author: BAILEY, Judge.

text:
    Andrew McWHORTER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 33A01-1202-PC-72.
    Court of Appeals of Indiana.
    July 12, 2012.

      Stephen T. Owens, Public Defender of Indiana, James T. Acklin, Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Andrew McWhorter (“McWhorter”) appeals the denial of his petition for postcon-viction relief, wherein he challenged his conviction for Voluntary Manslaughter. He presents the sole issue of whether he was denied the effective assistance of trial counsel. We reverse and remand for retrial on Reckless Homicide.

Facts and Procedural History

On direct appeal, the Court recited the relevant facts as follows:

In December 2005, McWhorter, Amanda Deweese (Deweese), and their baby were living with Barbara Gibbs (Gibbs), McWhorter’s grandmother. On December 2, 2005, inside Gibbs’ home, McWhorter shot Deweese in the head with a twelve-gauge shotgun at close range causing her death.
Earlier that night, both Deweese and McWhorter visited Janis Floyd’s (Floyd) home. Floyd observed Deweese acting nervous and crying, and observed that McWhorter smelled of alcohol. Meanwhile, Gibbs attended a Christmas show, arriving home about 10:45 p.m. Shortly after she arrived home McWhorter and Deweese came home as well. The two argued. Just as Floyd observed, Gibbs could tell that McWhorter was intoxicated.
A few moments later, Deweese and Gibbs were sitting in the kitchen and McWhorter came in carrying a shotgun. He told Gibbs, “I’m going to show you how to use this gun[,] grandma, in case [you ever] need it.” (Transcript p. 122). Gibbs told McWhorter to put the gun away. McWhorter placed the gun on the table and began loading and unloading it repeatedly. Eventually McWhorter took the gun out of the room.
Around this time, McWhorter confronted Deweese about her having intercourse with another man while she was pregnant with their baby. McWhorter asked for the return of the engagement ring that he had given Deweese. She took it off and handed it to him. He threw it on the floor and stepped on it. Gibbs picked the ring up, handed it to Deweese, and McWhorter asked for it again. Deweese gave it back and McWhorter threw it again, this time into a bedroom.
McWhorter went into the room where he had thrown the ring and stayed there for a while. During this time, Gibbs was sitting across the kitchen table from Deweese, facing her and McWhorter was standing behind Gibbs facing Dew-eese. Gibbs and Deweese were talking about whether McWhorter might try to kill himself. “[T]he next thing [Gibbs] knew, [she] heard a boom.” (Tr. P. 126). Gibbs could see Deweese and quickly realized Deweese had been shot. Gibbs turned around and saw McWhorter standing close by. Gibbs asked what had happened and McWhorter said “oh no, oh no,” and started screaming and carrying on. (Tr. P. 135). While Gibbs called 911, McWhorter said, “I didn’t know there was a shell in it,” and left the room. (Tr. P. 135).
Henry County Deputy Sheriff Ken Custer (Deputy Custer) was the first officer on the scene. He asked her what had happened and she stated that “[McWhorter] shot [Deweese].” (Tr. P. 168). Supporting officers then arrived. The officers found McWhorter in the house lying behind a baby crib and a shotgun lying inside the crib. After McWhorter was taken into custody, he said on two occasions, “I shot her.” (Tr. pp. 174-176).

McWhorter v. State, 33A01-0701-CR-2, 872 N.E.2d 218, slip op. at 2-4 (Ind.Ct.App. Aug. 9, 2007), trans. denied.

The State charged McWhorter with Murder. At trial, McWhorter conceded that he had killed Deweese; the only contested issue was McWhorter’s intent. McWhorter’s defense was that he had acci-dently killed Deweese; however, at the close of the evidence the jury was instructed, without objection from defense counsel, on Voluntary Manslaughter and Reckless Homicide.

On August 3, 2006, the jury returned the following verdict: “We, the jury, find the Defendant, Andrew W. McWhorter, not guilty of murder, but guilty of voluntary manslaughter, a Class A felony, as a lesser included offense of murder, a felony.” (App. 20.) The following day, McWhorter was adjudicated a habitual offender. He was sentenced to forty-five years imprisonment, enhanced by thirty years due to his status as a habitual offender. His conviction was affirmed on direct appeal. See id.

On June 12, 2008, McWhorter filed a pro-se petition for post-conviction relief; his petition was amended on September 21, 2011. On November 18, 2011, the post-conviction court conducted an evidentiary hearing upon the allegation of ineffectiveness of trial counsel. On January 24, 2012, the post-conviction court entered its Findings of Fact, Conclusions of Law, and order denying McWhorter post-conviction relief. He now appeals.

Discussion and Decision

Post-Conviction Standard of Review

The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing from the denial of postconviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment of the post-conviction court unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. A post-conviction court’s findings and judgment will be reversed only upon a showing of clear error, that which leaves us with a definite and firm conviction that a mistake has been made. Id. In this review, findings of fact are accepted unless they are clearly erroneous and no deference is accorded to conclusions of law. Id. The post-conviction coui't is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

Effectiveness of Trial Counsel Standard of Review

To establish a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, a defendant must show that counsel’s performance was deficient.” Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s representation fell below an objective standard of reasonableness and that “counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.” Id. “Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial,” that is, a trial where the result is reliable. Id. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, we “strongly presume” that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002).

Analysis

McWhorter claims that his trial attorney was ineffective for failing to object to the Voluntary Manslaughter instruction given to the jury. We agree, as defense counsel acquiesced to the giving of an instruction that (1) was not warranted by the evidence and (2) invited a compromise or unreliable verdict.

A defendant is entitled to have a jury properly instructed on an essential rule of law. Palmer v. State, 573 N.E.2d 880, 880 (Ind.1991). In evaluating allegations of ineffectiveness in this regard, we look to the law available at the time of counsel’s representation to determine whether a proper objection would have been sustained. Walker v. State, 843 N.E.2d 50, 59 (Ind.Ct.App.2006), trans. denied.

Indiana’s voluntary manslaughter statute provides:

(a) A person who knowingly or intentionally:
(1) kills another human being; or
(2) kills a fetus that has attained viability (as defined in IC 16-18-2-365);
while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon.
(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.

Ind.Code § 35-42-1-3. “Sudden heat” is characterized as “anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.” Dearman v. State, 743 N.E.2d 757, 760 (Ind.2001). It is not an element of Voluntary Manslaughter. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002). Rather, it is that which distinguishes Voluntary Manslaughter from Murder. Id. Although Voluntary Manslaughter is a lesser-included offense of Murder, it is an atypical example of a lesser-included offense. Watts v. State, 885 N.E.2d 1228, 1231 (Ind.2008). “In the case of voluntary manslaughter ... sudden heat is a mitigating factor, not an element, that the State must prove in addition to the elements of murder.... [I]f there is no serious eviden-tiary dispute over sudden heat, it is error for a trial court to instruct a jury on voluntary manslaughter in addition to murder.” Id. at 1232 (emphasis in original).

The theory of McWhorter’s defense was that an accidental shooting had occurred; defense counsel employed an “all or nothing” strategy seeking acquittal while realizing that the jury might instead convict McWhorter of Murder. The State did not initially charge McWhorter with Voluntary Manslaughter, and the trial court could properly have given a Voluntary Manslaughter instruction over McWhorter’s objection only in the face of a serious evidentiary dispute as to whether the lesser offense was committed but the greater was not. See id. An unsupported Voluntary Manslaughter instruction deprives the defendant of the opportunity to pursue a legitimate trial strategy. Id. at 1233.

Here, any testimony that might have arguably approached evidence of “sudden heat” was elicited by the State from McWhorter’s grandmother. She testified that McWhorter and Deweese had argued about Deweese having a sexual encounter with someone other than McWhorter while she was pregnant with McWhorter’s child. McWhorter had expressed anger by stepping on and throwing Deweese’s engagement ring. Anger alone is not sufficient to support an instruction on sudden heat; nor will words alone constitute sufficient provocation to warrant the instruction, particularly when the words at issue are not intentionally designed to provoke the defendant. Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind.Ct.App.2010), trans. denied. In Su-prenant, a panel of this Court concluded that alleged provocation “comprised of words ending a relationship accompanied by preparations to leave” did not constitute “sudden heat” justifying a Voluntary Manslaughter instruction. 925 N.E.2d at 1284. In this case, there was merely a verbal admission. Although Deweese had admitted to being with a man other than McWhorter at some time in the past, there is no evidence that she offered any provocation whatsoever beyond “mere words.” The Voluntary Manslaughter instruction lacked evidentiary support.

Moreover, the instruction prescribed sequential error for jury deliberation. Final Instruction No. 3 provided in relevant part:

The Defendant is charged with murder. Voluntary manslaughter and reckless homicide are lesser included offenses in the charge of murder. If the State proves the Defendant guilty of murder, you need not consider the included crimes. However, if the State fails to prove the Defendant committed murder, you may consider whether the Defendant committed voluntary manslaughter or reckless homicide, which the Court will define for you.
You must not find the Defendant guilty of more than one crime.
The statute defining the offense of Murder which was in force at the time of the offense charged reads as follows:
35-42-1-1. Murder A person who: knowingly ... kills another human being ... commits murder, a felony.
To convict the Defendant, the State must have proved each of the following elements:
1. The Defendant
2. knowingly
3. killed
4.Amanda L. Deweese
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of murder, a felony, as charged in the Information.
You may then consider any included crime. The crime of voluntary manslaughter is included in the charged crime of murder. Voluntary manslaughter is defined by statute as follows:
A person who knowingly ... kills another human being while acting under sudden heat commits voluntary manslaughter, a Class B felony. The offense is a Class A felony if it is committed by means of a deadly weapon.
Sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat.
Before you may convict the Defendant, the state must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. knowingly
3. killed
4. Amanda Deweese
5. and the Defendant was not acting under sudden heat
6. and the Defendant killed by means of a deadly weapon.
If the State failed to prove each of elements 1 through 4 of the crime of murder beyond a reasonable doubt, you must find the Defendant not guilty of murder as charged.
If the State did prove each of elements 1 through 4 and element 6 beyond a reasonable doubt, but the State failed to prove beyond a reasonable doubt element 5, you may find the Defendant guilty of voluntary manslaughter, a Class A felony, a lesser included offense of murder. If this is your finding but that the Defendant did not do so by means of a deadly weapon, you may find the Defendant guilty of voluntary manslaughter, a Class B felony, a lesser included offense of murder. If the State proves the Defendant guilty of voluntary manslaughter, you need not consider the next included crime.
If the State did prove each of elements 1 through 5 beyond a reasonable doubt, you may find the Defendant guilty of murder, a felony.

(App. 25-26.) (emphasis added.)

As such, the inartfully drafted instruction directed the jury to proceed, upon a failure of proof of one or more of the elements of Murder, to consider the lesser charge of Voluntary Manslaughter. However, the only element in dispute was intent. The jury was led by the sequential error of the instruction to, as a practical matter, find that McWhorter did not knowingly or intentionally kill Deweese, but that he did knowingly or intentionally kill Deweese while acting in sudden heat. That which does not exist cannot be mitigated. Counsel’s failure to object was deficient performance.

We then must consider whether McWhorter was prejudiced such that the result of the trial was unreliable. The State asserts that a jury can acquit a defendant of Murder while convicting of Voluntary Manslaughter and has historically done so in many cases. We do not disagree. However, that result should ensue only upon proper instruction. The purpose of jury instruction is to inform the jury of the law applicable to the facts of a particular case. Williams v. State, 782 N.E.2d 1039, 1047 (Ind.Ct.App.2003), trans. denied. Presumably, a jury acts in obedience to the trial court’s instructions. See Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.1991).

Here, with intent the only element in dispute, the jury was advised that McWhorter could be convicted of Voluntary Manslaughter if less than all the elements of Murder were proven. Indeed, the jury was directed to proceed with consideration of the Voluntary Manslaughter charge only if there had been a failure of proof as to one or more of the elements of Murder, which are also elements of Voluntary Manslaughter. A finding that less than all the elements of Murder were proven is, in these circumstances, necessarily a finding that the requisite intent was not established. We find that the instruction to proceed to consider Voluntary Manslaughter only upon a failure of proof of Murder invites inconsistency and renders the result of the trial unreliable. McWhorter was prejudiced in that he ultimately stood convicted of Voluntary Manslaughter, an offense not initially charged by the State and one upon which McWhorter did not proffer evidence or request instruction. The post-conviction court erred by not granting McWhorter relief upon his ineffectiveness of counsel claim.

McWhorter further argues that he may not be retried on the Voluntary Manslaughter charge because retrial would violate the double jeopardy principles of the United States Constitution. The Fifth Amendment guarantee against double jeopardy bars a defendant from being prosecuted for an offense after being acquitted for the same offense. Griffin v. State, 717 N.E.2d 73, 77 (Ind.1999). The State responds that the jury is able to differentiate between offenses and, in finding McWhorter not guilty of Murder, acquitted him only of an “intentional killing” and did not intend to acquit him of Voluntary Manslaughter. State’s Brief at 22.

To ascribe this intent to the jury, as the State urges, would require that we disregard the explanation of law given to the jury and render the instruction superfluous. The jury was directed to convict McWhorter of Murder only upon proof that (1) McWhorter (2) knowingly (3) killed (4) Amanda Deweese. (App. 25.) The jury was further instructed to proceed to consideration of Voluntary Manslaughter only if one or more elements of Murder were not proven. However, the elements of Murder are also requisite elements of Voluntary Manslaughter. Because intent was the only contested element, the failure of proof was as to that element. The jury returned a joint verdict form, stating that McWhorter was not guilty of Murder but guilty of Voluntary Manslaughter. This contemporaneous verdict form functioned as an acquittal of Voluntary Manslaughter, which requires the same intent as Murder.

McWhorter may not be retried on the charges of which he was acquitted. However, as he concedes, he may be retried on Reckless Homicide, the offense upon which the jury returned no verdict, and the elements of which differ from Murder and Voluntary Manslaughter.

Conclusion

McWhorter has established that he was denied the effective assistance of trial counsel. Accordingly, we reverse the denial of post-conviction relief. McWhorter may be retried on the charge of Reckless Homicide.

Reversed and remanded.

ROBB, C.J., and MATHIAS, J., concur.

      . It is not clear from the post-conviction and trial record as to whether the State proffered instructions on lesser offenses or the trial court sua sponte drafted the combined instruction given. It is clear, however, that the jury did not receive such instruction upon McWhorter’s initiative.

      . Where a defendant has produced evidence of sudden heat, the State may not obtain a conviction for Murder, as opposed to Voluntary Manslaughter, unless the State has negated the evidence of sudden heat. “It bears repeating that only when evidence of sudden heat is presented does the State assume the burden of proving the absence of sudden heat to obtain a murder conviction.” Massey v. State, 955 N.E.2d 247, 255 n. 4 (2011) (emphasis in original).

      . Thus, the deliberations had culminated in a verdict. We acknowledge that a jury is not prohibited by double jeopardy principles from revisiting or reconsidering its initial conclusion on a given issue during its deliberations but prior to rendering a verdict. Blueford v. Arkansas, - U.S. -, 132 S.Ct. 2044, 2052, 182 L.Ed.2d 937 (2012). In Blueford, the jury had been instructed to proceed to consider a lesser-included offense if it had reasonable doubt of guilt of the greater charge, and the jury foreperson had reported to the court that the jury was unanimous against a finding of guilt on the greater offense. Id. at 2051. A report, but no verdict, having been rendered, the defendant could properly be retried after the declaration of a mistrial. Id.

      . One commits Reckless Homicide when he recklessly kills another human being. Ind. Code § 35-42-1-5.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Corey COLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1111-CR-1019.
    Court of Appeals of Indiana.
    July 13, 2012.

      Susan D. Rayl, Smith Rayl Law Office, LLC, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Corey Cole appeals his conviction of Class B felony rape. He presents two issues for our consideration:

1. Whether the trial court abused its discretion when it sustained the State’s objection to Cole’s attempt to refresh the victim’s memory with a writing made by another witness; and
2. Whether the trial court’s admission of hearsay constituted a fundamental error. We affirm.

FACTS AND PROCEDURAL HISTORY

At 11:00 p.m. on July 11, 2008, J.S. left work. Thereafter she consumed several alcoholic beverages at two bars. J.S. testified she does not remember anything after leaving the second bar. Around 1:00 a.m. on July 12, J.S. arrived at the bar where her boyfriend, D.R., tended bar. D.R. noticed she was “very intoxicated, to the point of incoherency.” (Tr. at 31.) After J.S. passed out in the bar, D.R. carried her to his car and left the car unlocked. J.S.’s roommate, K.G., testified she checked on J.S. three times throughout the early morning hours. K.G. testified J.S. was passed out in the passenger side of D.R.’s car and J.S. did not acknowledge K.G. when she checked on J.S.

The last time K.G. checked on J.S., she noticed a man she later described as a “little taller, skinny, black,” (Id. at 14), exit the driver’s side of the car and take off running. K.G. approached the car and found J.S. in a state of undress. She alerted D.R., who testified J.S. was “completely passed out with her — her legs her [sic] up, her dress was down, her underwear was gone, her shoes were off.” (Id. at 35.) KG. alerted Kory Dickerson, an off-duty police officer who was working security at the bar.

Officer Dickerson attempted to wake J.S., but she was unresponsive. She remained unresponsive even as medics arrived and checked her vital signs. Detective Michael Hanson and a sex crimes deputy prosecutor also attempted to wake J.S., to no avail. J.S. finally awoke in the ambulance on the way to the hospital, sometime after 3:56 a.m.

At the hospital, Detective Hanson informed J.S. that she may have been sexually assaulted and J.S. consented to collection of evidence using a rape kit. J.S. had a blood alcohol level of .27. J.S. was unable to identify her attacker in a photo array. Based on DNA analysis of the fluids found on J.S., the police identified Cole as a suspect. Cole’s DNA and fingerprints were found on a beer bottle near D.R.’s car.

Cole was charged with Class B felony rape. At trial, Cole admitted he had sexual intercourse with J.S. but claimed it was consensual. The trial court found Cole guilty as charged, and sentenced him to twelve years with six years suspended.

DISCUSSION AND DECISION

The trial court has broad discretion when deciding whether to admit evidence. Gaby v. State, 949 N.E.2d 870, 877 (Ind.Ct.App.2011). We will not reverse the trial court’s decision absent a showing of a manifest abuse of that discretion resulting in the denial of a fair trial. Id. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

1. Refreshing Recollection

Indiana Evidence Rule 612(a) allows a questioner to refresh a witness’s memory using a writing or similar device after the witness indicates she has no memory of the information sought. Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000). The item used to refresh the witness’s memory does not need to have been written by the witness. Id.

Cole tried to refresh J.S.’s memory using a writing prepared by the sexual assault nurse who met with J.S. after the rape. He argues the trial court abused its discretion when it sustained the State’s objection. During Cole’s cross-examination of J.S., he asked her about a conversation she had with the nurse from The Center of Hope:

[Defense]: Do you recall talking to a nurse?
[J.S.]: Yes.
[Defense]: Do you recall how much you told her you had to drink?
[J.SJ: No.
[Defense]: If I showed you her report and told her that you — showed you that you said you had a couple drinks, would that refresh your memory?
[J.SJ: Yes.
[State]: Your Honor, I would object to him showing her the notes that another witness has taken and already testified to. She has no personal knowledge of those notes. She was not watching her as she wrote them. That would not be able to refresh this witness’s memory.
[Court]: Sustained.
[Defense]: Do you recall telling the nurse how many drinks you had?
[J.SJ: No.

(Tr. at 190-91.)

The testimony Cole sought to produce through refreshment of J.S.’s recollection — how many drinks she consumed the night of the crime — was cumulative of the nurse’s testimony earlier in the trial. The nurse testified, “[J.SJ had two drinks at one place then another drink in another place. So I see here that says she had three.” {Id. at 149.) As the admission or exclusion of “[e]vidence that is merely cumulative is not grounds for reversal,” Tobar v. State, 740 N.E.2d 106, 108 (Ind.2000), the trial court did not err.

2. Hearsay

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Evid. R. 801(c). Hearsay is not admissible unless it fits within an exception to the hearsay rule. Simmons v. State, 760 N.E.2d 1154, 1160 (Ind.Ct.App.2002). Cole argues two witnesses offered hearsay testimony. However, Cole did not object to the statements during trial. Therefore, his claim of error is waived. Johnson v. State, 725 N.E.2d 864, 867 (Ind.2000).

One way to escape such waiver is by claiming the error is fundamental. Jewell v. State, 887 N.E.2d 989, 940 n. 1 (Ind.2008). Fundamental errors are “clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be denied.” Warriner v. State, 435 N.E.2d 562, 563 (Ind.1982). The fundamental error exception is “extremely narrow.” Benson v. State, 762 N.E.2d 748, 755 (Ind.2002).

Cole first asserts testimony by James Roth of the Marion County Forensic Services Agency included hearsay. During cross-examination, defense counsel asked Roth about a beer bottle found at the scene of the crime:

[Defense]: You found a beer bottle—
[Roth]: Yes.
[Defense]: —in the parking lot.
[Roth]: Yes.
[Defense]: Did you pick that up and look for prints on that?
[Roth]: No, I did not.
[Defense]: Why did you not do that?
[Roth]: I didn’t feel at that point it was — had any evidentiary value.
[Defense]: Why did you think the beer bottle had value again?
[Roth]: I was told by Detective Hanson that someone had observed an individual place that beer bottle there and he wanted me to collect it.

(Tr. at 81-82.) Cole claims Roth’s final statement was hearsay and its admission was fundamental error.

However, because Cole’s counsel asked the question, he invited the alleged error about which he now complains. See Thacker v. State, 578 N.E.2d 784, 786 (Ind.Ct.App.1991) (holding defendant invited any error caused by admission of evidence where he elicited the testimony during cross-examination). Therefore, we may not reverse on the basis of that alleged error. See Kingery v. State, 659 N.E.2d 490, 494 (Ind.1995) (invited error cannot be fundamental error, and does not warrant reversal), reh’g denied.

Cole also argues five portions of Detective Hanson’s testimony were hearsay. During direct examination, Detective Hanson was asked about his investigation at the scene of the crime. He said, “I had been informed by a witness that he had observed two males in what he had described as a silver, Dodge Magnum, had been drinking beer in the parking lot and left a beer bottle behind.” (Tr. at 97.) He later mentioned the witness who gave him the information:

[Prosecutor]: Okay. Now you stated earlier that a witness had told you that he saw some individuals get into a vehicle and leave the beer bottle in the parking lot.
[Hanson]: Correct.
[Prosecutor]: Were you able to go back and find the witness?
[Hanson]: Yes.
[Prosecutor]: And how did you find that witness?
[Hanson]: I had spoken with him when I was there earlier on the scene. He had come up. He’s the one who had told me about the beer bottle.
[Prosecutor]: And who was he?
[Hanson]: His name was, I believe, Ma-nasha Fairham and he was a bouncer at Bleeker Street.
[Prosecutor]: ... Did Mr. Fairham tell you what type of vehicle he saw the individual get into.
[Hanson]: He described it as a silver, Dodge Magnum.
[Prosecutor]: Okay. And how was he able to determine that the same person that got into the Dodge Magnum was the same person that sat down the beer bottle?
[Hanson]: He observed it.
[Prosecutor]: Okay. And had he had any other experience with that individual that night?
[Hanson]: I believe they had tried to enter Bleeker Street and they were not allowed admittance.

(Id. at 99-101.) Next, Detective Hanson described his investigation into the owner of the car Fairham described:

[Hanson]: I had asked about the silver vehicle and was informed that a friend of his by the name of Mr. Offutt had a silver vehicle.
[Prosecutor]: And did you make touch— did you make contact with Mr. Offutt?
[Hanson]: Yes, I did
[Prosecutor]: And upon making contact with Mr. Offutt, what did you determine?
[Hanson]: Mr. Offutt advised me that they had a friend who had a silver, Dodge Charger and that he had not been at Broad Ripple that evening. He told me about the gentleman, Mr. Vaughn, that had the silver, Dodge Charger.
[Prosecutor]: So you made contact with Mario (phonetic) Offutt based on the silver Dodge Magnum information.
[Hanson]: Correct.
[Prosecutor]: And he informed you that he had not been with Mr. Cole but someone with a silver, Dodge Charger had been with him?
[Hanson]: Well, that he knew that Mr. Vaughn had a silver, Dodge Charger.

(Id. at 105-6.)

Finally, Cole argues two statements made by Detective Hanson about evidence collected at the scene were hearsay. First, Detective Hanson stated he “had been informed that there was a fingerprint identified off the beer bottle[,]” (id. at 98), and it was Cole’s. Later, Detective Hanson answered in the affirmative when asked, “So did you get information from the Marion County Crime Lab that J.S.’s DNA matched the DNA on the beer — I’m sorry, the DNA found on J.S. was matched to the DNA on the beer bottle?” (Id. at 108.)

Cole argues Detective Hanson’s hearsay statements about Fairham and the beer bottle “were the only evidence connecting Mr. Cole to the beer bottle in the parking lot[,]” (Br. of Appellant at 18), and thus he was denied a fair trial because those statements were inadmissible hearsay. We cannot agree.

As noted above, an error in the admission of evidence does not justify reversal if the evidence is cumulative of other evidence presented at trial. Tobar, 740 N.E.2d at 108. Neither does the erroneous admission of evidence require reversal if there is “substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112, 1122 (Ind.Ct. App.2003).

Detective Hanson’s testimony followed that of Rochelle O’Niel, a fingerprint examiner with IMPD, who testified about the fingerprints found on the beer bottle. Detective Hanson’s testimony regarding the match of DNA samples was cumulative of the testimony of a DNA analyst for the Marion County Forensic Services Agency. Finally, Detective Hanson’s testimony regarding the beer bottle at the crime scene was cumulative of Cole’s own testimony that he was drinking beer in the parking lot near where J.S. was raped. Detective Hanson’s testimony was cumulative of other testimony properly admitted. See Hunter v. State of Indiana, 172 Ind.App. 397, 416, 360 N.E.2d 588, 600 (“this court will not reverse for admission or denial of cumulative evidence”).

Further, the testimony about which Cole complains did not likely contribute to his conviction. Cole admitted he had sex with J.S. on the night in question, which places him at the scene of the crime regardless of whether his fingerprint was on a beer bottle and his DNA was on J.S. Therefore, based on Cole’s own testimony, we cannot say fundamental error occurred. See Meadows, 785 N.E.2d at 1122 (erroneous admission of evidence is not a reason for reversal if there is “substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction”).

CONCLUSION

The trial court did not commit reversible error when it sustained the State’s objection to Cole’s attempt to refresh J.S.’s memory with the notes from the nurse; J.S.’s testimony would have been cumulative of the nurse’s testimony. In addition, no fundamental error occurred when the court admitted hearsay statements: Cole invited some of the error, the uninvited statements were cumulative of other testimony, and they did not likely contribute to the decision regarding Cole’s guilt. Accordingly, we affirm.

Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.

      . Ind.Code§ 35-42-4-l(a).

      . We note, however, a portion of the State's proffered reason for objecting to Cole’s attempt to refresh J.S.'s recollection was not proper, as there is no requirement that the item used to refresh the witness's memory must have been written by the witness. See Thompson, 728 N.E.2d at 160 (witness does not have to be author of item used to refresh recollection).


author: KIRSCH, Judge.

text:
    Kyle L. DOOLIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 32A01-1111-CR-545.
    Court of Appeals of Indiana.
    July 16, 2012.

      Paula M. Sauer, Danville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Following a bench trial, Kyle L. Doolin (“Doolin”) was convicted of possession of marijuana as a Class A misdemeanor. He appeals and raises the following restated issue: whether the trial court abused its discretion when it admitted into evidence the results of an in-court field test of a substance alleged to be marijuana.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 16, 2011, Deputy Brian Petree (“Deputy Petree”) of the Hendricks County Sheriffs Department was on patrol on Interstate 70 in Hendricks County. He observed a car fail to properly signal before making a lane change. Deputy Pe-tree initiated a traffic stop of the vehicle, which was being driven by Brandon Hersey, Doolin’s cousin. Doolin was a front-seat passenger in the car. After issuing a warning citation for the infraction, Deputy Petree asked for and received permission to search the vehicle. During the search, Deputy Petree found inside the locked glove box a digital scale and a velvet drawstring bag that contained two baggies of green leafy plant material, which Deputy Petree believed in his experience to be marijuana based on the look and smell of it. Officer Brady McManama (“Officer McManama”) of the Stilesville Police Department read Miranda rights to both Hersey and Doolin at the scene and then transported the men to jail, where Doolin approached Deputy Petree and stated that the marijuana was his and that he wanted to take responsibility for it. The State charged Doolin with dealing in marijuana, a Class A misdemeanor. On the day of trial, the State was granted permission to add two counts: possession of marijuana and possession of paraphernalia, both Class A misdemeanors.

At the bench trial, after establishing the chain of custody and storage of the alleged marijuana, the State sought to have Deputy Petree perform a field test in the courtroom on a sample of the plant substance. Over Doolin’s objections, the trial court permitted Deputy Petree to conduct two field tests on the material. Deputy Petree testified that the second test indicated the presence of THC, the active ingredient in marijuana.

Following trial, Doolin was found guilty of possession of marijuana and was acquitted of the other two counts. The trial court sentenced him to three-hundred-sixty-five days at the Hendricks County Jail, with credit for time served, and the remainder was suspended to probation. Doolin filed a motion to correct error, which the trial court denied. Doolin now appeals.

DISCUSSION AND DECISION

Doolin argues that the trial court abused its discretion by admitting the results from the in-court field test conducted by Deputy Petree. We review the trial court’s decision to admit evidence based on a scientific process under an abuse of discretion standard. West v. State, 805 N.E.2d 909, 913 (Ind.Ct.App.2004), trans. denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the circumstances. N.W. v. State, 834 N.E.2d 159,161 (Ind.Ct.App.2005), trans. denied. Even if the trial court’s decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Taylor v. State, 904 N.E.2d 259, 261-62 (Ind.Ct.App.2009), trans. denied.

To convict Doolin of possession of marijuana, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally possessed marijuana. Ind.Code § 35-48-4-11. In this case, the alleged marijuana seized from the vehicle was not tested prior to trial; rather, the only test conducted on the substance was the in-court field test conducted by Deputy Petree. Doolin asserts it was error to admit the results of that test because its reliability was not established.

Pursuant to Indiana Rule of Evidence 702(b) (“Rule 702”), expert scientific testimony is admissible only if reliability is demonstrated to the trial court. Rule 702 provides:

(a) If scientific; technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

The proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles. McGrew v. State, 682 N.E.2d 1289,1292 (Ind.1997). There is “no specific test” that must be considered in order to satisfy Rule 702(b). West, 805 N.E.2d at 913 (citing McGrew, 682 N.E.2d at 1292). Rather, reliability may be established by judicial notice or, in its absence, by sufficient foundation to convince the trial court that the relevant scientific principles are reliable. Id. In determining whether scientific evidence is reliable, the trial court must determine whether the evidence appears sufficiently valid, or, in other words, trustworthy, to assist the trier of fact. Id. (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 n. 9, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

In this appeal, Doolin does not challenge Deputy Petree’s qualifications. Rather, he argues that the State failed to present a sufficient foundation for the reliability of the field test in question. Based on our review of the record before us, we agree that it was error to admit the results of the in-court field test because its reliability was not established.

At trial, Doolin timely objected to the admission of the field test, asserting that a proper foundation had not been established. He argued that the courtroom was not a controlled environment, Deputy Petree was not a chemist, and that “there’s a little higher burden than having an officer do a field kit test here — here in the courtroom.” Tr. at 44-45. The trial court overruled the objection and permitted Deputy Petree to conduct the field test. Prior to starting the test, however, Deputy Petree explained the procedures he would follow: place a small sample of the plant material in a glass bottle, drop in a capsule, shake the bottle and break the capsule, and “[i]f it turns blue,” then that indicates the presence of THC, the active ingredient in marijuana. Id. at 45.. Deputy Petree also stated that the procedure was routinely used by the Hendricks County Sheriffs Department. Doolin again objected, noting that there were no seals, was no showing of the accuracy of the tests, and was no showing that the kit was in proper working order. The trial court overruled the objection and permitted Deputy Petree to conduct the field test. Before starting, Deputy Petree inquired whether there were any gloves available to him in the courtroom; there were not. He proceeded, but during Deputy Petree’s first test, the ampoule did not break and was stuck, and no results were yielded. Id. at 48. The State then requested permission for Deputy Petree to conduct a second test, which was granted over Doolin’s objection. Deputy Petree testified that the results were blue, indicating the presence of THC, the active ingredient in marijuana; counsel for Doolin voiced his disagreement that the results were, in fact, blue or otherwise conclusive.

The State urges that under the precedent of Burkett v. State, 691 N.E.2d 1241 (Ind.Ct.App.1998), trans. denied, we should find no error in the admission of Deputy Petree’s field test. In Burkett, police stopped a speeding car, driven by Burkett. Burkett failed a field sobriety test and a portable breath test, and before he was transported to jail, the officer conducted a patdown search of Burkett for officer safety. The officer discovered a green, leafy substance in Burkett’s pocket. At the jail, the officer conducted a field test on the substance, and the result was positive for marijuana. Id. at 1243. He was charged and convicted of possession of marijuana.

On appeal, Burkett claimed that the trial court erred in admitting the results of the field test because the State failed to provide sufficient foundation for both the testifying officer’s qualifications and the reliability of the field test. Id. at 1245. A panel of this court upheld the trial court’s decision that the police officer was a qualified expert because he testified that: (1) he was trained to administer the test; (2) he followed the proper procedures; (3) the test consisted of three ampoules of acid that change color to show the presence of marijuana; and (4) the sheriffs department routinely used the test. Id. As for Burkett’s claim that the State failed to present a sufficient foundation for the reliability of the field test, which is Doolin’s claim in the present case, the Burkett court concluded that the field test was admissible because “the results of this type of test have been admitted in other cases,” citing Houston v. State, 553 N.E.2d 117, 119 (Ind.1990) and Bellamy v. State, 259 Ind. 254, 286 N.E.2d 401 (1972). Id. at 1246.

As Doolin observes, both Houston and Bellamy, upon which the Burkett court relied, were decided prior to the adoption of Rule of Evidence 702, with which we are concerned now. Furthermore, neither Houston nor Bellamy challenged the reliability of the field test. While Burkett ultimately determined that the field test on marijuana conducted by the officer at the jail was admissible, we are not persuaded that it stands for the broad proposition that any unnamed in-court field test for marijuana is admissible, so long as the testifying officer states he or she has experience with the test and that the department routinely uses it. To the extent that Burkett could be interpreted to direct that result, we respectfully decline to follow it.

Here, although Deputy Petree provided a general overview of the several steps he intended to follow when conducting the test and stated that his department routinely utilizes the field test, he did not provide any specific name or otherwise identify the test, indicate its reliability or rate of accuracy or error, note the scientific principles on which it is based, or recognize any standards regarding its use and operation. We agree with Doolin that the deputy’s explanation at trial essentially was nothing more than: “break an ampoule of something over the challenged plant material and shake it up. If whatever is in the ampoule causes the material to turn blue, it’s marijuana.” Reply Br. at 1. The State simply presented no foundational evidence of the test used. Because of this dearth of evidence regarding this field test, we find the State failed to establish the test’s reliability under Rule 702(b), and the trial court abused its discretion in admitting the results into evidence. See West, 805 N.E.2d at 914 (trial court erred by considering results of Draeger field test, conducted at scene to detect anhydrous ammonia, because of lack of evidence at trial regarding test’s scientific reliability). We note that our holding today does not represent a conclusion that all field tests of marijuana conducted in the courtroom are, per se, inadmissible; nor do we find that in-court field tests on marijuana may never be used as substantive evidence of guilt, as Doolin asks us to do. Rather, we hold that under the facts and circumstances of this case, the trial court abused its discretion when it admitted the results of Deputy Petree’s in-court field test because of the lack of foundation as to its reliability. Having found error, we now determine whether the error requires reversal.

Improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction. Spires v. State, 670 N.E.2d 1313, 1316 (Ind.Ct.App.1996). An error in the admission of evidence is not prejudicial if the evidence is merely cumulative of other evidence in the record. VanPelt v. State, 760 N.E.2d 218, 224 (Ind. Ct.App.2001), trans. denied (2002).

Here, there was substantial other evidence, besides the result of the in-court field test, that the plant material in question was marijuana. First and foremost, Deputy Petree testified without objection that Doolin had admitted to him at the jail that “the marijuana was his” and that “he wanted to take responsibility for it.” Tr. at 40. Second, the circumstances surrounding the location of the substance — in a baggie, inside a velvet bag along with a set of scales hidden in a music CD case, all inside a locked glove box — suggest that it was not intended to be discovered. See Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010) (identity of drug can be proven by circumstantial evidence), trans. denied. Third, Deputy Petree identified the green leafy substance as marijuana based on its odor and appearance. Our Supreme Court has held:

Although chemical analysis is one way, and perhaps the best way, to establish the identity of a compound, persons experienced in the area may be able to identify cigarette smoke, marijuana, and even toluene. This is true even if every citizen may not be up to that task.

Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind.2001).

At trial, Deputy Petree testified that he had been a law enforcement officer for six years, graduating from the Indiana Law Enforcement Academy (“Academy”) and attending yearly training as part of his job. At the time of Doolin’s arrest, Deputy Petree was part of what is known as ICE, a team of eight officers chosen to conduct interstate criminal enforcement, patrolling the interstates and looking for contraband. He testified that he had received training regarding identifying drugs at the Academy, and he also took several classes relating to the interdiction of narcotics. Lieutenant Larry Deckard, a crime scene investigator and property room manager with of the Hendricks County Sheriffs Department, testified that Deputy Petree had “a lot” of law enforcement experience with marijuana cases and that many bags of marijuana were currently being stored in the property room under Deputy Petree’s name. Tr. at 25.

We find that Deputy Petree’s experience, training, and personal observations, along with other circumstantial evidence, sufficiently established the identity of the substance as marijuana. See Halsema v. State, 823 N.E.2d 668, 673 n. 1 (Ind.2005) (testimony of officer that he had received special training in production, manufacture and distribution of methamphetamine was sufficient to establish that substance was methamphetamine, even though substance was not scientifically determined to be methamphetamine); Boggs, 928 N.E.2d at 865-67 (Ind.Ct.App.2010) (officer’s testimony that based on his training and experience he had “no doubt” that green, leafy substance was marijuana was sufficient to establish identity of drug); McConnell v. State, 540 N.E.2d 100, 103-04 (Ind.Ct.App.1989) (testimony of officer who was familiar with marijuana that substance at issue appeared to be marijuana was sufficient to establish that it was marijuana). Accordingly, we conclude that while it was error for the trial court to admit the in-court field test, the error was harmless in light of the other independent evidence of the identity of the substance.

Affirmed.

BAKER, J., and BROWN, J., concur.

      . See Ind.Code § 35-48-4-11(1).

      . In Houston, the defendant challenged the qualifications of the officer conducting the marijuana field test. 553 N.E.2d at 119. In Bellamy, the defendant challenged the chain of custody of an envelope of heroin that was admitted into evidence; two field tests had been conducted on the substance at the scene and there was no objection at trial concerning those. 286 N.E.2d at 403.


author: DARDEN, Judge.

text:
    Darrell Larue BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A04-1109-CR-551.
    Court of Appeals of Indiana.
    July 17, 2012.
    Jeffrey D. Stonebraker, Clark County Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Darrell Larue Brown attempts to appeal the appropriateness of the sentence imposed after he pled guilty to two counts of child molesting as class B felonies.

We affirm on the basis that Brown waived his right to appeal.

ISSUE

Whether Brown knowingly and voluntarily waived his right to a direct appeal of his sentence.

FACTS

On March 5, 2010, the State charged Brown with nine counts of child molesting. On August 22, 2011, Brown pled guilty to two counts of child molesting as class B felonies in exchange for the dismissal of the other counts. As described below, sentencing was left to the discretion of the court.

Paragraph 12 of the plea agreement provided:

The Defendant understands that he has the right to a direct appeal of any sentence handed down by the Judge if there is an open plea. An open plea is any plea which leaves all or part of sentencing to the discretion of the Judge. The Defendant hereby waives his right to appeal his sentence so long as the Judge sentences him within the terms of the plea agreement. The Defendant further agrees that any sentence within the range provided in the plea agreement is reasonable and appropriate, including the maximum sentence, based upon aggravating circumstances which are hereby stipulated.

(App. 28-29).

Paragraph 14 of the plea agreement provided:

Upon the Defendant entering a blind or open plea of guilty to child molesting (Class B felony) as charged in Count I of the Amended Information filed against him, the Court shall have complete discretion in sentencing the defendant pursuant to I.C. 35-50-2-5 (Class B felony) to a fixed term of between six (6) and twenty (20) years at the Indiana Department of Correction.

(App. 29). This provision, as it applied to Count II, was repeated in Paragraph 16.

At the guilty plea hearing, the following exchange occurred:

THE COURT: And you understand that under this plea agreement, this is a blind plea or what’s called an open plea and you will not have the right to appeal your conviction, but you would have the right to appeal any sentence. It says he’s waiving his right to appeal the sentence. Is that right [Assistant Public Defender] Mr. Adams?
MR. ADAMS: I believe so Your Honor.
THE COURT: Okay. So you understand that you’re waiving your right also to appeal any sentence imposed by the trial court as long as the sentence is within the range of a Class B felony?
DEFENDANT: Yes ma’am.

(Tr. 9).

Later in the hearing, the trial court reaffirmed Brown’s waiver:

THE COURT: You indicated that you waive your right to seek modification in the judgment entered and waive your right to appeal the sentence imposed in this case as long as it’s within that range, you understand that?
DEFENDANT: Yes ma’am.

(Tr. 14-16).

The trial court subsequently accepted the plea agreement, and it sentenced Brown to two twenty-year concurrent terms with four years suspended to probation.

DECISION

Brown attempts to appeal his sentence as inappropriate. The State counters that Brown has waived his right to directly appeal his sentence.

In Creech v. State, 887 N.E.2d 73, 77 (Ind.2008), our supreme court held that Creech, by signing a plea agreement containing a sentencing waiver provision, knowingly and voluntarily waived his right to appellate review of the sentence. The court held that the waiver provision was valid even though Creech was not orally advised of the provision by the trial court. The waiver in Creech was materially similar to the one contained in the present case.

In Bowling v. State, 960 N.E.2d 837, 843-44 (Ind.Ct.App.2012), trans. denied, this court held that such a waiver provision was effective even though the provision was contained in an written advisement of rights and was not contained in either the guilty plea or mentioned by the trial court at the guilty plea hearing.

In Holloway v. State, 950 N.E.2d 803 (Ind.Ct.App.2011), Bonilla v. State, 907 N.E.2d 586 (Ind.Ct.App.2009), trans. denied, and Ricci v. State, 894 N.E.2d 1089 (Ind.Ct.App.2008), trans. denied, waivers of the right to appeal the sentence were signed. The trial court judge in each case, however, erroneously informed the defendant that he retained the right to appeal his sentence. We held in each case that because of the trial court’s statements the defendant did not knowingly and voluntarily waive the right to appeal his sentence.

In the present case, like in Creech, Brown signed a clearly stated written waiver of the right to appeal his sentence. Also, unlike in Holloway, Bonilla, and Ricci, Brown was accurately advised by the trial court concerning the effect of his waiver. Furthermore, the trial court imposed a sentence that was within the terms of the plea agreement. The evidence supports the conclusion that Brown knowingly and voluntarily waived his right to raise the propriety of his sentence on direct appeal.

We affirm the sentence imposed by the trial court.

RILEY, J., and NAJAM, J., concur.

      . Ind.Code § 35-42-4-3.


author: WENTWORTH, J.

text:
    FRESENIUS USA MARKETING, INC., Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 49T10-1008-TA-45.
    Tax Court of Indiana.
    June 1, 2012.

      Francina A. Dlouhy, J. Daniel Ogren, Fenton D. Strickland, Faegre Baker Daniels LLP, Indianapolis, IN, Attorneys for Petitioner.
    Gregory F. Zoeller, Indiana Attorney General, John D. Snethen, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON RESPONDENT’S MOTION TO DISMISS

WENTWORTH, J.

Fresenius USA Marketing, Inc. has appealed the Indiana Department of State Revenue’s final determination denying its claim for refund of gross retail (sales) and use tax collected on its sales of dialysis equipment and remitted to the Department between January 1, 2004 and October 31, 2007 (the period at issue). The matter is currently before the Court on the Department’s motion to dismiss, which the Court denies.

FACTS AND PROCEDURAL HISTORY

During the period at issue, Fresenius sold equipment used to treat patients with End Stage Renal Disease. The equipment included, but was not limited to, dialysis machines, dialyzers, fistula needles, bloodlines, compression dressings and bandages, intravenous sets, and syringes. The equipment, “working together as an artificial replacement kidney, [is] prescribed for a therapeutic purpose, and [to] alleviate a condition brought about by an injury to or malfunction of the patient’s body (specifically the kidneys).” (Pet’r Resp. Resp’t Mot. Dismiss (“Pet’r Resp.”) at 2.)

Fresenius collected sales tax from its customers on its equipment sales and remitted it to the Department. Fresenius subsequently filed a refund claim with the Department, maintaining that the sales were relieved from taxation pursuant to the durable medical equipment exemption and, as a result, it erroneously collected sales tax from its customers. Fresenius indicated that once it received the refund from the Department, it would return the proper amounts to each of its customers. (See Pet’r Original Tax Appeal Pet. (“Pet.”), Ex. A at 3.) On June 7, 2010, the Department issued a final determination denying Fresenius’s claim.

On August 21, 2010, Fresenius initiated an original tax appeal. On February 17, 2011, the Department filed a motion to dismiss Fresenius’s appeal. The Court conducted a hearing on the Department’s motion on May 23, 2011. Additional facts will be supplied as necessary.

ISSUES

In its motion, the Department provides three alternative reasons for the dismissal of Fresenius’s appeal:

I. The Court lacks subject matter jurisdiction over Fresenius’s appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(1);
II. Fresenius lacks standing to bring its appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(2); and
III. Fresenius has failed to certify its appeal as a class action lawsuit and the case must therefore be dismissed under Indiana Trial Rule 12(B)(6).

(Resp’t Br. Mot. Dismiss (“Resp’t Br.”) at 3-4 (footnote added).)

I. SUBJECT MATTER JURISDICTION

Subject matter jurisdiction is the power of a court to hear and determine a particular class of cases. K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). Subject matter jurisdiction can only be conferred upon a court by the Indiana Constitution or by statute. State v. Sproles, 672 N.E.2d 1353, 1356 (Ind.1996).

The Tax Court has exclusive subject matter jurisdiction over “original tax appeals.” Ind.Code §§ 33-26-3-1, -3 (2012). An original tax appeal must meet two statutory requirements: 1) the case must “arise[ ] under the tax laws of Indiana” and 2) the case must be an initial appeal of a final determination made by the Department with respect to a listed tax. I.C. § 33-26-3-1. A case “arises under” Indiana’s tax laws if it principally involves the collection of a tax or defenses to that collection or an Indiana tax statute creates the right of action. Sproles, 672 N.E.2d at 1357. The requirement that a case be an initial appeal of a final determination embodies the principle basic to all administrative law that a party seeking judicial relief from an agency action must first establish that all administrative remedies have been exhausted. See State Bd. of Tax Comm’rs v. Ispat Inland, Inc., 784 N.E.2d 477, 482 (Ind.2003). Thus, the lack of a final determination from the Department, which is the equivalent to the failure to exhaust administrative remedies, will act to deprive the Tax Court of subject matter jurisdiction in a case. See State ex rel. Att’y Gen. v. Lake Super. Ct., 820 N.E.2d 1240, 1247 (Ind.2005) (citation omitted), cert. denied; Ispat Inland, 784 N.E.2d at 482.

In its motion, the Department argues that the Court lacks subject matter jurisdiction because Fresenius failed to obtain a properly executed power of attorney form from its customers authorizing it to represent them at the administrative level as required by Indiana Code § 6-8.1-3-8. (See Resp’t Br. at 6-8 (footnote added).) Accordingly, the Department explains that the customers’ “putative refund claims have never legally been before ... [or] addressed by the Department ] and [thus] the[ir] individual refund remedies have never been exhausted.” (Resp’t Br. at 7-8.) Furthermore, the Department contends that because the customers have failed to exhaust their administrative remedies, they “cannot now elect to be represented by [Fresenius] in order to seek a class-wide refund in this Court.” (See Resp’t Br. at 11.) The Department’s arguments fail, however, because it improperly focuses on Fresenius’s customers rather than on Fresenius itself.

Fresenius, the petitioner in this case, meets both statutory requirements for initiating an original tax appeal. First, Fresenius’s case arises under Indiana’s tax laws as it concerns sales tax, a listed tax. See Ind.Code § 6-8.1-1-1 (2004) (designating the sales tax as a listed tax). Second, Fresenius received a final determination from the Department on June 7, 2010, denying its claim for refund. The Department’s claim that this Court lacks subject matter jurisdiction over Fresenius’s appeal is therefore without merit. Accordingly, its Trial Rule 12(B)(1) motion is DENIED.

II. STANDING

Next, the Department asserts that Fresenius’s appeal must be dismissed because it lacks the requisite standing to bring its case before the Court. (Resp’t Br. at 12.) Standing, a judicial doctrine intended to assure that litigation will be actively and vigorously contested, focuses on whether the complaining party is the proper person to invoke the court’s power. Schloss v. City of Indianapolis, 553 N.E.2d 1204, 1206 (Ind.1990). Under that doctrine, only those persons who have a personal stake in the outcome of the litigation and who show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained of conduct will be found to have standing. Higgins v. Hale, 476 N.E.2d 95, 101 (Ind.1985). Absent such a showing, complainants may not invoke the jurisdiction of the court. Id.

In its motion, the Department argues that in order for Fresenius, a retail merchant, to have standing to seek a sales tax refund, it must satisfy the requirements of Indiana Code § 6-2.5-6-14.1. (Resp’t Br. at 11 (footnote added).) (See also Pet., Ex. A at 4 (where Department stated in its final determination that because Fresenius had not returned to its customers the tax it initially collected from them, it lacked standing to file a claim for refund with the Department).) That statute provides that “a retail merchant is not entitled to a refund of state gross retail or use taxes unless the retail merchant refunds those taxes to the person from whom they were collected.” Ind.Code § 6-2.5-6-14.1 (2004). The Department contends that this statute clearly provides that “the merchant is not entitled to seek a refund until it refunds the money to its customers.” (Hr’g Tr. at 8 (emphasis added).) The Department explains that because Fresen-ius acknowledges that it has not yet returned to its customers the tax it initially collected from them, it lacks the requisite standing to bring its case before this Court. The Court disagrees for two reasons.

First, the Department has read Indiana Code § 6-2.5-6-14.1 as if it places a limitation on a retail merchant’s ability to seek a refund. Nevertheless, the General Assembly placed the general framework by which a retail merchant is able to seek a sales tax refund in Indiana Code § 6-8.1-9-1 and § 6-8.1-9-2. See Ind.Code §§ 6-8.1-9-l(a)-(c), -2 (2004). Thus, Indiana Code § 6-2.5-6-14.1 has nothing to do with a retail merchant’s ability to seek a refund. Instead, only after it has been determined that a retail merchant is entitled to a refund does Indiana Code § 6-2.5-6-14.1 come into play by placing a limitation on the retail merchant’s ability to receive the money. Accordingly, under the plain meaning of Indiana Code § 6-2.5-6-14.1, a retail merchant will receive the refund to which it is entitled only if it returns the money to the customers from which it was improperly collected. I.C. § 6-2.5-6-14.1.

Second, the words “unless” and “until” are not synonymous. The word “unless” is defined as “except on the condition that[.]” Webster’s Third New Int’l Dictionary 2508 (2002 ed.). In contrast, the word “until” is defined as “a function word after a negative expression to indicate performance or occurrence at a specified time[.]” Id. at 2513 (emphasis added). Thus, while the meaning of the word “unless” contemplates that a condition must be met, it does not require that the condition be based on a temporal ordering of events as does the word “until.”

In support its claim that Fresenius lacks standing, the Department has urged the Court to read words into Indiana Code § 6-2.5-6-14.1 that are not there. Nonetheless, the language of the statute is plain and unambiguous, and therefore the Court has no power to construe it in a way that would either limit or extend its operation. See F.A. Wilhelm Constr. Co. v. Indiana Dep’t of State Revenue, 586 N.E.2d 953, 955 (Ind.Tax Ct.1992) (citation omitted). The Department’s claim is consequently without merit and, as a result, the Court DENIES its Trial Rule 12(B)(6) motion.

III. CLASS ACTION

A class action is “a lawsuit in which the court authorizes a single person or a small group of people to represent the interests of a larger group[.]” Black’s Law Dictionary 284 (9th ed. 2009). “As soon as practicable after the commencement of an action brought as a class action, the court ... shall determine by order whether it is to be so maintained.” Ind. Trial Rule 23(C)(1). Such a determination requires a party to demonstrate to the court that certain requirements have first been met. See generally T.R. 23(A)-(C).

In its motion, the Department argues that Fresenius’s appeal must be dismissed “[bjecause [Fresenius] has sought to litigate this matter on behalf of a class of taxpayers but has not sought class certification[.]” (Resp’t Br. at IB.) This claim, like the Department’s previous two, however, fails.

Fresenius has a statutory right to appeal the denial of its claim for refund with this Court. See supra. Consequently, it does not need to pursue its appeal — nor has it — as a class action. Accordingly, the Department’s request that the case be dismissed under Indiana Trial Rule 12(B)(6) due to Fresenius’s failure to seek class certification is DENIED.

CONCLUSION

For the foregoing reasons, the Department’s motion to dismiss is DENIED. The Court will schedule the matter for a case management conference in a separate order.

SO ORDERED.

      . Indiana Code § 6-2.5-5-18 provides in relevant part that ''[s]ales of durable medical equipment, prosthetic devices, artificial limbs, orthopedic devices, dental prosthetic devices, eyeglasses, contact lenses, and other medical supplies and devices are exempt from the state gross retail tax, if the sales are prescribed by a person licensed to issue the prescription.” Ind.Code § 6-2.5-5-18(a) (2004).

      . An allegation that a party lacks standing is properly filed under Indiana Trial Rule 12(B)(6) (failure to state a claim upon which relief can be granted), not Indiana Trial Rule 12(B)(2) (lack of jurisdiction over the person). See McPeek v. McCardle, 888 N.E.2d 171, 173 (Ind.2008); Musgrave v. State Bd. of Tax Comm’rs, 658 N.E.2d 135, 139 (Ind.Tax Ct.1995). Accordingly, the Court will treat the Department’s 12(B)(2) motion as one raised under 12(B)(6).

      . Indiana Code § 6-8.1-3-8 provides that "a person may not represent a taxpayer before the department, unless: [ ](1) the taxpayer is present at all times when the representation occurs; or [](2) the person representing the taxpayer has a properly executed power of attorney authorizing him to represent the taxpayer.” Ind.Code § 6-8.1-3-8 (2004).

      . The Department also contends that Freseni-us does not have standing because it has admitted "that it lacks an[ ] economic interest in the refund at issue[.]” (See Resp't Br. at 12.) While the Department attached evidence to its motion to dismiss to support this contention, it never cited or referred to that evidence. (See Resp't Br. at 12.) The general rule is that when a motion to dismiss for failure to state a claim under Trial Rule 12(B)(6) is supplemented with materials outside the pleadings, it should be treated as a motion for summary judgment unless the court excludes the materials. Ind. Trial Rule 12(B). Given this Court’s ruling that Freseni-us has standing to bring it its claim under Indiana Code § 6-2.5-6-14.1, the Court need not consider — and therefore excludes — the Department’s evidentiary material in question.

      . During the hearing, the Department further explained that retail merchants do not pay sales tax, they merely collect it from their customers as an agent for the state. (See Hr'g Tr. at 6-7 (citing Ind.Code § 6-2.5-2-l(a) (2004).))


text:
    In the Matter of Stacy H. SHEEDY, Respondent.
    No. 49S00-1205-DI-276.
    Supreme Court of Indiana.
    July 17, 2012.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

The Commission filed a “Notice of Guilty Finding and Request for Suspension,” on May 21, 2012, under Ind. Admission and Discipline Rule 28(ll.l)(a). Respondent has now tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the hearing officer if one has been appointed, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Cynthia P. PURVIS, Respondent.
    No. 49S00-1207-DI-408.
    Supreme Court of Indiana.
    July 19, 2012.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 28(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the hearing officer if one has been appointed, to the parties or then-respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: DICKSON, Chief Justice. SULLIVAN and MASSA, JJ.,

text:
    Robert L. CLARK, Jr. and Debra Clark, Appellants (Plaintiffs below), v. Robert L. CLARK, Sr., Appellee (Defendant below).
    No. 01S02-1112-CT-690.
    Supreme Court of Indiana.
    July 23, 2012.

      David W. Craig, Scott A. Faultless, Krysten Lester-LeFavour, Craig Kelley & Faultless, Indianapolis, IN, Attorneys for Appellants.
    Richard P. Samek, Diana C. Bauer, Carson Boxberger LLP, Fort Wayne, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

The Indiana Guest Statute prevents certain designated passengers from recovering damages for injuries resulting from the ordinary negligence of the motor vehicle operator, where such passenger was “being transported without payment in or upon the motor vehicle.” Ind.Code § 34-30-11-1 (emphasis added). We hold that, as to injuries inflicted when such a passenger has exited the vehicle and is standing outside of it and directing the driver’s attempt to park, the passenger is not “in or upon” the vehicle and thus is not precluded from bringing a negligence action against the driver.

Both parties moved for summary judgment seeking a determination of the applicability of the Guest Statute, and the trial court ruled in favor of Senior. The Court of Appeals reversed, in an unpublished opinion, Clark v. Clark, No. 01A02-1007-CT-759, 2011 WL 2848178 (Ind.Ct.App. July 19, 2011). We granted transfer and now hold that the Indiana Guest Statute does not bar the plaintiffs’ suit.

The relevant facts are not disputed. On September 5, 2007, Robert Clark, Jr., age 46, was travelling as a passenger in a motor vehicle operated by his father, Robert Clark, Sr. When they arrived at their destination, the son exited the vehicle and walked to a point several feet in front of the vehicle and began motioning for his father to drive forward into a parking space. Once the vehicle had pulled in, the son raised his hand to signal his father to stop. Instead of depressing the brake pedal, the father’s foot hit the accelerator, causing the vehicle to pin his son between his vehicle and the next vehicle and resulting in significant leg injuries to his son. Robert, Jr. and his wife Debra, as plaintiffs, brought this damage action alleging negligence by the defendant, Robert, Sr.

The defendant driver asserted the Indiana Guest Statute as an affirmative defense, and the parties each filed competing motions for summary judgment upon this issue. The trial court held that the Guest Statute was applicable to the facts and granted summary judgment to the driver. The Court of Appeals reversed in a divided opinion. Clark, 2011 WL 2848178, at *3. Writing the lead opinion, Judge May found dispositive the defendant’s factual admission that “[his son] was not ‘in or upon’ the vehicle.” Id. Separately concurring, Judge Vaidik noted that, even without the admissions, the phrase “in or upon” is unambiguous and does not apply to the plaintiff who had exited the vehicle and was standing in front of it when struck, citing C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800 N.E.2d 200 (Ind.Ct.App.2003), trans. denied. Id. at *5. Chief Judge Robb dissented, urging that “in and upon” should be not be interpreted literally but rather consistent with KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind.Ct.App.2005), trans. denied. Id. at *3-4. We granted transfer to address the conflict of authority.

In reviewing a grant of summary judgment, the appellate court “faces the same issues that were before the trial court, and analyzes them in the same way.” Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). Where the challenge to the trial court’s summary judgment presents only legal issues, not factual ones, the issues are reviewed de novo. Spangler v. Bechtel, 958 N.E.2d 458, 461 (Ind.2011). The Indiana Guest Statute provides:

The owner, operator, or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from injuries to or the death of:
(1) the person’s parent;
(2) the person’s spouse;
(3) the person’s child or stepchild;
(4) the person’s brother;
(5) the person’s sister; or
(6) a hitchhiker;
resulting from the operation of the motor vehicle while the parent, spouse, child or stepchild, brother, sister, or hitchhiker was being transported without payment in or upon the motor vehicle unless the injuries or death are caused by the wanton or willful misconduct of the operator, owner, or person responsible for the operation of the motor vehicle.

Ind.Code § 34-30-11-1 (emphasis added). The Indiana Guest Statute altered the common law duty a motor vehicle driver owes to certain passengers. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1372 (Ind.1992). The defendant contends that, in the context of the Guest Statute, the meaning of “upon” is ambiguous and that it should be understood to mean that “as long as the guest has a sufficient relationship to the vehicle, the guest is upon the vehicle for purposes of the Statute.” Appellee’s Br. at 7.

“In the interpretation of statutes, our goal is to determine and give effect to the intent of the legislature in promulgating it.” Porter Dev., LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007). But in determining the intent of the legislature, we look first to the statutory language chosen by the legislature and we presume that the words “were selected and employed to express their common and ordinary meanings.” Id. ‘Where the statute is unambiguous, the Court will read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings.” Id.; accord Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 817 (Ind.2012); McCabe v. Comm’r, Ind. Dep’t of Ins., 949 N.E.2d 816, 819 (Ind.2011). Furthermore, a statute in derogation of the common law must be strictly construed. Loparex, 964 N.E.2d at 817; Hinshaw v. Bd. of Comm’rs, 611 N.E.2d 637, 689 (Ind.1993). “We will presume that the legislature is aware of the common law and intends to make no change therein beyond its declaration either by express terms or unmistakable implication.” Hinshaw, 611 N.E.2d at 639.

We find the language of the Guest Statute to be unambiguous. See C.M.L., 800 N.E.2d at 209 (reaching the same conclusion). The Guest Statute states that the operator of a motor vehicle may not be held liable for injuries negligently caused to a close family member or hitchhiker when those injuries are incurred “while the [close family member] or hitchhiker was being transported without payment in or upon the motor vehicle.” Ind.Code § 34-30-11-1 (emphasis added). The word “upon,” both at the time it was originally added to the Guest Statute, see Act of Mar. 11, 1937, ch. 259, § 1, 1937 Ind. Acts 1229, and when the statute was most recently amended, see Pub.L. 68-1984, 1984 Ind. Acts 925, should be given its literal meaning: “[u]p and on” or simply “on.” The New Century Dictionary 2112 (1929); American Heritage Dictionary 1328 (2d college ed. 1985). Being “in or upon the motor vehicle” thus connotes a physical connection to or contact with the vehicle, such as being “in” a car or “upon” a motorcycle or truck bed. This understanding is consistent with the statute’s further limiting phrase, “while [the guest] was being transported.” Ind.Code § 34-30-11-1. Thus, if the injury is sustained at a time when a passenger is in mere physical contact with the motor vehicle but standing outside of or off of it or at a time when the passenger is not being “transported” by the vehicle, then the Indiana Guest Statute does not bar a passenger’s damage action against the driver.

In the present ease, the defendant urges that his son “was ‘in or upon’ [the father’s] vehicle when the accident occurred, even though [the son] was actually outside the vehicle at the time of injury.” Appellee’s Br. at 7. But the Guest Statute, as a statute in derogation of the common law, must be strictly construed, see Stephenson, 596 N.E.2d at 1372, and its unambiguous language belies such an expansive reading. It is undisputed that, when the defendant depressed the accelerator instead of the brake, his son was standing outside the vehicle and was not being transported at that time. Thus, the Guest Statute does not bar the plaintiffs’ claims.

Conclusion

The “in or upon” language of the unambiguous Indiana Guest Statute must be given its plain and ordinary meaning and does not apply to persons who may have been passengers but who, at the time of their injury, had exited the vehicle and were not actually being transported by it. Under the agreed facts of this case, the Guest Statute does not bar the plaintiffs’ claims. We reverse the judgment of the trial court and remand for denial of the defendant’s motion for summary judgment and granting of the plaintiffs’ motion for partial summary judgment.

RUCKER and DAVID, JJ., concur.

SULLIVAN and MASSA, JJ.,

dissent, and would affirm the trial court’s grant of summary judgment in favor of Senior, believing the analysis of KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind.Ct.App.2005), trans. denied, and of Chief Judge Robb in this case, Clark v. Clark, No. 01A02-1007-CT-759, 2011 WL 2848178 at *3-5 (Ind.Ct.App. July 19, 2011) (Robb, C.J., dissenting), to have been correct.

      . The plaintiffs do not assert, and thus we do not address, any claim that the statute violates Article 1, Section 12 of the Indiana Constitution, which declares in part that "every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” Such a claim was previously presented and rejected with respect to a former version of the Guest Statute in Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763 (1976). While not reanalyzing this constitutional issue in the present case, we take this opportunity to disapprove certain unfortunate language in Sidle which we find to undermine and misstate well-established important values and principles of Indiana and American jurisprudence. The Sidle opinion speculated with approval that "a very likely legislative policy” may have been "protection against the 'benevolent thumb syndrome’ ” and "the 'Robin Hood’ proclivity of juries.” Id. at 218-20, 341 N.E.2d at 771-72. Such language improperly mischaracterizes the conscientious, insightful, and reliable efforts of those who serve as jurors. It has no proper place in our jurisprudence.

      . These examples also explain the use of the disjunctive "or," which suggests that the General Assembly had different types of motor vehicles in mind when designating that the guest must be "in or upon the motor vehicle.” See Ind.Code § 34-30-11-1.

      . Because we find the Guest Statute to be unambiguous with respect to the meaning of "in or upon,” the holding to the contrary in KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind.Ct.App.2005), trans. denied, is disapproved.