text:
    In the Matter of the PATERNITY and Maternity OF INFANT T.
    No. 67A05-1301-JP-36.
    Court of Appeals of Indiana.
    July 11, 2013.

      Steven C. Litz, Monrovia, IN, Attorney for Appellants.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In this nonadversarial proceeding, M.F. is the biological father of Infant T. Infant T. was born to S.T., who acted as a surrogate for M.F. and an unknown egg donor. During the pregnancy, M.F., S.T., and S.T.’s husband, C.T., jointly filed an agreed petition with the trial court to establish M.F.’s paternity and to “disestablish” S.T.’s maternity. The trial court denied the agreed petition and certified its order for interlocutory appeal, which we accepted. We address the following two issues

1. Whether the trial court erred when it denied M.F.’s request to establish paternity.
2. Whether a surrogate may petition a court to disestablish maternity.

We reverse the trial court’s denial of M.F.’s request to establish paternity, but we affirm the trial court’s denial of S.T.’s request to disestablish maternity. Accordingly, we affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On October 20, 2012, M.F., S.T., and C.T. jointly filed the following “Agreed Petition to Establish Paternity and ‘Disestablish’ Maternity”:

Comes now the birth[ jmother of [I]n-fant [T.], [S.T.], her husband [C.T.], and the biological father [M.F.] ... and move this court to establish paternity and dis-establish maternity of the above[-]named infant, and, in support thereof, state as follows:
1. [On] May 28, 2012, [S.T.] underwent a procedure whereby anonymous donor eggs were combined with sperm from the biological father, and the resulting embroyo(s) were transferred to the birth[ Jmother.
2. As a result of the procedure, [S.T.] became pregnant, and [she] has an estimated delivery date of February, 2013.
3. The biological father agreed to the procedure, as it was his specific desire to have [S.T.] carry a child for him, and he now states that he is the father of said child. His affidavit is attached hereto and incorporated herein by reference.
4. [S.T.] was married to [C.T.] at the time of the procedure. Their affidavit is attached hereto and incorporated by reference.

WHEREFORE, birth[ ]mother, her husband, and the biological father move this court to grant this petition.... Appellant’s App. at 5. In his attached affidavit, M.F. stated that he is “the biological father of the child [S.T.] is presently carrying” and that he is “assuming all rights and responsibilities of the child after its birth.” Id. at 9. And in their attached affidavit, S.T. and C.T. stated that S.T. “is not the biological mother nor is [C.T.] the biological father.” Id. at 8.

On December 19, 2012, the trial court entered its order denying the parties’ agreed petition. In particular, the court concluded that “a woman who gives birth to another human being is the legal mother of that human being,” that there is “no authority for the court to create an order that de-establishes ... maternity,” and that, because C.T. is the husband of the birth mother, the law presumes he is the father at least until a post-birth genetic test can “determine the true paternity of the child.” Id. at 13-14. The trial court certified its order for interlocutory appeal, which we accepted.

DISCUSSION AND DECISION

Standard of Review and Overview

The issue presented for our review is whether the trial court erroneously denied the parties’ agreed petition, which sought to establish M.F.’s paternity and to disestablish S.T.’s maternity. In denying the agreed petition, the trial court made determinations of law, namely, that Indiana law does not allow for the pre-birth establishment of paternity in these circumstances or the disestablishment of maternity. We review questions of law de novo and owe no deference to the trial court’s conclusions. In re Paternity & Maternity of Infant R., 922 N.E.2d 59, 60 (Ind.Ct.App.2010), trans. denied.

Indiana has a statutory scheme for the establishment of paternity, but none for the establishment of maternity. See Ind.Code §§ 31-14-1-1 to -21-13. Nonetheless, “[i]t is the policy of this state ... to recognize the importance of family and children in our society; ... acknowledge the responsibility each person owes to the other; ... [and] strengthen family life by assisting parents to fulfill their parental obligations[.]” I.C. § 31-10-2-1. Additionally, it is well-settled that it is in the best interests of a child to have his or her biological parentage established. See In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind.1992) (“there is a substantial public policy in correctly identifying parents and their offspring. Proper identification of parents and child should prove to be in the best interests of the child for medical or psychological reasons.”); see also I.C. § 31-14-4-1 (providing for the initiation of a paternity action).

Issue One: M.F.’s Request to Establish Paternity

We first consider M.F.’s petition to establish paternity. In denying M.F.’s request, the trial court reasoned that C.T., as the husband of the birth mother, is the legal father unless M.F. can present clear and convincing evidence to the contrary after the child’s birth. The trial court erred as a matter of law.

Although C.T., as the husband of the birth mother, was the presumptive father of Infant T., on questions of paternity our supreme court has made clear that a joint stipulation between the birth mother and the putative father “constituted sufficient evidence to rebut the presumption.” K.S. v. R.S., 669 N.E.2d 399, 405 (Ind.1996); see also I.C. § 31-14-4-1 (“A paternity action may be filed by ... [t]he expectant mother and a man alleging that he is the biological father of her unborn child, filing jointly.”); I.C. § 31-14-8-1 (“The court may enter a finding that a man is the child’s biological father without first holding a hearing on the matter if: ... the parties have filed a joint petition alleging! ] that the man is the child’s biological father.”). Here, all parties stipulated in their jointly filed agreed petition that M.F. is the biological father of Infant T. Thus, the trial court erred when it denied the agreed petition with respect to M.F.’s pre-birth request to be named the child’s father.

Issue Two: Whether a Surrogate may “Disestablish” Maternity .

We next consider whether a surrogate may disestablish maternity. In Infant R., the birth mother of Infant R. acted as a surrogate for the biological mother and the biological father, who were married. The parties jointly petitioned to have the biological mother and father named the child’s parents. The trial court granted the biological father’s petition, but it denied the biological mother’s petition, stating that “Indiana law holds the birth mother is the legal ... mother.” Infant R., 922 N.E.2d at 60.

We reversed on appeal. In doing so, we described Indiana statutory law as follows:

no legislation enacted in this State specifically provides procedurally for the establishment of maternity; it is presumed that a woman who gives birth to a child is the child’s biological mother....
Nonetheless, we are confronted with reproductive technologies not contemplated when our Legislature initially sought to provide for the establishment of legal parentage for biological parents. Now, however, reproductive technologies have advanced to provide for gestational surrogacy where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth....

Id. at 61. In light of the lack of statutory authority, we held that “equity should provide an avenue of relief’ for petitions to establish maternity. Id.

Moreover, we explained that, while Indiana’s statutory scheme for the establishment of paternity is not wholly applicable to a petition to establish maternity, it nonetheless “provide[s] a procedural template” for the establishment of maternity. Id. at 61-62. In particular, we reasoned:

We are aware of no reason why the public interest in correctly identifying a child’s biological mother should be less compelling than correctly identifying a child’s biological father. Indeed, establishing the biological heritage of a child is the express public policy of this State. See Ind.Code § 31-14-4-1. And thus, “when the purpose of the legislative body sought to be accomplished is clear, such construction shall be given the statute as will carry out such purposes, even though such construction is contrary to the strict letter thereof.” N. Ind. Ry. Co. v. Lincoln Nat. Bank, 47 Ind.App. 98, 92 N.E. 384, 387 (1910). In these narrow circumstances, we find that the paternity statutes provide a procedural template to challenge the putative relationship between the infant and [the birth mother].
Procedure aside, this presumptive relationship will stand unless [the petitioner] establishes that she is, in fact, the biological mother of [the infant]. She must do so by clear and convincing evidence. Cf. Vanderbilt v. Vanderbilt, 679 N.E.2d 909, 911 (Ind.Ct.App.1997) (finding that a presumption of paternity of a child born in a marriage may be rebutted by direct, clear, and convincing evidence that the husband was excluded as the child’s father based upon blood test results), trans. denied. Clearly, this would involve more than simply an affidavit or a stipulation between the affected parties.

Id. (emphases added).

Considering our paternity statutes as a template for S.T.’s petition, it is well established that “[t]he Indiana Code has no provisions for the filing of an action to disestablish paternity. The statutes governing paternity actions ... assume establishing, as opposed to disestablishing, paternity.” In re Paternity of H.J.B. ex rel. Sutton v. Boes, 829 N.E.2d 157, 159 (Ind.Ct.App.2005). Rather, paternity may be only “indirectly disestablish[ed]” once it “has been established in another man.” Id. at 159 n. 2 & 160. The rationale for this distinction is to avoid having a child declared a “filius nullius,” or “son of nobody,” which “would carry with it countless ‘detrimental financial and emotional effeet[s].’ ” Id. at 160 & n. 4 (quoting Johnson Controls, Inc. v. Forrester, 704 N.E.2d 1082, 1085 (Ind.Ct.App.1999), trans. denied) (alteration original to H.J.B.); see also In re Paternity of E.M.L.G., 863 N.E.2d 867, 869-70 (Ind.Ct.App.2007) (holding that the trial court “improperly determined that ... legal fathers may disestablish paternity....”).

Thus, we hold that S.T.’s petition to disestablish maternity is not cognizable. It would not be in the best interests of the child, and would be contrary to public policy, to allow the birth mother to have the child declared a child without a mother. And it would be inconsistent to allow for petitions to disestablish maternity when petitions to disestablish paternity are forbidden. If this had been an adversarial proceeding, a party who opposed S.T.’s petition could have filed a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

However, our holding does not exclude the indirect disestablishment of maternity, such as in Infant R. The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation. Infant R., 922 N.E.2d at 61-62. If the putative mother satisfies her burden of proof, the establishment of maternity in her would indirectly disestablish maternity in the birth mother.

But we are not presented with facts demonstrating maternity in any woman other than S.T. Indiana law presumes the birth mother of a child is the child’s biological mother. Id. at 61. “[T]his presumptive relationship will stand unless [another woman] establishes that she is, in fact, the biological mother of [the child].” Id. at 62. No other woman has petitioned the court to establish maternity. As such, the trial court properly dismissed S.T.’s petition to disestablish her maternity.

Conclusion

In sum, we hold that the trial court erred as a matter of law when it denied the parties’ petition to establish M.F.’s paternity. However, S.T.’s petition to disestablish maternity is not cognizable and, as such, the trial court properly dismissed that request. Thus, we affirm in part, reverse in part, and remand with instructions for the trial court to enter an order establishing M.F.’s paternity.

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

BAILEY, J., and BARNES, J., concur.

      . Although Steven Litz filed his appearance in this court and the trial court only on behalf of M.F., with S.T. and C.T. representing themselves, in filings to both courts Litz has carried the water for S.T. and C.T. in addition to presenting arguments for M.F. Moreover, S.T. and C.T. have not separately filed any briefs in this court, which suggests that they have joined in Litz’s arguments on their behalf.

      . We acknowledge the following comment in M.F.'s brief on appeal: "Though irrelevant to the legal issues presented here, M.F. is married, and his wife — once this matter is resolved — will be adopting the child.” Appellant's Br. at 7.

      . While this appeal was pending, S.T. gave birth to Infant T., and the parties submitted to genetic testing, which, the parties assert on appeal, confirmed the statements made in their affidavits. The parties tendered the results of those tests to the trial court, but the trial court declined to consider them, stating that it lacked jurisdiction "due to a pending appeal.” Appellant’s App. at 3. Indiana Appellate Rule 14(H) states that "[a]n interlocutory appeal shall not stay proceedings in the trial court unless the trial court or a judge of the Court of Appeals so orders.” We interpret the trial court’s comment as an order to stay the proceedings in the trial court pending this appeal. As the results of the genetic tests are not properly before this court on interlocutory appeal, we do not consider them.

      . An exception may exist if paternity is established by a paternity affidavit that is the product of fraud, duress, or material mistake of fact, but that is irrelevant to this appeal. See Ind.Code § 16-37-2-2.1(1)(1).


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    Cynthia SUGG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 31A05-1208-CR-397.
    Court of Appeals of Indiana.
    July 24, 2013.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Cynthia Sugg (“Sugg”) was convicted after a jury trial of dealing in methamphetamine as a Class B felony, maintaining a common nuisance as a Class D felony, possession of methamphetamine as a Class D felony, possession of chemical precursors as a Class D felony, possession of marijuana as a Class A misdemeanor, and possession of paraphernalia as a Class A misdemeanor and was sentenced to an aggregate term of ten years. She appeals, raising the following consolidated and restated issue for our review: whether the trial court abused its discretion when it admitted evidence seized under the search warrant at trial because the evidence was discovered in violation of the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2012, Sugg and her husband, Gary Wynn (‘Wynn”), lived in a rented farm house that was located in a rural area in Harrison County, Indiana. Steven Probus (“Probus”) was their neighbor and rented a cabin adjacent to their home. Probus was friends with Sugg and Wynn, and they visited each other often. On February 16, 2012, Sugg and Wynn each purchased a forty-eight count box of pseudoephedrine pills from the same Walgreen’s store in New Albany, Indiana within five minutes of each other. That night, Probus smoked methamphetamine with Sugg at her home.

On February 17, 2012, Indiana State Police Detective Katrina Smith (“Detective Smith”), with the methamphetamine suppression unit, obtained information from the National Pseudoephedrine Log Exchange (“NPLEx”) that Suggs and Wynn had made the pseudoephedrine purchases the previous day. When she saw these transactions, she remembered her participation in a prior investigation in June 2011, where Sugg and Wynn had been charged with manufacturing methamphetamine. Detective Smith and her supervisor, Sergeant Paul Andry (“Sergeant An-dry”) decided to conduct a “knock and talk” at Sugg’s residence based on this information. Tr. at 81.

That morning, Sugg had been outside painting a camper when Probus walked over to visit. The two went inside to smoke a marijuana joint in the living room. As Probus left the back door to walk home, Detective Smith, Sergeant Andry, and a third trooper approached the front of the residence. Probus told the troopers that he had knocked, but no one had answered. The troopers’ approach to the front door was blocked by decorations and various items, so Detective Smith and Sergeant Andry walked around to the back door, while the third trooper stayed and talked with Probus.

Sugg was standing on the back porch in socks and no shoes and with no jacket. It was a sunny, chilly day, but a warmer than usual day for February. Detective Smith identified herself and told Suggs that the troopers were there investigating drug activity and, specifically, methamphetamine manufacturing. Detective Smith observed a gallon of muriatic acid sitting on the back porch and a bottle of charcoal lighter fluid sitting underneath a propane gas grill, both of which are precursors to manufacture methamphetamine.

Detective Smith asked Sugg about her recent pseudoephedrine purchase. Sugg said that she could not remember when she made her last purchase, but that it had been awhile. When Detective Smith refreshed her memory that it had been that week, Sugg claimed it had been a couple of days prior, at the beginning of the week. Detective Smith then asked Sugg how many pills she took per day, and Sugg told her four or five and that she had taken all of them already. Detective Smith then confronted Sugg with the belief that she had purchased forty-eight pills the day before, and Sugg was still not able to produce any of the pills. Sugg also claimed to not know when Wynn purchased pseudoephedrine pills and that he did not make a purchase when she did.

At that point, Detective Smith asked Sugg if they could search her residence. Sugg asked to call Wynn to talk to him, which she was allowed to do. After her phone call to Wynn, Sugg refused consent to search her residence. Detective Smith told Sugg that she was going to petition for a search warrant. Because obtaining a search warrant could take some time, and Sugg was not wearing a coat or shoes, Detective Smith told Sugg that she could go into the house to retrieve any personal items, but that she would need to be escorted by an officer to prevent the destruction of evidence or the chance to obtain a weapon. Because Sugg “was cold and really needed a cigarette,” she agreed. Tr. at 129.

As soon as she was inside the residence, Detective Smith detected the odor of burnt marijuana. While Sugg retrieved a few items, she made small talk about a chocolate bar she had enjoyed as a kid that she had recently been able to find. Sugg showed Detective Smith the candy bar, which was located on the living room table. When the detective looked at it, she noticed stems and seeds consistent with marijuana in an ashtray on the table.

Detective Smith and Sugg exited the house, and Detective Smith left to obtain the search warrant. Sergeant Andry and the other trooper stayed to secure the property and talk with Probus. Sugg initially sat near the driveway on a rock, but then moved to sit inside of an inoperable Jeep Cherokee that she and Wynn had recently purchased. During this time, Sugg was texting on her cell phone and smoking cigarettes.

Detective Smith completed the affidavit for the search warrant, which included the following information: the pseudoephed-rine purchases by Sugg and Wynn on the previous day; Detective Smith’s previous investigation of Sugg and Wynn for possession of precursors; the pending criminal charges against Sugg and Wynn for manufacturing methamphetamine; the fact that the officers had gone to the Sugg’s residence for a knock and talk; Sugg’s untruthful statements about her pseu-doephedrine purchase and denial of knowledge of Wynn’s purchase; Detective Smith’s observation in plain view of the muriatic acid and charcoal lighter fluid on the back porch; Sugg’s denial of consent; Detective Smith’s entry into Sugg’s residence so that Sugg could retrieve personal items; and Detective Smith’s detection of the odor of burnt marijuana and observation of the stems and seeds that were consistent with marijuana. The search warrant was granted and promptly executed. Pursuant to the warrant, the officers recovered marijuana from the ashtray; four baggies of methamphetamine from inside of a magnetic key holder; a glass jar containing pseudoephedrine pill soak; a glass jar with a (combination of pseu-doephedrine and triprolidine; a glass jar with methamphetamine in liquid form; numerous methamphetamine precursors, including muriatic acid, acetone, HEET, charcoal lighter fluid, drain cleaner, hydrogen peroxide, and camp fuel; pH strips; latex gloves; plastic tubing; and two Wal-mart receipts showing the purchase of various precursors, one found in Sugg’s wallet and one out in the open. Sugg was arrested.

The State charged Sugg with Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, Class D felony possession of precursors, Class D felony possession of a schedule II controlled substance, Class A misdemean- or possession of marijuana, and Class A misdemeanor possession of paraphernalia. On the first day of Sugg’s jury trial, she filed a motion to suppress the evidence discovered pursuant to the search warrant, claiming that she was in custody, not given her Miranda warning, and then coerced into allowing the officers to enter her home. Following a hearing, the trial court denied the motion. The trial proceeded, during which the State moved to dismiss the charge of possession of a schedule II controlled substance. At the conclusion of the trial, the jury found Sugg guilty of the remaining charges. The trial court sentenced her to an aggregate term of ten years. Sugg now appeals.

DISCUSSION AND DECISION

Sugg first challenged the admission of evidence through a motion to suppress but now appeals following a completed trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind.Ct.App.2010). The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind.Ct.App.2012) (citing Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002)). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. (citing Smith v. State, 754 N.E.2d 502, 504 (Ind.2001)). Even if the trial court’s decision was an abuse of discretion, we will not reverse if the admission of evidence constituted harmless error. Combs v. State, 895 N.E.2d 1252, 1255 (Ind.Ct.App.2008), trans. denied. Error is harmless if it does not affect the substantial rights of the defendant. Id. at 1258.

Sugg first argues that the evidence should not have been admitted because it was found in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution protects an individual’s privacy and posses-sory interests by prohibiting unreasonable searches and seizures. Washington v. State, 922 N.E.2d 109, 111 (Ind.Ct.App.2010) (citing Howard v. State, 862 N.E.2d 1208, 1210 (Ind.Ct.App.2007)). Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Id. (citing Halsema v. State, 823 N.E.2d 668, 676 (Ind.2005)). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Id. (citing Malone v. State, 882 N.E.2d 784, 786 (Ind.Ct.App.2008)).

Sugg contends that Detective Smith violated the Fourth Amendment during the knock and talk because the officers seized Sugg without a warrant. Specifically, she claims that Detective Smith’s entrance into her residence was a Fourth Amendment violation because she gained entrance to the home using coercion and without a warrant. Sugg asserts that, when she refused to consent to a search of her home, she was told that she could not enter her residence to get shoes and a jacket without a police escort, which showed that she was clearly seized within the meaning of the Fourth Amendment.

A knock and talk investigation involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house. Chiszar v. State, 936 N.E.2d 816, 825 (Ind.Ct.App.2010), trans. denied. Such “knock and talk” investigations do not per se violate the Fourth Amendment. Id. “ ‘The prevailing rule is that, absent a clear expression by the owner to the contrary, police officers, in the course of their official business, are permitted to approach one’s dwelling and seek permission to question an occupant.’ ” Redden v. State, 850 N.E.2d 451, 458 (Ind.Ct.App.2006) (quoting Hayes v. State, 794 N.E.2d 492, 496 (Ind.Ct.App.2003), trans. denied), trans. denied. “ ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude a “seizure” has occurred.’ ” Id. (citations omitted). A seizure does not occur simply because a police officer approaches a person, asks questions, or requests identification. Id. “Courts examining the Fourth Amendment implications of the knock and talk procedure have held that a seizure occurs when, ‘taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”’” Id. at 458-59 (quoting Hayes, 794 N.E.2d at 496 (quoting Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003))).

Here, as the officers approached the front of Sugg’s residence, they saw that their approach to the front door was completely blocked by boxes, decorations, and other items, and they observed Probus coming from the back of the home. The officers then approached the back porch and found Sugg standing outside. Detective Smith identified herself and asked Sugg about her recent pseudoephedrine purchase. This initial approach to speak with Sugg on the back porch was a consensual encounter that did not implicate the Fourth Amendment.

Further, nothing in the interaction between Detective Smith and Sugg concerning Sugg’s pseudoephedrine purchase would have created in a reasonable person that she was not free to leave. A person is “seized” only when, by means of physical force or a show of authority, his or her freedom of movement is restrained. Woodson v. State, 966 N.E.2d 135, 139 (Ind.Ct.App.2012) trans. denied. The test for existence of a “show of authority” is an objective one in that the question is not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. Id. at 140. Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. Id. at 139. Here, two officers approached Sugg on the back porch, and no weapons were ever displayed. Sugg was not touched by the officers, and she was not spoken to in a way that she was compelled to comply with the officers’ requests. The fact that Sugg called Wynn to talk with him about the officers’ request to search the residence and then refused Detective Smith’s request for consent to search clearly shows that Sugg did not feel compelled to comply with the officers’ requests. Therefore, we conclude that Sugg was not seized.

Additionally, Sugg next contends that the officers’ restriction of Sugg’s entrance into the residence while Detective Smith obtained the search warrant transformed the situation into a custodial one and violated the Fourth Amendment. We disagree. We note that the particular issue presented to us, whether a police officer’s refusal to allow a defendant to enter his or her residence without a police officer until a search warrant has been obtained is a reasonable seizure that does not violate the Fourth Amendment, has not been determined in Indiana and, therefore, is a matter of first impression. However, the United States Supreme Court in Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) held that, under the circumstances of that case, such a refusal did not violate the Fourth Amendment and was a reasonable seizure.

In McArthur, a woman asked the police to accompany her to the trailer where she lived with her husband, so they could maintain the peace while she removed her belongings. Id. at 328, 121 S.Ct. 946. When she came back outside, she informed the officers that she had observed her husband hide some drugs under the couch. Id. at 329, 121 S.Ct. 946. One of the officers knocked on the door, advised the husband what they had been told, and requested consent to search the premises, which the husband denied. Id. One of the officers then left to obtain a search warrant, while the other officer remained and informed the husband, who was then outside on the- porch, that he could not reenter the trailer unless accompanied by the officer. Id. During the two-hour time period before the other officer returned with the search warrant, the husband did reenter the trailer several times, and on each occasion, the officer stood just inside the door to observe what the husband did. Id. The Supreme Court held that the officers’ conduct was reasonable under the Fourth Amendment in light of the following circumstances: (1) “the police had probable cause to believe that the trailer home contained evidence of a crime and contraband, namely, unlawful drugs”; (2) “the police had good reason to fear that, unless restrained, the husband would destroy the drugs before they could return with a warrant”; (3) “the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy”; and (4) “the police imposed the restraint for a limited period of time, namely, two hours.” Id. at 331-32,121 S.Ct. 946. We find that reasoning relied on by the Supreme Court to be instructive to the resolution of the present case and, therefore, adopt it to determine the outcome here.

In the instant case, after Sugg refused her consent to search her residence, Detective Smith informed Sugg that she was going to petition for a search warrant. Because obtaining a search warrant could take some time and because Sugg was not wearing a coat or shoes, Detective Smith informed Sugg that she could go into the house to retrieve any personal items she might need, but that she would need to be escorted by an officer to prevent the destruction of evidence or the opportunity to obtain a weapon. Sugg agreed to be accompanied into the residence.

Under the reasoning of McArthur, we first determine whether the police had probable cause to believe that Sugg’s home contained evidence of a crime and contraband. At the time that Detective Smith restricted Sugg’s entry into her home, she had probable cause to believe that Sugg was engaged in the manufacture of methamphetamine based on Sugg’s contradictory and untruthful statements about her and Wynn’s purchases of pseudoephedrine, the observation of precursors in plain view on the back porch, Sugg’s inability to produce any pseudoephedrine pills, and Sugg’s prior, pending charges for dealing methamphetamine. Therefore, the police here had probable cause to believe that Sugg’s’ home contained evidence of the crime of manufacturing methamphetamine.

Second, we look to see if the police had good reason to fear that, if left unrestrained, Sugg would destroy evidence before they could return with the warrant. Prior to leaving to obtain a search warrant, the police had been questioning Suggs about her about her recent pseu-doephedrine purchase. In response, Sugg made contradictory and untruthful statements about her and Wynn’s purchases of pseudoephedrine and claimed that she had used all of the pills already and was not able to produce any of the pills. In their conversation with Sugg, the police also asked her about the muriatic acid and charcoal lighter fluid, which are both precursors for methamphetamine, located in plain view on the porch. The police reasonably could have concluded that Sugg, suspecting an imminent search after the conversation with the police, would, if given the chance, quickly get rid of any contraband contained within the residence.

Third, we look to determine if the police made reasonable efforts to reconcile their law enforcement needs with Sugg’s demands of personal privacy. Here, the police, as in McArthur, neither searched the home nor arrested Sugg before obtaining the warrant. Instead, the police imposed the less strict restraint of preventing Sugg from entering the home unaccompanied. They did not disturb Sugg’s home or belongings until a warrant was issued.

Lastly, we must determine if the police imposed the restraint for a limited period of time. Although an exact time period was not given as to how long it took from the time when Detective Smith left Sugg’s home to the time she returned with the warrant in this case, Detective Smith did testify that she petitioned a judge for the search warrant at 5:45 p.m., and she returned to Sugg’s home with the warrant at 6:19 p.m. The evidence also showed that the search warrant was actually signed by the judge at 6:07 p.m. This time period was no longer than necessary to obtain the warrant.

Therefore, the police in this case had probable cause to believe that Sugg’s home contained contraband, which was evidence of a crime. They reasonably believed that Sugg, if left unrestrained to enter the home, would destroy that evidence or gain access to a weapon. The police imposed a restraint that was both limited and tailored reasonably to secure the needs of law enforcement while still protecting privacy interests. Finally, the restraint was imposed for only the limited amount of time that it took to obtain the warrant. We conclude that this restraint did not violate the Fourth Amendment, and this brief seizure of the premises was permissible.

Further, as we have determined that the restraint of only allowing Sugg into her home if accompanied by an officer was permissible under the Fourth Amendment, Detective Smith’s observations while inside Sugg’s residence were likewise permissible. “ [S]imple observations by officers standing in a place where they have a right to be are not searches in the constitutional sense. ” Boggs v. State, 928 N.E.2d 855, 863-64 (Ind.Ct.App.2010) (quoting Pavey v. State, 477 N.E.2d 957, 960 (Ind.Ct.App.1985)), trans. denied. Once inside Sugg’s residence while accompanying her to retrieve her personal items, Detective immediately smelled the odor of burnt marijuana. As Sugg gathered her things, she made small talk about a chocolate bar, and showed Detective Smith the chocolate bar, which was located on the living room table. When she did so, Detective Smith observed stems and seeds consistent with marijuana in an ashtray on the table. Therefore, the evidence observed by Detective Smith while escorting Sugg into the home was not obtained in violation of the Fourth Amendment.

Sugg next contends that the evidence was obtained by the officers as a result of an illegal seizure and could not form the basis of the search warrant. The Fourth Amendment demands that no search warrant be issued unless it is supported by probable cause. Cheever-Ortiz v. State, 825 N.E.2d 867, 872 (Ind.Ct.App.2005). Probable cause is a fluid concept, which is decided based on the facts of each case. Id. Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. Id. As we have concluded that the evidence obtained by the officers was not obtained in violation of the Fourth Amendment, it was not improper to include such evidence on the affidavit for the search warrant, and therefore, probable cause supported the issuance of the search warrant. The evidence was not obtained in violation of the Fourth Amendment, and the trial court did not abuse its discretion in admitting the evidence at trial.

Sugg also argues that the trial court abused its discretion in admitting the evidence because it was discovered in violation of Article I, section 11 of the Indiana Constitution. She contends that the officers’ conduct was unreasonable, particularly the fact that she was not allowed to enter her home to retrieve a jacket and shoes without a police escort.

Article I, Section 11 of the Indiana Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated.... ” Although virtually identical to the wording of the search and seizure provision in the federal constitution, Indiana’s search and seizure clause is independently interpreted and applied. Danner v. State, 931 N.E.2d 421, 431 (Ind.Ct.App.2010), trans. denied. Under the Indiana Constitution, the legality of a governmental search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Id. (citing Myers v. State, 839 N.E.2d 1146, 1153 (Ind.2005)). The burden is on the State to show that under the totality of the circumstances, the intrusion was reasonable. Id. (citing State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004)). Generally, the reasonableness of a search or seizure under the Indiana Constitution turns on the balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. (citing Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005)).

Here, the officers’ degree of suspicion that Sugg and Wynn were manufacturing methamphetamine was very high. Sugg and Wynn had each purchased one forty-eight-count box of pseudoephedrine the previous day from the same store and within minutes of each other. Both Sugg and Wynn had pending charges for dealing methamphetamine, and Detective Smith knew that, during the prior investigation at the residence, methamphetamine and precursors had been found. Detective Smith’s suspicion based on this information led her to conduct a knock and talk at Sugg’s residence.

The degree of intrusion on Sugg’s ordinary- activities was low. When the officers arrived at Sugg’s residence, they found her standing outside on her back porch, so they did not even have to knock on the door. The officers approached Sugg outside and observed two precursors in plain view on the back porch, which heightened the officers’ suspicion. Sugg was not restrained or restricted in -her movement in any way. The officers briefly asked Sugg questions about her recent pseudoephed-rine purchase and then requested her consent to search her residence after receiving untruthful and ■ contradictory answers to their questions. Sugg then used her cell phone to call Wynn to speak with him about consenting to the search while the officers waited. The fact that Sugg was not wearing a coat or shoes during this time did not increase the intrusion as she was voluntarily outside without them when the officer arrived, and she never asked to obtain them during the encounter with the officers.

The extent of law enforcement need to investigate whether Sugg and Wynn were manufacturing methamphetamine was high in the present case. Our Supreme Court has recognized that the process of manufacturing methamphetamine is very dangerous and poses a high risk of explosion and fire. See Holder v. State, 847 N.E.2d 930, 939-40 (Ind.2006). Investigations into methamphetamine manufacturing, therefore, include both wanting to stop the production of the drug itself, but also to stop the risk of harm that the manufacturing process causes.

In sum, the police officers had compelling evidence that Sugg and her residence were involved in the manufacture of methamphetamine. They approached Sugg outside her residence and asked her questions about her recent pseudoephedrine purchase. The officers developed probable cause from Sugg’s untruthful and contradictory answers and the observation of two precursors in plain view on the back porch. At that time, the officers decided to obtain a search warrant and needed to secure the scene while they waited for the warrant. The fact that Detective Smith would not allow Sugg to enter the residence without an escort before the warrant could be obtained was not unreasonable. This conduct was a minimal intrusion upon Sugg’s ordinary activities in light of the risk of destruction of evidence or obtaining a weapon. Law enforcement officials had substantial need to protect themselves during their investigation and to prevent the destruction of evidence while they secured a search warrant. In short, the police officers’ conduct was reasonable throughout the investigation, and we conclude that the trial court properly admitted the evidence at trial.

Affirmed.

VAIDIK, J., and PYLE, J., concur.

      . See Ind.Code § 35-48-4-1.1.

      . See Ind.Code § 35-48-4-13.

      . See Ind.Code § 35-48-4-6.1.

      . See Ind.Code § 35-48-4-14.5.

      . See Ind.Code § 35-48-4-11.

      . See Ind.Code § 35-48-4-8.3.

      . We find it irrelevant that Sugg was outside with no coat or shoes when the officers approached her. She had voluntarily gone outside without shoes or a coat before the officers ever approached her on the back porch, and this was how the officers discovered her. No evidence was presented that Sugg ever asked to retrieve a coat or shoes and was denied such a request during the brief fifteen to thirty minute conversation with the officers.

      . Detective Smith also testified that she was concerned that Sugg may have the opportunity to obtain a weapon if allowed to go inside the residence unaccompanied.

      . Sugg also argues that the State could not rely on the good faith exception to the exclusionary rule because Detective Smith relied upon misleading information in her probable cause affidavit and that the erroneous admission of the evidence seized under the warrant was not harmless. Because we have concluded that the evidence was not illegally obtained, we do not reach these arguments.


author: BRADFORD, Judge.

text:
    Jason KING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 64A04-1209-CR-464.
    Court of Appeals of Indiana.
    July 25, 2013.

      Bryan M. Truitt, Bertig & Associates, LLC, Valparaiso, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Jason King appeals his conviction of and sentence for attempted murder for shooting Woodrow McGuire in the face at a South Haven nightclub. During a recorded interrogation regarding the crime, King uttered the words, “an attorney,” in a sentence otherwise inaudible on the recording. The interrogating officer continued to question King, and he eventually confessed to shooting McGuire.

At trial, King orally moved to suppress evidence regarding his confession, claiming it was obtained in violation of his right to counsel. A hearing was held on King’s motion, at which King testified that the inaudible sentence was, “I do need to make a call to call an attorney.” The interrogating officer also testified, stating that King asked, “Am I going to need an attorney?” The trial court found the latter to be more consistent with what it heard on the recording and denied King’s motion to suppress. Accordingly, Appellee-Plaintiff the State of Indiana presented the jury with the testimony of the interrogating officer, who stated that King confessed to shooting McGuire during the interrogation. King did not object to the admission of this evidence.

On appeal, King argues that the trial court clearly erred in finding that he asked, “Am I going to need an attorney?” during the interrogation. We disagree, concluding that the trial court’s finding is supported by the record. King also argues that the court abused its discretion in denying his motion to suppress his confession. Because King failed to contemporaneously object to the admission of testimony regarding his confession, we conclude that King has waived his abuse of discretion argument for appeal. Waiver notwithstanding, we conclude that the question, “Am I going to need an attorney?” is not an unambiguous and unequivocal request for counsel, and therefore, that the trial court did not abuse its discretion in denying King’s motion. King further argues that his forty-five year sentence is inappropriate in light of the nature of his offense and his character. We disagree and affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On the night of February 3, 2011, McGuire visited the Jim Beam Warehouse, a South Haven nightclub, with his friend Mariano Luyando. While at the bar ordering beers and conversing with Lu-yando, McGuire felt someone lean against his back. McGuire turned around and encountered King, whom he did not know. Thinking King might be drunk, McGuire asked if he was alright. McGuire then requested that King move away and stop leaning against him. King, however, continued to lean against McGuire. Eventually, King’s brother approached the bar and was told that King was invading McGuire’s personal space. King’s brother attempted to move King away, and McGuire turned back to the bar. As McGuire turned, he was shot in the jaw. McGuire did not see who shot him, but Luyando witnessed King pull a small gun from his waistband, shoot McGuire, and walk away.

After being shot, McGuire ran to the restroom and used his shirt to stem the bleeding from his jaw. Warehouse security guard Corey Smith had heard the gunshot and followed McGuire into the restroom. McGuire gave Smith a description of King as the likely shooter, and, having received complaints about King earlier that night, Smith recognized King, from the description. Smith exited the restroom, saw King leaving the Warehouse, and followed him outside. Smith ordered King to stop, but King continued to walk away. Smith eventually grabbed and tackled King, causing a gun wrapped in a black bandana to fall out of King’s sweatshirt. Police later, learned that the gun was a stolen .22 caliber revolver that contained one spent shell casing.

Smith detained King until police arrived. Porter County Sheriffs Officer Mike Spi-cer took King into custody and transported him to the Porter County Detective Bureau. En route, King attempted to engage Officer Spicer in conversation. Officer Spicer advised King of his Miranda , rights and did not ask King any questions. King, however, proceeded to talk, telling Officer Spicer that someone had been shot and that it was in self-defense. King also told Officer Spicer that he needed to contact the “Feds” because he was “valuable.” Tr. II, p. 51.

At the Detective Bureau, Porter County Sherriffs Lieutenant Gary Gear advised King of his Miranda rights, which King waived, and then questioned King about the shooting. During this recorded interrogation, King admitted to having been at the Warehouse with his brother, and he again stated that he wanted to talk to the “Feds.” Tr. II, p. 128. King, however, refused to talk about the shooting. The interview ended when King stated that he wanted to sleep on it and talk with police in the morning.

The following day, Lieutenant Gear and Porter County Sherriffs Captain Jeff Biggs advised King of his Miranda rights, which King,again waived, and then interviewed King a second time about the shooting. During this recorded interrogation, King was uncooperative but never denied shooting McGuire. Approximately one hour and two minutes into the interrogation (“the 1:02 mark”), King uttered the words “an attorney” in a sentence otherwise inaudible on the recording. In response, one of the interrogating officers replied, “[Y]es, at some point [you] are going to need an attorney.” Tr. p. 17. The officers then continued questioning King, who eventually confessed to the shooting. ,

The following day, at his own request, King was taken back to the Detective Bureau for a third interrogation. Lieutenant Gear advised King of his Miranda rights, and King promptly requested an attorney. The interrogation was immediately ceased, and King was returned to jail. The State charged King with: Count I, Class A felony attempted murder; Count II, Class B felony aggravated battery; and Count III, Class D felony possession of stolen property.

King’s jury trial commenced on May 21, 2012. At the end of the trial’s first day, after the jury had been excused, King’s counsel informed the trial court that King had invoked his right to counsel at the 1:02 mark of the second interrogation, yet police continued questioning him. On the second day of trial, before the jury was seated, the court listened to the recording of the second interrogation but could not determine what King said at the 1:02 mark because the audio was unclear. The court stated, “The only [audible] words in my mind are [‘]an attorneyP].” Tr. II, p. 5. Based on this uncertainty, King moved to suppress any evidence concerning statements he made to police after the 1:02 mark of the second interrogation. These include King’s confession.

The trial court immediately held a hearing on King’s motion. King testified that he stated, “I do need to make a call to call an attorney” at the 1:02 mark, Tr. p. 13, while Lieutenant Gear testified that King asked, “Am I going to need an attorney?” Tr. p 17. Comparing this testimony to the recording of the second interrogation, the trial court explained:

The speech before the words [“]an attorney[”] is more consistent with [“jam I going to need an attorney[”] than a longer phrase, which is, [“]I do need to make a call to call an attorney. [”] It was a very quick set of words that occurred before the two words [“]an attorney.[”]

Tr. p. 23. Based on this analysis, the court found that King did not request an attorney at the 1:02 mark and denied King’s motion to suppress.

King’s trial proceeded, and the State presented the testimony of Lieutenant Gear before the jury. Lieutenant Gear testified that, during the second interrogation, King confessed to shooting McGuire. King did not object to the admission of this testimony at this time. The State also presented the testimony of King’s cellmate, Anthony Cilek. Cilek testified that King confessed to shooting a man with a .22 caliber gun at a bar in South Haven. When Cilek asked why King shot the man, King replied, “because he was black.” Tr. II, p. 86. Ultimately, the jury found King guilty on Counts I and II but not guilty on Count III. Counts I and II merged, and the trial court sentenced King to forty-five years of incarceration.

DISCUSSION AND DECISION

I. Whether the Trial Court Committed Clear Error

King argues that the trial court clearly erred in finding that he asked, “Am I going to need an attorney?” at the 1:02 mark of the second interrogation. We conclude that it did not. A trial court’s finding is clearly erroneous only when the record contains no facts to support it either directly or by inference. State v. Friedel, 714 N.E.2d 1231, 1235 (Ind.Ct. App.1999). Here, the trial court listened to the recording of the second interrogation and found “an attorney” to be the only audible words at the 1:02 mark. Beyond that, the court could only determine, “It was a very quick set of words that occurred before the two words [‘]an attorney^’]” Tr. II, p. 23. The court compared the recording with King’s testimony that he stated, “I do need to make a call to call an attorney,” Tr. p. 13, and Lieutenant Gear’s testimony that King asked, “Am I going to need an attorney?” Tr. p. 17. Based on this review, the trial court concluded: “The speech before the words [‘]an attorneyf] is more consistent with [‘Jam I going to need an attorney[’] than a longer phrase, which is, [‘]I do need to make a call to call an attorney.[’]” Tr. p. 23. This finding is supported by the record.

II. Whether the Trial Court Abused its Discretion

King argues that the trial court abused its discretion in denying his motion to suppress evidence regarding statements King made to police after the 1:02 mark of the second interrogation. A trial court has broad discretion in ruling on the admission or exclusion of evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind.Ct.App. 2012), trans. denied. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. When reviewing a trial court’s denial of a motion to suppress, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Id.

A. Waiver

As a threshold issue, the State contends that King did not preserve his abuse of discretion argument because, at trial, he failed to properly object to the admission of Lieutenant Gear’s testimony regarding King’s confession. It is well-established that a motion to suppress is insufficient to preserve an error for appeal. Killebrew v. State, 976 N.E.2d 775, 779 (Ind.Ct.App.2012). Instead, a defendant must reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error. Id. Here, at the commencement of the trial’s second day, King made, and the trial court denied, an oral motion to suppress any evidence regarding statements he made to police after the 1:02 mark of the second interrogation. Later in the trial, however, King did not object when the State presented Lieutenant Gear’s testimony that, after the 1:02 mark, King confessed to shooting McGuire. Because King failed to contemporaneously object to the admission of Lieutenant Gear’s testimony, we conclude that King has waived this issue for appeal.

B. Abuse of Discretion

Notwithstanding King’s waiver, we conclude that the trial court did not abuse its discretion in determining that King did not request an attorney at the 1:02 mark of the second interrogation. “Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). “[W]hile the suspect need not invoke any magic words,” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (citing Davis 512 U.S. at 459, 114 S.Ct. 2350), “[t]he cessation of police questioning is not required ‘if a suspect makes a reference to an attorney that is ambiguous or equivocal....’” Carr v. State, 934 N.E.2d 1096, 1102 (Ind.2010) (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350). A statement is considered ambiguous or equivocal when ‘“a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.’ ” Id. (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350).

King claims that his question, “Am I going to need an attorney?” was an unambiguous and unequivocal request for an attorney. We disagree. In Collins v. State, we held that the nearly identical question, “Do I need an attorney?” was not a request for counsel but, rather, “merely a question.” 873 N.E.2d 149, 156 (Ind.Ct. App.2007); accord Bean v. State, 913 N.E.2d 243, 251 (Ind.Ct.App.2009) (holding the questions “Do I need an attorney?” “What about an attorney?” and “Should I have an attorney?” not to be invocations of the right to counsel). Like the defendant’s question in Collins, we conclude that King’s question, “Am I going to need an attorney?” does not rise to the level of clarity from which a reasonable officer would understand that an attorney has been requested.

King’s reliance on our holding in Lewis v. State, 966 N.E.2d 1283 (Ind.Ct.App. 2012), is unavailing. There, we determined the question, “Can I get a lawyer?” to be an unambiguous and unequivocal invocation of the right to counsel. But our conclusion was based on the “universal understanding” of the interrogative phrase, “Can I get,” as a request for something rather than a theoretical inquiry regarding one’s ability. Id. at 1288. This rationale does not extend to Kang’s question. The trial court did not abuse its discretion in denying King’s motion to suppress.

III. Whether King’s Sentence Is Inappropriate

King argues that his forty-five year sentence is inappropriate in light of the nature of his offense and his character. We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “[Wjhether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). When conducting our review, we are deferential to the trial court’s decision; our goal is to determine whether the defendant’s sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.2012). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.Ct.App.2008).

With regard to the nature of King’s offense, the record reveals that King shot McGuire, a total stranger, in the face simply “because he was black” and because he asked King to stop leaning against him. Tr. II, p. 86. The triviality of King’s motive is almost as disturbing as the likelihood that his action could have resulted in McGuire’s death. Still, McGuire endured multiple surgeries and had his jaw wired shut for nearly three months as a result of his injuries. Further, bullet fragments remain in McGuire’s jaw, cannot be removed, and cause him recurrent pain.

With regard to King’s character, we find his motive of shooting McGuire “because he was black” to be highly troubling. Tr. II, p. 86. We also highlight King’s criminal record as significant. King has three felony convictions: one for Class B felony burglary and two for Class 4 felony possession of a controlled substance (Illinois). King has also been convicted of Class A misdemeanor domestic battery and Class A misdemeanor possession of marijuana. Further, as of July 13, 2012, King has charges pending against him for Class D felony residential entry and Class A misdemeanor resisting law enforcement. In light of these facts, we cannot say that King’s forty-five year sentence is inappropriate.

The judgment of the trial court is affirmed:

RILEY, J., and BROWN, J., concur.

      . The nightclub has since dropped the "Jim Bean” designation, and so shall we.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: BAKER, Judge.

text:
    Jason E. MORALES, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 82A05-1302-CR-72.
    Court of Appeals of Indiana.
    July 25, 2013.
    Jason E. Morales, Carlisle, IN, pro se.

      Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, for Ap-pellee.
   OPINION

BAKER, Judge.

After the trial court denied appellant-petitioner Jason E. Morales’s motion for placement into the Vanderburgh County Forensic Diversion Program (the Program) on the basis that the Program would not accept any sex offenders, Morales filed a petition for judicial review of the Program’s acceptance criteria. Morales argued that because Indiana Code section 11-12-3.7-12 already provides that persons convicted of certain offenses deemed violent are excluded from placement into post-conviction forensic diversion programs, and not all sex offenses are included in that list, the Program exceeded its statutory authority by establishing acceptance criteria that were more exclusive than those in the statute.

Morales now appeals from the trial court’s denial of his petition, raising the same challenge to the Program’s authority to exclude all sex offenders. We conclude that the trial court’s denial of Morales’s petition was not an abuse of discretion because there was no final administrative decision for the trial court to review and that, even if the Program had explicitly rejected Morales, its decision would not have been arbitrary or capricious because Morales was ineligible under the statute. Finally, even assuming solely for argument’s sake that Morales had been eligible under the statute, Indiana counties have the ability to determine the scope of their forensic diversion programs. Thus, we affirm the judgment of the trial court.

FACTS

On April 27, 2010, after being convicted of three separate counts of class B felony sexual misconduct of a minor, Morales was sentenced to concurrent sentences of eighteen years on each conviction. Morales’s convictions were affirmed on direct appeal to this Court. Morales v. State, No. 82A04-1005-CR-311, memo op. at 7, 2011 WL 1532053 (Ind.Ct.App. Apr. 20, 2011).

On February 15, 2012, Morales filed a motion in the trial court for placement in Vanderburgh County’s post-conviction forensic diversion program. The motion also asked the trial court to determine whether Morales was “an appropriate candidate for placement in such a program.” Appellant’s App. p. 39. On March 8, 2012, the State filed an objection to “any modification of the Defendant’s sentence due to the criminal history regarding siad [sic] defendant.” Id. at 73. That same day, the trial court denied Morales’s motion. On July 31, 2012, the trial court denied Morales’s motion for reconsideration. The chronological case summary (CCS) entry on that date states: “PROBATION DEPARTMENT HAS CHECKED WITH FORENSIC DIVERSION PROGRAM AND HAS BEEN ADVISED THAT THE PROGRAM WILL NOT ACCEPT DEFT. BECAUSE THIS IS A SEX OFFENSE. THEREFORE, DEFT’S MOTION FOR RECONSIDERATION OF PCFD MOTION IS DENIED.” Id. at 10.

In August 2012, Morales requested copies of the Program’s rules and procedures from the trial court. However, the trial court denied this request because the Program is not a part of the court system. The trial court subsequently denied Morales’s request to order the Program to provide Morales with copies of these same documents.

On January 18, 2013, Morales filed a “Verified Petition for Judicial Review of Administrative Decision Violative of Indiana Code.” Appellant’s App. p. 83-92. The trial court denied Morales’s petition for judicial review on February. 6, 2013, and Morales now appeals.

DISCUSSION AND DECISION

Morales contends on appeal, as he did in the trial court, that “[t]he Vanderburgh County Forensic Diversion Program and its advisory board exceeded their statutory authority in establishing a criteria for offender placement in the post-conviction forensic diversion program by banning all offenders convicted of a sex offense.” Appellant’s Br. p. 1. More particularly, Morales argues that The criteria banning all sex offenders from participation in the Program “is contrary to the statutorily established criteria under Indiana Code § 11-12-3.7-12, which allows certain nonviolent sex offenses to be considered for placement in a post-conviction forensic diversion program.” Id.

At the outset, we consider the State’s argument that Morales’s appeal should be dismissed because Morales failed to timely appeal the trial court’s denials of his request for consideration for placement in the Program or his motion to reconsider that decision. We note that Morales “cannot avoid application of [the requirement of a timely appeal] by recasting his complaint as a petition for judicial review.” Burke v. Bd. of Dirs. of the Monroe Cnty. Pub. Library, 711 N.E.2d 1288, 1289 (Ind.Ct.App.1999). However, to the .extent that Morales intended his petition for judicial review to be a separate matter, we decline to dismiss his appeal. That said, we nevertheless find Morales’s contentions to be without merit.

First, we agree with the State that Morales’s petition for judicial review was improper because Morales never applied for acceptance into the Program and was thus never rejected from consideration by the Program. Accordingly, there was no final administrative action for the trial court to review. Although the State contends that Morales’s petition for judicial review was erroneous because it failed to comply with the procedural requirements of the Indiana Administrative Orders and Procedures Act (AOPA), and Morales contends that the actions of the Program — as a county agency — are not governed by AOPA, we need not decide whether the Program is excluded from AOPA’s procedural requirements. Rather, even assuming that AOPA does not apply, a trial court would still apply “general administrative law principles” to a petition for judicial review. Bd. ofComm’rs in Cnty. of Allen v. Ne. Ind. Bldg. Trades Council, 954 N.E.2d 937, 944 (Ind.Ct.App.2011), trans. denied. And one of the most fundamental constructs of administrative law is that judicial review cannot occur until there has been a “final administrative action” to review. Id. Here, there was not.

Moreover, even if the Program had considered Morales for placement into the Program and rejected him because its acceptance criteria excludes all sex offenders, not just violent ones, we would not consider that to be an arbitrary and capri-

cious decision. Indiana Code section 11-12-3.7-12(a) provides:

A person is eligible to participate in a post-conviction forensic diversion program only if the person meets the following criteria:
(1) The person has a mental illness, an addictive disorder, or both a mental illness and an addictive disorder.
(2) The person has been convicted of an offense that is:
(A) not a violent offense; and
(B) not a drug dealing offense.
(3) The person does not have a conviction for a violent offense in the previous ten (10) years.
(4) The court has determined that the person is an appropriate candidate to participate in a post-conviction forensic diversion program.
(5) The person has been accepted into a post-conviction diversion program.

Although Indiana Code section 11-12-3.7-7 requires all Indiana counties to develop a forensic diversion plan, there is no corresponding requirement to implement a forensic diversion program. In fact, the statute specifically states that “[development of a forensic diversion plan ... does not require implementation of a forensic diversion program.” Ind.Code § ll-12-3.7-7(d). Thus, it is apparent to us that if a county decides to implement a forensic diversion program, that county also has the discretion to decide its program’s scope. See Lomont v. State, 852 N.E.2d 1002, 1007 (Ind.Ct.App.2006) (noting that “the forensic diversion program enabling statute does not create a program to which all citizens have a right of access” and that it “merely prescribes the minimal requirements for the program should a county choose to establish one”).

Finally, we note that Morales, as a person convicted of a violent offense as defined by Indiana Code section 11—12—3.7-6, was not eligible to participate in the Program notwithstanding the Program’s limited acceptance criteria. According to this statute, a violent offense includes class B felony sexual misconduct with a minor, of which Morales was convicted of three counts and for which he was serving an eighteen-year sentence. I.C. § 11-12-3.7-6(10). Despite Morales’s arguments to the contrary, neither the trial court nor we are at liberty to disregard the statute’s clear language and determine that class B felony sexual misconduct as a minor, inasmuch as it is enhanced merely upon the age of the offender, is not a violent offense. See Grody v. State, 257 Ind. 651, 659-60, 278 N.E.2d 280, 285 (1972) (holding that “[i]t is not within the province of [the courts] to expand or contract the meaning of a statute by reading into it language which will ... correct any supposed omissions or defects therein”).

For all these reasons, we conclude that the trial court did not err when it denied Morales’s petition for judicial review.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . A forensic diversion program is "a program designed to provide an adult: (1) who has a mental illness, an addictive disorder, or both a mental illness and an addictive disorder; and (2) who has been charged with a crime that is not a violent offense; an opportunity to receive community treatment and other services addressing mental health and addiction instead of in addition to incarceration.” Ind. Code § 11-12-3.7-4.

      . Although the trial court’s orders discussed above are reflected in the CCS, it is unclear whether the trial court actually issued written orders.


author: FISHER, Senior Judge.

text:
    VODAFONE AMERICAS INC. and Vodafone Holdings LLC, Petitioners, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 49T10-1002-TA-7.
    Tax Court of Indiana.
    June 18, 2013.
    Larry J. Stroble, Randal J. Kaltenmark, Ziaaddin Mollabashy, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, Timothy A. Schultz, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON PETITIONERS’ MOTION FOR SUMMARY JUDGMENT

FISHER, Senior Judge.

Vodafone Americas Inc. and Vodafone Holdings LLC (collectively, Vodafone) appeal the two final determinations of the Indiana Department of State Revenue denying their claims for refund of adjusted gross income tax paid during the taxable years ending March 31, 2005 through March 31, 2008 (the years at issue). The appeal is currently before the Court on Vodafone’s motion for summary judgment (Motion). In its Motion, Vodafone asks the Court to answer one question: whether the income it received as a partner of a general partnership that was doing business in Indiana was income derived from sources within Indiana. The Court answers that question in the affirmative.

FACTS AND PROCEDURAL HISTORY

During the years at issue, Vodafone, a Delaware corporation commercially domiciled first in California and then in Colorado, owned a 45% interest in Célico Partnership, a general partnership also organized under the laws of Delaware. Célico, which was doing business as Verizon Wireless, provided wireless voice and data services and communications equipment to customers throughout the United States, including Indiana.

Upon receiving its distributive shares of Célico income, Vodafone filed Indiana adjusted gross income tax returns, reporting a portion of its income was attributable to, and therefore taxable by, Indiana. Voda-fone subsequently amended its returns and sought a refund of the tax it paid on the basis that it had erroneously determined that its income was derived from sources within Indiana. The Department denied Vodafone’s claims for refund.

Vodafone initiated this original tax appeal on February 2, 2010. On November 16, 2012, Vodafone filed its Motion. The Court conducted a hearing on the Motion on May 16, 2013. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

Summary judgment is designed to provide speedy resolution to those cases — or those parts of cases —that may be determined as a matter of law because there are no factual disputes. Matonovich v. State Bd. of Tax Comm’rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct.1999), review denied; Ind. Trial Rule 56(C) (explaining that summary judgment is proper only when “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”). When reviewing a motion for summary judgment, the Court will construe all properly asserted facts and reasonable inferences drawn therefrom in favor of the non-moving party. See Scott Oil Co. v. Indiana Dep’t of State Revenue, 584 N.E.2d 1127, 1128-29 (Ind. Tax Ct.1992) (citation omitted).

ANALYSIS AND ORDER

Vodafone is required to pay a tax on that part of its adjusted gross income derived from sources within Indiana. See Ind.Code § 6-3-2-1 (2005) (amended 2011). During the years at issue, “adjusted gross income derived from sources within Indiana” meant:

(1) income from real or tangible personal property located in [Indiana];
(2) income from doing business in [Indiana];
(3) income from a trade or profession conducted in [Indiana];
(4) compensation for labor or services rendered within [Indiana]; and
(5) income from ... intangible personal property if the receipt from the intangible [was] attributable to Indiana under [Indiana Code § 6-3-2-2.2].

Ind.Code § 6-3-2-2(a)(l)-(5) (2005) (amended 2011).

In its Motion, Vodafone argues that the income it received as a result of its partnership interest in Célico is not adjusted gross income derived from sources within Indiana under Indiana Code § 6-3-2-2(a) and is therefore not taxable. In arriving at that conclusion, Vodafone explains that because a partner’s interest in a partnership is defined as intangible personal property, the income it received from Célico was adjusted gross income derived from sources within Indiana only if it was attributable to Indiana under Indiana Code § 6-3-2-2.2(g), “the most applicable” portion of Indiana Code § 6-3-2-2.2. (See, e.g., Pet’rs’ Am. Pet. Refund Adjusted Gross Income Tax (“Pet’rs’ Am. Pet.”) at 4-5 (citations omitted); Pet’rs’ Mot. Summ. J. (“Pet’rs Mot.”) at 2 (citations omitted); Pet’rs’ Reply Br. Supp. Mot. Summ. J (“Petrs’ Reply Br.”) at 6 (citations omitted).) Indiana Code § 6-3-2-2.2(g) provides that “[Receipts in the form of dividends from investments are attributable to this state if the taxpayer’s commercial domicile is in Indiana.” Ind.Code § 6-3-2-2.2(g) (2005). Given that it is not commercially domiciled in Indiana, Voda-fone argues that its income — dividends it received from investing in Célico — is not derived from sources within Indiana and therefore not taxable. (See, e.g., Pet’rs’ Am. Pet. at 4-5 (citations omitted); Pet’rs’ Mot. at 2 (citations omitted); Pet’rs’ Br. Supp. Mot. Summ. J. (“Pet’rs’ Br.”) at 8-12; Pet’rs’ Reply Br. at 6 (citations omitted).)

Income in the form of “dividends from investments” is sourced pursuant to Indiana Code § 6-3-2-2.2(g). The term “dividends from investments” is cloaked with meaning that is different than that of the general term “dividends” that is used in Indiana Code § 6-3-2-2, Indiana’s sourcing statute. See I.C. § 6-3-2-2(g), (j). See also USAir, Inc. v. Indiana Dep’t of State Revenue, 623 N.E.2d 466, 470 (Ind. Tax Ct.1993) (explaining that each and every word used in a statute must be read as having meaning). Indeed, the use of the term “dividends from investments” reflects the distinction between operational income and investment income, a key constitutional concept in the attribution of income among the states. See, e.g., Allied-Signal, Inc. v. Dir. of Taxation, 504 U.S. 768, 784-87, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992) (explaining that the relevant inquiry in sourcing intangible income is whether the intangible asset serves an operational function or an investment function) (footnote added). Thus, the critical question is whether the income Vodafone received as a partner of Célico had the character of operational income or investment income because if it was operational income, it was not income in the form of “dividends from investments” under Indiana Code § 6-3-2-2(g).

A general partnership is “an association of two (2) or more persons to carry on as co-owners a business for profit[.]” Ind. Code § 23^4-1-6(1) (2005). In its most elemental form, a general partnership is “[a] partnership in which all partners participate fully in running the business and share equally in profits and losses (though the partners’ monetary contributions may vary).” Black’s Law Dictionary 1230 (9th ed. 2009). See also Ind.Code § 23-4-1-24 (2005) (stating that the property rights of a partner in a general partnership are “(1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his right to participate in the management ”) (emphasis added). Thus, the mere fact that Vodafone was a partner in a general partnership gives its income from that partnership the character of operational income. As such, Vodafone’s income is not income in the form of “dividends from investments” under Indiana Code § 6-3-2-2.2(g).

Nevertheless, Vodafone argues that the substance of its participation in Cellco’s business, and not the business form by which Célico is organized, should control how its income is characterized. More specifically, Vodafone argues that despite the fact it was a partner in a general partnership, a “lack of control” placed it in essentially the same position as being a limited partner of, or a true “passive investor” in, Célico. (See Pet’rs’ Br. at 4; Pet’rs’ Reply Br. at 9, 19.) As support for this argument, Vodafone explains that

[pjursuant to Section 3.2 of the Célico Partnership Agreement ... the business and affairs of Célico were managed by its Board of Representatives. The Board consisted of nine members. Verizon Communications, as holder of the majority of the partnership interests, appointed five representatives while Vo-dafone was entitled to appoint four representatives[.] Corporate actions ... required only a majority vote of the Board.

(Pet’rs’ Br. at 4-5 (citations omitted) (footnote added).)

A limited partner is a partner in a partnership whose liability is limited to the extent of his original investment in the business enterprise. See Black’s at 1229. A limited partner is considered a passive investor because the “quid pro quo ” for his limited liability is his sacrifice of his right to participate in the management of the enterprise. See id at 1229 (defining a limited partner as “[a] partner who receives profits from the business but does not take part in managing the business and is [therefore] not liable for any amount greater than his or her original investment”), 1230 (defining limited partnership as “[a] partnership composed of one or more persons who control the business and are personally liable for the partnership’s debts (called general partners), and one or more persons who contribute capital and share profits but who cannot manage the business and are liable only for the amount of their contribution (called limited partners )”).,

While Vodafone has spent a great deal of time emphasizing the point that as the minority partner it does not “control” Cell-co’s Board of Representatives or a vote thereof, (see Pet’rs’ Br. at 4-5; Pet’rs’ Reply Br. at 9, 15-16, 19; Hr’g Tr. at 5-6, 14-16, 47; Pet’rs’ Des’g Evid., App. C at ¶¶ 8-9), that does not mean that it was a “passive investor” in Célico as a limited partner would be. Vodafone has already acknowledged that, in accordance with its rights as stated in the Célico Partnership Agreement, it participates in Cellco’s management by appointing members to the Board of Representatives. See infra. Vo-dafone has also acknowledged that pursuant to its rights as stated in the Célico Partnership Agreement, it participated in Cellco’s management by appointing Cell-co’s chief financial officer. (See Hr’g Tr. at 41.) Finally, Vodafone has acknowledged that it participates in Cellco’s management by holding certain veto rights by which it can block Célico from taking specifically identified and extraordinary actions, such as entering into entirely new lines of business, entering a voluntary bankruptcy, or otherwise terminating Cell-co’s existence. (Pet’rs’ Br. at 4-5 (citations omitted); Pet’rs’ Reply Br. at 18 (citation omitted); Hr’g Tr. at 15; Pet’rs’ Des’g Evid., App. C at ¶ 9 (footnote added).) Consequently, Vodafone’s “lack of control” by reason of its minority interest is insufficient to show that it does not participate in the management of Célico and thus that it was a mere “passive investor” in Célico.

CONCLUSION

The income Vodafone received as a partner of Célico had the character of operational income and was therefore not income in the form of “dividends from investments” under Indiana Code § 6-3-2-2.2(g). Accordingly, Vodafone’s motion for summary judgment is hereby DENIED. The Court will schedule a case management conference by separate order.

SO ORDERED.

      . More specifically, various entities owned by Vodafone owned a total of 45% of Célico. (See, e.g., Pet'rs' Des’g Evid., App. A, First Stip. Facts at ¶ 3.) Various entities owned by Verizon Communications owned the remaining 55% interest of Célico. For purposes of this case, however, both Vodafone and the Department have referred to the various entities collectively {i.e., as either Vodafone or Verizon Communications).

      . The distinction between operational income and investment income is important because it ensures that when a state taxes the income of a non-resident who has invested in a business that operates within its jurisdiction, it reaches only that income that is related to the business activity itself, not any income that was generated through an unrelated business activity constituting "a discrete business enterprise." See Allied-Signal, Inc. v. Dir. of Taxation, 504 U.S. 768, 780, 785, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992).

      . When income does not fit within Indiana Code § 6-3-2-2(a)(l)-(5)’s classifications, it is sourced to Indiana using the business/non-business income concepts that Indiana adopted from the Uniform Division of Income for Tax Purposes Act (UDITPA). See Ind.Code § 6-3-2-2(a) (2005) (amended 2011). See also May Dep’t Stores v. Indiana Dep't of State Revenue, 749 N.E.2d 651, 655-57 (Ind. Tax Ct.2001).

      .Because Vodafone and Célico are both organized under Delaware law, the Court has also examined Delaware’s applicable statutes. Delaware’s statutes with respect to general partnerships are comparable to Indiana’s. See 6 Del.Code § 15-101(6), (11), (15) (2005) (defining "partnership” as an association of two or more persons to carry on any business, purpose or activity; defining "partnership interest” as including a partner’s economic interest and his right to participate in management, and defining a partner’s "economic interest” as his share of the partnership’s profits and losses, and his right to receive distributions).

      . Stated differently, Vodafone asserts it lacked control because it held a minority of the partnership interests and appointed a minority of the board of representatives. (Pet'rs’ Reply Br. Supp. Mot. Summ. J. ("Pet’rs’ Reply Br.”) at 16.)

      . Both Indiana and Delaware have adopted, and are governed by, the Revised Uniform Limited Partnership Act ("RULPA”). Consequently, their statutes governing limited partnerships are very similar. Cf., e.g., Ind.Code § 23-16-1-7 through -9 (2005) with 6 Del. Code § 17-101(5), (8), (9) (2005) (defining limited partnership, general partners, and limited partners). Cf. also, e.g., Ind.Code § 23-16-5-3(a) (2005) with 6 Del.Code § 17-403 (2005) (explaining that with certain exceptions, general partners of a limited partnership possess the same rights, powers, and obligations as partners of a partnership without limited partners (i.e., a general partnership)).

      .In order to form a limited partnership, entities must comply with certain statutory filing requirements. Cf. e.g., Ind.Code § 23-16-1-6 (2005); Ind.Code § 23-16-2-2.5 (2005); Ind. Code § 23-16-3-2 (2005) with 6 Del.Code §§ 17-201, 17-204, 17-206 (2005) (all explaining the execution and filing of a certificate of limited partnership). "The purpose of the recording requirements is to notify third parties [i.e., creditors] which partners are entitled to the 'special status’ of a limited partner.” Kelsey v. Kelsey, 714 N.E.2d 187, 190-91 (Ind.Ct.App.1999) (citation omitted). There is no evidence before the Court indicating that Célico complied with the statutory filing requirements for forming a limited partnership.

      .Vodafone points out that pursuant to RUL-PA, a limited partner can exercise, among other things, certain veto powers similar to these without being seen as "participating in the control of the business” and jeopardizing its limited partnership status. (See Pet’rs’ Reply Br. at 18-19 (citing Ind.Code § 23-16-4-3 (2005); 6 Del.Code § 17-303(b) (2005)).) Thus, Vodafone concludes that "it’s clear that [the Célico] partnership agreement was drafted to intentionally put Vodafone in the position of a limited partner[.]” (Hr'g Tr. at 48.) (See also Pet’rs’ Reply Br. at 18-19.)
      As previously indicated, limited partnerships are creatures of statute that cannot exist based simply on the proclaimed intention of its partners. See supra n. 7. More importantly, however, the fact that Vodafone holds veto rights deemed not to indicate participation in the management of a business does not negate the fact that it participates in Cellco's management by, among other things, appointing members to Cellco’s Board of Representatives and significant officers.

      . The Court views the ruling in this case as consistent with its ruling in Riverboat Development Inc. v. Indiana Department of State Revenue, 881 N.E.2d 107 (Ind. Tax Ct.2008), as the holding in that case was also formulated by the nature of the business entity of the taxpayer. See Riverboat Dev., Inc. v. Indiana Dep’t of State Revenue, 881 N.E.2d 107, 108—09 (Ind. Tax Ct.2008) (discussing taxpayer’s minority interest in a limited liability company), review denied.

      . The Court recognizes that Vodafone has argued that this result violates both the Due Process and Commerce Clauses of the U.S. Constitution. (See Pet’rs’ Br. at 19-27.) Vo-dafone’s argument, however, is premised on its contention that was a passive investor in Célico. {See, e.g., Pet’rs’ Br. at 20-24 (claiming that as a passive investor, it did not have the "minimum contacts” required under the Due Process Clause to permit taxation), 25-27 (claiming that as a passive investor, it did not exploit the Indiana marketplace so as to create the "substantial nexus” necessary to permit taxation under the Commerce Clause).) Because the Court has rejected Vodafone’s contention that it was a "passive investor” in Célico, it need not address the constitutional issue.

      . Vodafone’s appeal presented an alternative issue that was not addressed in its summary judgment motion. Because the Court has denied Vodafone's motion for summary judgment, the parties agree that that alternative issue now proceeds to trial. {See Pet’rs’ Mot. Summ. J. at 2; Resp’t Resp. Br. at 7.)