fact as to whether that special relationship was created. Id. at 811.

In this case, the relevant facts show that there was no special relationship created. June received the information about Byrd through an intermediary, Weg-ener, rather than directly and confidentially from Holroyd. There is also no showing that this advice from Holroyd was special counseling that June was dependent on him for; rather this was readily available public information that she could have received from any number of people. The information sought was also general in nature, as Holroyd was asked if he knew of anyone to recommend as a babysitter and not specifically about Byrd and her qualifications as a babysitter. Finally, we note that the nature of the inquiry was personal and not related to the church, as childcare was not a ministry of Westminster and its pastors. Therefore, while there was a relationship between Holroyd acting on behalf of Westminster and the Chengs, there is nothing to indicate that the level of interaction and dependency between June and Holroyd was great enough to trigger a special pastor-parishioner relationship that the Chengs contend gives rise to Westminster’s liability.

B. Reasonable Foreseeability of the Harm

Under the Webb analysis, harm is foreseeable if “the person actually harmed was a foreseeable victim and ... the type of harm actually inflicted was reasonably foreseeable.” 575 N.E.2d at 997. In this ease, Matthew’s death, while tragic, was not reasonably foreseeable.

Matthew died from “Sudden Unexplained Infant Death (SUID), cause undetermined.” Appellant’s App. p. 150. While the autopsy provided risk factors for Matthew’s death, the cause of death could not be definitively determined or explained. With no answers as to how or why Matthew died, we cannot say that he was a foreseeable victim or that his death was reasonably foreseeable. There was nothing about Byrd’s house that the coroner was able to point to that caused Matthew’s death, so Byrd babysitting Matthew did not foreseeably place him in danger of dying.

The Chengs also contend that Hol-royd had a duty to warn them about the death of the baby that happened two months before Matthew was placed under Byrd’s care. While another baby had died while under Byrd’s care just a few months before Matthew, the cause of that death was also ruled to be “a case of Sudden Unexpected Infant Death (SUID),” with the official manner of death being “undetermined.” Id. at 260. By its very name, the death therefore was unexpected, and the reason for the death was undetermined. We cannot say that Westminster should have known that another baby was likely to die from SUID while in Byrd’s care. Therefore, it would not be reasonable to impose a duty on Holroyd to warn future parents that a child had previously died in Byrd’s care from SUID.

C. Public Policy Concerns

The public policy concerns at issue here are great. Society has an expectation that liability will attach for certain actions, but not for mere recommendations that are freely and frequently given as a part of daily life. Wegener called Holroyd and asked him if he knew anyone to recommend for child care. In this situation, no one would expect that a recommendation given by a church’s associate pastor would subject the church to potential liability if the recommendation given results in any sort of harm. In order to assume a duty, the defendant “must have specifically and deliberately undertaken the duty.” Holtz v. J.J.B. Hilliard W.L. Lyons, Inc., 185 F.3d 732, 744 (7th Cir.1999). That deliberation is noticeably absent in a case such as this, where Holroyd was contacted and asked for advice; Westminster did not deliberately set out to undertake the duty of insuring the safety of a child under Byrd’s care. We therefore cannot say that it would be fair to place such a burden on the recommender.

Indiana courts have failed to place this burden on employers who recommend former employees to a new job, see Passmore v. Multi-Management Services, Inc., 810 N.E.2d 1022, 1028 (Ind.2004) (“declaring employers liable for negligence in providing employment references will lead universally to employer reluctance to provide any information other than name, rank, and serial number”). Likewise, we will not impose a duty on persons who merely make recommendations to others of service providers.

After analyzing the three Webb factors, we conclude that Westminster did not owe a duty to the Chengs as a matter of law. We find that the trial court erred in denying Westminster’s motion for summary judgment on the Chengs’ wrongful-death claim. We therefore reverse and remand with instructions that the trial court enter summary judgment in favor of Westminster on the Chengs’ wrongful-death claim.

II. Invasion of Privacy Claims

Westminster also contends that the trial court erred by denying its motion for summary judgment on the privacy claims brought by the Chengs. There are four sub-torts under invasion of privacy: (1) false light; (2) public disclosure of private facts; (3) intrusion upon seclusion; and (4) appropriation of likeness. Newman v. Jewish Cmty. Center Ass’n of Indianapolis, 875 N.E.2d 729, 736 (Ind.Ct.App.2007), trans. denied. The Chengs abandon their claim of false light, Appel-lee’s Br. p. 38, and public disclosure of private facts is not a recognized cause of action in Indiana. Doe v. Methodist Hosp., 690 N.E.2d 681, 693 (Ind.1997). Therefore, we need only address the Chengs’ claims for intrusion upon seclusion and appropriation of likeness.

A. Intrusion Upon Seclusion

The Chengs allege that Westminster intruded upon their seclusion by issuing a press release and holding a press conference concerning Matthew’s death. They claim that these actions “interfered with [their] reasonable expectation and interest in solitude and seclusion by publicizing ... private affairs and concerns.... ” Appellant’s App. p. 433-34. Westminster contends that the trial court erred in not granting summary judgment in its favor on this claim. We agree.

Intrusion upon seclusion occurs when there is “an intrusion upon the plaintiffs physical solitude or seclusion as by invading his home or conducting an illegal search.” Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991) (emphasis added). In order to rise to this level, “the intrusion must be something which would be offensive or objectionable to a reasonable person.” Curry v. Whitaker, 943 N.E.2d 354, 358 (Ind.Ct.App.2011). Because this tort “requires intrusion into the plaintiffs private ‘physical’ space,” id. (citing Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276, 1280 (Ind.Ct.App.2002), reh’g denied), and in this case, there was no intrusion into the Chengs’ private physical space such as their home, this tort has no application as a matter of law.

The Chengs argue, however, that this Court has previously found that intrusion upon seclusion can apply to intrusion into emotional solace. See Newman, 875 N.E.2d at 736. However, in that case, this Court said that “[w]hile the tort arguably embraces intrusion into emotional solace, [t]here have been no cases in Indiana in which a claim of intrusion was proven without physical contact or invasion of the plaintiffs physical space such as the plaintiffs home.” Id. (internal quotations and citations omitted). Like in Newman, we decline to make such an extension of the intrusion into seclusion tort in this case, and we therefore hold that the trial court erred in denying Westminster’s motion for summary judgment on this count because there was no invasion of the Chengs’ physical space.

B. Appropriation of Name or Likeness

An appropriation of name or likeness claim is available when an individual uses the plaintiffs name or likeness for his own benefit. The most common form of this tort is when a plaintiffs name or likeness is appropriated “to advertise the defendant’s business or product, or for some other similar commercial purpose.” Restatement (Second) of Torts, § 652C cmt. b (1977). In their complaint, the Chengs contend that Westminster appropriated their name in the press release and during the press conference for its benefit. Westminster, however, contends that the trial court erred by not granting summary judgment in its favor on this claim because the use of the Chengs’ name in the press release was both incidental and not done for a commercial purpose. We agree.

Indiana courts have rarely examined this invasion-of-privacy tort, but our Supreme Court did address it in the case of Felsher v. University of Evansville, 755 N.E.2d 589 (Ind.2001). While this case found that the university was not entitled to privacy because it was a corporation, in coming to this conclusion, our Supreme Court relied on the Restatement (Second) of Torts, § 652.

Section C of Restatement (Second) of Torts, § 652 deals with appropriation of name or likeness. How the cause of action is evaluated depends on whether the use of the name was incidental or for the defendant’s benefit. Westminster contends that the use of the Chengs’ name in the press release was incidental, while the Chengs argue that their name was used for Westminster’s benefit in distancing itself from Matthew’s death. We agree with Westminster, however, and find that the use of the Chengs’ name in the press release was incidental. Their name was merely mentioned in the press release as part of a story of public concern; it was not used in any way except to identify the parties that were involved in the situation surrounding Matthew’s death.

Comment (d) concerns situations in which the use is incidental. It states in relevant part:

No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded.

Restatement (Second) of Torts, § 652C (1977) (emphasis added). The Chengs therefore have no right not to have their name used in the press release, since their name is not a private matter. Despite the fact that the incident at issue was sensitive as it involved the death of an infant, that does not change the fact that there is no privacy right in one’s name such that it can be kept out of the public’s view. Therefore, there must have been some sort of commercial value appropriated to Westminster as a result of its use of the Chengs’ name for the Chengs’ claim under this cause of action to be viable.

We find that there was no commercial value appropriated to Westminster due to its use of the Chengs’ name in the press release. The press release identified the parties involved and explained the situation, and we fail to see how that use was intended to create a commercial advantage from the use of the Chengs’ name. We therefore hold that the trial court erred in denying Westminster’s summary-judgment motion on this count as well because there has been no appropriation of name or likeness as a matter of law.

We reverse the trial court’s denial of Westminster’s summary-judgment motion on the Chengs’ invasion-of-privacy claims, and we remand with instructions to grant summary judgment in favor of Westminster on these claims.

III. Intentional Infliction of Emotional Distress

Finally, the Chengs contend that the trial court erred by granting Westminster’s summary-judgment motion on their intentional infliction of emotional distress (IIED) claim. We disagree.

Our Supreme Court has defined the tort of IIED as “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.” Cullison, 570 N.E.2d at 31. The elements of the tort are that the defendant: (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe emotional distress to another. Id. The requirements to prove this tort are “rigorous.” Id. Importantly, however, “[i]t is the intent to harm the plaintiff emotionally which constitutes the basis for the tort of intentional infliction of emotional distress.” Id. In Bradley v. Hall, we quoted the Restatement (Second) of Torts with approval, which says:

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or by a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

720 N.E.2d 747, 752-53 (Ind.Ct.App.1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). IIED therefore is found where conduct exceeds all bounds typically tolerated by a decent.society and causes mental distress of a very serious kind. Lindsey v. DeGroot, 898 N.E.2d 1251, 1264 (Ind.Ct.App.2009).

In this case, the Chengs contend that Westminster’s actions of “deceiving the public about circumstances related to the Plaintiffs and Matthew’s death, and then abandoning them thereafter despite public proclamations to the contrary,” Ap-pellee’s Br. p. 42, rise to the level of “outrageous.” We cannot agree.

This Court has previously found that there has to be intent to cause emotional harm to the plaintiff. Cullison, 570 N.E.2d at 31; see also Johnson ex rel. Ind. Dep’t of Child Servs. v. Marion Cnty. Cor oner’s Office, 971 N.E.2d 151, 162 (Ind.Ct.App.2012), trans. denied. While the Chengs argue that Westminster’s actions were intentional, there is no evidence to conclude that Westminster had any intent to emotionally harm the Chengs. Dr. Cox came to the hospital on the day of Matthew’s death to console and pray with the family. Appellant’s App. p. 349-50. While he said that he would follow-up with the Chengs and he failed to do so, there is no evidence that shows that this was done with the intent to harm the Chengs. This may have been insensitive, but it does not rise to the outrageous level required to succeed on an IIED claim. Compare Cullison, 570 N.E.2d at 27 (summary judgment dismissing IIED claim appropriate when neighbor grabbed at his holstered gun and shook it at plaintiff during an altercation), and York v. Fredrick, 947 N.E.2d 969 (Ind.Ct.App.2011) (summary judgment dismissing IIED claim appropriate when funeral-home personnel forced the plaintiffs grandmother’s casket into the vault, resulting in damage to the casket and moisture and dirt inside the casket), trans. denied, and Lachenman v. Stice, 838 N.E.2d 451 (Ind.Ct.App.2005) (summary judgment dismissing IIED claim appropriate when dog owners negligently permitted their dogs to fatally attack a neighbor’s dog), reh’g denied, trans. denied, with Bradley, 720 N.E.2d at 747 (summary judgment dismissing IIED claim inappropriate when employer asked employee about her menopause and asked if her husband was impotent due to his diabetes).

The Chengs argue that Westminster should be presumed to intend the natural and probable consequences of its actions, and that a reasonable person would know that Westminster’s actions would result in emotional harm to the Chengs. Again, we do not see how this conduct rises to the extreme and outrageous level required to satisfy this particular tort such that Westminster should have known that it was going to cause such great emotional harm to the Chengs. We therefore find this argument to be without merit, and we find that the trial court did not err in granting Westminster’s motion for summary judgment on the Chengs’ IIED claim,

Affirmed in part, reversed in part, and remanded with instructions.

KIRSCH, J., and PYLE, J„ concur.

      . Westminster also argues that its actions were not the proximate cause of Matthew's death because the official cause of his death was Sudden Unexpected Infant Death. However, because we find that Westminster owed no duty to the Chengs in this case, we need not address this argument.


author: BRADFORD, Judge. RILEY, Judge,

text:
    Thomas W. OSTER, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A05-1208-CR—437.
    Court of Appeals of Indiana.
    Aug. 9, 2013.

      Stacy R. Uliana, Bargersville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

At approximately 7:00 p.m. on January 18, 2012, Bill Wolfe was in Large Ink, the business in which he had his art studio, when he heard two bangs and glass shattering in the rear of the building. Wolfe stepped outside and called 911. When police arrived, entered the front of Large Ink, proceeded toward the rear, and announced themselves, they heard a crash. A glass panel in the door with access to an alley had been broken, and a mobile telephone and brick were found near the door. Appellant-Defendant William Oster, II was soon apprehended nearby. Oster bore fresh abrasions and cuts and was carrying a pouch containing two screwdrivers and a pair of pliers. It was later determined that the mobile telephone found near the door contained pictures of Oster.

The State ultimately charged Oster with Class C felony burglary, Class A misdemeanor criminal mischief, and with being a habitual offender. Following a bifurcated trial, a jury found Oster guilty as charged and to be a habitual offender. The trial court sentenced Oster to seven years of incarceration for burglary and one year for criminal mischief, to be served concurrently, with that sentenced enhanced by eleven years by virtue of the habitual offender finding. Oster contends that the State failed to produce sufficient evidence to sustain his burglary conviction or the habitual offender finding, that his convictions violate prohibitions against double jeopardy, and that the trial court committed fundamental error in instructing the jury. While the State concedes that Oster’s convictions may not both stand, we conclude that Oster’s other claims are without merit. Consequently, we affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In January of 2012, Wolfe, an artist, painter, and sculptor, was renting studio space in Large Ink, a printing and sign fabrication shop in Terre Haute. The Large Ink building is located at 635 Ohio Street and had access to Ohio Street and an alleyway behind. At approximately 7:00 p.m. on January 18, 2012, Wolfe and Todd Stokes were at Large Ink and “heard the back door tug from the alley way[.]” Tr. p. 304. Wolfe left through the front door and drove his truck around to the alleyway behind Large Ink but did not see anything amiss. When Wolfe drove back around to the front of Large Ink, he noticed a man wearing grey camouflage pants and a stocking cap walking west on Ohio Street. Wolfe drove to a gasoline station approximately three blocks away and then decided to “make one ... more pass over at the, the shop.” Tr. p. 306. When Wolfe reentered Large Ink through the Ohio Street door, he heard two “bangs” and then glass shattering in the rear. Tr. p. 306. Wolfe stepped back outside, called 911, and began to walk to the alleyway behind Large Ink.

Terre Haute Police Officer Daniel Ar-mentrout and Officer Toney responded and entered Large Ink through the front door. As the officers entered Large Ink, they could hear someone “kicking or pulling” on a metal door that led to a back room, which room had access to the alleyway. Tr. p. 380. When Officer Armentr-out yelled “Police,” he “hear[d] footsteps run into a door, and a loud crash.” Tr. p. 381. The officers opened the metal door and noticed that the door providing access to the alleyway had a window broken out of it. Officer Armentrout looked out of the window and saw a figure running south down an alleyway.

Meanwhile, Wolfe had walked to the alleyway behind Large Ink and was still on the telephone with police dispatch, who informed him that “there’s an officer walking in your front door right now.” Tr. p. 308. Soon thereafter, Wolfe turned a corner and saw a man wearing a dark stocking cap and dark blue jacket heading south toward Walnut Street, an east-west street south of Ohio Street. Wolfe ran over to Walnut Street and saw a man wearing camouflage pants riding a bicycle west on Walnut Street. When asked at trial if the man wearing camouflage pants was the same person he had seen in the alleyway, Wolfe responded, “I don’t think, I don’t think it was the same guy, no.” Tr. p. 310.

A police officer soon apprehended Oster “coming out the alley” onto Walnut Street. Tr. p. 386. Oster bore fresh abrasions on the back of his head, right shin, lower left back, left shin, right midsection, and forehead. Oster was also in possession of a pouch that contained Phillips-head and flat-head screwdrivers and a pair of pliers. When Wolfe and police returned to the alleyway behind Large Ink, they found a brick and mobile telephone on the ground near the door. The mobile telephone contained several photographs of Oster.

The State ultimately charged Oster with Class C felony burglary, Class A misdemeanor criminal mischief, and with being a habitual offender. In preliminary instructions, the trial court instructed the jury, in part, as follows:

The crime of Burglary, a Class C Felony, as charged in Count One (1) is defined by law as follows: A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits Burglary, a Class C Felony. Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt. One (1), the Defendant Thomas William Oster II; two (2) knowingly; three (3), broke and entered; four (4), the building or structure of Large Ink, L.L.C.; five (5), with intent to commit a felony, Theft, in it, by exerting unauthorized control over the property of Large Ink, L.L.C.

Tr. p. 267. The trial court’s final instruction on the elements of Class C felony burglary was, for all intents and purposes, identical to its preliminary instruction. Following the guilt phase of Oster’s trial, the jury found him guilty of Class C felony burglary and Class A misdemeanor criminal mischief.

During the habitual offender phase of Oster’s bifurcated trial, the State presented testimony from former Clay County adult probation officer Steven Bell and Brandon Loveless from the Indiana Parole Division. Bell supervised Oster when Oster was on probation in Clay County and knew him. Bell identified several certified documents establishing that Oster had several prior unrelated felony convictions in Clay County and one in Parke County. Loveless testified that he had supervised Oster and was familiar with his criminal history. Loveless testified that Oster was the same person named in the certified documents admitted into evidence by the State during Bell’s testimony. The jury found Oster to be a habitual offender. The trial court sentenced Oster to seven years of incarceration for burglary and one year for criminal mischief, both sentences to be served concurrently, and enhanced Oster’s sentence by eleven years by virtue of his habitual offender status.

DISCUSSION AND DECISION

I. Whether the State Produced Sufficient Evidence to Sustain Oster’s Burglary Conviction

When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the factfinder’s role to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. We consider conflicting evidence in the light most favorable to the trial court’s ruling. Id. We affirm the conviction unless no reasonable fact-finder could find that the elements of the crime were proven beyond a reasonable doubt. Id.

Oster contends that the State failed to produce evidence sufficient to sustain his burglary conviction, specifically, that it failed to establish his intent to commit theft within Large Ink. In its latest discussion on the topic of proving intent in the burglary context, the Indiana Supreme Court wrote:

Burglary is the breaking and entering of the building or structure of another person with the intent to commit a specific felony therein. Ind.Code § 35—43—2-1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind.1987); Yeagley v. State, 467 N.E.2d 730, 736 (Ind.1984)
“Burglars rarely announce their intentions at the moment of entry,” Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around to hear them even if they were to do so. Hence, a burglar’s intent to commit a specific felony at the time of the breaking and entering “may be inferred from the circumstances.” Id.; see also Hampton v. State, 961 N.E.2d 480, 487 (Ind.2012) (“[Tjhe mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323-24, 235 N.E.2d 703, 705 (1968) (“[Tjhe intent to commit a felony may be inferred from the circumstances which legitimately permit it.”). “Circumstantial evidence alone is sufficient to sustain a burglary conviction.” Kidd [v. State ], 530 N.E.2d [287, 287 (Ind.1988)]; accord Cash v. State, 557 N.E.2d 1023, 1025 (Ind.1990) (“A conviction for burglary may be sustained by circumstantial evidence alone.”).
Evidence of intent “need not be insurmountable,” Gilliam, 508 N.E.2d at 1271, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony[.j” Freshwater [v. State ], 853 N.E.2d [941, 944 (Ind.2006) ]. The evi-dentiary inference pointing to the defendant’s intent must be separate from the inference of the defendant’s breaking and entering. Justice [v. State ], 530 N.E.2d [295, 297 (Ind.1988) ]; Kondrup, 250 Ind. at 323, 235 N.E.2d at 705. The inference of intent must not derive from or be supported by the inference of breaking and entering. In other words, the evidence must support each inference — felonious intent and breaking and entering — independently, and neither inference should rely on the other for support. This is not to say, however, that the same piece of evidence cannot support both inferences.
Requiring independent evidence of intent is necessary to maintain the distinction between burglary and other criminal offenses involving property invasion such as criminal trespass, Ind.Code § 35-43-2-2, or residential entry, Ind. Code § 35-43-2-1.5. Permitting the felonious intent element to be inferred from the inference of breaking and entering would render the intent element meaningless and read it out of the statute. See Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the Legislature had intended to punish a breaking and entry by itself, as we have here, they would not have added the second element of specific intent. A reading of the statute clearly indicates that both elements are included.”).

Baker v. State, 968 N.E.2d 227, 229-30 (Ind.2012) (footnotes omitted).

We conclude that the State produced sufficient evidence to prove that Oster broke and entered Large Ink with the intent to commit theft within. First, Oster was caught with burglary tools, namely one Phillips-head screwdriver, one flat-head screwdriver, and a pair of pliers, tools that would be very helpful if one wished to gain access to cash registers, cash boxes, desks, drawers, etc. It is worth noting that there is evidence that Oster used a brick to break into Large Ink and no evidence whatsoever that Oster used his tools to do so. In other words, his possession of tools is evidence that supports an inference of intent to commit theft but does not derive from evidence of the breaking and entering. This fact neatly distinguishes this case from Freshwater, in which there was evidence that the screwdriver in Freshwater’s possession when he was apprehended had been used during the break-in. Freshwater, 853 N.E.2d at 942.

Second, the very nature of the structure into which Oster broke — a retail business — is also independent evidence of his intent to commit theft. Common sense dictates that when one breaks into a retail business after-hours, it is more likely done with the intent to commit theft than, say, if one breaks into an empty warehouse. Retail businesses are likely to contain cash and/or easily-fenced items, such as computers. Third, the record severely undercuts the notion that Oster might have been seeking shelter, another at least plausible reason one might break into a structure. Oster was a resident of the Lighthouse Mission in Terre Haute at the time of the break-in and so would have had no need for alternate shelter. Oster’s possession of burglary tools, the nature of the structure into which he broke, and the absence of any indication that he broke into Large Ink for a reason other than theft are independent evidentiary facts sufficient to sustain his burglary conviction.

II. Whether the State Produced Sufficient Evidence to Sustain the Finding that Oster Is a Habitual Offender

Oster contends that the State failed to establish that he is a habitual offender. Specifically, Oster contends that the certified documents are confusing because they list several different, albeit similar, names; Bell was insufficiently certain that Oster was the same person he had dealt with in the past; and Loveless had not supervised Oster in relation to any of his alleged prior convictions. “[T]he state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.” Ind. Code § 35-50-2-8(a). “The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense.” Ind.Code § 35 — 50—2—8(h).

Certified copies of judgments or commitments containing a defendant’s name or a similar name may be introduced to prove the commission of prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind.1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind.1989)). While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. Id.; see also Coker v. State, 455 N.E.2d 319, 322 (Ind.1983). If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown. Pointer v. State, 499 N.E.2d 1087, 1089 (Ind.1986).

Hernandez v. State, 716 N.E.2d 948, 953 (Ind.1999).

Oster notes that the documents produced by the State listed the perpetrator, variously, as “William Oster,” “Thomas W. Oster,” “Thomas W. Oster, II,” “Thomas William Oster, II,” and “Thomas Oster” and argues that there is insufficient evidence to prove that the same person committed all of the prior crimes or that he was that person. We disagree. The names listed on the documents are sufficiently similar to support an inference that they refer to the same person. More importantly, Loveless identified Oster in court and testified that he was familiar with Oster and Oster’s criminal record; that reviewing Oster’s criminal record was part of his supervision of him while on parole; and that, despite the slight naming differences, Oster was in fact the person referred to in all of the State’s certified documentation. See, e.g., Hernandez, 716 N.E.2d at 953 (concluding that testimony from prison officer that he was familiar with defendant and contents of his offender packet was sufficient to establish that defendant was person named in certified documentation of prior unrelated convictions). Oster’s argument in this regard is nothing more than an invitation to reweigh the evidence, which we will not do. The State produced sufficient evidence to sustain a finding that Oster is a habitual offender.

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

The trial court failed to instruct the jury that Oster, in order to have had the intent to commit burglary as charged, must have had the intent to deprive another person of any part of the value or use of that person’s property, which is an element of theft. See Ind. Code § 35^3-4-2(a). While acknowledging that he did not preserve the issue below, Oster contends that the trial court committed fundamental error in this regard. Put another way, Oster argues that the trial court committed fundamental error in failing to properly instruct the jury on mens rea.

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

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

We conclude that the trial court’s failure to instruct the jury on mens rea did not amount to fundamental error in this case. The overriding issue at trial was identity, not intent, and the Indiana Supreme Court has held that failing to properly instruct the jury on mens rea is not fundamental error when intent is not an issue at trial. See, e.g., Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996) (concluding that there was no fundamental error in failing to instruct on the specific intent to kill where “[t]he intent of the Defendant was not in issue, as the theory of defense revolved around proving the State could not show ‘beyond a reasonable doubt that my client, Mitch Swallows, is the one who had done all of these things’ ”).

A review of the trial transcript reveals that Oster focused all of his trial energy on attacking evidence that he was the person who broke into Large Ink. Wolfe could not identify Oster as the person he saw in the alley behind the store the night of the break-in. Wolfe also testified that he twice saw a man wearing grey camouflage pants in the area around the time of the break-in. Oster’s cross-examination of Wolfe focused on Wolfe’s inability to identify the person he saw in the alley and Wolfe’s testimony that both the man in the alley and the man in the camouflage pants were wearing dark jackets. Oster would later argue that the man in the camouflage pants was likely the actual burglar.

Officer Armentrout responded to the break-in at Large Ink and testified that Oster exhibited several abrasions and scratches when apprehended. Officer Ar-mentrout characterized the wounds as fresh, allegedly suffered while fleeing through a broken glass door at Large Ink. Oster’s cross-examination again focused on identity, specifically attacking Officer Ar-mentrout’s testimony regarding the freshness of the wounds.

Terre Haute Police Detective Michael Mikuly testified primarily regarding a mobile telephone that was found next to the broken glass door at Large Ink. Detective Mikuly testified that the mobile telephone contained photographs of Oster. Oster’s cross-examination focused on the lack of DNA and fingerprint evidence gleaned from the mobile telephone, the lack of footprint evidence, the lack of DNA evidence collected from any broken glass, and the fact that the mobile telephone contained no specific identification of its owner.

Finally, Oster’s final argument focused entirely on identity and included the following specific arguments: (1) Wolfe could not place Oster at Large Ink on the night of the break-in; (2) the State failed to establish that Oster’s wounds were caused by him “diving through this broken glass[,]” Tr. p. 529; (3) there was no DNA, blood, fingerprint, or footprint evidence tying Oster to the scene; (4) the State failed to establish that the mobile telephone belonged to Oster; and (5) the man in the camouflage pants was actually the person who broke into Large Ink, not Oster. In summary, at no point while cross-examining any State’s witness or during any argument did Oster deny, or even suggest, that no burglary had taken place — only that the State failed to prove that Oster was the burglar. Because mens rea was not at issue during trial, Swallows and similar cases control. The trial court’s failure to instruct the jury on all of the elements of theft did not amount to fundamental error.

IV. Whether Oster’s Convictions for Burglary and Criminal Mischief Violate Prohibitions Against Double Jeopardy

Oster contends, and the State concedes, that Oster’s convictions for Class C felony burglary and Class A misdemeanor criminal mischief violate constitutional prohibitions against double jeopardy. Pursuant to Richardson v. State, 717 N.E.2d 32, 55 (Ind.1999), Oster’s criminal mischief conviction should be vacated, because it is the one with “less severe penal consequences[J”

CONCLUSION

We conclude that the State produced sufficient evidence to sustain Oster’s Class C felony burglary conviction and the finding that he is a habitual offender. We also conclude that the trial court did not commit fundamental error in instructing the jury. We agree, however, that Oster’s conviction for Class A misdemeanor criminal mischief violates constitutional prohibitions against double jeopardy. We therefore remand with instructions to vacate Oster’s conviction and sentence for criminal mischief.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

BROWN, J., concurs.

RILEY, J., dissents with opinion.

RILEY, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm Oster’s conviction for burglary because I find insufficient evidence to support the conviction. Oster argues that the “there was no evidence of felonious intent to commit theft after the breaking and entering the Large Ink building.” (Appellant’s Br., p. 5). In order to convict a person of burglary, the State must prove beyond a reasonable doubt that he or she broke and entered the building or structure of another person with intent to commit a felony in it. I.C. § 35-43-2-1. Here, Oster does not deny that he broke and entered Large Ink’s building. Rather, he argues that the State failed to present sufficient evidence to prove that he did so with intent to commit a felony therein.

To establish the “intent to commit a felony” element of a burglary charge, the State must prove beyond a reasonable doubt the defendant’s intent to commit the felony specified in the charging information. Freshwater v. State, 853 N.E.2d 941, 942 (Ind.2006). Intent to commit a given felony may be inferred from the circumstances, but some fact in evidence must point to a fact to commit the specified felony. Id. at 943. The evidentiary inference pointing to the defendant’s intent must be separate from the inference of the defendant’s breaking and entering. Justice v. State, 530 N.E.2d 295, 297 (Ind.1988).

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

Here, the State alleged, and was required to prove, that Oster had the intent to commit theft when he broke and entered Large Ink. Oster claims that the State failed to meet its burden. Freshwater, 853 N.E.2d at 941, is instructive. There, Freshwater broke into a car wash but ran out when the alarm sounded. Id. When he was apprehended by the police, Freshwater was carrying a screwdriver that matched pry marks on the car wash door. Id. However, there was no evidence that Freshwater touched anything when he was inside the car wash or that he took anything with him when he left. Id. Freshwater was charged with and convicted of burglary. Id.

On appeal, the Indiana Supreme Court explained that, “in order to sustain a burglary charge, the State must prove a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.” Id. The court concluded that no such fact had been proven against Freshwater. Id. There was no evidence that he was near or approaching anything valuable in the car wash, there was nothing missing from the building or cash register, and the office appeared to have been undisturbed. Id. The court therefore reversed Freshwater’s conviction. Id. at 945.

Similarly, in Justice, 530 N.E.2d at 295, Justice entered Tammy Bryant’s home and walked into her bedroom wearing black socks on his hands. Id. When Bryant recognized him and called his name, Justice immediately left the house. Id. When the police arrived, they discovered that a screen had been removed from a dining room window and left on the ground outside and that the back door had been left open. Id. The State charged Justice breaking and entering Bryant’s residence with intent to commit theft. Id. A jury convicted him of burglary. Id.

On appeal, the Indiana Supreme Court concluded that there was no fact in evidence that provided a solid basis to support a reasonable inference that the defendant had the specific intent to commit theft. Id. at 297. Although there was evidence of breaking and entering, there was no evidence that Justice touched, disturbed, or even approached any valuable property. Id. Accordingly, the court reversed Justice’s conviction. Id.

Here, as in Freshwater and Justice, the State has failed to prove a specific fact that provides a solid basis to support a reasonable inference that Oster had the specific intent to commit a felony. The method by which Oster entered the building suggests nothing more than that he broke in. He could have done so for any number of reasons that do not include theft. There is no evidence that Oster touched anything or took anything with him during his brief time in Large Ink. Except for the broken window, nothing in the business was disturbed. The fact that Oster was apprehended with two screwdrivers and a pair of pliers does not change this result.

Although the evidence in this case might well support the conclusion that Oster “intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or illegal aet[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting Gebhart v. State, 531 N.E.2d 211, 212 (Ind.1988)). Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.