author: BAKER, Judge.

text:
    LANE ALAN SCHRADER TRUST as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust, Appellant-Petitioner, v. Larry GILBERT and Nancy J. Malecki, Appellees-Respondents.
    No. 75A04-1112-PL-676.
    Court of Appeals of Indiana.
    Aug. 30, 2012.

      Eric C. McNamar, B. Too Keller, Keller Macaluso LLC, Carmel, IN, Attorneys for Appellant.
    Kevin C. Tankersley, Winamac, IN, Attorney for Appellees.
   OPINION

BAKER, Judge.

In this case, we are presented with a property boundary dispute and how trial courts may settle them through the use of land surveys. Here, a landowner purchased property based on information from a neighbor that a barn on the property had a twenty-foot setback. The landowner required this setback to conduct his business; however, at least two surveys indicated that the setback was less than the required twenty feet. The landowner decided to have a legal survey performed on the property, which indicated that there was a twenty-foot setback. This legal survey was recorded in the county recorder’s office.

The landowner’s neighbors appealed the legal survey to the trial court, arguing that it should be stricken from the recorder’s office. After a bench trial, the trial court determined that the legal survey was defective for failure to use good surveying practices and imposed two previous surveys. We conclude that this was error. The applicable statutory provisions require that strict notice provisions be followed, and there was no evidence that notice was given before the two previous surveys were conducted. Moreover, we think that the proper interpretation of the statute is that the trial court may either accept the survey that is being appealed, order a new survey, or order the county surveyor to locate and mark the boundary lines according to the trial court’s findings as supported by the evidence.

Appellant-defendant Lane Alan Schrader as Trustee of the Lane Alan Schrader Trust (the Trust) appeals the trial court’s findings of fact and conclusions of law in its order striking a legal survey and imposing two previous retracement surveys. More particularly, the Trust argues that the trial court’s findings of fact and conclusions of law are clearly erroneous, inasmuch as they are not supported by facts in the record. Specifically, the Trust asserts that there is no evidence in the record that the legal survey was conducted in derogation of good surveying practices.

Additionally, the Trust maintains that the trial court’s order must be vacated because the applicable statute requires that the trial court either affirm the legal survey or set aside the survey and order a new one.

Finally, the Trust contends that a second applicable statute imposes strict notice requirements to establish property lines pursuant to a legal survey. And because appellees-plaintiffs Larry Gilbert and Nancy J. Malecki (collectively, “the Appellees”) failed to present evidence that proper notice was given before the previous retracement surveys were conducted, no legal survey was created, and the trial court erred by imposing those two surveys.

Determining that the trial court did not err by concluding that the legal survey was not conducted through the use of good surveying practices, but finding that the trial court erred by imposing two previous surveys, we reverse and remand to the trial court with instructions that the trial court enter a new order consistent with this opinion.

FACTS

On February 28, 2004, Lane Schrader purchased a parcel of property in Starke County described as:

THE EAST HALF OF THE FOLLOWING TRACT, TO WIT: COMMENCING AT A POINT ON THE SECTION LINE 660 FEET WEST OF THE SOUTHEAST CORNER OF THE SOUTHEAST 1/4 OF SECTION 29, TOWNSHIP 32 NORTH, RANGE 4 WEST OF THE SECOND PRINCIPAL MERIDIAN, STARKE COUNTY, INDIANA. THENCE WEST ON THE SECTION LINE 660 FEET, MORE OR LESS, TO THE SOUTHWEST CORNER OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 29; THENCE NORTH 660 FEET, MORE OR LESS, TO THE NORTH LINE OF THE SOUTH HALF OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 29; THENCE EAST 660 FEET, MORE OR LESS, TO A POINT 660 FEET WEST OF THE EAST LINE OF SAID SECTION 29, THENCE SOUTH 660 FEET, MORE OR LESS, TO THE PLACE OF BEGINNING.

Ex. E. (Warranty Deed in Trust). Approximately three months later, Schrader conveyed the parcel to the Trust.

The Trust property’s southeast border was adjacent to Gilbert’s property and the Trust property’s north border was adjacent to Malecki’s property. The Gilbert property had “senior rights” in the quarter section, which means that the parcel has been cut from a parent tract and prevails over other property descriptions. Tr. p. 328. Gilbert’s parcel was described as:

A tract of land commencing at the Southeast Corner of Seetion[ ]29, range 4 West of the 2nd P.M., Starke County, Indiana; thence West 660 feet on The section line; thence North 330 feet; thence East 660 feet to the Section line; thence south 330 feet to the place of beginning.

Appellant’s App. p. 10

Before purchasing the property, Steven Schrader, the son of Lane Schrader, visited the property, and a neighbor showed him monument pins that marked the property lines. Lane purchased the property based, in part, on the neighbor’s representations. Relying on the monument points, the Schraders believed that they would have a twenty-foot setback on the side of a barn on the property, which was needed to run a business from the back of the property.

Within one month of purchasing the property, the Trust hired Turning Point Surveying, Inc. (Turning Point) to survey the property. Turning Point surveyed the property and recorded its survey with the Starke County Recorder’s Office on June 16, 2004, but there was no evidence introduced at trial that Turning Point notified neighboring landowners that the company conducted or recorded the survey. The Turning Point Survey indicated that the setback was less than twenty feet.

Approximately one year later, the Trust hired Progressive Engineering, Inc. (Progressive) to conduct a retracement survey to verify the survey conducted by Turning Point. The Progressive Survey was consistent with the survey completed by Turning Point. Although Progressive completed the retracement survey in December 2005 and provided the Trust with a copy at that time, Progressive did not record the survey until April 21, 2009. And like the Turning Point survey, there was no evidence introduced at trial indicating that Progressive notified neighboring landowners that it had conducted or recorded the survey.

Before Progressive recorded its survey in April 2009, Torrenga Surveying, LLC (Torrenga) was hired to create a legal survey and set out the lines of occupation on and adjacent to the Trust property. To create a legal survey, Torrenga gathered record descriptions of both the land to be surveyed and the adjoining properties along with copies of prior surveys, maps, documents and field notes relating to the Trust’s deeded property. More particularly, Stuart Allen of Torren-ga obtained from the Starke County Recorder’s Office a 1993 survey of the Gilbert property conducted by Joe Smrt and the Territorial Engineering Survey. Additionally, Allen obtained an opinion letter from Territorial Engineering setting the corner of the southeast quarter; a letter written by Smrt to a property owner west of the Trust property in which Smrt commented that a fence on that property was on or near a boundary line; a survey conducted by former Starke County Surveyor Van Janovic of a parcel just north of the north boundary of the quarter section that contained the Trust property; and other documents. Torrenga, however, was not given a copy of the Progressive Survey by the Trust.

After gathering these documents, Allen and other members of Torrenga’s surveying crew, visited the Trust property and located as many monuments and fence lines as they could find. The crew found an iron pipe monument in the northwest corner of the property and another iron pipe monument adjacent to a fence corner in the northeast corner of the property — a fence Progressive had called a line of occupation. The crew also found two more pipe monuments on the east side of the property.

The Torrenga survey crew then searched beyond the borders of the Trust property and found additional fence lines on parcels to the west running in a similar direction as the fence on the east side of the property. Torrenga also considered monument points in a survey conducted by Janovic of a parcel north of the Malecki property, which was just north of the quarter section containing the Trust property. The points identified by Janovic in his retracement survey were set by surveyor Donald Mason, but it is not known whether Mason created a survey of the parcel. Janovic, however, was not surprised by the reasonable agreement between the so-called “Mason points” and the fences west of the Trust property.

Ultimately, Allen created the “Torrenga Survey” along with a “Theoretical Breakdown” of the quarter section containing the Trust Property and other parcels. Ex. 3; Ex. 1 (Theoretical Breakdown). The Torrenga Survey, the legal survey at issue, set out lines of occupation for the Trust property and surrounding parcels. The Theoretical Breakdown survey was a representation of what the quarter section would look like if certain monument points were used. The Theoretical Breakdown survey was not recorded.

Torrenga recorded the Torrenga Survey with the Starke County Recorder on or about January 22, 2009. Approximately four months later, on May 19, 2009, the Appellees filed an appeal challenging the proposed legal survey, naming the Trust; Dennis Estok, the Starke County Survey- or; Jackie Bridegroom, the Starke County Recorder; Torrenga, and Allen as opposing parties. On July 9, 2009, Allen, Tor-renga, and the Trust filed a motion to dismiss, asserting that Allen and Torrenga were not proper parties to the lawsuit and that Malecki had forfeited her right to challenge the accuracy of the legal survey when she had defaulted in her prior, related lawsuit, Lane Alan Schrader, Self Declaration of Trust, by Lane Alan Schrader, Trustee v. Alfred Malecki and Nancy Malecki, Husband and Wife et al., 75C01-0507-PL-050. On January 28, 2010, the trial court held a hearing on the motion and took the motion under advisement; however, it failed to issue a ruling on the motion.

A bench trial was conducted on the appeal of the Torrenga Survey from November 16-18, 2010, and the trial court took the matter under advisement. On December 21, 2010, counsel for the Appellees submitted additional authority to the trial court in support of their assertion that the legal survey should be stricken from the record in the Starke County Surveyor’s Office. On January 3, 2011, counsel for the Trust responded to the submission.

On November 10, 2011, the trial court entered findings of fact and conclusions of law in its order finding the Torrenga Survey defective. More particularly, the trial court determined that “while the Court recognizes that it may order a new survey be made by a competent person, the [Court] declines to do so for the reason that the evidence is overwhelming that the [Trust] already has in its possession two (2) surveys prepared by competent persons which clearly show the boundary lines for the Trust property.” Appellant’s App. p. 16. The Trust now appeals.

DISCUSSION AND DECISION

I. Clearly Erroneous Findings

The Trust contends that out of the trial court’s thirty-four findings of fact, fourteen are material and clearly erroneous. As stated above, the trial court entered findings of fact and conclusions of law. Accordingly, we must conduct a two-tiered standard of review. Thompson v. Leeper Living Trust, 698 N.E.2d 395, 397 (Ind.Ct.App.1998). First, we determine whether the evidence supports the findings, and then we determine whether the findings support the judgment. Id. This Court will not set aside the trial court’s findings unless they are clearly erroneous; in other words, they are unsupported by facts in the record or reasonable inferences drawn from the facts. Id.

When determining whether findings are clearly erroneous, we neither reweigh the evidence nor judge the credibility of witnesses and consider only the evidence supporting the judgment. Id. We may affirm the judgment on any legal theory supported by the findings. Id.

At the outset, we note that in response to the Trust’s arguments, the Ap-pellees rely on broad statements with general citations to over 200 pages of transcript. The Indiana Rules of Appellate Procedure require that a party provide a cogent argument with adequate citation. See Ind. Appellate Rule 46(B) (providing that the Appellee’s Brief shall form to Appellate rule 46(A)); Ind. Appellate Rule 46(A)(8) (requiring that “[e]ach contention [ ] be supported by citations to the authorities, statutes and the Appendix or parts of the Record”). This allows the appellant to appropriately respond and prevents the court from becoming an advocate when it is forced to search the entire record for evidence in support of the appellee’s broad statements. Keller v. State, 549 N.E.2d 372, 373 (Ind.1990). We note that this is also inefficient and caution against this practice in the future.

Proceeding to the merits, Thompson is instructive on this issue. In Thompson, the Leeper Living Trust property bordered Jack Thompson’s, Harold Gardner’s, and Syntha Salyer’s property on the south. 698 N.E.2d at 396. Thompson and Gardner requested that a legal survey be performed by Bradley Cramer, whose results were different from the previous survey. Id.

All parties, except the Trust appealed, arguing that it was improperly conducted and inconsistent with prior surveys. Id. The trial court held a hearing and issued findings of fact and conclusions of law, rejecting Cramer’s survey. Id. at 397. The trial court reasoned that “the legal description is presumed correct and that compelling visual evidence at variance with the legal description must exist to support a legal survey which varies from the proper legal description.” Id.

A panel of this Court opined that the “question of the correctness of a survey is one of fact.” Id. The panel noted that the evidence regarding the correctness of Cramer’s survey was in conflict and that the “trial court was entitled to credit evidence of the survey’s inaccuracy and to discount evidence to the contrary.” Id. at 397-98. Accordingly, the panel found no error. Id. at 397.

Likewise, in the instant case, Steve Schrader testified that state law required that a commercial building have a twenty-foot setback from any property line. Tr. p. 440-41. Schrader stated that according to the Turning Point Survey, Progressive Survey, and the Smrt Survey, the barn did not have the required twenty-foot setback from the property line. Id. at 441. Therefore, Torrenga was hired to perform a legal survey.

Surveyor Janovic testified that in his “opinion, [Allen from Torrenga] did not use ... controlling monuments.” Tr. p. 292. He also testified that some of the points located by surveyor Don Mason, who is deceased and whose survey was not admitted into evidence, were “a huge blunder.” Id. at 249. This was significant because Allen had relied upon some of these points in preparing the Torrenga Survey.

Perhaps most compelling, Allen testified that he never searched any of the records of prior ownership of the real estate or obtain information regarding senior rights. Tr. p. 598-99. Similarly, Allen stated that he did not inquire as to how certain improvements got there, who put them there, and how long they had been there. Id. at 598. Thus, similar to Thompson, although there was evidence tending to show the Torrenga Survey was informative, the correctness of the Torrenga Survey was in conflict, and the trial court was entitled to accept the evidence discussed above crediting the survey’s inaccuracy. Consequently, we find no error on this issue.

II. Trial Court’s Judgment Prohibited by Statute

The Trust maintains that the trial court’s judgment that two previous re-tracement surveys control the boundaries between the Trust and the Appellees’ properties is prohibited by Indiana Code section 36-2-12-14. The interpretation of statute is a question of law, which we review de novo. State v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209 (Ind.2012). Our objective when construing a statute is to determine and give effect to the legislative intent of the statute. Chavis v. Patton, 683 N.E.2d 253, 257 (Ind.Ct.App.1997).

When interpreting a statute, the rules of statutory construction apply. Id. The express language of the statute controls, and the statute is interpreted as whole, giving words their common and ordinary meaning. Family & Social Servs. Admin. v. Calvert, 672 N.E.2d 488, 491-92 (Ind.Ct.App.1996). Moreover, we construe statutes in such a way as to prevent absurdity and hardship. Id. at 492. Therefore, we interpret provisions of an act together so that no part of it is rendered meaningless and to harmonize the provision at issue with the remainder of the statute. Pressley v. Newburgh Town Council, 887 N.E.2d 1012, 1018 (Ind.Ct.App.2008).

Indiana Code section 36-2-12-14 describes the process by which a property owner may appeal a survey conducted under Indiana Code section 36-2-12-10. Upon learning that an adjacent property owner has appealed a survey, the surveyor who conducted the legal survey must transmit copies of the relevant field notes and other papers to the trial court. I.C. § 36-2-12-14(b). During the appeal, the trial, court may hear evidence of other surveys and consider parol evidence. I.C. § 36 — 2—12—14(c); see Cleveland v. Obenchain, 107 Ind. 591, 593, 8 N.E. 624, 624 (1886) (“It would produce great confusion, and work much injustice, if parties could only try the correctness of a survey by the descriptions found in the conveyances”).

Most at issue in this case, however, is Subsection -14(c), which provides, in relevant part:

The court may receive evidence of any other surveys of the same premises. If the court decides against the original survey, it may order a new survey to be made by a competent person other than the person who did the original survey, and it shall:
(1) determine the true boundary lines and corners of the lands included in the survey; and
(2) order the county surveyor to:
(A) locate and perpetuate the boundary lines and corners according to the court’s findings by depositing durable markers in the proper places, below the freezing point;
(B) mark the boundary lines and corners; and
(C) enter the boundary lines and corners in his field notes.

(emphasis added).

The Trust argues that “by the plain language of the statute, the trial court only could affirm the survey or order a new one. This is because legal surveys are subject to strict rules in Indiana.” Appellant’s Br. p. 12. The Appellees counter that Subsection 14(c) grants the trial court power to “receive evidence of any other surveys of the same premises.” Appellees’ Br. p. 6. Additionally, the Appellees point out that Subsection 14(c) states that if the trial court rejects the original survey it may order a new a one, but that it is not mandatory. Id. at 7.

The Trust directs us to Indiana Code section 36-2-12-10, which lists the strict requirements that must be met before a legal survey is created. The Trust argues that because the requirements of Section 10 were not satisfied by the two surveys that the trial court’s order imposed on the parties in its order, Section 14 granted the trial court the authority to either accept the Torrenga Survey or order a new survey.

Indiana Code section 36-2-12-10(b) provides, in relevant part:

A landowner desiring to establish the location of the line between the landowner’s land and that of an adjoining landowner by means of a legal survey may do so as follows:
(1) The landowner shall procure a land surveyor registered under IC 25-21.5 to locate the line in question and shall compensate the surveyor.
(2) The land surveyor shall notify the owners of adjoining lands that the land surveyor is going to make the survey. The notice must be given by registered or certified mail at least twenty (20) days before the survey is started.
(3) If all the owners of the adjoining lands consent in writing, the notice is not necessary.
(4) The lines and corners shall be properly marked, monumented by durable material with letters and figures establishing such lines and corners, referenced, and tied to corners shown in the corner record book in the office of the county surveyor or to corners shown on a plat recorded in the plat books in the office of the county recorder.
(5) The land surveyor shall present to the county surveyor for entry in the legal survey record book a plat of the legal survey and proof of notice to or waiver of notice by the adjoining landowners. The land surveyor shall give notice to adjoining landowners by registered or certified mail within ten (10) days after filing of the survey.

Landowners seeking to establish property lines pursuant to a legal survey must follow the statute to the letter. Leons v. Bloemker, 649 N.E.2d 1041, 1043 (Ind.Ct.App.1995). In Leons, a panel of this Court held that because notice of a survey had not been served on a wife who held property as a tenant by the entirety with her husband, who had been provided notice, “the requirements of the legal survey statute were not met. Thus, no legal survey was created.” Id. at 1045.

Here, the Appellees presented no evidence that either the Turning Point Survey or the Progressive Survey satisfied the notice requirements of Section 10. Accordingly, neither created a legal survey. Moreover, the Turning Point Survey was recorded on June 14, 2004, and the Progressive survey was recorded on April 21, 2009 — well beyond the time limit to appeal these surveys. Thus, by imposing upon the Trust two surveys that were recorded beyond the ninety-day time limit to appeal the surveys, the trial court has, in effect, stripped the landowner of the right to appeal those surveys as permitted by Section 14. And as stated above, when interpreting a statute, we strive to give effect to the entire statute.

Nevertheless, the Appellees essentially argue that the trial court may impose boundary lines even in the absence of a valid survey. The Appellees focus on Section 14(c), which states:

The court may receive evidence of any other surveys of the same premises. If the court decides against the original survey, it may order a new survey to be made by a competent person other than a person who did the original survey, and it shall:
(1)- determine the true bounda'ry lines and corners of the lands included in the survey; and
(2) order the county surveyor to:
(A)locate and perpetuate the boundary lines and corners according to the court’s findings by depositing durable markers in the proper places, below the freezing point;
(B) mark the boundary lines and corners; and
(C) enter the boundary lines and corners in his field notes.

(emphases added).

The Appellees focus on the fact that Section 14 states that the trial court “may” order a new survey if it rejects the original one and that the trial court “shall determine the true boundary lines.”

When reading Section 14 as a whole, the trial court has essentially three options: (1) it may accept the original survey; (2) it may reject the original survey and it is permitted to order that a new survey be performed by a different surveyor from the surveyor who performed the original survey; (3) it may reject the original survey and order the county surveyor to locate and mark the boundary lines with durable markers in the proper places according to the trial court’s findings based upon evidence presented to it, including previous surveys.

This interpretation is consistent with the language used in Section 14 and gives effect to the entire section, which we strive to do. Moreover, by requiring the trial court to order the county surveyor to locate and mark the boundary lines according to its findings, in effect, establishes a new legal survey.

Here, although the trial court was well-intended, it misspoke when it concluded that:

while the Court recognizes that it may order a new survey be made by a competent person, the [court] declines to do so for the reason that the evidence is overwhelming that the Lane Alan Schrader Trust already has in its possession two (2) surveys prepared by competent persons which clearly show the boundary lines of the Trust property. That no other adjoining property owners are disputing the boundary lines of their real estate as their property is set out pursuant to the original deed call outs and lies in relation to the Trust property as surveyed by both Turning Point Surveying, Inc., in 2004, and Progressive Engineering in 2005.

Appellant’s App. p. 16.

It is clear that the trial court did not accept the Torrenga Survey and did not choose to order a new survey. Accordingly, in light of the trial court’s findings, which we have already determined were not clearly erroneous, the trial court should have ordered the county surveyor to locate the boundary lines with durable markers in the proper places according to its findings that were based on the evidence. In this case, that evidence was the Turning Point Survey and the Progressive Survey. Consequently, the trial court should have ordered the county surveyor to mark the boundary lines according to the Turning Point Survey and the Progressive Survey rather than simply imposing those two surveys. Put another way, the trial court did not err by accepting the two previous surveys but skipped a step by imposing them. Therefore, we conclude that the trial court erred by imposing the two previous retracement statutes.

CONCLUSION

Although we conclude that the trial court did not err by rejecting the Torren-ga Survey, it did err by imposing the two prior surveys. Strict notice requirements must be satisfied for a legal survey to be conducted, and no evidence was produced to show that proper notice was given before the two previous surveys were conducted. The trial court had three options: It could either accept the Torrenga Survey, order that a new survey be performed, or order the county surveyor to mark the boundary lines according to the trial court’s findings as supported by the evidence. This interpretation is consistent with the language of Section 14 and harmonizes Section 10 and Section 14. Accordingly, we reverse and remand to the trial court with instructions that it enter a new order consistent with this opinion.

The judgment of the trial court is reversed and remanded with instructions.

ROBB, C.J., and BRADFORD, J., concur.

      . A legal survey is typically performed to establish boundary lines between landowners that are in dispute. See Ind.Code § 36-2-12-10. By contrast, a retracement survey is a survey of real property that has been previ ously described in documents conveying an interest in property. 865 Ind. Admin. Code 1-

      . Bradley Cramer of Progressive Engineering admitted at trial that the lines of occupation deviated from the section lines. Tr. p. 194.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    Cody B. HONEYCUTT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 92A04-1203-CR-149.
    Court of Appeals of Indiana.
    Sept. 5, 2012.

      J. Brad Voelz, Warsaw, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Cody B. Honeycutt was arrested and a few days later pled guilty, without counsel, to Class A misdemeanor possession of marijuana and a traffic infraction and was sentenced to one year with all but eight days suspended. When the results of Ho-neycutt’s blood draw came back positive for marijuana a few days later, the State added two more charges under the same cause number: Class A misdemeanor operating while intoxicated and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance in his body. Honeycutt, now represented by counsel, filed a motion to dismiss these charges on grounds that they were barred by the Successive Prosecution Statute because all four charges were connected by a single scheme or plan and therefore should have been charged together. The trial court denied his motion, and Honeycutt was found guilty in a bench trial. Concluding that the trial court abused its discretion in denying Honeycutt’s motion to dismiss, we reverse the trial court.

Facts and Procedural History

At 8:21 p.m. on December 21, 2010, Indiana State Police Sergeant Todd Reed was conducting a traffic stop with his emergency lights activated when Honey-cutt “buzzed” by without slowing down or changing lanes. Tr. p. 39, 41. Sergeant Reed completed his stop and then pursued Honeycutt. When Sergeant Reed stopped Honeycutt, who was the only person in the car, Sergeant Reed “immediately detected a moderate odor of burnt marijuana coming from the inside of the vehicle.” Id. at 39. A hollowed-out cigar was sitting in the ashtray. Sergeant Reed also observed that Honeycutt’s pupils “did not close when the light was shining across his eyes.” Id. at 40. Honeycutt told Sergeant Reed that he had smoked marijuana earlier in the day. Sergeant Reed took Honey-cutt to his police car where he began to write a ticket. When Sergeant Reed told Honeycutt that he smelled raw marijuana, Honeycutt said that he had marijuana in his pocket. Honeycutt took out a baggie of marijuana and handed it to Sergeant Reed. Sergeant Reed told Honeycutt to exit the vehicle, at which point he handcuffed him. Sergeant Reed searched Ho-neycutt’s car but did not find any contraband.

Honeycutt agreed to a blood draw, so Sergeant Reed transported him to Park-view Whitley Hospital, where Honeycutt’s blood was drawn and sent to a laboratory for testing. Sergeant Reed explained the purpose of the blood draw as follows:

Because it is illegal to operate a vehicle with marijuana in your system and [Ho-neycutt] had admitted that he had smoked marijuana and that it was in his system. [I] suspected at the time of [the] arrest that he was operating while intoxicated and operating with a controlled substance in his body.

Id. at 44 (formatting altered). Sergeant Reed filled out an affidavit for probable cause on the form that is used for operating while intoxicated. Id. at 46-47; Def.’s Ex. B. He believed Honeycutt was intoxicated because there was a moderate odor of tar consistent with marijuana coming from inside the car, Honeycutt’s eyes were glassy, and Honeycutt admitted smoking marijuana earlier in the day. Def.’s Ex. B. Sergeant Reed believed there was “probable cause” that Honeycutt operated a vehicle while intoxicated and that he operated a vehicle with a controlled substance in his body. Tr. p. 48.

Two days later, on December 23, 2010, the State charged Honeycutt with only Class A misdemeanor possession of marijuana and Class C infraction failure to yield to a stationary emergency vehicle. At Honeycutt’s initial hearing on December 27, Honeycutt said that he did not want an attorney and that he wanted to plead guilty to both charges. The State explained that the results of Honeycutt’s blood draw were not back yet and there might be additional charges. Id. at 8. The trial court asked Honeycutt if he understood, and he said yes. Id. The court asked Honeycutt if he wanted to wait on the results, but he said no. Id. The court then said do you “just want to go ahead and get this part of it done now? There may not be any more charges, but th[e]n again there might be.” Id. at 8-9. Ho-neycutt agreed and pled guilty to both charges. During the plea process, the court again told Honeycutt, “There may or may not be any more charges. If there are you will deal with it at the time.” Id. at 13. Honeycutt told the trial court “as far as the OWI, um, I admit that marijuana would be on my ...,” but the trial court cut him off before he could say anything else. Id. The trial court sentenced Honey-cutt to one year and suspended all but eight days. The court also suspended Ho-neycutt’s license for 180 days. Honeycutt began serving his jail time that day.

Not surprisingly, Honeycutt’s results came back positive for marijuana on December 30, 2010. Appellant’s App. p. 62. On January 6, 2011, which was ten days after Honeycutt pled guilty to the first two charges, the State filed two more charges under the same cause number: Class A misdemeanor operating while intoxicated (endangering a person), Ind.Code § 9-30-5-2(b), and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance in the person’s body, Ind.Code § 9-30-5-l(c). Id. at 25. But at the initial hearing for these charges, Ho-neycutt pled not guilty and requested an attorney. Tr. p. 24.

Honeycutt later filed a motion to dismiss the new charges on grounds that they violated the Successive Prosecution Statute, Indiana Code section 35 — 41-4-4. The trial court denied the motion. Appellant’s App. p. 52. A bench trial was then held. Honeycutt renewed his motion to dismiss, but the trial court denied it. Honeycutt was convicted of both counts, and sentencing was stayed pending this appeal.

Discussion and Decision

Honeycutt contends that the trial court erred in denying his motion to dismiss the additional charges of operating a vehicle while intoxicated and operating a vehicle with a controlled substance in his body because they violated the Successive Prosecution Statute. He argues that because all four charges arose from the same traffic stop, they were connected by a single scheme or plan and should have been charged together.

We review a trial court’s denial of a motion to dismiss for an abuse of discretion. Haywood v. State, 875 N.E.2d 770, 772 (Ind.Ct.App.2007). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law. Id.

The Successive Prosecution Statute provides in relevant part:

(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
(3)The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.

Ind. Code § 35-41-4-4. The circumstances here satisfy subsections (a)(1) and (a)(2). The issue is whether Honeycutt “should have been charged” with the two operating counts in the former prosecution. See Williams v. State, 762 N.E.2d 1216, 1219 (Ind.2002); Allen v. State, 956 N.E.2d 195, 197 (Ind.Ct.App.2011). The language “should have been charged” must be read in conjunction with Indiana’s join-der statute. Williams, 762 N.E.2d at 1219; Allen, 956 N.E.2d at 197. Indiana’s joinder statute provides in relevant part:

Two (2) or more offenses may be joined in .the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Ind.Code § 35-34-1-9(a). In addition, Indiana Code section 35-34-1-10(c) provides in relevant part:

A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.

Thus, where two or more charges are based on the same conduct or on a series of acts constituting parts of a single scheme or plan, “they should be joined for trial.” Williams, 762 N.E.2d at 1219 (quotation omitted). This statutory scheme provides a check upon the otherwise unlimited power of the State to pursue successive prosecutions. Id. “Where the State chooses to bring multiple prosecutions for a series of acts constituting parts of a single criminal transaction, it does so at its own peril.” Id. To determine whether contemporaneous crimes are part of a single scheme or plan, we examine “whether they are connected by a distinctive nature, have a common modus operandi, and a common motive.” Id. at 1220 (quotation omitted).

Here, the State concedes that all four charges are connected by a scheme or plan and therefore this case falls under the Williams rule. See Appellee’s Br. p. 7. But the State argues that this is irrelevant because the State did not have probable cause to bring the operating charges against Honeycutt at the same time it charged him with possession of marijuana and the traffic infraction. See State v. McDonald, 954 N.E.2d 1031, 1034 (Ind.Ct.App.2011) (“We need not determine whether the alleged offenses were part of a single scheme or plan because, regardless, we cannot say that McDonald ‘should have been charged’ with the offenses against J.M. at the same time as he was charged with the sexual offenses against A.M. and neglect against the three children ... [because] [pjrobable cause was necessary to charge McDonald with the offenses related to J.M.”). We do not agree. We find that there was probable cause to charge Ho-neycutt with the operating offenses at the same time he was charged with possession of marijuana and the traffic infraction.

The record shows that Sergeant Reed pulled over Honeycutt for failing to yield to a stationary emergency vehicle. When Sergeant Reed approached Honeycutt, the lone occupant of the car, he “immediately detected a moderate odor of burnt marijuana coming from the inside of the vehicle.” Tr. p. 39. A hollowed-out cigar was sitting in the ashtray. In addition, Honey-cutt’s eyes were glassy, and his pupils did not react when a flashlight was shined in his eyes. Honeycutt admitted smoking marijuana earlier that day, and he had marijuana in his pocket. As a result of these facts, Sergeant Reed took Honeycutt to the hospital for a blood draw and filled out the probable-cause affidavit form that is used for OWIs. Sergeant Reed later testified at Honeycutt’s bench trial that he believed he had probable cause that Ho-neycutt operated a vehicle while intoxicated and operated a vehicle with a controlled substance in his body. Id. at 48. Notably, it is a crime to operate a vehicle with marijuana in your body, even if you are not “intoxicated.” I.C. § 9-30-5-l(c). Unlike McDonald, upon which the State relies on appeal, here the State was aware of the basis of the operating charges and had evidence to support these charges when it filed the Class A misdemeanor possession of marijuana and traffic infraction on December 23, 2010, which was two days after Honeycutt’s arrest.

Although the lab results were no doubt an important piece of evidence for the State, the State also had Honeycutt’s admission that he smoked marijuana earlier that day, marijuana from Honeycutt’s pocket, and Sergeant Reed’s observations of Honeycutt. If the State believed that the lab results were the key piece of evidence it needed to file the operating charges, then it should have completed its investigation, dismissed the initially-filed Class A misdemeanor possession of marijuana and traffic infraction, and filed all four charges at the same time. See McDonald, 954 N.E.2d at 1085 n. 2 (“Prosecutors are not under a duty to bring charges as soon as probable cause exists. In fact, they are vested with broad discretion in the performance of their duties, and such discretion includes the decision of whether and when to prosecute.” (emphasis added) (citations omitted)). Because the four charges were supported by probable cause and based on a series of acts so connected that they constituted parts of a single scheme or plan, they should have been charged in a single prosecution.

Nevertheless, the State argues that Honeycutt waived this issue because both the trial court and the prosecutor warned Honeycutt before he pled guilty to Class A misdemeanor possession of marijuana and the traffic infraction that the results of his blood draw were pending and additional charges might be coming. The trial court asked Honeycutt, do you “just want to go ahead and get this part of it done now? There may not be any more charges, but th[e]n again there might be.” Tr. p. 8-9. The unrepresented Honeycutt then pled guilty to Class A misdemeanor possession of marijuana and the traffic infraction.

Indiana Code section 35-34-l-10(c) provides:

A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.

(Emphases added). As this Court explained in Allen,

prior holdings of both this and the Indiana Supreme Court as well as the express language of Indiana Code section 35-34-l-10(c) contemplate that dismissal of a subsequent matter is still available after the resolution of the first matter so long as the defendant requests the dismissal before the beginning of the second trial. See Williams, 762 N.E.2d at 1219; Haywood, 875 N.E.2d at 773-74; [State v.] Wiggins, 661 N.E.2d [878, 880-81 (Ind.Ct.App.1996) ]. We see no reason to stray from the prior decisions of the Indiana Appellate Courts, or to circumvent the wisdom of the General Assembly regarding when a defendant must object to a successive prosecution under the Successive Prosecution Statute, and accordingly reject the State’s invitation to do so.

956 N.E.2d at 198.

Even if we assume that a defendant can waive this issue when he knows that a second set of charges may be on the horizon, there was no valid waiver here because Honeycutt was neither aware of the rights he was waiving under the Successive Prosecution Statute nor was he represented by an attorney. We therefore cannot say that Honeycutt waived his challenge under the Successive Prosecution Statute.

The trial court abused its discretion in denying Honeycutt’s motion to dismiss the charges of Class A misdemeanor operating while intoxicated and Class C misdemean- or operating a vehicle with a Schedule I or II controlled substance in his body.

Reversed.

MATHIAS, J., and BARNES, J., concur.

      . In McDonald, when the State charged the defendant with child molesting and other counts related to one of his children, A.M., his other child, J.M., was unable to communicate due to severe speech delays and impaired hearing. Consequently, J.M. made no allegations against the defendant at that time. But when J.M.’s speech improved greatly over a year after the defendant pled guilty to a charge related to A.M., J.M. accused the defendant of child molesting. This Court held that the State did not have adequate evidence to charge the defendant with molesting J.M. until over a year after he pled guilty to the charge related to A.M. and therefore there was no violation of the Successive Prosecution Statute. McDonald, 954 N.E.2d at 1034-35. The facts of this case are readily distinguishable.


author: CRONE, Judge.

text:
    Patrick NICHOLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 31A01-1112-CR-599.
    Court of Appeals of Indiana.
    Sept. 6, 2012.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Patrick Nichols appeals his convictions for class C felony burglary, class D felony theft, and class A misdemeanor criminal mischief, contending that in closing argument, the prosecutor, violated his Fifth Amendment privilege against self-incrimination by improperly commenting upon his decision not to testify and that the resulting error is fundamental. We agree and therefore reverse his convictions and remand for a new trial.

Facts and Procedural History

At 8:19 a.m., on April 14, 2011, the burglary alarm sounded in the Wilson General Store and gas station in Elizabeth. Store owner Emmett Wilson and Harrison County Police Officer Steven Coleman went to the store. They observed that the air conditioning unit had been removed from the store’s front window and that the alarm system had been ripped off the wall. They also found that the locked cigarette cabinet had been pried open and the cigarette packages and cartons had been removed and placed in garbage bags. Officer Coleman searched the store but did not find anyone. Wilson put the cigarettes back in the cabinet, cleaned up the store, and went home.

Between 6:00 and 7:00 a.m., someone placed multiple phone calls from the store. No one was authorized to make calls from the store before 8:00 a.m. The store’s phone records reveal a list of long-distance phone calls made from the store between 6:00 and 7:00 a.m. The phone records indicate that one of the phone numbers belonged to the cell phone of Nichols’s mother, Helen Nichols, with whom Nichols lived. State’s Ex. 1, Tr. at 118-19. At trial, Helen claimed that she had been asleep, having taken a sleeping pill earlier, and did not hear her cell phone ring. Another phone number listed on the store’s phone records belonged to a former coworker of Nichols. Tr. at 229.

Around 6:45 a.m., Nichols’s ex-girlfriend, Erica Lorenzo, received a phone call on her “pay-as-you-go”-phone from a phone number she did not recognize. Id. at 142. She answered and discovered that it was Nichols. He told her that “he was at Elizabeth gas station” and offered her cigarettes and money to pick him up, but she declined. Id. at 145-46. Nichols also asked her if she knew anyone who could pick him up, but she did not. Later that day, Lorenzo called the number from which Nichols had phoned her and discovered that the number belonged to Wilson General Store, and she called the police. The store’s phone records do not list Lorenzo’s phone number among the numbers called between 6:00 and 7:00 a.m. Officer Coleman looked at the display on Lorenzo’s cell phone, which indicated that she received a call from the store at 6:48 a.m. on April 14. Id. at 208-09.

Sometime after 7:00 a.m., Pamela Stewart was driving past Wilson General Store and saw a person standing near a purple PT Cruiser in the alley adjacent to the store. She saw another person sitting in the Cruiser’s driver’s seat. She also saw that the metal siding on the store had been pried open. The person in the alley got into the Cruiser, and they drove off. Stewart followed them and wrote down the vehicle’s license plate number, which she provided to police. Later investigation revealed that Helen had a purple PT Cruiser with a license plate number that differed by only one “alpha character” from the license plate number that Stewart provided to police. Id. at 114-15.

Also sometime after 7:00 a.m., Wilson returned to the store. He was entering the store’s back door when a woman ran up to him, gave him a license plate number, and told him that someone was exiting the “sliding doors” in the alley. Id. at 65. He went to the alley and saw that the metal siding on the store had been pried open. Inside the store, he discovered that the cigarette cabinet had been pried open again and all the cigarettes were gone.

The State charged Nichols with class C felony burglary, class D felony theft, and class A misdemeanor criminal mischief. At trial, the State presented the testimony of Wilson, Officer Coleman, Lorenzo, and Stewart. The defense presented the testimony of Helen and Nichols’s current girlfriend, Natalie Isaac. During closing argument, the prosecutor reviewed the evidence that Officer Coleman had gathered and described it as “not a lot.” Id. at 343. The prosecutor told the jury that the “crucial evidence in this case is Erica Lorenzo,” and asked, “What motive did she have to make this up?” Id. The prosecutor later stated,

Now I usually don’t comment on a person’s [F]ifth [Ajmendment right but I’m gonna make an exception in this case and ... and the Court’s gonna instruct you, already has, not to consider that[] as any evidence. I had a case one time that went to trial and it was two motorcycle outlaws. I was trying ... trying one first. He got convicted and then I called him as a witness in the second case. He lost his memory. And so I tried the other outlaw and, uh, I’m telling you our evidence was razor thin and, uh, the defendant had a, I consider a really good defense attorney. I don’t think he’s practicing any more. He’s out of Jeff. He and I used to be enemies and then we became friends but beyond that in that case the defendant did take the stand and testify. And he was convicted and the foreman was an acquaintance of mine, of the jury, and told me afterwards and every time I saw him afterwards, if the defendant had not have testified he would have been a free man.
So there are reasons that people exercise their [F]ifth [Ajmendment right, valid reasons. And I think in that one, like I said I thought the case was ... our case was razor thin by it being a murder trial, I still do, and there was just one little item of evidence that the defendant testified to and that’s what the jury used to convict him. Like, uh, Johnny Martin told me, and he was- the foreperson of the jury, for years every time I’d see him he’d say if he hadn’t testified he’d been a free man.
I’m still wondering, uh, what motive there is for Erica to call dispatch and say, look, I got a call from my ex-boyfriend at 6:48 a.m. and he wanted me to come to Elizabeth and pick him up at a gas station.

Id. at 346-47. Nichols’s defense counsel did not object. The jury found Nichols guilty as charged.

Discussion and Decision

Nichols asserts that his convictions must be reversed because the prosecutor’s comments on his Fifth Amendment right against self-incrimination constitute prose-cutorial misconduct rising to the level of fundamental error. Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection, but he must also request an admonishment; if the admonishment is not given or is insufficient to cure the error, then he must request a mistrial. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Nichols concedes that he did not object to the prosecutor’s comments and therefore did not properly preserve his claim.

To prevail on a claim of prose-cutorial misconduct that has been procedurally defaulted, the defendant must establish not only the grounds for the prosecutorial misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim of prosecutorial misconduct, we “ ‘determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected.’ ” Booher v. State, 773 N.E.2d 814, 817 (Ind.2002) (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind.2001)). “Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.” Cooper, 854 N.E.2d at 835. “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Id.

Fundamental error is an “extremely narrow exception” to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of prosecutorial misconduct to rise to the level of fundamental error, it must “make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm.” Booher, 773 N.E.2d at 817 (citation, quotation marks, and brackets omitted). “The element of harm is not shown by the fact that a defendant was ultimately convicted.” Davis v. State, 835 N.E.2d 1102, 1107 (Ind.Ct.App.2005), trans. denied (2006). “Rather, it depends upon whether the defendant’s right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.” Id. at 1107-08. “The mere fact that an alleged error implicates constitutional issues does not establish that fundamental error has occurred.” Schmidt v. State, 816 N.E.2d 925, 945 (Ind.Ct.App.2004) (citing Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)), trans. denied. (2005).

The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege extends to the States through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court held that the Fifth Amendment prohibits the prosecution from commenting on a defendant’s decision not to testify at trial. See also Ziebell v. State, 788 N.E.2d 902, 913 (Ind.Ct.App.2003) (stating that Fifth Amendment prohibits prosecutor from commenting at trial on defendant’s decision not to testify). The Griffin Court noted that a comment on the defendant’s refusal to testify is “a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlaws.” Id. (citation and quotation marks omitted).

“ ‘The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence.’” Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.2001) (quoting Moore v. State, 669 N.E.2d 733, 739 (Ind.1996)). The defendant bears the burden of showing that a comment improperly penalized the exercise of the right to remain silent. Moore, 669 N.E.2d at 739.

Nichols argues that the prosecutor’s comment was similar to those in Reynolds v. State, 797 N.E.2d 864 (Ind.Ct.App.2003), and Herron v. State, 801 N.E.2d 761 (Ind.Ct.App.2004), in which we concluded that the prosecutors improperly commented upon the defendant’s failure to testify, resulting in fundamental error. In Reynolds, the prosecutor stated,

Was [sic] Aaron and Rachel [two of the State’s witnesses] both lying? [Reynolds] takes the 5th Amendment. You take the 5th Amendment when you got something to be concerned about. Incriminating yourself. 5th Amendment. My constitutional right not to incriminate myself. That’s what that means. So in order for that to apply you have to have done something to incriminate yourself.

797 N.E.2d at 868 (citation omitted). In Herron, the prosecutor stated in closing that “but as for not presenting the gun to you, that actually fired those bullets, members of the jury, right over there at that table, that’s the only one in the courtroom that can certainly tell us where that gun is.” 801 N.E.2d at 765.

Here, the prosecutor specifically stated that he did not normally comment upon a defendant’s decision to exercise Fifth Amendment rights but that he was going to make an exception in this case. The jury reasonably could have interpreted this to mean that whatever the prosecutor was going to say next related to Nichols’s decision to exercise his Fifth Amendment privilege against self-incrimination. The prosecutor then discussed at length another case in which the evidence was extremely thin but the defendant was convicted because he chose to testify and in testifying he provided the jury with evidence of his guilt. The prosecutor stated that the defendant testified “about one little item of evidence,” and “that’s what the jury used to convict him.” Tr. at 346-47. The prosecutor twice told the jury that the foreman told him that if the defendant had not testified, he would have been “a free man.” Id. The jury reasonably could have inferred that the prosecutor was suggesting that Nichols decided not to testify so as to avoid incriminating himself. We conclude that the prosecutor’s comments reasonably could be interpreted as an invitation to draw an adverse inference from Nichols’s silence. See Boatright, 759 N.E.2d at 1043. In fact, we think it is obvious that the prosecutor was suggesting that the jury draw an inference of guilt from Nichols’s decision not to testify. Given the obviousness of the prosecutor’s comments and the fact that the evidence of guilt was not overwhelming in this case, we conclude that the comments placed Nichols in a position of grave peril and constituted clearly blatant violations of basic and elementary principles of due process that presented an undeniable and substantial potential for harm. See Booker, 773 N.E.2d at 817.

The State appears to concede that the prosecutor’s remarks were improper but argues that the impropriety does not result in fundamental error, citing Owens v. State, 937 N.E.2d 880 (Ind.Ct.App.2010), trans. denied (2011). In Owens, the defendant was accused of child molesting, and the victim, C.R., testified at trial. The prosecutor stated in closing that “[u]lti-mately, you can rely on [C.R.’s] testimony. And in all honesty, in large part, if not exclusively, that’s what you have to rely on. Because the reality is, other than Mr. Owens, she is the only one who knows what happened to her that night.” Id. at 894 (citation and quotation marks omitted). We concluded that the prosecutor’s statement reasonably could have been interpreted as an invitation to draw an adverse inference from the defendant’s failure to testify. Id. However, we concluded that the improper comment did not rise to the level of fundamental error because the comment was an isolated statement in a trial in which the victim testified and was vigorously cross-examined and recross-examined and the victim’s mother and investigating detective both testified and were vigorously cross-examined.

The State contends that fundamental error did not occur because (1) the prosecutor did not directly state that Nichols invoked his Fifth Amendment right not to testify in order to avoid incriminating himself and (2) jury instructions cured any error. The first contention is meritless. As we have already concluded, the prosecutor’s comments were an obvious invitation to the jury to draw an adverse inference from Nichols’s failure to testify. Moreover, the “Fifth Amendment protects a defendant from having the prosecution make direct or indirect comments regarding their silence.” Hand v. State, 863 N.E.2d 386, 396 (Ind.Ct.App.2007) (citing United States v. McClellan, 165 F.3d 535, 548 (7th Cir.1999)).

As for the jury instructions, the State asserts that the trial court instructed the jury that it must not consider the attorneys’ statements as evidence, that Nichols must not be convicted on suspicion or speculation, and that Nichols was not required to present any evidence to prove his innocence or explain anything. Id. at 23, 367; 20, 365; 19, 364. The prosecutor’s comments here go to speculation regarding the invocation of the Fifth Amendment right, not its existence. We are unpersuaded that any of these instructions mitigated the peril or cured the harm that the prosecutor’s comment created by so obviously suggesting to the jury that Nichols’s did not testify so as not to incriminate himself.

Based on the forgoing, we conclude that the prosecutor’s improper comments violated Nichols’s Fifth Amendment rights and resulted in fundamental error. We therefore reverse Nichols’s convictions and remand for a new trial.

Reversed and remanded.

RILEY, J., and BAILEY, J., concur.

      . “[T]hat” apparently refers to argument of counsel and not the defendant’s Fifth Amendment right against self-incrimination. The State agrees that the prosecutor was telling the jury that it could not consider his comments as evidence. Appellee’s Br. at 6 (citing Tr. at 346).

      . Nichols asserts that the Reynolds court held that when a prosecutor commits fundamental prosecutorial misconduct, "the trial court must sua sponte interrupt the prosecutor and admonish the jury.” Appellant's Br. at 13. We disagree. In Reynolds, the court made the unremarkable statement that "when an improper statement by the prosecutor amounts to fundamental constitutional error, no request for admonition is required.” 797 N.E.2d at 869. By definition, when this Court is considering whether a prosecutor committed fundamental error, it means that the defendant failed to properly preserve his or her claim by objecting and requesting an admonishment.

      . We observe that the prosecutor told the jury that the trial court had and would instruct them not to consider his comments as evidence. Tr. at 346. Such comments do not inoculate the prosecutor from subsequent improper comments.


author: PYLE, Judge.

text:
    Phillip A. COLLINS, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Home Equity Loan Trust Series Act 2004-HE3, Appellee.
    No. 45A03-1111-MF-600.
    Court of Appeals of Indiana.
    Sept. 11, 2012.

      Robert E. Stochel, Merrillville, IN, Attorney for Appellant.

      Carl A. Greci, Angela K. Hall, Ryan G. Milligan, South Bend, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF CASE

Phillip A. Collins (“Collins”) appeals the trial court’s grant of summary judgment in favor of HSBC Bank USA, N.A., As Trustee for Home Equity Loan Trust Series Act 2004-HE3 (“HSBC”). We affirm.

ISSUES
1. Whether the trial court erred in not concluding that there was a genuine issue of material fact regarding HSBC’s status as the holder and/or owner of the note in a mortgage foreclosure action.
2. Whether the trial court erred in denying Collins’ request to conduct additional discovery regarding HSBC’s status as the holder and/or owner of the note.
3. Whether the trial court erred in granting summary judgment on counterclaims regarding the acts of HSBC’s agent.

FACTS

On or about August 27, 2004, Collins executed and delivered to WMC Mortgage Company (“WMC”) an adjustable rate note in the original principal sum of $201,400.00, evidencing a loan in that sum for the purchase of real estate and improvements. On the same day, in order to secure repayment of the sums under the note, Collins executed a mortgage, wherein Mortgage Electronic Registration Systems, Inc., (“MERS”) as nominee for WMC, was granted a security interest in the real estate.

In December 2004, America’s Service Company (“ASC”) began servicing the loan under the terms of the original loan documents. Collins remitted his payments under the loan to ASC and communicated with ASC regarding issues related to the loan. Under the terms of the loan, mortgage payments were due on the first of each month, with a fifteen-day grace period after which ASC assessed a late fee. Under the terms of the loan, if Collins missed a payment, his next payment was applied to the principal and interest for the missed month.

In November 2006, Collins experienced financial difficulties, so he contacted ASC to request that his loan payments be restructured. ASC agreed to enter into a temporary forbearance agreement, dated November 1, 2006. This agreement changed the payment due date to the 15th day of each month and allowed Collins to spread his missed October 2006 payment over equal installments through July 2007, during which time the holder of the loan would forbear from exercising its contractual right to accelerate the total amount of the loan. The agreement provided, however, that all of the provisions of the note and the mortgage would remain in effect unless stated otherwise and that credit bureau reporting would continue during the agreement’s term. With reference to credit bureau reporting, the agreement stated • that the “contractual due date of your loan will continue to be reported to the credit bureaus on a monthly basis. While this Agreement is in effect, there may be a special notation: ‘Paying under a partial payment Agreement.’ ” (Collins’ App. 263).

On April 1, 2007, ASC agreed to enter into a second forbearance agreement. This agreement changed the payment due date to the 27th day of each month. The agreement did not alter ASC’s right to impose late fees and make credit reports.

In or around September 2007, Collins stopped making payments on the loan. Collins was provided with a notice of default and with notice of intent to accelerate the indebtedness pursuant to the loan. Thereafter, HSBC, as holder and/or owner of the note, filed a foreclosure complaint.

The trial court entered summary judgment for HSBC on its foreclosure complaint and on Collins’ counterclaims. This appeal followed.

DECISION

1. HSBC’s Status as Holder of the Note

Collins challenges the trial court’s grant of HSBC’s summary judgment motion. The standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003) (citing Indiana Trial Rule 56(C)). The moving party bears the burden of designating evidence showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Pfenning v. Lineman, 947 N.E.2d 392, 396 (Ind.2011). Once met, the burden shifts to the non-movant to specifically designate facts showing that there is no genuine issue for trial. Id. at 397. All facts and reasonable inferences drawn from those facts are construed in favor of the non-movant. Reeder, 788 N.E.2d at 1240. Review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court. Id.

In its order granting summary judgment, the trial court found that HSBC was the current holder of the note and mortgage and that HSBC was entitled to a judgment on the note and to foreclose on the mortgage. Collins contends that the trial court erred in granting HSBC’s motion for summary judgment because two affidavits filed by HSBC in support of its motion created a material issue of fact. Specifically, Collins claims that the affidavits “compete” because both affidavits state that the attached copy of the note is “true and accurate,” when one of the attached copies of the note contains WMC’s endorsement to HSBC and the other does not. Collins’ Br. at 11-12.

In the first affidavit, ASC foreclosure litigation specialist Jaime Walls avers that HSBC is the “present owner and holder of the [note, mortgage, and assignment].” (Collins’ App. 183). ■ Walls also avers that the note, mortgage, and assignment of the mortgage attached to HSBC’s complaint are “true and accurate copies of documents evidencing the indebtedness of Collins to HSBC and securing that indebtedness .... ” Id. The note attached to the complaint is not endorsed by WMC.

Because the note attached to the complaint was not endorsed, Collins requested that the trial court deny HSBC’s motion for summary judgment, arguing that HSBC had failed to show that it was the holder and/or owner of the WMC note. In a second, supplemental affidavit, ASC default litigation specialist Robert Williams avers that he “took over handling of this matter from ... Jaime Walls.” (Collin’s App. 305). Williams also avers that HSBC is “the present holder and owner of the Collins’ Note and Mortgage” and that ASC, “as servicer of Collins’ Mortgage Loan, is entitled to enforce the Note and Mortgage on HSBC’s behalf.” (Collin’s App. 305-06). Attached to Williams’ affidavit is a copy of the original note, which includes an endorsement by WMC to HSBC. This endorsement reads as follows: “Pay to the order of HSBC Bank USA, National Association as Trustee, in trust for the registered holders of ACE [sic] Securities Corp. Home Equity Loan Trust, Series 2004-HE3, [illegible] Backed Pass-Through Certificates.” (Collins’ App. 312).

Collins maintains that the trial court had to weigh the evidence to conclude that HSBC is the owner of the note. Our review of the summary judgment hearing discloses that HSBC presented the original note with Collins’ inked signature and that the note contained the endorsement from WMC to HSBC. The endorsement evidences HSBC’s right to enforce the note. See Ind.Code § 26-l-3.1-204(c) (“For the purpose of determining whether the transferee of an instrument is a holder, an endorsement that transfers a security interest in the instrument is effective as an unqualified endorsement of the instrument”); I.C. § 26-1-3.1-301(1) (defining the holder of the instrument as a “[pier-son entitled to enforce” an instrument); I.C. § 26-l-l~201(A) (defining a “holder” as “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person if the identified person is in possession of the instrument”). There is only one inference to be drawn here: HSBC is the holder and owner of the note, and as such, it is entitled to enforce the note. Accordingly, the trial court did not err in granting summary judgment on this issue.

2. Denial of Motion to Conduct Additional Discovery

Collins contends that the trial court erred in denying its motion to conduct additional discovery into the ownership of the note. The decision to grant a continuance of summary judgment deadlines is committed to the sound discretion of the trial court. Logan v. Royer, 848 N.E.2d 1157, 1160 (Ind.Ct.App.2006) (citing Ind. Trial Rule 56(1)). An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Our supreme court has stated that it is generally improper for a trial court to grant summary judgment “while reasonable discovery requests that bear on issues material to the motion are still pending.” Quiring v. GEICO General Ins. Co., 953 N.E.2d 119, 132-33 (Ind.Ct.App.2011). However, in order to establish that a trial court abused its discretion in denying a motion for continuance, “the appealing party must show both that good cause existed to grant the motion and that it was prejudiced by the denial.” Id. at 133.

Here, Collins initially refers to two potential areas of additional discovery: (1) the validity of the assignment from WMC to HSBC and (2) “the facts and circumstances involved in HSBC acting as trustee for an entity known as ‘Home Equity Loan Trust Series ACT 2004-HE3.’ ” Collins’ Br. at 15. We conclude that neither inquiry could lead to the development of a material issue of fact. As discussed above, HSBC, as the holder of the endorsed note, is entitled to enforce the note under Indiana Code sections 26-1-3.1-204(c), 26-1-3.1-301(1), and 26-l-l-201(A). Also, the existence of the trust could not have come as a surprise to Collins, as the complaint caption and first line of the complaint specifically state that the plaintiff is “HSBC Bank USA, National Association, As Trustee For Home Equity Loan Trust Series ACE [sic] 2004-HE3.” (Collins’ App. 22).

Collins also refers to “nationwide litigation, state and federal investigations, and thousands of articles and conclusions reached by courts that the process and procedure of assignment and transfer of mortgage notes is rife with fraud, disingenuous affidavits and inappropriate conduct by mortgage companies and their loan servicers.” Collins’ Br. at 15. While Collins’ allegation may or may not be true, it does not address the designated facts of this case. The evidence shows not only that HSBC is in possession of the original note but also that the original note was endorsed to HSBC. There exists no better evidence to establish that HSBC is the present holder of the note entitled to enforce the note under Indiana law. Under these circumstances, we cannot conclude that Collins showed either good cause to grant the motion for additional discovery or that he was prejudiced by the denial. Accordingly, we conclude that the trial court’s denial of Collins’ motion was not erroneous.

3. Counterclaims

Collins contends that the trial court erred in granting summary judgment on his counterclaims against HSBC. In these counterclaims, Collins contends that ASC breached its contractual duties when it continued to charge late, fees and to make negative credit reports after the parties entered into the forbearance agreements. Collins also contends that ASC violated a provision of the Indiana Home Loan Practices Act (“IHLPA”), Indiana Code section 24-9-2-7. HSBC’s liability under the counterclaims is based on Collins’ contention that HSBC, as the principal, is liable for the wrongful conduct of ASC as HSBC’s agent.

In granting summary judgment to HSBC on Collins’ counterclaims, the trial court entered findings of fact and conclusions of law. The trial court recognized that under the counterclaims, HSBC’s alleged liability is derivative of ASC’s liability, and the trial court found the following:

There is no genuine issue of material fact or law with respect to Collins’ Counterclaims against HSBC, as set forth in the briefs and accompanying designations, and also as set forth more fully in the opinions in the companion case filed against HSBC’s servicer [ASC], Collins v. America’s Servicing Co., Cause No. 2:08-CV-0122 RM, alleging the same claims and same facts against ASC as against HSBC, wherein Judge Robert L. Miller, Jr., of the United States District Court for the Northern District of Indiana, granted summary judgment in favor of ASC and against Collins and the Seventh Circuit recently affirmed Judge Miller’s decision in Collins v. America’s Servicing Co., 652 F.3d 711 (7th Cir.2011).

(Collins’ App. 18).

On appeal and during the summary judgment proceedings below, HSBC contended that the doctrine of collateral estoppel is applicable under the circumstances of this case. Under Indiana law, collateral estoppel or “issue preclusion” bars a party from relitigating any fact or issue that it necessarily adjudicated in a former suit. Sullivan v. American Cas. Co. of Reading, Pa. et al., 605 N.E.2d 134, 137 (Ind.1992). Thus, collateral estoppel does not require previous litigation of the same claims. Rather, a party’s adjudication of an issue will be conclusive in later actions where (a) he had a full and fair opportunity to litigate the issue and (b) the use of collateral estoppel would not otherwise be unfair. Id. at 138. Moreover, we recognize the use of “defensive” collateral estoppel to promote judicial economy by foreclosing a plaintiff from asserting a claim previously litigated and lost against another defendant. Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 167-68 (Ind.1996).

Here, as noted above, Collins’ counterclaims against HSBC solely derive from HSBC’s purported liability for the alleged wrongdoing of ASC, HSBC’s agent. Our comparison of the federal opinions granting and affirming summary judgment against Collins and in favor of ASC on breach of contract and deceptive acts under the IHLPA to the counterclaims raised in this suit against HSBC discloses that Collins is attempting to relitigate its claims against ASC. Indeed, the federal opinions exactly track the allegations made in the present case, albeit without reference to HSBC.

Under the circumstances of this case, where Collins does not contest the application of the collateral estoppel doctrine, has not shown an absence of a full and fair opportunity to litigate the issue in the chosen federal court system, and has not shown how the use of estoppel is unfair, we conclude that he is estopped from asserting claims previously lost and litigated.

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.

      . MERS “operates a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States. Originators and secondary market players pay membership dues and per-transaction fees to MERS in exchange for the right to use and access MERS records.” Christopher L. Peterson, Foreclosure, Sub-prime Mortgage Lending, and the Mortgage Electronic Registration System, 78 University of Cincinnati L. Rev. 1359, 1361 (2010).

      . This section of the IHLPA defines a prohibited "[d]eceptive act” as one where "an act or practice as part of a consumer credit mortgage transaction involving real property located in Indiana in which a person at the time of the transaction knowingly or intentionally (1) makes a material misrepresentation; or (2) conceals material information regarding the terms or conditions of the transaction.”

      . Findings are not required in the summary judgment context, and although they are not binding on this court, they offer valuable insight into the trial court’s rationale and facilitate our review. Golitko v. Ind. Dep’t of Corr., 712 N.E.2d 13, 15 (Ind.Ct.App.1999), trans. denied.

      . Collins contested this contention during the summary judgment proceedings, but he has abandoned his opposition on appeal.