author: CRONE, Judge.

text:
    In the Matter of the Termination of the Parent-Child Relationship of M.A.J. and My.J., (Minor Children), and K.B. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 27A02-1112-JT-1193.
    Court of Appeals of Indiana.
    Aug. 13, 2012.

      David M. Payne, Ryan & Payne, Marion, IN, Attorney for Appellant.
    Deborah S. Burke, DCS Grant County Office, Marion, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

In this case, the trial court terminated the parent-child relationship of twin girls, Ma.J. and My.J., and their parents, KB. (“Mother”) and S.J. (“Father”). The Department of Child Services (“DCS”) initially became involved following Mother and Father’s arrest in relation to a domestic dispute. Mother and Father each admitted that the twins were children in need of services (“CHINS”) based on their history of domestic violence, which had sometimes occurred in the presence of the children. Mother initially engaged in services and was making progress, but after beginning a relationship with a new boyfriend, she began a downward spiral that culminated in her incarceration for about two months.

After her release, Mother admitted that she had been crushing and snorting her prescription medications, and she was accepted into a drug court program. Since then, Mother has stopped taking prescription medications and has been in compliance with the drug court program. Mother will serve no additional time if she successfully completes the program. Mother has not been involved in any new incidents of domestic violence, and she has not been in a relationship since her release. Mother has an appropriate home, has been working, and has been visiting regularly with the girls.

However, the trial court terminated Mother’s parental rights, finding that the conditions that resulted in the children’s removal would not be remedied. In light of the undisputed evidence that Mother had eight months of solid progress in each area of concern, we conclude that DCS did not meet its burden of demonstrating that the conditions resulting in removal would not be remedied. Therefore, we reverse.

Facts and Procedural History

Mother and Father are the parents of twin girls, Ma.J. and My.J., born May 25, 2007. Mother and Father are not married, but Father’s paternity of the twins has been established, and as of September 10, 2009, Mother and Father were living together. On that date, police responded to a domestic dispute involving Mother and Father, and both of the parents were arrested. The twins were briefly left in the care of a neighbor until they were placed with Mother’s half-sister and her husband, and the girls have remained in their care throughput the pendency of this case.

On September 15, 2009, DCS filed petitions alleging that the twins were CHINS. Mother’s oldest child, C.S., who is Ma.J. and My.J.’s half-sister, had also been living with Mother and Father. DCS also filed a CHINS petition in regard to C.S., but that case was resolved when C.S.’s father obtained custody of her. In addition to the facts surrounding the twins’ removal, the petitions noted that Father had previously been convicted of battering Mother in the twins’ presence. Based on statements made by C.S., DCS also alleged that Mother and Father were abusing prescription drugs.

On October 15, 2009, Mother and Father admitted some of the allegations of the CHINS petitions. Specifically, Mother admitted that “there is a history of domestic violence in the home she sharefs] with [Father] and that some disputes have occurred in the presence of her children.” Ex. Vol. at 21. Father also admitted that there was a history of domestic violence. The trial court found the girls to be CHINS based solely on these admissions.

On November 4, 2009, Mother was charged with theft and conspiracy to commit theft, and Father was a co-defendant in that case. The following day, the trial court held a dispositional hearing in the CHINS cases and entered participation orders for Mother and Father. Specifically, Mother was ordered to: participate in counseling and follow any and all recommendations of her therapist; follow the visitation schedule for all three of her children; maintain regular contact with her DCS case manager, Cayce Lowe; continue with home-based case management and follow any and all recommendations; take her medications as prescribed; maintain a safe and stable home for the children; and complete an assessment for drugs and alcohol and follow any and all recommendations for needed services.

On January 25, 2010, Mother began meeting with a therapist, Jeanette Hoekse-ma. Hoeksema felt that mother had “an excellent start to counseling.” Tr. at 66. Mother mentioned being in a relationship with a man named Stacy Hollars. After breaking up with Hollars, Mother “referred to him as controlling.” Id. at 58. Hoeksema felt it was a positive sign that Mother was able to identify problems with the relationship.

As of March 2010, DCS felt that Mother was making good progress, and DCS was working toward reunifying Mother and the twins. However, on April 15, 2010, Mother was restricted to supervised visits. The reason for this is somewhat unclear because only parts of the CHINS record were included in the termination record, and the testimony at the termination hearing was somewhat inconsistent. The girls’ court-appointed special advocate (“CASA”), Gary Herrington, testified that Mother had not been willing to submit information about Hollars for a background check. Herrington also stated that Mother was “getting more agitated,” that he “saw issues with cleanliness with the girls,” and that he “wasn’t pleased with how things were going with service providers.” Id. at 173. Lowe testified that Mother provided information about Hol-lars when requested, and the results of the background check did not raise any safety concerns. Lowe testified that her main concern was that she did not want Hollars to be present during visits because Mother should give the girls her undivided attention. Lowe also mentioned a disagreement that she had had with Mother about the extent of her visitation. Mother wanted two overnights per week with the twins, whereas Lowe thought that she should start with one; Lowe felt that this was an indication that Mother was not “concerned about their best interest.” Id. at 118. At the conclusion of the April 15 hearing, the trial court ordered that Mother’s visits be supervised due to unspecified “safety issues.” Ex. Vol. at 29. Hoeksema testified that Mother took this ruling hard and began to display a defeated attitude.

On May 4, 2010, Mother began home-based services with Elizabeth Dyson. Dyson also supervised Mother’s visits with the twins and C.S. Dyson’s goals for Mother were anger control, managing stress, and improving organization, specifically, keeping track of appointments. Dyson felt that the first three months of working with Mother went well. Dyson saw improvement in Mother’s ability to divide her time between the girls and in her organization. Dyson did not have any concerns about her interaction with the girls.

Father was released from incarceration in the spring of 2010 and remained out for a few months. During this time, Father was permitted to be present for Mother’s visits with the girls. Dyson testified that Mother and Father got along during visits. Hoeksema recalled Mother mentioning Father being at her apartment several times, and Mother said that they were “together for the kids and for friendship.” Id. at 54. Hoeksema testified that she was not aware of any violence between Mother and Father after Father’s release from incarceration. At the termination hearing, Mother acknowledged that she had an “intimate” relationship with Father sometime around April 2010. Id. at 326. He spent the night at Mother’s apartment a few times a week, but did not live there permanently.

On June 28, 2010, Mother was charged with two counts of welfare fraud due to her representation on a food stamps application that there were no other adults living with her, when in fact Father was living with her “on and off.” Id. at 309.

Around July 2010, Mother began dating Eric Warner. Dyson believed that Warner was living with Mother because she saw some “men’s stuff in the bedroom.” Id. at 14. Just a few weeks after she began dating Warner, Mother told Hoeksema and Dyson that they had been shopping for rings. Hoeksema and Dyson both saw Mother start to regress, and her participation in services became inconsistent.

On August 28, 2010, Mother arrived thirty minutes late for an appointment with Hoeksema. Hoeksema noticed that Mother’s eyes were “extremely glassy” and her speech was rapid. Id. at 56. Mother said that she had taken a dose of methadone for back pain, which had been prescribed for her. A few days later, Mother was ordered to begin submitting to random drug screens. Mother did not on any occasion test positive for illicit drugs or for drugs that had not been prescribed for her. On September 10, 2010, Mother arrived at another appointment with Hoeksema with an “extremely runny” nose, and Mother’s speech was “pretty chaotic from topic to topic, pretty high energy, pretty rapid.” Id. at 57. Mother said that she had allergies and that she had also taken a dose of morphine to treat injuries that she had sustained in a car accident. Although Hoeksema was concerned that Mother might be abusing drugs, she also readily acknowledged that she was not qualified to testify to whether her symptoms could have been caused by the legitimate use of her prescription drugs.

On September 15, 2010, Mother was charged with receiving stolen property, obstruction of justice, and assisting a criminal. Warner was a co-defendant in that case. Mother remained in jail until December 28, 2010. DCS stopped providing services after Mother was incarcerated. On November 9, 2010, DCS filed a progress report and permanency plan indicating that DCS wished to proceed to termination. On November 18, 2010, the court approved the permanency plan. When Mother was released from incarceration, she contacted Lowe and asked whether she could resume services. DCS declined to offer Mother additional services.

While Mother was incarcerated, it was determined that she was eligible for drug court, and on December 23, 2010, she signed an agreement to enter drug court. Mother admitted that she had been crushing and snorting her prescription drugs, although it is unclear from the record before us when she began doing this. Pursuant to the terms of the agreement, Mother pled guilty to six of the charges against her; the remaining charge will be dropped if she successfully completes drug court. Mother received a five-year sentence that was suspended except for 200 days, which she has already served; if she does not successfully complete drug court, she will serve a seven-year executed sentence. Mother also agreed to testify truthfully against Warner.

DCS filed the petition for termination of parental rights on March 16, 2011. The factfinding hearing commenced on May 26, 2011, and concluded on August 25, 2011. During this time, Mother made significant progress in the drug court program. Mother is required to submit to random drug screens. Between December 29, 2010, and the conclusion of the termination hearing, Mother had thirty screens, all of which were negative for both prescription and illicit drugs.

On February 14, 2011, Mother got a job. Since then, Mother has been continuously employed, and in May 2011, she was promoted. Mother has been paying child support and will be working with her probation officer to set up a payment schedule to make restitution to the Family and Social Services Administration for the welfare benefits that she illegally received. Mother obtained a referral for a parenting class, which she completed, and she continues to meet one-on-one with a mentor. Mother attends AA and NA meetings each week and meets with a sponsor approximately every other week. Mother will also be participating in the Thinking for a Change program. Mother testified that she would start participating in a women’s trauma group in September 2011 and that scheduling conflicts had prevented her from starting sooner.

By the time that the termination hearing concluded, Mother was in phase three (out of four) of her intensive outpatient treatment and phase two (out of four) of the drug court program. Mother has not had any unexcused absences from treatment, support meetings, or status hearings. The drug court program lasts eighteen months to three years, depending upon the individual’s progress. Mother’s case manager, Abby Runion, and her probation officer, Melissa Stephenson, both testified that Mother was in compliance with the program, that she is “on track” to complete the drug court program, and that Mother appears to be invested in her recovery. Id. at 278. Since her release from incarceration, Mother’s only misstep occurred in March 2011, when she was charged with driving while suspended. Mother was sanctioned for this offense by the drug court, and she will serve no additional time as long as she successfully completes the program.

Mother is renting a one-bedroom apartment and lives by herself. DCS has not expressed any concerns regarding the appropriateness of her living arrangements. Mother has unsupervised parenting time with C.S. every weekend, and no concerns have been raised regarding her ability to parent C.S. Mother has regularly visited with the twins. Lowe and Herrington both acknowledged that the twins appear to enjoy spending time with Mother.

Dyson and Hoeksema both testified at the termination hearing, and both acknowledged that they were not aware of Mother’s progress since the time that services were discontinued. Hoeksema testified that there was a point in time where she would have been comfortable recommending reunification, but at the time services were discontinued, she had “grave concerns” about reunification. Id. at 60.

Lowe testified that Mother had stayed in contact with her, had maintained an appropriate home, did not miss appointments without an appropriate excuse, and has a “very good” relationship with the twins. Id. at 159. Lowe testified that she was recommending termination based on the twins’ need for permanency and the possibility that Mother would resume using drugs or engage in an abusive relationship. However, Lowe acknowledge that Mother was “doing well” with the drug court program. Id. at 155. She did not express concern that Hollars or Warner had been a threat to the twins. Lowe stated that her fear that Mother would resume an abusive relationship was based on the brief period of time that Mother had resumed a relationship with Father in the spring of 2010. However, Lowe acknowledged that there had been no new incidents of domestic violence and she did not expect Mother to avoid contact with Father.

Herrington testified that Mother was “very loving with the children, very good with discipline, and seemed to really care for the girls.” Id. at 171. However, he stated that he was recommending termination because since March 2010, he had “see[n] nothing but a spiral down.” Id. at 179. Herrington acknowledged that he had had very little contact with Mother since the petition to terminate had been filed. He stated that after DCS “has moved to terminate the rights of parents, I no longer concern myself with the parents but concentrate fully on the children.” Id. at 196.

Phillip Howell, the twins’ therapist, also testified at the termination hearing. Howell began working with My.J. in September 2010 and with Ma.J. the following month. Howell testified that the girls initially exhibited some developmental delays. Ma.J. is now on track with children her age, and while My.J. still shows some delays, she has shown improvement. Howell expressed concern that changes in their environment could halt or interrupt their progress, but he had never worked with Mother and could not testify to her ability to provide the needed support. At the time of the termination hearing, the twins were also attending a special needs day care. Mother and Father both testified that they had begun noticing developmental issues when the girls were only a few months old and had already taken steps to address those issues before DOS’s involvement. None of DOS’s witnesses expressed any concern that Mother would be unable or unwilling to address the girls’ special needs.

Runion and Stephenson each testified to Mother’s progress in the drug court program. Although neither one had had the opportunity to see Mother interact with her children, they were not aware of any facts that would make them concerned for her ability to parent them. Stephenson testified that people who are not invested in their recovery typically have multiple rule violations and sanctions or new felony offenses, whereas Mother had been sanctioned only once during the eight months that she had been in the program.

On November 23, 2011, the trial court entered an order terminating Mother and Father’s parental relationship with the twins. The trial court concluded that there “is a reasonable probability that the conditions that resulted in [the twins’] removal and the reasons for their continued placement outside their parents’ care will not be remedied.” Appellant’s App. at 7. The court indicated that it was giving “great weight” to the testimony of Hoeksema, Herrington, and Howell. Id. at 13, 14, 16. The court acknowledged that Mother was “successfully engaging in her Drug Court program” and had “been consistently visiting with the girls.” Id. at 15. However, the court expressed concern “that Mother has unresolved issues regarding her poor choices in men and choices resulting in her criminal convictions.” Mother now appeals.

Discussion and Decision

When reviewing a trial court’s order terminating a parent-child relationship, we will not set it aside unless it is clearly erroneous. Castro v. State Office of Family & Children, 842 N.E.2d 367, 372 (Ind.Ct.App.2006), trans. denied. We will neither reweigh evidence nor judge witness credibility. In re A.I., 825 N.E.2d 798, 805 (Ind.Ct.App.2005), trans. denied. Rather, we will consider only the evidence and reasonable inferences most favorable to the judgment. Id.

In Bester v. Lake County Office of Family & Children, our supreme court stated:

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. A parent’s interest in the care, custody, and control of his or her children is perhaps the oldest of the fundamental liberty interests. Indeed the parent-child relationship is one of the most valued relationships in our culture. We recognize of course that parental interests are not absolute and must be subordinated to the child’s interests in determining the proper disposition of a petition to terminate parental rights. Thus, parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.

839 N.E.2d 143, 147 (Ind.2005) (citations, quotation marks, and alteration omitted). In recognition of the seriousness with which we address parental termination cases, Indiana has adopted a clear and convincing evidence standard. Castro, 842 N.E.2d at 377.

To obtain a termination of the parent-child relationship, DCS must establish that

(A) that one (1) of the following is true:
(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(C) that termination is in the best interests of the child; and
(D)that there is a satisfactory plan for the care and treatment of the child.

Ind.Code § 31-35-2-4(b)(2) (2011).

Mother challenges the trial court’s finding pursuant to subsection (b)(2)(B)(i). “In determining whether the conditions that led to a child’s removal will not be remedied, the trial court must judge a parent’s fitness to care for her child at the time of the termination hearing and take into consideration evidence of changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind.Ct.App.2010) (citations omitted). While the court should “evaluate the parent’s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child,” id., “termination of parental rights cannot be based entirely upon conditions which existed in the past, but which no longer exist.” P.C. v. Dep’t of Pub. Welfare of Allen Cnty., 630 N.E.2d 1368, 1374 (Ind.Ct.App.1994), trans. denied. “The trial court can properly consider the services that the State offered to the parent and the parent’s response to those services.” In re A.B., 924 N.E.2d at 670. DCS is not required to rule out all possibilities of change, but only needs to establish that there is a reasonable probability the parent’s behavior will not change. Id.

The trial court focused on Mother’s behavior leading up to her incarceration in September through December 2010. While this is relevant evidence for the court to consider, ultimately, the court was supposed to determine Mother’s fitness at the time of the termination hearing. Id. at 670.

By the time the termination hearing concluded in August 2011, Mother had un-disputedly made significant progress in each area of concern. Mother was in compliance with the rigorous terms of the drug court program. She was progressing in treatment, attending two weekly support meetings, and meeting regularly with a sponsor. She had provided thirty random drug screens, all of which were negative for illicit and prescription drugs. If she successfully completes drug court, Mother will not serve any additional time.

Furthermore, there has been no indication that Mother has been in any relationship, let alone an abusive one, since her release. Nor were there any additional incidents of violence since the twins’ original removal in September 2009. Mother recognized problems in her relationship with Hollars and ended it, which Hoekse-ma considered a positive sign. That Mother agreed to testify against Warner also tends to show that she recognized that that relationship had become unhealthy as well.

In addition to these positive changes, Mother had an appropriate home, was holding down a job, and was regularly visiting with the twins. No one disputed that Mother and the twins had a positive, loving relationship. Mother has visitation with C.S. every weekend, and no concerns have been raised regarding her ability to parent C.S. and provide her with a safe environment. The twins were making progress in their development through therapy and a special needs preschool, and there was no indication that Mother would be unwilling to do what was necessary to continue supporting their special needs. In fact, there was evidence that Mother had recognized developmental delays even before DOS’s involvement and had been taking steps to address them.

In the eight months leading up to the termination hearing, Mother’s only misstep was the new charge of driving while suspended in March 2011. However, Mother was sanctioned through the drug court and will face no additional consequences as long as she completes the program. When a parent has been involved with drugs or an abusive relationship, there will always be concern about relapse. However, this is not a case where the parent’s progress has been inconsistent or last-minute. We do not feel that it is necessary to speculate about Mother’s potential for relapse. There are no longer any immediate concerns about her ability to parent the twins, and her ability to cope with the added responsibility can be quickly assessed without substantial risk of harm to the twins. See H.G. v. Ind. Dep’t of Child Services, 959 N.E.2d 272, 291-92 (Ind.Ct.App.2011) (reversing termination of incarcerated mother’s parental rights where she had been involved in her children’s cases, had a bond with the children, had maintained contact with the children, attempted to have the children placed with relatives, had taken advantage of self-improvement opportunities while incarcerated, was soon to be released, and her ability to parent could be quickly assessed after her release), trans. denied (2012). We acknowledge that this will cause some disruption in the twins’ lives; however, by all accounts, they have a loving relationship with their Mother, and termination could also be a source of disruption in their lives. “It is well established that the involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.2011). We conclude that DCS failed to meet its statutory burden of proving that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied; therefore we reverse.

Reversed.

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

      . Father was incarcerated throughout most of the CHINS and termination proceedings. He does not participate in this appeal, and the facts of his case will be mentioned only to the extent that they are relevant to Mother’s case.

      . Petitioner's Exhibits 1 and 2 are portions of the CHINS record in My.J.’s and Ma.J.’s cases respectively. Because essentially the same documents were filed in both cases, cited or quoted material often is found in both exhibits, but for the sake of simplicity, we will cite only one exhibit. The exhibits in this case consist solely of documents, and the pages have been sequentially numbered. For ease of locating the cited material, we will cite to the page number of the Exhibits Volume rather than the exhibits themselves.

      . Prior to May 2010, Mother had been working with a different home-based counselor, Johnna Holloway. Holloway did not testify, and there is no information in the record concerning her work with Mother.

      . DCS argues that our decisions state that the parent-child relationship will be terminated when it is no longer in a child’s best interests. See In re M.S., 898 N.E.2d 307, 311 (Ind.Ct.App.2008) ("[W]hen determining what is in the best interests of the children, the interests of the parents are subordinate to those of the child. Thus, parental rights will be terminated when it is no longer in the child’s best interests to maintain the relationship.”) (citation omitted); In re B.D.J., 728 N.E.2d 195, 200 (Ind.Ct.App.2000) ("Because the ultimate purpose of the law is to protect the child, the parent-child relationship will give way when it is no longer in the child’s interest to maintain this relationship.”); Castro, 842 N.E.2d at 372 (same). DCS argues that because Mother has not challenged the trial court's finding that termination is in the children’s best interests, she has effectively conceded that the trial court's order was not erroneous, and we "need go no further in [our] analysis.” Appellee's Br. at 16. Each of the quoted excerpts come from a paragraph discussing the constitutional nature of the parent’s rights; the remainder of the opinions make it abundantly clear that DCS must prove all the statutory elements. We admonish DCS to refrain from this sort of selective citing in the future.

      . We are also concerned that some of the trial court’s findings appear to be unsupported or speculative. For example:
      • In paragraph 10(a), the court states that following the parents' arrest on September 10, 2009, both were charged with battery. While the record is clear that both parents were arrested, we have not found anything in the record indicating that Mother was in fact charged, or if charged, what the disposition of that charge was.
      • In paragraph 10(s), the court stated that Mother had begun, but had not completed a parenting class. The only witness to testify regarding whether Mother had completed the parenting class was Stephenson, who said that Mother had completed the course and was continuing to meet with a mentor.
      • In paragraph 10(u), the court found that Mother had "lied to DCS and other service personnel regarding the status of her relationship with Warner.” Appellant’s App. at 11. Dyson and Hoeksema were the only service providers to testify, and neither indicated that Mother had lied to them about Warner. Dyson stated that she did not think that mother was "being completely truthful” with Lowe, but it is unclear whether this statement was based on her personal knowledge. Tr. at 14. For her part, Lowe did not testify that Mother had lied to her about Warner.
      • In paragraph 10(v), the court found that Mother admitted to substance abuse to be admitted into the drug court program, but when she "was first ordered to complete Drug and Alcohol services on November 5, 2009, in the CHINS proceeding, she. continued to deny substance abuse issues in the CHINS proceeding.” Appellant’s App. at 11. Throughout the termination proceedings and in its appellee’s brief, DCS has repeatedly raised the inference that Mother lied about her drug use throughout the CHINS proceedings. The argument appears to be that because Mother ultimately admitted to abusing prescription drugs, she must have been abusing them all along. However, DCS presented no evidence of when Mother's drug problem began. Mother has not had a single failed drug screen throughout the CHINS or termination proceedings. DCS implies that it had no means for testing whether Mother was abusing her prescription drugs, but the record is silent as to whether such testing is available. DCS presented testimony from Hoeksema that Mother appeared to be under the influence of drugs on two occasions; however, Hoeksema also firmly testified that she was not qualified to testify as to whether the symptoms could have been side effects from the legitimate use of prescription drugs. At any rate, both these instances occurred shortly before Mother was incarcerated and admitted to abusing prescription drugs. DCS even went so far as to suggest that entering a denial to the drug allegations in the CHINS petitions was tantamount to lying. Declining to admit a fact and requiring the party with the burden of proof to go forward with evidence does not constitute lying.
      • In paragraph 10(y), the trial court found that "Hoeksema very firmly testified that she would have ‘grave concerns' about reunification of the girls with their Mother at this point.” Id. at 13 (emphasis added). Hoeksema testified that she had grave concerns as of the time services were terminated in September 2010. Hoeksema readily admitted that she did not know what had happened since then and that it was possible for someone "to make meaningful change over the course of several months.” Tr. at 71.
      • In paragraph 10(ff), the court stated that it gave “great weight” to the CASA’s testimony the he felt that Mother would not be able to provide a safe and stable home for "two to three years down the road.” Appellant's App. at 14. However, we note that Her-rington acknowledged that he had not been keeping himself apprised of Mother's progress since the time that DCS filed the petition for termination because he had already made up his mind that termination was in the twins' best interest. When he was asked why he believed that Mother’s negative behaviors would continue, he stated, "I have been informed by DCS and by [the foster parents] that there have been some situations of anger and resentment.” Tr. at 198. We are not prepared to say that having hard feelings toward DCS or the foster parents, without more, is evidence that Mother is not a fit parent.
      • In paragraph 12, the trial court found that Mother "continues to minimize her own responsibility for the continued placement of the girls outside her care.” Appellant’s App. at 15. This finding appears to be an extension of the findings that Mother had lied about her drug use and relationships. It appears also to be based on Hoeksema's testimony that Mother tended to have a "victim mentality,” i.e., that she tended to blame others and view herself as a victim of circumstances. Tr. at 56-57. As discussed above, Hoeksema has not met with Mother since before her incarceration; thus, Hoeksema's statement is not evidence that Mother has an ongoing problem with accepting responsibility for her actions.
      • Finally, in paragraph 13, the trial court found that "Mother's recent efforts seem to be motivated by the threat of long-term incarceration” and criticized her for not being primarily motivated by reunification with her children. Appellant's App. at 15. This finding strikes us as speculative, but even if supported by the record, we cannot say that the desire to avoid incarceration is a bad motive.
      In sum, the trial court stated that it gave great weight to the testimony of Hoeksema, Her-rington, and Howell. However, it is clear from the record that Hoeksema’s and Her-rington’s testimony did not take into account Mother’s efforts in the eight months since her release from incarceration. Howell has never met with Mother, and no one has expressed any concern that Mother would be unwilling or unable to do what is needed to support the twins’ development.
      Mother has also expressed concern regarding the trial court's finding that there "is a reasonable probability that the conditions that resulted in [the twins’] removal and the reasons for their continued placement outside their parents' care will not be remedied.” Id. at 7. Mother correctly notes that this finding does not track the language of Indiana Code Section 31 — 35—2—4(b)(2)(B)(i), which does not include the word “continued.” Mother argues that the trial court read this provision too expansively and should have considered only the original reasons for the children's removal. DCS cites several cases, which it argues support the more expansive reading of the statute. E.g., In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 266 n. 3 (Ind.Ct.App.2004), trans. denied. We conclude that DCS did not meet its burden under either interpretation of the statute.


source: Caselaw Access Project

author: ROBB, Chief Judge.

license: Public Domain

text:
    Andrew STETLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 01A04-1201-CR-1.
    Court of Appeals of Indiana.
    Aug. 14, 2012.

      Cara Schaefer Wieneke, Special Assistant to the State Public Defender, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a jury trial, Andrew Stetler was found guilty of two counts of child molesting, both Class A felonies, and admitted to being an habitual offender. He was sentenced to a total of ninety years. Stetler raises two issues for our review: whether the evidence presented was sufficient to sustain one of Stetler’s convictions for child molesting, and whether Stetler’s ninety-year aggregate sentence is inappropriate in light of the nature of the offenses and Stetler’s character. Concluding that sufficient evidence was presented and the sentence is not inappropriate, we affirm.

Facts and Procedural History

In July of 2010, Stetler attended a campfire in nine-year-old S.G.L.’s backyard. S.G.L.’s seven-year-old friend, K.H., was also present. During the campfire, K.H. decided to walk to her home next door for a pillow, and Stetler walked with her. When Stetler and K.H. arrived at her house and were on the back porch, Stetler pulled down K.H.’s pants and underpants and licked her “private.” Transcript at 377. After Stetler and K.H. returned to S.G.L’s house, S.G.L. climbed onto Stetler’s lap and fell asleep. S.G.L. awoke when Stetler put his hands down the front of her pants and inside her underwear, touching her “private part” with his finger. Id. at 853. Both girls reported Stetler’s behavior to a neighbor. The neighbor informed the girls’ parents and the parents informed the police. Both girls were taken to the Child Advocacy Center in Fort Wayne, Indiana, where the girls were questioned about Stetler touching them. They were also physically examined by a Sexual Assault Nurse Examiner. During trial, S.G.L. testified that during the examination, the nurse touched her in the same location as Stetler had. The nurse testified that when she used a sterile swab on S.G.L.’s clitoral hood, which is in the interior of the female sex organ, S.G.L. confirmed she was touching her in the same location as Stetler had.

A jury found Stetler guilty of one count of Class A felony child molesting as to each K.H. and S.G.L. Stetler then admitted to being an habitual offender. The trial court sentenced him to thirty years for each conviction, with one sentence enhanced by thirty years for the habitual offender finding. The sentences were ordered to be served consecutively, for a total sentence of ninety years. Stetler now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

Our standard of reviewing claims of sufficiency of the evidence is well settled: an appellate court neither judges the credibility of witnesses nor reweighs the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We consider only the probative evidence and reasonable inferences supporting the verdict and consider conflicting evidence most favorable to the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trans. denied. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. That is, the verdict will not be disturbed if there is sufficient evidence of probative value to support the conclusion of the trier of fact. Boyer v. State, 883 N.E.2d 158, 162 (Ind.App.2008).

B. Evidence of Penetration

Stetler challenges only the sufficiency of the evidence supporting his conviction of child molesting with respect to S.G.L. To convict Stetler of child molesting as a Class A felony, the State was required to prove beyond a reasonable doubt that Stetler, being at least twenty-one years old, performed deviate sexual conduct on S.G.L., who was under fourteen years of age. See Ind.Code § 35-42-4-3(a)(l). For this purpose, “deviate sexual conduct” requires proof of an act involving a sex organ of one person and the mouth or anus of another person; or the penetration of the sex organ or anus of a person by an object. Ind.Code § 35-31.5-2-94. The State alleged Stetler penetrated S.G.L’s sex organ with his finger.

Stetler contends the evidence is insufficient to prove penetration because the “undisputed evidence” is that Stetler’s finger did not penetrate S.G.L.’s sex organ. S.G.L. testified during trial that Stetler “didn’t put his finger inside my private.” Tr. at 359. Nurse Leslie Cook, who conducted the sexual assault examination of S.G.L., testified that S.G.L. also told her that Stetler had touched her “on the outside on her skin.” Id. at 460. However, Nurse Cook also testified that when she was examining S.G.L., she began by using a cotton swab on the external genitalia and then asked S.G.L. if she had felt Stetler’s fingers “anywhere else besides from where I just swabbed.” Id. at 468. S.G.L. indicated she had, so Nurse Cook used a second cotton swab on the internal sex organ and asked S.G.L. to tell her when she was touching what Stetler’s fingers had touched. When Nurse Cook swabbed the clitoral hood, which she had previously testified is an internal feature of the female sex organ, S.G.L. indicated she had felt Stetler’s fingers there. The State asked Nurse Cook if she considered S.G.L.’s indication that Stetler had touched her on the inside of her sex organ to be a “change in story” from her original statement that he touched her only on the outside. Nurse Cook replied, “That would not be a change in her story.... Based upon my experience, it would be the child’s perception. ... She’s very clear to know what the outside part of that female structure’s [sic] feel like and then the area that she indicated, she’s probably not going to know and understand that the clitoral hood is an inside structure.” Id. at 465. Nurse Cook confirmed that S.G.L. “clearly indicated ... that he touched her clitoral hood[.]” Id.

Although at first blush it might appear that S.G.L.’s and Nurse Cook’s testimonies were inconsistent, Nurse Cook testified that based on her experience, a child tends to have a distorted perception of the meaning of words. In our case, S.G.L. knew where Stetler touched her, but because of her youth and limited understanding, she was unable to recognize or verbalize that as an interior part of the female sex organ. Cf. Spurlock v. State, 675 N.E.2d 312, 315 (Ind.1996) (stating that “a detailed anatomical description of penetration is unnecessary and undesirable” in part because “many people are not able to articulate the precise anatomical features that were or were not penetrated”); Short v. State, 564 N.E.2d 553, 558-59 (Ind.Ct.App.1991) (holding that it was reasonable for the trier of fact to infer from child’s testimony that defendant touched her “butt” with his “front butt” — when considered in the context of the entirety of the evidence and the child’s limited vocabulary regarding sex organs and sexual matters — that the defendant had touched the child’s genitalia with his penis, and noting that “[a] conviction for child molesting/sexual intercourse will be sustained when it is apparent from the circumstances and the victim’s limited sexual vocabulary that the victim described an act of sexual intercourse”). Nurse Cook’s testimony is part of the entirety of the evidence which informs S.G.L.’s testimony.

Stetler argues that to prove the crime according to Indiana Code section 35-31.5-2-94, the State would need to show that Stetler entered, more than slightly, into S.G.L.’s female sex organ, comparing the “any penetration of the female sex organ” language defining sexual intercourse, see Ind.Code § 35-31.5-2-302, with “the penetration of the female sex organ” language defining deviate sexual conduct. Stetler posits greater proof of penetration is therefore required for deviate sexual conduct. Our supreme court has held that proof of the slightest penetration is sufficient to prove sexual intercourse. Dinger v. State, 540 N.E.2d 39, 40 (Ind.1989). Whether greater penetration is required to prove deviate sexual conduct is not something we need to decide because S.G.L. confirmed that Stetler touched her on the clitoral hood, which Nurse Cook explained is an internal structure of the female sex organ. The evidence as a whole supports the jury’s finding that Stetler penetrated S.G.L.’s female sex organ and therefore supports his conviction of Class A felony child molesting.

II. Inappropriate Sentence

A. Standard of Review

We may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. See Ind. Appellate Rule 7(B). When examining the nature of the offense and the character of the offender, we may look to any factors appearing in the record. Spitler v. State, 908 N.E.2d 694, 696 (Ind.Ct.App.2009), trans. denied. The burden is on the defendant to demonstrate that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

B. Ninety-Year Sentence

Stetler was sentenced to consecutive thirty-year sentences for each Class A felony child molesting conviction with a thirty-year habitual offender enhancement on count one for an aggregate sentence of ninety years. The sentencing range for a Class A felony is twenty to fifty years imprisonment, with an advisory sentence of thirty years imprisonment. See Ind. Code § 35-50-2-4. In addition, because Stetler was convicted of child molesting involving deviate sexual conduct with a victim less than twelve years of age, he is classified as a credit restricted felon, see Ind. Code § 35-31.5-2-72, and is therefore assigned to credit time Class IV, see Ind. Code § 35-50~6-4(b), earning one day of credit time for every six days he is imprisoned, see Ind.Code § 35 — 50—6—3(d).

Concerning the nature of the offense, Stetler took advantage of two young girls, aged nine and seven, in their own homes. Stetler was a friend of S.G.L.’s family. S.G.L. testified that she experienced burning when she went to the bathroom after Stetler touched her. Concerning the nature of Stetler’s character, he had a prior child molesting conviction in 2003. He violated his probation on that conviction by failing to register as a sex offender and was re-incarcerated. He was released just two months prior to committing these offenses and was still on parole. His criminal history also includes a juvenile disposition for which he was initially placed on probation, but ultimately committed to a secure facility. As an adult, Stetler has convictions for operating a vehicle without a license or proof of financial responsibility; dealing in marijuana; possession of cocaine; and check deception. He has violated his probation on several occasions. Stetler has not responded well to prior attempts at rehabilitation.

Stetler contends that although his offenses and his character may warrant the advisory sentence, they do not warrant consecutive sentences. Stetler first points out that the incidents were isolated and he did not threaten the girls, use force in molesting them, or cause them any physical injury, citing in support Sanchez v. State, 938 N.E.2d 720 (Ind.2010). In Sanchez, the defendant was convicted of three counts of Class A felony child molesting against two victims. He was sentenced to forty years for each count, with the two sentences relating to one victim to be served concurrently, but the third to be served consecutively, for an aggregate sentence of eighty years. On appeal, our supreme court held the enhanced and consecutive sentences were inappropriate, upon noting that the defendant did not use significant force or cause injury to his victims, that the record suggests the molestations were isolated incidents, and that his criminal record is neither extensive nor related to these offenses. Id. at 722. The sentence was revised to forty years in the aggregate. Id. at 72B. Unlike Sanchez, however, Stetler did not receive enhanced and consecutive sentences, he received only consecutive sentences. And although, like Sanchez, there is no evidence of significant force or harm to the girls, Stetler’s criminal record is extensive and includes a prior molestation conviction, which does not support the inference that these crimes were isolated incidents. In general, when a defendant commits the same offense against two victims, enhanced and consecutive sentences are justified. Serino v. State, 798 N.E.2d 852, 857 (Ind.2003). Stetler also points out that his prior child molesting conviction was nearly eight years prior to these convictions and was a predicate offense for the habitual offender enhancement. However, he spent most of those eight years in prison, and the sentences were not ordered consecutive solely because of the prior convictions that support the habitual offender determination. His criminal history includes several other offenses, and he committed these crimes while on parole.

Stetler also contends that the fact he is a credit-restricted felon and thus required to serve eighty-five percent of his total sentence should be taken into account. In Sharp v. State, 970 N.E.2d 647 (Ind.2012), our supreme court held that credit time status may be considered by appellate courts exercising their review and revise authority because “our concern is whether the totality of the penal consequences imposed by the trial court was appropriate.” Id. at 650. As noted above, Stetler is a credit restricted felon and thus will be required to serve at least seventy-five years of his sentence.

Considering the nature of Stetler’s offenses, the nature of his character, and the totality of the penal consequences imposed by the trial court, we cannot say Stetler has met his burden of demonstrating his sentence is inappropriate. As the trial court noted, Stetler took advantage of an opportunity with two young girls to commit two separate and distinct offenses, he has a prior conviction for the same crime, multiple previous attempts at rehabilitation have failed, and he was released on parole for his prior molestation conviction only two months before committing these crimes. These facts convince us that the nature of Stetler’s offenses and his character do not warrant reduction of the sentence imposed.

Conclusion

Sufficient evidence was presented to sustain Stetler’s conviction for child molesting. Stetler’s ninety-year aggregate sentence is not inappropriate. His conviction and sentence are therefore affirmed.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.

      . At the time Stetler was charged and tried, deviate sexual conduct was defined at Indiana Code section 35-41-1-9. As of July 1, 2012, the definition is found at section 35-31.5-2-94. The substance of the definition remains the same.


author: MATHIAS, Judge. BAILEY, Judge,

text:
    Carlin ILTZSCH, Appellant, v. STATE of Indiana, Appellee.
    No. 49A02-1112-CR-1164.
    Court of Appeals of Indiana.
    Aug. 14, 2012.

      Valerie K. Boots, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Carlin Iltzsch (“Iltzsch”) appeals following his conviction for Class B felony burglary. On appeal, Iltzsch argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $711.95.

We reverse and remand with instructions.

Facts and Procedural History

On May 30, 2011, James Whittemore (“Whittemore”) was working in his unattached garage on his property in Indianapolis. At around 1:00 p.m., Whittemore headed toward his house for a break. As he approached the house, he saw that the door to his screened-in porch was open and that his bicycle had been moved. When Whittemore attempted to open the door leading from the porch into his house, he felt someone pulling on the door from the inside. Whittemore was able to get the door open, and he entered his house to find Iltzsch standing in his kitchen. Whittemore then told Iltzsch to get out, and Iltzsch fled on foot. Police apprehended Iltzsch shortly thereafter within a few blocks of Whittemore’s house. After Iltzsch left, Whittemore saw that his television, which had previously been on his kitchen counter, was lying screen-down on the floor. Additionally, a BB gun, beer from Whittemore’s refrigerator, and a few small items from his home were missing. Whittemore found these items a few days later in a trash bag in his kitchen.

The State charged Iltzsch with Class B felony burglary on June 1, 2011, and subsequently filed an habitual offender allegation. Iltzsch waived his right to a trial by jury and, following a bench trial, he was found guilty as charged and adjudged to be an habitual offender. The trial court sentenced Iltzsch to twelve years on the burglary count, enhanced by ten years based on the habitual offender finding. The trial court also ordered Iltzsch to pay restitution to Whittemore in the amount of $711.95. The restitution order was based solely on the “Victim Impact Statement” written by the officer who prepared Iltzsch’s Pre-Sentence Investigation Report (“PSI”). In the statement, the officer indicated that Whittemore had informed her that nothing was taken during the burglary, but that Iltzsch had destroyed his antique record collection, which was worth “approximately $300.00” and that his television “had to be replaced and the loss was $411.95.” PSI p. 13. Iltzsch now appeals.

Discussion and Decision

We first address the State’s contention that Iltzsch has waived appellate review of the restitution order because he failed to object at trial on the basis he now asserts on appeal. At trial, Iltzsch objected to the entry of the restitution order, but only on the basis that Iltzsch had maintained his innocence. As a general matter, a party may not object on one basis at trial and argue a different basis on appeal. Houser v. State, 823 N.E.2d 693, 698 (Ind.2005). Iltzsch concedes that he did not object at trial on the basis he asserts on appeal, but argues that appellate review is not foreclosed because a restitution order is part of a sentence, and an illegal sentence constitutes fundamental error.

We acknowledge that this court has held that a defendant who fails to object at trial to the entry of a restitution order or to the admission of evidence concerning the amount of restitution waives appellate review of the issue. See Long v. State, 867 N.E.2d 606, 618 (Ind.Ct.App.2007) (holding that failure to object to the trial court’s receipt of evidence concerning the amount of restitution constitutes waiver of any issue concerning the amount of restitution); Davis v. State, 772 N.E.2d 535, 540-41 (Ind.Ct.App.2002) (holding that the defendant waived his argument that the trial court abused its discretion in entering a restitution order by failing to object to the entry of the order), trans. denied; Mitchell v. State, 730 N.E.2d 197, 201 (Ind.Ct.App.2000) (holding that the defendant waived appellate review of a restitution order both because he failed to object to the order and because he had invited the error by agreeing to pay for the victim’s counseling), trans. denied; Kellett v. State, 716 N.E.2d 975, 980-81 (Ind.Ct.App.1999) (holding that the defendant had waived her argument that the restitution order exceeded the actual loss incurred by the victim by failing to object to the entry of the order at trial).

However, as this court has recently noted, “the vast weight of the recent caselaw in this state indicates that appellate courts will review a trial court’s restitution order even where the defendant did not object based on the rationale that a restitution order is part of the sentence, and it is the duty of the appellate courts to bring illegal sentences into compliance.” Rich v. State, 890 N.E.2d 44, 48 (Ind.Ct.App.2008) (citing Lohmiller v. State, 884 N.E.2d 903, 916 (Ind.Ct.App.2008); Kline v. State, 875 N.E.2d 435, 438 (Ind.Ct.App.2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind.Ct.App.2007); Bennett v. State, 862 N.E.2d 1281, 1287 (Ind.Ct.App.2007); Johnson v. State, 845 N.E.2d 147, 153 (Ind.Ct.App.2006), trans. denied; Ware v. State, 816 N.E.2d 1167, 1179 (Ind.Ct.App.2004); Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App.2004); Cherry v. State, 772 N.E.2d 433, 440 (Ind.Ct.App.2002)) (internal quotations omitted), trans. denied. We agree with the weight of the authority and will therefore proceed to address Iltzsch’s argument on the merits.

Iltzsch argues that the evidence submitted at his sentencing hearing concerning the victim’s loss was insufficient to support the trial court’s order of restitution. “ ‘The purpose of a restitution order is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victims caused by the offense.’ ” Bennett, 862 N.E.2d at 1286 (quoting Henderson v. State, 848 N.E.2d 341, 346 (Ind.Ct.App.2006)). It is within the trial court’s discretion to order restitution, and we will reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court misinterprets or misapplies the law. Id.

Indiana Code section 35-50-5-3(a) provides that, in addition to any sentence imposed for a felony or misdemean- or, a court may order the payment of restitution to the victim of the crime. “The court shall base its restitution order upon a consideration of: (1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[.]” Id. (emphasis added). Thus, a trial court’s restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime. Rich, 890 N.E.2d at 49. This court has held that “‘[t]he amount of actual loss is a factual matter that can be determined only upon the presentation of evidence.’ ” Id. (quoting Bennett, 862 N.E.2d at 1286). “Evidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjee-ture.’ ” J.H. v. State, 950 N.E.2d 731, 734 (Ind.Ct.App.2011) (quoting M.L. v. State, 838 N.E.2d 525, 528 (Ind.Ct.App.2005), trans. denied).

We believe that this court’s decision in J.H., though not precisely on point, is instructive when considering the type of evidence necessary to support a restitution order. In J.H., J.H. was adjudicated a delinquent child after he attempted to enter a neighbor’s home without permission and, in doing so, damaged a door. Id. at 733. The juvenile court entered a restitution order in the amount of $1,117.65. The only support for the order came in the form of the prosecutor’s statements regarding two pieces of paper, which the victim described as estimates and provided to the prosecutor shortly before two separate hearings. No copies of these estimates were provided to defense counsel or admitted into evidence, and no additional evidence or testimony concerning either estimate was presented. Id.

This court held that the restitution order was not supported by reasonable evidence. Id. at 734. The court reasoned that

on two separate occasions, the victim waited until shortly before the hearing to give the deputy prosecutor a piece of paper with a dollar amount on it. The deputy prosecutor informed the juvenile court of the victim’s late submissions and of the amount on the papers. The deputy prosecutor made no other statements and presented no other evidence to show the legitimacy of the pieces of paper. Neither of the purported estimates was placed into evidence and neither is available for our review, so we cannot determine whether the dollar amounts were listed on papers containing any information, such as a letterhead, which would show the court that the paper came from a legitimate business. Furthermore, neither “estimate” showed the cost of labor and materials. Most importantly, the juvenile court failed to recognize that the State held the burden to establish the validity of the “estimates.” We can come to no other conclusion than that the “estimates” were mere speculation or conjecture and that the juvenile court’s order is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.

Id.

We believe the evidence in this case is analogous to that at issue in J.H. Here, the only evidence supporting the trial court’s restitution order is the “Victim’s Impact Statement” contained in the PSI. PSI p. 13. The statement provides that the probation officer who prepared the PSI contacted Whittemore by mail to inform him about the possibility of restitution, among other things. The statement provides further that Whittemore “advised” that nothing had been taken during the burglary, but that Iltzsch had “destroyed his antique record collection valued at approximately $300.00.” Id. The statement provided further that Whitte-more indicated that his “television had to be replaced and the loss was $411.95.” Id. Thus, the only evidence supporting the restitution order is the probation officer’s secondhand account of Whittemore’s bare, unsworn assertions that his property had been damaged and that his total loss was $711.95, without any supporting documentation or testimony, and without any explanation of how the property was damaged or how Whittemore arrived at these valuations.

With respect to the record collection, the PSI does not explain how the records were damaged, or provide an itemized statement of how many records there were and their age or type, or explain the basis for Whittemore’s valuation. Absent any evidence to the contrary, we can only come to the conclusion that Whittemore’s valuation of the record collection was based on mere speculation and conjecture.

As to the television, the PSI simply states that the television “had to be replaced” and that “the loss” amounted to $411.95. Whittemore testified at trial that he found his television lying screen-down on the floor immediately after the burglary, but he did not testify that the television was damaged and to what extent. And it is unclear whether the $411.95 figure represents the amount Whittemore originally paid for the television, his calculation of its depreciated value as of the date of the burglary, or the amount Whittemore paid for a new television. And if the figure represents the replacement cost of the television, the State set forth no evidence establishing that the new television was comparable in quality to the allegedly damaged one. See S.G. v. State, 956 N.E.2d 668, 683 (Ind.Ct.App.2011) (“Restitution is not a means by which a victim may obtain better or more state of the art equipment.”).

We also find it troubling that here, like in J.H., it appears that the defendant was not provided with the information that formed the basis of the restitution order until shortly before the sentencing hearing. The trial court ordered the PSI on November 16, 2011, the date of Iltzsch’s trial. The PSI is file-stamped November 29, 2011 — the day before Iltzsch’s sentencing hearing. On the date of Iltzsch’s sentencing hearing, the trial court noted that Iltzsch was brought “directly into the court room so he could read the [PSI] over with his attorney.” Tr. p. 84. Thus, it appears that Iltzsch did not have a meaningful opportunity to investigate the assertions made in the PSI. Indeed, it is unclear whether Iltzsch was even on notice prior to the sentencing hearing that the State intended to request a restitution order. However, this issue could have been remedied by making a request for a continuance, which Iltzsch’s counsel failed to do.

The State bore the burden of establishing the validity of the claimed restitution amounts. The State could accomplish this in a number of ways, including: (1) eliciting sworn testimony from the victim at the trial or sentencing hearing, (2) obtaining an affidavit from the victim, or (3) introducing documentation of the claimed damages, such as photographs, appraisals, estimates, or receipts, into evidence. Here, the State made no effort whatsoever to establish the validity of the unsworn, unsupported hearsay assertions attributed to Whittemore in the PSI, but instead, simply asked the court to enter a restitution order in the amount of $711.95 as reflected in the PSI. We conclude that more was required. Accordingly, we hold that the trial court abused its discretion in entering the restitution order.

Finally, we address the State’s argument that, even if we conclude that the trial court abused its discretion in entering the restitution order, the proper remedy is remand for a new restitution hearing. There is support in our caselaw for this proposition. See, e.g., Lohmiller, 884 N.E.2d at 916-17 (concluding that there was no evidentiary basis for a restitution order in favor of County, but remanding with instructions to determine the actual damages, if any, suffered as a result of defendant’s crimes); T.C. v. State, 839 N.E.2d 1222, 1227 (Ind.Ct.App.2005) (concluding that there was an inadequate factual basis for the trial court’s restitution order and remanding for a new restitution hearing). But this has not been invariably the case. In Cooper v. State, 831 N.E.2d 1247, 1254 (Ind.Ct.App.2005), this court reversed a trial court’s restitution order, concluding that it was not supported by the evidence. This court also concluded that a $2,500 fine imposed on the defendant was inappropriate under Appellate Rule 7(B). Id. at 1254-55. Although the court remanded with instructions for the trial court to conduct further proceedings concerning the fine, the court did not instruct the trial court to conduct a new restitution hearing. Id.

The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution hearing, and remand with instructions for the trial court to vacate its restitution order. We acknowledge that Whittemore must now resort to civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims.

Reversed and remanded with instructions.

ROBB, C.J., concurs.

BAILEY, J., dissents with opinion.

BAILEY, Judge,

dissenting.

The majority concludes that the State did not produce competent evidence of the damages Iltzsch’s burglary caused to Whittemore, and thus vacates the restitution order the State sought and the trial court imposed upon Iltzsch. While I agree with the majority that there is insufficient evidence to support the amount awarded in restitution, I do not agree with its conclusion that the State is not entitled to conduct a new restitution hearing. I therefore respectfully dissent.

Under Indiana Code section 35-50-5-3, a trial court may order an individual convicted of a crime to make restitution to the victim of the crime “in addition to any sentence imposed.” Ind.Code § 35-50-5-3(a). The statute goes on to set forth those expenses for which a trial court may order restitution; among these are “property damages of the victim incurred as a result of the crime, based on the actual cost of repair” or replacement. I.C. § 35-50-5-3(a)(l). “The purpose behind an order of restitution is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victim caused by the offense.” Carswell v. State, 721 N.E.2d 1255, 1259 (Ind.Ct.App.1999) (emphasis added).

The majority notes that “[t]he State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss” yet failed to do so. Op. at 415. Yet vacating the restitution order and foreclosing the State from presenting competent evidence upon remand does nothing to advance the purposes of a restitution order. It certainly creates more frustration for the victim of Iltzsch’s offense, who, if he is to obtain relief, now faces the additional time and expense to pursue a civil action against Iltzsch. And it does nothing for an overburdened court system which will be asked to undertake duplica-tive and less-effective efforts at collecting damages caused by Iltzsch’s criminal acts.

The majority points to this court’s decision in Cooper v. State, 831 N.E.2d 1247 (Ind.Ct.App.2005), as vacating a trial court’s restitution order. Yet Cooper is readily distinguishable from the case now before us. The Cooper court concluded that there was no evidence in the record to establish that a restitution order of any kind was appropriate because the lost wages to which the victim’s parents laid claim were not shown to have any necessary connection to the effects of the offense. Id. at 1253-54 (noting “there is no documentation in the record before us that the lost wages claimed ... were for work absences occasioned by the counseling sessions,” nor was there evidence “to indicate any basis for [the victim’s] stepmother having had to miss work”). There is no question that Whittemore’s belongings were disturbed; unlike Cooper, only the amount of WTiittemore’s loss is at issue, not its cause. See I.C. 35-50-5-3(a)(l).

A restitution order is much more effective in collecting damages than any civil suit, and following the majority’s approach simply victimizes Whittemore once more while imposing additional, unnecessary burdens on the trial court. I would remand this matter to the trial court to require the State to do its job and pursue restitution for Whittemore with competent evidence, or otherwise advise the court that it does not intend to pursue restitution on the victim’s behalf. I must therefore respectfully dissent.

      . It is unclear whether Whittemore provided this information to the officer verbally or if he responded to her letter in writing, but there is no written documentation from Whittemore attached to the PSI or contained elsewhere in the record.


author:
DAVID, Justice.
      RUCKER, Justice,

text:
    James C. PURCELL, Appellant (Plaintiff below), v. OLD NATIONAL BANK, Appellee (Defendant below).
    No. 49S02-1201-CT-4.
    Supreme Court of Indiana.
    July 31, 2012.

      Thomas D. Collignon, Patrick J. Diet-rick, Michael B. Knight, Indianapolis, IN, William W. Wilkins, Dennis J. Lynch, Travis C. Wheeler, Columbia, SC, Attorneys for Appellant.
    Mark J.R. Merkle, Greg A. Small, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

This case involves a trial court’s issuance of a directed verdict under Trial Rule 50(A). The issue presented in this case is whether the trial court abused its discretion under Rule 50(A) in its determination that the evidence presented by Purcell was insufficient to merit presentation of the evidence to the jury. We hold that the trial court properly exercised its discretion and affirm the ruling of the trial court in all respects.

Facts and Procedural History

In 1998, Richard Knight and James Purcell established Midwest Fulfillment, a company that provided order fulfillment services for various companies. In late 2001, Joseph Stein joined Midwest Fulfillment as a. ten percent shareholder and Chief Financial Officer. In June 2002, the parties executed a stock redemption agreement, in which Purcell sold his majority interest in Midwest Fulfillment to Knight and Stein. The redemption agreement called for payments to Purcell of $1.2 million in four annual installments and monthly interest payments on the outstanding balance. Furthermore, the redemption agreement gave Purcell a security interest in Midwest Fulfillment’s assets and required Midwest Fulfillment to provide Purcell with monthly and yearly financial statements. Under the redemption agreement, if Midwest Fulfillment’s assets-to-liabilities ratio (or “current ratio”) fell below a certain level for three consecutive months, Midwest Fulfillment would be in default and Purcell would gain 100% ownership of the company.

In late 2002, Midwest Fulfillment applied for a line of credit with Old National Bank. Prior to issuing the loan, Old National Bank (Old National), through loan officer Joseph Howarth, required Purcell to sign a subordination agreement that made Purcell’s security interest in Midwest Fulfillment’s assets subordinate to Old National’s security interest in those assets. Purcell signed the subordination agreement on December 80, 2002. Both Purcell and Old National received monthly financial statements prepared by Midwest Fulfillment.

In February and March 2003, Midwest Fulfillment’s current ratio fell below the level specified in the redemption agreement. A third month of the current ratio falling below 1.0 as specified in the redemption agreement would be a default and allow Purcell to exercise his rights under the redemption agreement, subject to the overriding obligations of the subordination agreement. Midwest Fulfillment’s April balance sheet included a line item for income designated as “Mise. Billing to Customers” in the amount of $613,461.19. The April profit and loss statement reported Midwest Fulfillment’s net ordinary income as $695,210.44, which prevented a technical default of the redemption agreement.

Stein later admitted that this figure was based on invoices to Midwest Fulfillment’s landlord for work that was neither ordered nor completed, and that the April 2003 balance sheet given to Purcell was not intended to reflect an accurate financial picture for Midwest Fulfillment. But for the “Mise. Billing to Customers” line item, the current ratio would have been below the designated level for three consecutive months, and Purcell would have had the right to take over the company.

By July 2003, Midwest Fulfillment was going out of business. The landlord chained the doors, and without a space to conduct business, Midwest Fulfillment ceased operations and turned remaining assets over to Old National. Old National liquidated those assets, but that was still insufficient to pay off the loans.

In a proceeding separate from the instant case, Purcell sued Midwest Fulfillment. During that lawsuit, an interrogatory was posed to Stein asking for an explanation of several balance sheet items between the months of February and June of 2003, one of which was the “Mise. Billing to Customers” line item in the April 2003 balance sheet. Under oath, Stein answered generally, “[a]ll instances were adjustments made to the receivable from Meridian Properties, Inc. and /or Sharp Companies done in accordance with instruction from Joe Howarth at Old National Bank to remain in compliance with the loan documents between Midwest and Old National Bank.” More specifically, Stein had noted in the previous answer that “Midwest was accrual basis ... [and] that the receivable due from Meridian Properties, Inc. and/or Sharp Companies was included as income. The inclusion of this receivable as income was done at the instruction of Joe Howarth at Old National Bank.”

Purcell brought claims against Old National for negligence, constructive fraud, actual fraud, deception, and tortious interference with a contract. The matter proceeded to trial, and the evidence at trial included Stein’s sworn interrogatory response from the Midwest Fulfillment litigation. Plaintiff took the position that the interrogatory answer by Stein was proof that Howarth, on behalf of Old National, directed Stein to knowingly make the false statements. However, during their trial testimony in the instant case, both Stein and Howarth denied that the April 2003 balance sheet was falsified at Howarth’s direction. Specifically, Stein disavowed his response to interrogatory in the separate case; Stein explained that it was his decision to include the inaccurate $613,461 amount under “Mise. Billing to Customers” and that Joe Howarth did not instruct Stein to make the entry. In fact the trial testimony was stated clearly:

Q: Did Mr. Howarth direct you to make that entry in the April 2003 financial statement under Miscellaneous Billing to Customers?
A: He did not.
Q: Now, the next line in your response says: “The inclusion of this receivable as income was done at the instruction of Joe Howarth of Old National Bank.” ...
A: Mr. Howarth did not instruct me to do that.

At the close of Purcell’s case-in-chief, the trial court granted Old National’s motion for judgment on the evidence on all claims including finding that Old National owed no duty to Purcell. The trial court denied Old National’s request for statutory attorney fees. The Court of Appeals affirmed the trial court’s ruling as to the issues of duty and attorney’s fees but reversed the trial court’s judgment on the evidence as to Purcell’s claims of fraud, deception, and tortuous interference with contract based on the interrogatory answer in the other litigation. We granted transfer.

I. Trial Rule 50(A) Sufficiency Requirement

The trial court granted Old National’s motion for judgment on the evidence pursuant to Indiana Trial Rule 50(A). The Court of Appeals reversed, finding that Stein’s interrogatory answer constituted sufficient evidence to preclude an entry of judgment on the evidence, despite evidence to the contrary at trial, including an adamant denial from Stein that the interrogatory was incorrect. Purcell v. Old Nat. Bank, 953 N.E.2d 527, 532 (Ind.Ct.App.2011).

This Court reviews a trial court’s issuance of judgment on the evidence by applying the same standard that the trial court uses, looking only to the evidence and reasonable inferences most favorable to the non-moving party. See Smith v. Baxter, 796 N.E.2d 242, 243 (Ind.2003); American Optical Co. v. Weidenhamer, 457 N.E.2d 181, 183 (Ind.1983). Thus, the Court turns to the text of Trial Rule 50, which provides the standard for judgment on the evidence.

Trial Rule 50(A) states in relevant part: “Where all or some of the issues in a case tried before a jury ... are not supported by sufficient evidence ... the court shall withdraw such issues from the jury and enter judgment thereon ... A party may move for such judgment on the evidence.” Ind. Trial Rule 50(A) (emphasis added). The purpose of a party’s motion for judgment on the evidence under Rule 50(A) is to test the sufficiency of the evidence presented by the non-movant. Nesvig v. Town of Porter, 668 N.E.2d 1276, 1282-83 (Ind.Ct.App.1996).

In American Optical, this Court articulated the means by which a trial court may determine whether evidence is “sufficient” to survive a motion for judgment on the evidence. In that case, this Court stated that determining whether evidence was sufficient “requires both a quantitative and a qualitative analysis.” American Optical, 457 N.E.2d at 184. Evidence fails quantitatively only if it is wholly absent; that is, only if there is no evidence to support the conclusion. Id. If some evidence exists, a court must then proceed to the qualitative analysis to determine whether the evidence is substantial enough to support a reasonable inference in favor of the non-moving party. See Dettman v. Sumner, 474 N.E.2d 100, 104-105 (Ind.Ct.App.1985) (discussing and applying the two-part analysis of American Optical).

“Qualitatively, ... [evidence] fails when it cannot be said, with reason, that the intended inference may logically be drawn therefrom; and this may occur either because of an absence of credibility of a witness or because the intended inference may not be drawn therefrom without undue speculation.” American Optical, 457 N.E.2d at 184. The use of such words as “substantial” and “probative” are useful in determining whether evidence is sufficient under the qualitative analysis. Id. Ultimately, the sufficiency analysis comes down to one word: “reasonable.” See, e.g., Raess v. Doescher, 888 N.E.2d 790, 793 (Ind.2008) (“A motion for judgment on the evidence should be granted only when there is a complete failure of proof because there is no substantial evidence or reasonable inference supporting an essential element of the claim.” (emphasis added) (citation and internal quotation marks omitted)); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.1993) (“If there is any probative evidence or reasonable inference to be drawn from the evidence in favor of the plaintiff or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper.”); Teitge v. Remy Const. Co. Inc., 526 N.E.2d 1008, 1010 (Ind.App.Ct.1988) (“[J]udgment on the evidence is proper only where there is a lack of evidence of probative value upon one or more of the factual issues necessary to support a verdict, and no reasonable inference in favor of the plaintiff can be drawn from this evidence.”).

Purcell’s primary evidence in support of his allegations of fraud, deception, and tortious interference with contract, which require proof of intentional misrepresentation or an inducement of a breach of contract, are Stein’s statements made in response to interrogatories served in a separate lawsuit. Those statements were later explained and disavowed at trial. These responses indicated that entries made by Stein to Midwest Fulfillment’s balance sheets between February and June 2003 were made at the instruction of Joe Howarth at Old National, including the line item “Mise. Billing to Customers.” Based on these responses, the quantitative element of the sufficiency inquiry is met, because there exists some evidence presented at trial that may, when viewed in isolation, lend support to Purcell’s desired conclusion that Old National had a hand in Stein’s preparation of the Midwest balance sheets.

However, a reading of Stein’s responses in context with his testimony at trial leads to the conclusion that Purcell’s evidence does not meet the qualitative element of the sufficiency analysis. In reality, nowhere in Stein’s interrogatory does he state that Old National told him to make fraudulent entries. Stein’s trial testimony explains that Purcell’s reading of the response is a misunderstanding, and Stein flat-out denies that the bank directed him to make fraudulent entries on the balance sheets. In fact, Stein’s interrogatory response states that all of the adjustments to receivable entries inquired upon by the interrogatory were made at the instruction of Old National, not just the “Mise. Billing to Customers” line item that contained the fraudulent amount.

Moreover, the response accentuates that Old National gave the instruction “to remain in compliance with the loan documents between Midwest and Old National Bank.” This is certainly a reference to the requirement that Stein provide Old National with Midwest’s balance sheets and financial information to remain in compliance with the company’s loan requirements. And Stein testified at trial that he provided the bank with the same balance sheets that were provided monthly to Purcell. Purcell’s reading of the interrogatory response would require the unreasonable inference that Old National instructed Stein that “compliance with the loan documents” mandated the inclusion of fraudulent entries to balance sheets that would be submitted to the bank itself; this is absurd. Whatever perceivable conflict that may exist between Stein’s interrogatory response and his trial testimony, it is minimal, at best. When Stein’s interrogatory responses are viewed as a whole and in conjunction with his trial testimony, the import is that this evidence — standing alone — is insufficient the support Purcell’s intentional tort claims under our qualitative analysis.

By its express language, Rule 50 acknowledges that a party must do more than simply present some evidence; in addition, that evidence must also be sufficient evidence. Unlike a motion for summary judgment under Rule 56, the sufficiency test of Rule 50(A) is not merely whether a conflict of evidence may exist, but rather whether there exists probative evidence, substantial enough to create a reasonable inference that the non-movant has met his burden. The crux of the qualitative failure analysis under Rule 50(A) is “whether the inference the burdened party’s allegations are true may be drawn without undue speculation.” Dettman, 474 N.E.2d at 105 (citing American Optical, 457 N.E.2d at 183-84). At the close of Purcell’s case-in-chief, no evidence had been presented showing that Old National specifically directed Stein to include the fraudulent entry as Purcell alleges. The only evidence presented linking Old National to the fraudulent entry complained of is a generalized, ambiguous interrogatory response, later explained at trial with the aid of direct and cross-examination. Without more, the Court cannot say that the trial court abused its discretion in determining that Purcell’s inference of fraud could not be found by a reasonable jury without engaging in undue speculation.

Our decision does not alter the critical, invaluable, and constitutionally protected role of the jury in Indiana’s system of jurisprudence. It remains true that a court is not free to engage in the fact-finder’s function of weighing evidence or judging the credibility of witnesses to grant judgment on the evidence, where fair-minded men may reasonably come to competing conclusions. Cf. Neubacher v. Indianapolis Union Ry. Co., 134 Ind. 25, 33 N.E. 798, 799 (1893). Indeed, the function of weighing evidence and judging witness credibility is one which has always been within the purview of the jury. That said, it is equally true that judges, at times, may play a role in the ultimate determination of cases such as through judgment on the evidence or summary judgment. This process helps to ensure the proper administration of our laws with the added benefit of preserving judicial economy. Where, in a case such as this, the plaintiff fails to present sufficient, probative evidence as to a necessary element of a claim, the trial judge is within his or her discretion to issue judgment on the evidence pursuant to Rule 50(A).

II. Duty (Negligence & Constructive Fraud)

In addition to agreeing with the trial court that Purcell did not present sufficient evidence to sustain his intentional tort claims discussed above, this Court also agrees with the trial court’s determination that Old National did not owe a duty to Purcell under these circumstances. Whether a defendant owes a duty of care to a plaintiff is a question of law, which the Court reviews de novo. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). To establish a negligence claim, a plaintiff must establish three elements, one of which is that the defendant owed a duty of care to the plaintiff. Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind.2011). Similarly, a plaintiff must establish that a duty of care exists to prevail on a claim of constructive fraud. Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind.1996). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Pfenning, 947 N.E.2d at 398 (citation omitted).

Old National asks that the Court adopt a “no customer, no duty” rule, which recognizes that a bank should not owe a duty of care to an “undefined and unlimited category of strangers who might interact with [the bank’s] customer.” Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 226 (4th Cir.2002); see also Athey Products Corp. v. Harris Bank Roselle, 89 F.3d 430, 435 (7th Cir.1996) (holding that under Illinois law, a “lender owes no duty to protect third parties from the credit risk of an insolvent borrower”). Old National contends that because Purcell was not a customer and had no banking relationship with Old National, that no duty can be found. This Court, like the Court of Appeals, finds no occasion to validate such a blanket rule in this case. See Purcell v. Old Nat. Bank, 953 N.E.2d 527, 531 (Ind.Ct.App.2011). And the Court agrees with the basic rationale of the Court of Appeals that under these circumstances no duty of care was owed to Purcell. Therefore, the trial court’s finding that Purcell’s negligence and constructive fraud claims fail for want of duty is affirmed.

III. Attorney’s Fees

Finally, Old National argued on appeal that the trial court erred in declining to award attorney’s fees to Old National following its ruling on its successful motion for judgment on the evidence. A trial court may grant an award of attorney’s fees if a litigant “continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless.” Ind.Code § 34-52-1-1(b)(2) (2008). The trial court’s decision to award attorney’s fees under § 34-52-1-1 is subject to a multi-level review: the trial court’s findings of facts are reviewed under the clearly erroneous standard and legal conclusions regarding whether the litigant’s claim was frivolous, unreasonable, or groundless are reviewed de novo. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind.2012). Finally, the trial court’s decision to award attorney’s fees and any amount thereof is reviewed for an abuse of discretion. Id. A trial court abuses its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the trial court has misinterpreted the law. Id.

Old National contends that Purcell continued to litigate his claims despite knowing that they were clearly groundless. A claim is groundless if no facts exist which support the legal claim relied on and presented by the losing party. Emergency Physicians of Indianapolis v. Pettit, 714 N.E.2d 1111, 1115 (Ind.Ct.App.1999), adopted in part, 718 N.E.2d 753, 757 (Ind.1999). Although the facts presented at trial were insufficient to survive judgment on the evidence, it remains true that some facts were presented in Purcell’s case-in-chief. As discussed above, it is likely that Purcell satisfied the quantitative aspect of the sufficiency analysis by presenting facts that potentially lend support to his conclusion. Thus, it cannot be said that “no facts ” existed in support of his legal claim at the time Purcell went to trial. Based on this conclusion and on the strong deference afforded to the trial court in these matters, we hold that the trial court did not abuse its discretion in denying Old National’s request for costs and attorney’s fees.

Conclusion

The Court finds that there was not sufficient evidence presented in this case to withstand a motion for judgment on the evidence on Purcell’s claims of fraud, deception, and tortious interference with contract. Accordingly, the trial court’s grant of Old National’s motion under Rule 50(A) is affirmed. Furthermore, Purcell’s relationship with Old National as a subordinate creditor did not give rise to a duty of care required to prove Purcell’s claims of negligence and constructive fraud, and the trial court did not abuse its discretion by denying Old National’s request for costs and attorney’s fees.

SULLIVAN, and MASSA, JJ., concur.

RUCKER, J., dissents in part and concurs in result in part with separate opinion in which DICKSON, C.J., concurs.

RUCKER, Justice,

concurring in result in part and dissenting in part.

I respectfully dissent to Section I of the majority opinion. The majority affirms, the trial court’s grant of Old National’s motion for judgment on the evidence. But with respect to actual fraud and tortious interference with contract it does so on grounds the trial court did not reach, and more importantly conflicting inferences from the evidence before the jury precludes judgment on the evidence for these two claims.

This case proceeded to trial on four theories: negligence, constructive fraud, actual fraud, and tortious interference with contract. After the close of plaintiffs case-in-chief, Old National filed a Motion for Judgment on the Evidence. Appellant’s App. at 159. Although the Motion itself is not included in the record before us, arguing in favor of the Motion, Old National noted plaintiffs various claims and contended “there’s a complete absence of proof on a required element to establish plaintiffs claim.” Appellant’s App. at 159. After entertaining arguments of counsel, the trial court granted Old National’s Motion on all claims on the sole ground that “the bank had no duty to [Purcell].” Appellant’s App. at 168.

On review the Court of Appeals agreed with the trial court that Old National owed no duty to Purcell because, according to the court, Purcell was merely a subordinate creditor to Old National. See Purcell v. Old Nat’l Bank, 958 N.E.2d 527, 531 (Ind.Ct.App.2011). However the court correctly pointed out that the question of duty was relevant only in the context of Purcell’s negligence and constructive fraud claims. And since there was no duty both claims fail. See id. at 531 n. 1. The majority apparently endorses this aspect of the Court of Appeals opinion. Op. at 842-43. However, the majority proceeds to address an issue the trial court did not decide, namely: whether there was sufficient evidence to support Purcell’s two remaining claims.

I agree with the majority that in reviewing a challenge to a ruling on a motion for judgment on the evidence our standard of review is the same as it is for the trial court. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466-67 (Ind.2003). Judgment on the evidence is proper only “[w]here all or some of the issues ... are not supported by sufficient evidence.” Ind. Trial Rule 50(A). Here the majority goes to some length explaining the “means by which a trial court may determine whether evidence is ‘sufficient’ to survive a motion for a judgment on the evidence.” Op. at 840. The problem however is that in this case the trial court made no such determination.

It is true that in certain contexts an appellate court may affirm a trial court’s judgment on theories other than those adopted by the trial court. See, e.g., Coleman v. State, 946 N.E.2d 1160, 1168 (Ind.2011) (admission of evidence); Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 994, 999 (Ind.2009) (grant of summary judgment); Kimberlin v. DeLong, 637 N.E.2d 121, 128 (Ind.1994) (amendment of pleadings); Runde v. Vigus Realty, Inc., 617 N.E.2d 572, 575 (Ind.Ct.App.1993) (dismissal of complaint); Conway v. Evans, 549 N.E.2d 1092, 1094-95 (Ind.Ct.App.1990) (refusal to instruct jury). And of course “where a trial court has made special findings pursuant to a party’s request under Trial Rule 52(A), the reviewing court may affirm the judgment on any legal theory supported by the findings.” Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.1998). But neither of the foregoing circumstances is present here. Thus, it appears to me that a review of the trial court’s grant of a motion for judgment on the evidence should be confined to the law applied by the trial court, and this Court should evaluate only the merits of claims reached by the trial court. See State v. Econ. Freedom Fund, 959 N.E.2d 794, 801 (Ind.2011) (declining to affirm trial court judgment on alternate theory). Because lack of duty — the only ground on which the trial court relied in granting Old National’s motion for judgment on the evidence — has no bearing on Purcell’s actual fraud and tortious interference claims, I would reverse the trial court’s judgment with respect to these claims and remand for consideration by a jury.

Further, I disagree with the majority’s conclusion that the record before us supports the grant of a motion for judgment on the evidence with respect to Purcell’s actual fraud and tortious interference claims. To sustain a judgment for defendant on the evidence, the evidence must be without conflict and susceptible to but one inference in favor of the moving party; if there is any inference or legitimate inference therefrom tending to support at least one of plaintiffs allegations, a directed verdict should not be entered. See Bonnes v. Feldner, 642 N.E.2d 217, 220 (Ind.1994). Stated slightly differently, “If there is any probative evidence or reasonable inference to be drawn therefrom or if there is evidence which would allow reasonable people to differ as to the result, judgment on the evidence is improper.” Wellington Green Homeowners’ Ass’n v. Parsons, 768 N.E.2d 923, 925-26 (Ind.Ct.App.2002). Based on the conflicting evidence before the jury in this case, reasonable people could (and in fact do) differ as to whether Old National or its agent Howarth induced Stein to include the false income figure on the April 2008 balance sheet. As the Court of Appeals observed:

[Tjhere are questions of fact whether [Old National] intentionally induced MWF to breach the contract with Purcell by falsifying accounting figures in order to prevent Purcell from redeeming his interest in MWF, and whether [Old National] had a justification for its alleged actions. Because there was evidence [Old Nationals representative Howarth told Stein to falsify the accounting figures for April 2003, judgment on the evidence was improper.

Purcell, 953 N.E.2d at 532. I agree. The evidence in favor of Purcell’s claims is not overwhelming. But there are competing inferences to be drawn from the evidence properly presented to the jury. And it is certainly enough to withstand a motion for judgment on the evidence. On the question of actual fraud and tortious interference with contract this case should be remanded for trial. I therefore dissent to Section I of the majority opinion. With respect to Sections II and III, I concur in result.

DICKSON, C.J., concurs.

      . Although the trial court’s rationale revolved around duty, only Purcell’s claims of negligence and constructive fraud require the plaintiff to make a showing that Old National owed a duty to Purcell, while the remaining claims are intentional torts. For this reason, the validity of the trial court’s Rule 50(A) determination for fraud, deception, and tor-tious interference will be analyzed separately from the judgment as to negligence and constructive fraud.

      . Old National conceded at oral argument that Stein's interrogatory responses were entered as substantive evidence at trial pursuant to evidentiary rule 801(d)(1)(A). However, the Court has some reservations as to whether a non-party's disavowed interrogatory response may be admitted as substantive evidence as a prior inconsistent statement made “at a trial, hearing or other proceeding, or in a deposition.” Evid. R. 801(d)(1)(A). Thus, it is unclear whether these interrogatory responses are more properly categorized as merely impeaching, rather than substantive evidence. That said, the interrogatory responses were entered as evidence without objection, and the issue is not squarely before the Court and need not be addressed in the instant case.

      . Compare Indiana Rules of Procedure, Trial Rule 56 and Indiana Rules of Procedure, Trial Rule 50.

      . Purcell’s briefs also reference evidence presented at trial to which the trial court sustained a hearsay objection. Purcell notes that this evidence was never formally stricken and remained in the record; however, the Court has little doubt that at the time the trial judge made the Rule 50(A) determination, the trial judge would have understood that this hearsay was not cognizable evidence. For, "a trial judge is presumed to know the intricacies and refinements of the rules of evidence and that he sifts the evidence and weighs it in the light of his legal experience and expertise. He is thus able to separate the wheat from the chaff, ignoring the extraneous, the incompetent and the irrelevant...." King v. State, 155 Ind.App. 361, 366-67, 292 N.E.2d 843, 846-47, (Ind.Ct.App.1973).

      . The Court of Appeals arrived at the same conclusion in affirming the trial court’s decision with regard to duty.

      . Likewise, absent the existence of a duty, a plaintiff cannot recover under a claim of constructive fraud.